Enrico Miguel Thomas, 42, an artist who has been drawing subway stations for years, arrived at Grand Central Terminal one night in February, plopped down his bags and began drawing.
“I momentarily stepped away, maybe eight feet,” from his two bags – a large, flat artist’s portfolio and a backpack full of his Sharpie markers – in the terminal’s main concourse near the big clock to get a better vantage point, and began sketching.
Mr. Thomas – who has become fairly well known for using subway maps as his canvases — turned around a few minutes later to see several Metropolitan Transportation Authority police officers and a bomb dog gathering around his backpack. Finding only art supplies in the backpack, the police issued a summons for disorderly conduct to Mr. Thomas, who claims he stepped away from the bag for perhaps five minutes, at most.
The summonsing officer said that Mr. Thomas was away from the bag for at least 10 minutes, and that, upon returning, he told the officer “he had just left the bag,” said Aaron Donovan, an M.T.A. spokesman, adding that officers, while walking over to the bag, were approached by several commuters also pointing out that it was unattended.
Mr. Thomas called this unlikely since there were few, if any, people nearby. He was working on a drawing to be included in a coming exhibition on Grand Central at John Jay College.
Mr. Thomas went to Midtown Community Court on May 1, accompanied by Thomas E. Wojtaszek, a Brooklyn lawyer he hired after striking up a conversation with him – where else? — on the subway.
Mr. Wojtaszek asked the judge, Felicia Mennin, to dismiss the summons because leaving an unattended bag did not seem to fall under the New York State penal code’s description of disorderly conduct.
He disputed the description by the officer on the summons – that Mr. Thomas showed “intent to cause a hazardous condition by leaving a bag unattended, causing a crowd to disperse and cause alarm” – saying Mr. Thomas certainly did not intend this, nor did his action cause dispersion or alarm.
And the state’s penal code does not make leaving baggage unattended a crime.
“The bag was still within his custody — what artist would leave the tools of his trade behind?” Mr. Wojtaszek said in an interview last week. “But this judge was not susceptible to reason.”
“She said, ‘I think in the light of the facts of the last two weeks,’ and I cut her off because it was apparent that she meant the bombing of the Boston Marathon,” he recalled. “I said, ‘This happened back in February,’ and she said, ‘But it happened after 9/11.’”
“The judge did not cite any precedent or case law,” Mr. Wojtaszek said.
The judge upheld the summons. She offered him the opportunity to perform a day of community service and the charge would be dismissed within six months if he avoided other legal problems. Mr. Thomas refused the deal.
“In my mind, this was punishment supporting a lie — I didn’t do anything wrong, so why should I accept a punishment,” said Mr. Thomas, who will be tried for the charge on June 20 and face a penalty of up to $250 or 15 days in jail, his lawyer said.
David Bookstaver, a spokesman for the state Office of Court Administration said that the judge’s comment “was only about whether the summons was sufficient to go forward, not about his guilt or innocence, which will be decided by the facts of the case at trial.”
Mr. Thomas, who lives in Red Hook, Brooklyn, has produced thousands of renderings of interiors and exteriors of subway and train stations and the cityscape. He charges several hundred dollars for the drawings, which have been featured in numerous exhibitions and garnered him plenty of media attention. Last year, he gave a workshop at the New York Transit Museum in Brooklyn on his methods of drawing the subway. He is featured in a television commercial for Sharpie markers, which shows him drawing, against a gritty urban backdrop of trains.
He noted wryly that the footage was shot in Chicago because the M.T.A. asked for too high a fee for shooting on its property.
Regarding the disorderly conduct violation, Eugene O’Donnell, a professor at the John Jay College of Criminal Justice and a former New York police officer and prosecutor in Brooklyn and Queens, said the disorderly conduct violation covered a broad swath of conditions, which makes it a handy tool for officers to cite people who are not technically breaking other specific laws.
“It’s the most abused statute in America,” he said. “Just about anything can fall under it, so it’s a sweeping tool that officers can use for just about anything. On any given day you could walk through Grand Central Terminal and start handing out dis-con summonses left and right.”
Regarding the judge’s upholding of the summons, Donna Lieberman, executive director of the New York Civil Liberties Union, said that incorporating the Boston Marathon or Sept. 11 attacks into a legal decision was “drawing the wrong lesson” from terrorist attacks.
“It’s shocking to think that someone would be vulnerable to criminal prosecution based on a prior horrific event, and not on their alleged actions,” she said.
But for police officers, the decision to issue a disorderly conduct summons in these kinds of cases is based on the consequences that bomb scares can cause, said Michael O’Neil, former commanding officer of the New York Police Department’s counterterrorism division, and now president of MSA Security.
“Cops have some latitude in giving the summons,” he said, especially when the leaving of unattended luggage “creates public disorder.”
Mr. Thomas said he began doing art seriously at age 8 to escape abuse by his biological father who once scalded him with boiling water. As a teenager, he ran away from home, lived in a shelter and earned a scholarship to the Pratt Institute.
“Art saved my life,” he said, adding that he will fight the summons because, “I’m all about justice — I’m not going to continue to be hurt over and over again.”
This post has been revised to reflect the following correction:
Correction: May 13, 2013
An earlier version of this article misstated part of the name of a city agency. It is the Metropolitan Transportation Authority, not the Metropolitan Transit Authority.