NYC: legal victory in Critical Mass struggle

From the Village Voice’s Power Plays blog, Feb. 15:

Judge: City Can’t Stop Critical Mass Ride

by Sarah Ferguson

A judge today threw another monkey wrench in New York City’s effort to stop the Critical Mass bike rides.

In a 24-page ruling issued late Wednesday morning, New York Supreme Court Justice Michael D. Stallman rejected the city’s motion for a preliminary injunction to bar people from going on the monthly rides and gathering in Union Square without permits.

He also rejected the city’s effort to prevent groups like Times Up! from promoting Critical Mass, unless there’s a permit for the event.

Although Stallman didn’t dismiss the city’s lawsuit, he said the arguments the city has presented thus far were unlikely to prevail.

The city’s law department immediately announced it would appeal the decision.

“We intend to appeal this ruling, because we do not believe that public safety, the law, or common sense have been well served by the Court’s denial of our request for a preliminary injunction,” said city attorney Gabriel Taussig in a press statement.

But lawyers for the cyclists, who previously battled back the city’s efforts to obtain an injunction against the rides in federal court, were roundly pleased.

“Hopefully this ruling will bring a dose of reality to the city, that they can’t continue to demand a permit for the ride,” said civil libertarian Norman Siegel, who’s part of the legal team defending Critical Mass.

Last month, a lower court refused to convict cyclists on charges of parading without a permit, terming the whole permitting scheme unconstitutional. The city is now appealing that ruling, too.

In his decision Wednesday, Judge Stallman argued that the city’s laws governing parades and processions are both vaguely defined and perhaps incompatible with an open and ad hoc event like Critical Mass, which has no leaders and no set route or destination.

“New Yorkers commuting over the Brooklyn Bridge during the transit strike could be considered `bicycling en masse’ and affecting vehicular traffic,” he noted.

At the same time, Judge Stallman took a dig at cyclists’ claims that Critical Mass rides should be treated as “ordinary traffic,” calling that argument “at best curious and at worst, disingenuous.”

Yet an injunction, he noted, wouldn’t necessarily stop the rides and could instead flood the court with people facing contempt of court — a misdemeanor charge punishable by up to a year in jail. (By contrast, the “parading without a permit” charge is a low-level violation punishable by 10 days max. )

Rather than criminalize the ride, Stallman urged both sides to just find a way to work it out. “Mutual de-escalation of rhetoric and conduct, and a conciliatory attitude, may help the parties and the Critical Mass riders resolve the litigation and arrive at a workable modus vivendi,” he wrote.

The big question, of course, is how the NYPD will interpret this decision when it comes to policing the next big Critical Mass, on Friday, February 24. Stallman’s ruling doesn’t do anything to stop the cops from making arrests, though lawyers for the cyclists said it would be “bad faith” for the city to continue charging people for “parading without a permit.”

“They can do whatever they want. Whether it’s legal or even reasonable is even more up for grabs,” said defense attorney Gideon Oliver, who is now demanding that the District Attorney’s office drop all permit charges pending against cyclists.

NYPD Deputy Commissioner Paul J. Browne weighed in with this statement:

“Nothing in the decision prevents the police from arresting individuals who block intersections or otherwise break the law. Also, the Police Department offered long ago to work with the organizers to ensure a safe ride in which police would stop vehicular traffic at intersections so bicyclists could proceed without stopping along the route, while, conversely, holding bicyclists at intersections to allow ambulances and other emergencies vehicles to proceed or to alleviate bottlenecks. It was rejected but the offer stands.”

Previous Critical Mass reports from Sarah Ferguson:

Chaos at the January Critical Mass

On the lower court ruling in January

On the trials of the Critical Mass defendants

See our last post on the Critical Mass struggle.

  1. From the New York Times
    City Rebuffed in Trying to Bar Mass Bike Rides

    Published: February 16, 2006

    For 18 months, the city has spared few efforts — on the street or in courts — to clamp down on a group bicycle ride in Manhattan called Critical Mass that the authorities say causes havoc by blocking traffic.

    Yesterday, a state judge rejected the city’s latest attempt and took the extra step of asking both sides in the dispute to calm down.

    Calling the city’s legal strategy against the ride “highly irregular” and “as unnecessary as it is inappropriate,” Justice Michael D. Stallman of State Supreme Court in Manhattan refused to bar an environmental group and four people from taking part in it, from gathering at Union Square Park beforehand, or from announcing the rides on the group’s Web site, as the city had requested.

