2005-03-30 Lawsuits and Nets – Villager

With lawsuit and nets, city keeps chasing Critical Mass


The Villager

March 30th, 2005

By Jefferson Siegel

In the city’s latest legal maneuver against the monthly Critical
Mass bike ride in Manhattan, just days before last Friday’s ride, the
city issued a controversial summons to four members of Time’s Up!, an
environmental action group on E. Houston St. that supports, but claims
it does not organize, the Critical Mass ride.

In the few days it has been circulating, the 13-page paper has
raised concerns about more than just the legality of a bike ride.
Buried in the legalese of park and parade permits is an item that has
drawn a chorus of criticism from constitutional lawyers and activists.
Under the “Third Cause of Action,” Item 40 claims, in part, “… it
is unlawful to advertise the time and location of a meeting or group
activity in a City park.” Concluding in the “Wherefore’s,” the city
seeks to permanently stop “the defendants, and all those acting in
concert with them, from advertising that Critical Mass bicycle ride
participants gather in Union Square Park (or any other City Park).”

The four Time’s Up! members named in the suit are Bill DiPaola,
Matthew Roth, Leah Rorvig and Brandon Neubauer.

DiPaola, who founded Time’s Up! 18 years ago, voiced concern on
the day of the ride. “It is really shocking, where you have a bunch
of people that have been working for free, over 100 people for 18
years promoting this city, that the city, instead of rewarding us,
working with us on issues, has come out and filed a suit against us.”
Standing in the group’s headquarters on E. Houston St., he continued,
“If they deem something we do is illegal — we can’t talk about it,
we can’t advertise it, or we can’t participate in it — that is
just unbelievable and it shows the state of what I like to call
corporatization of our public parks and our public spaces.”

Robin Binder, deputy chief of the Administrative Law Division of
the city’s Law Department and an attorney involved in the lawsuit,
said, “We believe that the claim that Time’s Up! is not a sponsor
of the local Critical Mass bike rides is belied by its own actions,
including the information contained on their own Web site. It will
be up to the court to resolve this factual dispute.”

There was palpable tension in the air last Friday evening. As
Greenmarket vendors packed up their fruits and vegetables, a handful
of bike riders arrived in Union Sq.’s north plaza, which had been
completely surrounded by metal barricades. Word of the city’s lawsuit
had traveled fast on bike blogs and Web sites. On this night, riders
were slow in arriving, uneasy about a potential crackdown. As they
slowly filled the darkening plaza, Norman Siegel, a candidate for
public advocate and the attorney representing Critical Mass riders,
expressed his concerns at the language in the new summons.

“No court has said that it’s unlawful to stand in Union Sq. Park
without a permit,” Siegel said. “If the city of New York succeeds
here, it would have huge implications for social protest movements,
not only in New York, but throughout America. For example, the idea
that S.C.L.C. [the Southern Christian Leadership Conference],
Dr. King, could not publicize and tell people to gather, to sit in at
a lunch counter, that would have been unlawful at that time. People
were challenging the idea of segregation. So the idea that you could
not publicize the gathering to challenge unlawful laws is alien to
what American history is all about and we will vigorously oppose that
in the state court.”

As night fell, over 100 cyclists mingled in the plaza, talking but
wary of the growing police presence just outside the barricades. A
police loudspeaker broadcast a warning that riding in a procession
without a permit would result in arrests. In a counterpoint, from the
other end of the plaza, another booming voice caught the crowd’s
attention. Striding into the crowd, clad in his familiar white suit
and collar was Reverend Billy. The Reverend, real name Bill Talen,
a longtime activist and proselytizer against consumerism, gave the
nervous riders a pep talk.

“What’s more peaceable than a bicycle? Hallelujah!” he yelled into
a white paper megaphone. Lowering his voice a notch, but still serious
in tone, he explained his presence. “The feeling that we cannot
peaceably assemble flies directly in the face of a famous First
Amendment phrase that has been defended for 250 years by everybody
from Thomas Jefferson to Louis Brandeis to Martin Luther King. What
they’re doing is they’re saying, `We will be the legislators — we the
cops, we the police, we the city — we will be the legislators until
the courts can catch up to our administrative mandate, and that might
take days or weeks or months, but in that period of time, we will
control you, we’ll impound your bicycles, and we will fly in the face
of the Bill of Rights.’”

As if by some unheard signal, the riders pointed their bikes west
and started pedaling out of the plaza. They did not get far. As soon
as the first bikes entered 17th St., police blocked off the street
with orange netting and stopped vehicular traffic heading down
Broadway. Riders forced south were blocked by more netting across
16th St. A lucky few were diverted back into the park.

Stephen Rowley, an N.Y.U. student, was one of the first to be
arrested. “I start biking around, trying to go and they netted a bunch
of the exits. Basically, I was trying to leave the premises without
participating in the so-called `procession’ and got arrested in the
process of asking an officer how to leave. I was walking my bike.”

