Police and bikers take stand in Critical Mass case
December 15th, 2004
By Lincoln Anderson
Top police brass and determined bicyclists testified last Wednesday in the ongoing federal trial on whether the monthly Critical Mass bike rides in Manhattan need a permit.
The witnesses were questioned and cross-examined by city attorneys and by the pro-bono attorneys for Critical Mass, Norman Siegel, former head of the New York Civil Liberties Union, and Steven Hyman.
Chief Bruce Smolka, commanding officer of Manhattan South, said because the monthly rides have no set route they require a detail of several hundred police officers, who could be solving homicides, doing other things. If the riders would agree to a route and stick to it, he said, the number of police needed would be less.
“The fact that they start in the park is one thing,” Smolka said, referring to the riders’ usual departure point of Union Sq. “They have to work with us to select a route.”
Asked what number of bike riders requires a parade or procession permit, Smolka said, “I don’t know that there’s a minimum number,” adding that it was a judgment call made by the head officer overseeing the policing of the ride.
Judge William Pauley III asked the chief why police are asking for an injunction against the ride unless it gets a permit, since police have been making arrests at the rides without an injunction in place.
“I believe it would be a deterrent it would keep people away,” Smolka said.
Lieutenant Daniel Albano of the Police Department’s legal bureau said before the September Critical Mass ride, Smolka asked him to try to meet with Time’s Up!, the nonprofit environmental group that publicizes the rides, to try to find someone to apply for a permit so that we could make this a fun event, rather than a confrontation. Yet Albano was unable to persuade anyone to be the permit applicant.
Asked if that confirmed to him the statement by its participants that Critical Mass has no leaders, Albano said, “It’s confirmed to the extent that they say it I don’t know if I believe it.”
Taking the stand as the city’s third witness was Elizabeth W. Smith, the Parks Department’s chief of marketing and corporate sponsorship. Smith explained that Parks is asking Critical Mass to apply for a permit to gather at Union Sq. before their rides. The permit needed for gatherings of 20 or more people would cost $20. She said Critical Mass is an appropriate event to be issued a permit for the space, though adding if there was another permitted event at the same time, the bike event would get bumped. She claimed some Greenmarket farmers recently complained the bikers’ gathering had hindered their loading up their trucks after they were finished vending.
During a court recess, Siegel charged the Parks permit is just another example of the city targeting Critical Mass. He said it particularly bothered him on civil rights grounds because it was the equivalent of forcing people to get a permit for just standing around.
“There’s no rally, there’s no speakers,” Siegel said. “The city is saying they can’t stand on a public street? Hell no!”
The city has conceded that the state traffic law requiring bicyclists to ride no more than two abreast on streets does not apply in the city. According to Siegel, the city previously opted out of this provision of the traffic law. A rule that does apparently apply is that bikers are supposed to try to ride as close to either curb as possible. Chief Smolka said that the Critical Mass riders, in addition to biking in a procession without a permit, also face charges of disorderly conduct for taking over the roadway or sidewalk to the exclusion of other people.
However, testifying for Critical Mass, Steven Faust, a founder of the 5-Boro Bike Tour, said the bottom line is that bikers need to ride in whatever manner is safest for them. The city’s bike lanes are woefully inadequate he said, in that they are too narrow, except for possibly Lafayette St., which is not as bad, he said.
“Given New York City conditions, one has to ride where it’s safe,” Faust said. “There are some situations where it’s very appropriate for a cyclist to be out in the middle of the street.”
Also testifying for the bicyclists were Wylie Stecklow, who, like Faust, rode in Critical Mass for the first time in October, and Matthew Roth, a Time’s Up! spokesperson, who has been in 35 Critical Mass rides.
Pauley is expected to rule on the injunction/permit issue sometime before this month’s Critical Mass ride on Fri., Dec. 31, and could rule as soon as the end of this week.
Afterwards, Roth said it was clear that Pauley was concerned about what granting the injunction will mean, in that bikers arrested for defying the injunction would be hauled into state court on a misdemeanor charge, though they would now face up to a year in jail.
Since the unusually large August Critical Mass ride before the Republican National Convention when over 5,000 participated and about 250 were arrested, police have continued their crackdown on the event. Smolka contended that the numbers of participants in the Critical Mass rides have been growing. Yet, since last year, rides have regularly averaged around 1,000 bikers, according to Critical Mass.
“It’s a decision they’ve made because they’re cops,” said Roth. “They’re not going to back down. They”re not like that. People should sit down and make better bicycle policy.”
Critical Mass riders say the most effective way for them to move through the city is to run red lights, that the ride actually goes faster and blocks less traffic that way. They also counter the city’s claims that they could potentially block ambulances; they say bikes can nimbly disperse and clear a path rapidly, as opposed to gridlocked automobiles.
But make no mistake, Critical Mass is trying to convey a message that bikers deserve their share of the road. By biking in numbers, there is a feeling of safety from the danger of cars.
“The whole point is it displaces automobile traffic for a brief moment when we roll through,” Roth said. “It’s to make it a visual statement that bikes need to be on the road.”
Critical Mass occurs in hundreds of cities worldwide.
To hear it from one Portland, Ore., self-described bicycle-powered gardener who attended last week’s court proceeding at 500 Pearl St., a clear-cut resolution to the case may not be reached anytime soon. Sara Stout was in town for Thanksgiving and joined the November Critical Mass ride, which police essentially stopped from occurring.
“I expected a big police presence,” she said, “but it was shocking to see that they wouldn’t let you ride when riding in a procession hasn’t been established as illegal.”
Stout decided to hang around for the court case to see how things work out.
The Portland Critical Mass ride continues to face police harassment, she said.
About 10 years ago, Portland tried to force the riders to get a permit for use of a park after their rides, but Critical Mass won in court and the issue remains unresolved. Stout said the Berkeley Critical Mass ride is suing Berkeley over civil rights issues.
Stout said it’s her experience that when police get confrontational with Critical Mass, the more conciliatory riders are scared off, leaving a core of riders who are more confrontational with the police.
Copyright 2004, The Villager