    The city had also asked the judge to issue an unusual civil declaration, without a trial, that the environmental group, Time’s Up, and the four individuals had “criminal culpability” for violating laws and regulations that carried penalties of fines and imprisonment. The judge also rejected that request.

    Justice Stallman concluded his 24-page decision by urging city officials and the ride participants to work out their differences.

    “The social compact and the realities of living in a crowded place demand patience, mutual respect and self-restraint,” Justice Stallman wrote. “Mutual de-escalation of rhetoric and conduct, and a conciliatory attitude, may help the parties and the Critical Mass riders resolve the litigation and arrive at a workable modus vivendi.”

    The rides take place on the last Friday of the month in about 400 cities, and have no acknowledged leadership or routes. For nearly a decade, the rides in New York attracted little notice and no arrests until the evening of Aug. 27, 2004, a few days before the Republican National Convention opened.

    That night, 5,000 riders, many of them in the city to demonstrate at the convention, were met by a large number of police officers. The police arrested 264 riders on charges of parading without a permit and other violations.

    Since then, officers in various disguises have infiltrated the monthly rides. Other officers in police cars have chased bicycle riders at high speed. Police helicopters have followed the riders. Two officers on motorcycles collided at last month’s ride.

    The judge’s suggestion of a cease-fire drew mixed reactions. Norman Siegel, who represented Time’s Up and the four people singled out by the city, said it was a chance to end an elephantine conflict.

    “We need to get back to a time pre-August 2004 when Critical Mass was able to ride their bikes in a cooperative ride with the N.Y.P.D.,” Mr. Siegel said. “This is the second time the city has attempted to stop the Critical Mass rides, once in federal court and now in state court, and both times their arguments were rejected. I would hope that the mayor and the police commissioner assume the needed leadership on this controversy and begin serious and substantial discussions to amicably resolve it.”

    The City Law Department declined to discuss the judge’s decision and said it planned to appeal.

    The Police Department’s chief spokesman, Paul J. Browne, said the department had always been willing to work out an arrangement with the bicycle riders.

    “The Police Department offered long ago to work with the organizers to ensure a safe ride in which police would stop vehicular traffic at intersections so bicyclists could proceed without stopping along the route, while, conversely, holding bicyclists at intersections to allow ambulances and other emergency vehicles to proceed or to alleviate bottlenecks,” Mr. Browne said. “It was rejected, but the offer stands.”

    Justice Stallman said that since the rides had no identifiable leadership, it made little sense for the city to single out Time’s Up and four people associated with the group, William DePaola, Brandon Neubauer, Leah Rorvig and Matthew Roth.

    The city had demanded that they be barred from assembling in Union Square Park, the customary gathering point before each month’s ride, unless someone obtained a permit. The judge said that made little sense because anyone could turn up in the park and no permit was required for “casual use.”

    As a practical matter, Justice Stallman wrote, the city did not explain how it could tell the difference between people who were gathering for the Critical Mass rides from anyone else who happened to be in the park. The city’s assumption that anyone with a bicycle could be barred “is simply guilt by association,” he wrote.

    The city also argued that it was illegal for Time’s Up to advertise an event for which a permit had been denied, but Justice Stallman noted that the city had never denied a permit since no one had ever sought one.

    The judge said the city had wrongly argued that the Critical Mass rides were a form of parade or procession that required a permit because the riders “travel en masse.” Following the city’s reasoning, the judge wrote, “New Yorkers commuting over the Brooklyn Bridge on bicycles during a transit strike could be considered as ‘bicycling en masse.’ ” Such a restriction, he said, raised constitutional concerns.

    Riding a bicycle on city streets is lawful conduct, as long as one observes the applicable traffic laws and rules,” he wrote.

  2. More from the New York Times
    Kudos to Jim Dwyer, who is being downright aggressive on this. Check out the link for the indicting photos.

    Aggressiveness of Bike Chases Stirs Questions for the Police


    The patrol guidelines for the Police Department strongly urge officers to be careful when chasing suspects with cars, and national studies show that accidents involving police vehicles result in one death nearly every day.

    Yet since August 2004, the New York police have regularly conducted aggressive pursuits in the heart of the most crowded city in the country.

    Police vehicles have driven the wrong way down busy Midtown streets and have cut at sharp, brake-screeching angles across Greenwich Village avenues, videotapes show. They have climbed onto sidewalks to skirt traffic jams near Grand Central Terminal, according to witnesses. Officers have been filmed driving a large sport utility vehicle along the Hudson River bicycle and jogging path.

