From Newsday, Jan. 11:
A criminal court judge in Manhattan has held that the city’s main weapon in its campaign against the Critical Mass bicycle ride is unconstitutional.
Deciding the case of eight cyclists arrested in January 2005, Judge Gerald Harris wrote in a 17-page ruling that the city’s parading without a permit statute is “overly broad” and “unconstitutional on its face.”
The Police Department has been relying on the statute to make arrests in an effort over the past 18 months to rein in Critical Mass, a loosely organized bicycle ride which starts at Union Square and meanders through midtown streets one Friday evening each month.
More than 2,100 people have been arrested under the parading charge in the period, the majority during the 2004 Republican Convention.
Police officials claim the rides disrupt traffic and threaten public safety. The departmment has sought to force the cyclists to get permits.
But ride advocates argue that the cyclists are merely part of traffic. They also claim the rides are spontaneous, thus no organization exists to apply for a permit. They say the purpose is to bring attention to alternative forms of transportation.
Gideon Oliver, a lawyer representing the cyclists, acknowledged that the Monday ruling is not binding on the city because it came in criminal court.
But Oliver said that, “What sets it apart is the fact that it came after a substantial trial. What remains to be seen is what the city will make of it.”
The arrests in question took place on Jan. 28, 2005 at Fifth Avenue and 13th Street. The cyclists were charged with parading without a permit, failure to disperse and disorderly conduct.
The cyclists opted to take the case to trial to protest the crackdown. “My honest feeling about this is that it’s [the decision] a victory for us,” said Tyler Hartz, 27, a defendant who now lives in Jackson Hole, Wyo. “We won just by going to trial because while we were all prepared to take a guilty verdict to make the point.”
Hartz, a hotel bellhop who spent $500 on air fare to return for the trial, said he hopes the city will relax the Critical Mass crackdown.
Harris did find the cyclists guilty of disorderly conduct, and set sentencing for next month.
A trial of another 30 cyclists arrested last year will begin later this month.
A police spokesman did not reply to an e-mail message seeking comment.
This development comes on the heels of revelations of widespread police surveillance at the Critical Mass rides. Jefferson Siegel writes for The Villager, Jan. 4-10:
On the lookout even more than usual for police infiltrators, hundreds of bicyclists gathered last Friday for the last Critical Mass ride of the year. Within minutes of the start of the ride, 12 riders were arrested just blocks from Union Square.
The unusually large turnout for a cold December night followed recent reports of the presence of undercover police on the rides. Earlier this year, The Villager first reported that undercover and plainclothes officers were joining the rides and that the bicyclists were becoming concerned.
The recent New York Times article on undercover infiltrators participating in the rides and being assisted by police was based on videos accumulated by Eileen Clancy and her I-Witness Video collective. The Times article suggested police may have done more than just ride along, possibly even fomenting incidents.
“I don’t think the Police Department has fully grappled with the problems and the implications,” Clancy said last Friday while holding her ever-present minicam. “We were able to track a number of individuals who were arrested and then miraculously unarrested. It lends you to think these are police officers.”
As a police helicopter flew unusually low over Union Square, its searchlight repeatedly sweeping the plaza, the ride left at 7:30 p.m. and headed uptown on Park Ave. S., closely followed by police on motorscooters, several unmarked S.U.V.’s, numerous police cars and a paddy wagon.
Several blocks north, riders saw a police presence on 23rd St. and chose to avoid it by turning right on 22nd St. Moments later, bicyclists poured back out onto Park Ave. S. after they saw the other end of 22nd St. blocked. Some cyclists trying to escape were grabbed by plainclothes officers who emerged from unmarked S.U.V.’s. One young woman broke into tears as she and several other cyclists were lined up against a building wall.
Halfway down the block, Lexington Ave. filled with police vehicles.
“Out of nowhere this caravan of about 16 police officers on motorcycles drove by and stopped very suddenly in front of us,” David Hammond, of the East Village, recalled after his arrest. “I heard one guy say, ‘Just grab some bodies.’ ” Hammond has been on previous Critical Mass rides. “I’m very disapponted. I feel like riding a bicycle is not a crime,” he added.
Obert Wood, also of the East Village and an information technology specialist, has participated in Critical Mass for several years. “I realized that we were cornered by scooter police,” he said. Trying to walk away, he was apprehended by a plainclothes officer. Like most, he was charged with parading without a permit. “It’s on the order of failing to use a turn signal,” Wood said.
Eight men and four women were taken to the First Police Precinct in Tribeca. All were released by around midnight except for one out-of-state rider without proper identification. He was removed to Central Booking and released late Saturday on an adjournment in contemplation of dismissal, or an A.C.D.
As riders emerged from the precinct one by one into the cold night, they were met by Caroline Samponaro and other volunteers from Freewheels, the bicycle defense fund. The arrestees were offered coffee, legal advice and loaner bikes for the ride home.
Attorney Gideon Oliver, who represents many of the bicyclists arrested over the past 16 months, spoke to the ongoing pattern of arrests. “It’s unconscionable, particularly because the allegedly unlawful activity here is parading without a permit,” he said. “They accuse individuals who are arrested of riding their bicycles on the same roadway as other people riding their bicycles.”
Oliver also expressed concern over reports of undercovers blending in with other riders. “Employing these officers in policing the rides creates serious questions about the validity of the prosecutions that result. It’s very frightening,” he said. Oliver noted there were almost 300 arrests since the Republican Convention in August 2004, not counting the several hundred cyclists arrested during that event. To date, he said, there have been no convictions and most of the cases have been dismissed, with about 50 cases remaining open.
The larger issue of police surveillance surfaced with the recent revelations of undercover activity. It stems from the Handschu case, brought in 1971 by activists seeking to prevent noncriminal police investigations of First Amendment activities.
A settlement that took effect in 1985 set rules for police investigations of activists and limited police activity to situations where there was “specific information” that crime was involved.
After 9/11, police sought greater flexibility in order to preempt terrorist activity. Within a week after being given that flexibility by Federal District Judge Charles Haight, police began investigating antiwar demonstrators. Most notably, after a massive antiwar rally in Midtown on Feb. 15, 2003, police used debriefing forms to ask arrestees questions about their beliefs and associations rather than about any alleged criminal activity. Since the 2004 R.N.C. a pattern of photo and video surveillance of legal antiwar marches has emerged.
Lawyers for the Handschu plaintiffs have said that terrorism was used as a pretext to resurrect the “Red Squad,” which was the nickname activists used for the Police Department’s political surveillance unit.
The Villager has obtained a copy of a notice to cure sent last month by Handschu lawyers to Police Commissioner Ray Kelly, requesting the use of undercover officers at lawful gatherings be stopped. The notice is the first procedural step in obtaining a court ruling that the police are violating current rules against spying at lawful gatherings.