One block west, two members of Copwatch, a group that videotapes
police actions at public events, pointed a camera at police spreading
orange nets across Fifth Ave., creating a “tunnel” on 17th St.

Zachariah Artstein held the camera as he talked. “They [police]
threw up nets on both sides of Fifth Ave. It looks like they set up a
mass-arrest situation on 17th St. between Fifth and Sixth. Once they
set up the nets they arrested five riders.”

Riders entering 17th St. saw a massive police presence ahead of
them. Many dismounted; some locked their bikes to scaffolding poles,
others walked their bikes onto the sidewalk. Hoping to avoid arrest
by detouring into a through-block parking lot, they found the lot was
netted and closed. Police kept moving everyone west towards a group
of arresting officers.

William Laviano normally rides his bike to work in Chelsea. He
believes police “created a mousetrap, sealed off every possible
exit, trapped [riders] preemptively.” He was walking his bike on the
sidewalk, he said, “when I realized I was in a cage already. I placed
my bike against a wall, I didn’t chain my bike and waited for my turn
to be handcuffed.”

As a line of riders stood handcuffed in the middle of the street, a
power saw roared into life. Blasts of orange sparks shot out as police
cut the locks of bikes secured to scaffolding poles. As a sergeant
supervised the cutting of one lock, a man approached on foot and was
given two options: either unlock the bike, receive an $80 ticket and
walk away, or have the expensive lock cut, the bike seized and pay the
fine when he came to claim it. He took the ticket and unlocked his

Deputy Commissioner Paul J. Browne, the New York Police
Department’s top spokesperson, explained the department’s rationale:
“If you had a group of motorists who, every Friday, decided as a group
they were going to ride as a group and violate traffic laws, I can
assure you they would be arrested and their cars would be seized.”

Gideon Oliver, a civil rights attorney and legal observer for the
National Lawyers Guild, spoke to the issue of lock-cutting over the
roar of the power saw. “The seizures of these bicycles are extremely
constitutionally suspect,” Oliver said. “It seems that the position
they [the police] are taking is because they’re giving people
summonses that, after they take the bikes, that constitutes good
notice under the due process clause of the Constitution.” Tickets
bore the name of the Environmental Control Board.

The N.Y.P.D.’s Browne commented, “We can seize bikes that are
illegally padlocked. I don’t think it’s a constitutional issue at

An unlucky tourist, Fran Corcoran from Philadelphia, was not in the
ride but received a ticket. “I come to the city all the time with my
bike,” Corcoran said. “I was up at the Met and then I biked down to
the park. I had dinner in the Village, then I came over to this bar
[Splash] where I usually have a drink and then I go home on the

Hearing the commotion outside, he left the W. 17th St. bar to find
his lock broken and his bike missing. Spotting it on the top of a pile
of bikes in a police truck, he just managed to retrieve it. “I spent
about $100 up here [in Manhattan] today, more than $100, and this is
how the establishment of the New York area pays me back? It gives me a
summons for another $80. I had no idea this was going on. It doesn’t
end a nice day very nicely.”

Riders in handcuffs waiting to be photographed stood in a line in
the middle of 17th St. They were asked to identify their bikes, which
were then tagged and piled in the middle of the street before being
loaded onto the truck.

Around 8:30 p.m., a paddy wagon and a police bus left for the
Seventh Precinct on Pitt St. Thirty-seven riders had been arrested;
33 would be released by 4 a.m. Saturday morning. Four others were
found to have outstanding warrants and were held until early Sunday
morning. Some 50 bicycles were seized.

At a hastily arranged news conference Sunday morning at Time’s Up!,
attorney Siegel and half a dozen riders who had been arrested spoke
out. “Preemptive arrests are antithetical to American jurisprudence,”
Siegel said to a row of TV cameras. Commenting on the city’s summons
enjoining any publicizing of the rides, he said, “This argument is
very troubling. It’s a prior restraint and a violation of the First

Binder of the city’s Law Department said the law prohibits more
than 20 people from gathering in a city park without a permit.
“Nobody has a First Amendment right to publicize unlawful activity,”
she said.

Time’s Up! now burdened with growing legal expenses, held the
first of several planned fundraising meetings at its headquarters
Monday night. Lawyers plan their response to the lawsuit, and the
constitutional issues it raises, by April 19.

“I don’t think the city gets it,” said DiPaola. “They think we’re
in charge of it but it’s like the same kind of thing we did with the
community gardens. I don’t think the city understands, we’re just
trying to support sustainable community.

“They don’t want to provide the infrasturucture, the positive
environmental and safe infrastructure for bicyclists,” DiPaola said.
“It has nothing to do with the ride.”

Copyright 2005, The Villager