    On all these occasions, police officers in vehicles have been chasing bicycle riders who throng the streets on the last Friday of every month in a group ride known as Critical Mass. The dispute over the terms of the ride has swelled into bitter court fights and what have been, by New York standards, street chases of startling character.

    The police and the city say public safety is at stake because the bicycles block traffic and the riders will not agree to a route. Many riders say the stakes are free movement on public streets for people who should not have to get police permission simply because they are not in cars.

    Earlier this month, a state judge rejected the city’s request to shut down the event and counseled “mutual de-escalation of rhetoric and conduct.”

    At last month’s ride, two police officers on lightweight motorcycles were injured as they maneuvered into position to cut off the bicycle riders on Third Avenue.

    “One of the motorcycles made an abrupt 90-degree turn, and the one behind just T-boned him — hit him perpendicularly,” said Luke Son, a bicycle rider who said he saw the crash happening from a few feet away. “A really violent collision. The officer in front went flying.”

    Mr. Son, 23, a student at Columbia University and an emergency medical technician, began treatment of one of the officers.

    Paul J. Browne
    , the Police Department’s chief spokesman, said that the officers were not seriously hurt and that the accident was provoked by bicycle riders who were breaking the law. It “would not have occurred if Critical Mass participants observed the law,” Mr. Browne said.

    A number of riders said the crash touched off an especially forceful effort by the police to round up cyclists. Later that night, witnesses say, police officers in two black sport utility vehicles chased 12 to 20 riders near Grand Central Terminal. One of them, Mark W. Read, said that the police drove against traffic on a one-way street, most likely Vanderbilt Avenue, and that as bicycles moved west along 45th Street, one S.U.V. followed them.

    “The S.U.V. went up onto the sidewalk and drove on the sidewalk for 15 or 20 feet, then dropped back onto the street,” said Mr. Read, 38, a filmmaker and adjunct instructor at New York University, whose account was first reported in The Village Voice. “It was unbelievable — a high-speed chase, something you think would be reserved for serious criminals, for people fleeing a murder scene or bank robbery.” Mr. Read was later arrested on 43rd Street and Broadway and charged with parading without a permit.

    Mr. Browne declined to comment on any specific chase, saying in general that the descriptions “are the exaggerated, self-serving statements of individuals engaged in breaking the law or opposed to police enforcement of it.” Asked about videotapes that show the chases, he said that he stood by his comments.

    The department’s guidelines say that before starting a pursuit, officers should consider the nature of the offense and how crowded the area is. The guidelines also include an instruction, highlighted in bold type, that says, “Department policy requires that a vehicle pursuit be terminated whenever the risks to uniformed members of the service and the public outweigh the danger to the community if suspect is not immediately apprehended.”

    One police spokesman said that applies to the pursuit of motor vehicles, not to bicycles; Mr. Browne would not comment on that interpretation. The bicycle riders generally are charged with offenses like parading without a permit that are violations of the city’s administrative code, which are not included in the state’s penal code of felonies and misdemeanors.

    At a Critical Mass ride on Sept. 30, bikers rode up Second Avenue, and turned east onto 14th Street, followed by two police S.U.V.’s. On a videotape, some of the bikers can be seen riding east in the westbound lanes, against oncoming traffic; the two police S.U.V.’s also can be seen driving in that lane, for part of 14th Street between Second and First Avenues.

    John Hamilton, an in-line skater who videotaped the chase, said the sight of the S.U.V.’s driving the wrong way down 14th Street was vivid. “It was a very dangerous situation, and I certainly felt it,” Mr. Hamilton said.

    Mr. Hamilton also filmed a chase on March 25, 2005, in which a police S.U.V. drove across a pedestrian island on West Street and followed the cyclists onto the Hudson River bicycle path for about a mile. “The S.U.V. ultimately had to stop because there were metal posts or cones on the path,” he said.

    Shortly after the motorcycle collision, on Jan. 27, Rebecca Heinegg, 23, arrived and recognized one of the injured officers. “He was my arresting officer last February, and was as nice as someone arresting you can be,” said Ms. Heinegg, a law student. “This incident is really sad, an entirely predictable result of the unsafe maneuvers.”

    Mr. Browne said the Police Department had tried to make the ride safe. “If they provide their route in advance and want our assistance in expediting the ride each month, the Police Department will be happy to assist,” he said.