Transcript of 5BBC Trial Day 3

Full transcript for third day of trial of Five Borough Bicycle Club lawsuit against the New York Police Department attempt to classify group bicycle rides as “parade”

Below are highlighted excerpts from day #3 transcript including testimony from the following officers:

Assistant Chief James Tuller – Assistant Chief with the NYPD & Patrol Borough Commander for Manhattan South since February 2007. He oversees law enforcement for Critical Mass.

Deputy Inspector Dennis DeQuatro – Patrolled approximately 25 rides since March 2005

Office Kenneth Wagner – Served on First Precinct’s scooter task force
from 2003 through 2008 and patrolled at approximately 20 rides since October 2003

1) Testimony regarding the NYPD “scouting” out Critical Mass riders, the NYPD following groups as small as 2 Critical Mass riders and NYPD’s zero tolerance policy:

TULLER, Page 363 – 365
Q. And during your tenure as commander of Patrol Borough Manhattan South, when groups of cyclists have left Union Square Park on the last Friday of the month, NYPD officers follow them, is that right?
A. Yes.
Q. And the officers were directed to follow the groups by their superiors, correct?
A. Yes.
Q. As far as you know, there is no minimum size of the group that will be followed by the NYPD in this manner, correct?
A. Discretionary, yes.
Q. And you believe it is appropriate for NYPD officers to follow a group of as few as two cyclists who depart from Union Square on the last Friday of the month?
A. It may be.
Q. And that is the case even if the riders are in compliance with the applicable laws, correct?
A. It may be.
Q. The reason for following a small group of cyclists that departs from Union Square on the last Friday evening of the month is to determine whether they re-gather with cyclists of another location, is that right?
A. If they regroup, yes.
Q. If they regroup, that is the reason why you instruct officers to follow those small groups of cyclists?
A. That’s a concern.
Q. In fact, isn’t the sole purpose of assigning officers to follow small groups of cyclists from Union Square on Critical Mass nights to determine whether they will re-gather with other cyclists at another location?
A. That’s a primary concern.

DEQUATRO page 392
Q. You have assigned members of the NYPD scooter task force to follow small groups of cyclists after they leave Union Square?
A. Yes, sir, I have.
Q. And in addition to following cyclists leaving from Union
Square, you’ve assigned people to — assigned officers, that is, to employ a scout system, is that correct?
A. Yes, sir, that is correct.
Q. Can you explain the scout system please?

DEQUATRO pages 393 – 395
A. As a result of that, we divided the Borough of Manhattan up
based upon the number of captains that we had. Each captain was assigned a given number of avenues. They would then, if the ride failed to materialize, as it was for several months in a row, we deployed police officers to travel these avenues in order to see if the demonstration reformed in another location. If they did, they were instructed to monitor them as we would any other demonstration or any other detail that the New York City Police Department polices.
Q. Were the officers given direction to look out for particular sorts of bicyclists?
A. The supervisors who participated in the detail, many of them were the same supervisors month after month. They had grown some familiarity with the participants in the ride. They were instructed when they deployed their scouts that if they saw a group that they suspected to be Critical Mass demonstrators, and they would then monitor them and we would deploy resources, if necessary.
Q. A cyclist who was wearing a Time’s Up! T-shirt or hat was more likely to be followed by scooter officers than another cyclist not wearing such apparel, is that correct?
A. If it was a Friday night in the vicinity of Union Square Park after 7 p.m., probably, sir, yes.
Q. You expected the officers — that the officers who reported to you would follow cyclists who they believe were part of Critical Mass, correct?
A. Yes, sir.
Q. And not to follow cyclists they didn’t believe are part of Critical Mass?
A. It was their role and their function to monitor the demonstration, not to engage in general patrol.

DEQUATRO, pages 395-397

BIERBAUER (lawyer for plainpngs): I’d like to play a short audio. It’s approximately one minute.

Portion of this audiotape is now talked about in the testimony:

Q. Do you recognize the voices on that audiotape?
A. Yes, sir.
Q Whose voices are they?
A. Myself, Lt. Turco — Luis Turco, excuse me, Sgt. George — excuse me, Lt. George Groner, and Capt. John Duffy.
Q. Now, on the audiotape, that was Lt. Turco telling you that the small group that he was observing don’t look like Critical Mass guys?
A. Yes, sir.
Q. When he told you that, you inferred that he was not going to continue to monitor that particular group of cyclists?
A. Lt. Turco had been performing Critical Mass detail for quite some time, sir. I trusted his judgment and his decision-making process. When he said that to me, it was no longer an issue that I required any additional follow-up.
Q. To your knowledge, under the scout system that you established, the NYPD has monitored small groups of Critical Mass participants even when they are obeying all traffic laws, correct?
A. Yes, sir.
Q. And they are to apply the zero tolerance policy as they follow those cyclists?
A If they are not disobeying the laws, there would be no law to enforce.
Q. Is it your understanding that there’s a zero tolerance policy in place by the NYPD for bicycling generally in New York City?
A. No, sir. I think that would be unrealistic, given the assignments and duties that officers must carry out day in and day out. If they adopted a zero tolerance policy without discretion, they would not be able to get from point A to point B without having to stop numerous times, impeding our ability to service the community.

WAGNER, p423-424

Q. And did you specifically receive orders to follow small groups of bicyclists in connection with Critical Mass details?
A. Yes, I did.
Q. And what were your instructions with respect to your duties when you were following these small groups of bicyclists?
A. We were to follow the small group of cyclists until they had reached their ultimate destination, and if that turned out to be another area where they were re-forming a larger group to reconstitute the mass and commence the ride from a different location, we were to report that back to our supervisors.

MR. VACCARO (lawyer for the plainpng): I’d like to play another short video clip in which Officer Wagner appears. It’s I believe 271.

Portion of this video footage is now talked about in the testimony:

Q. Were you instructed by your superior officers when assigned to follow small groups of bicyclists to disregard the traffic violations of other bicyclists in favor of continuing to monitor the bicyclists to which you were assigned?
A. Yes. We were to follow the cyclists to their ultimate destination.
Q. And isn’t it true that on some occasions you followed cyclists all of the way to their homes?
A. Yes, I believe so.

2) Testimony questioning if Critical Mass riders are believe to violate laws any more frequently than any other cyclists.

DEQUATRO page 398:
Q. You’ve observed some Critical Mass rides where no violations of law have been committed by the riders while you were watching them, isn’t that correct?
A. Yes, sir.
Q. You’ve observed rides of over 100 people, Critical Mass rides of over 100 people, where you haven’t witnessed any violations of the traffic laws by the participants, correct?
A. Yes, sir, that’s correct.
Q. It’s your view that Critical Mass participants are not inherently more likely to commit violations of the law than other bicyclists around the city, isn’t that correct?
A. That’s correct, sir. I think they are just as equally potential to commit violations of the law as any other bicyclist or motorist, for that matter.

Commissioner Raymond Kelly is asked a similar question in his deposition:

KELLY, Page 96 (of deposition)
Q. Is it your belief that at present participants in Manhattan Critical Mass rides
have a greater propensity to violate the traffic laws compared to other New York City bicyclists?
A. No.

3) Comparison of the number of NYPD officers assigned to January 2004 (preRNC) vs. December 2007 Critical Mass:

WAGNER, page 405
Q. Is it true that you estimated there were over 2,000 cyclists in the January 2004 Critical Mass ride?
A. Yes, I believe so.
Q. And there were two to six NYPD scooter officers assigned to that ride?
A. Yes.

December 28, 2007 Post-CM Report, Page 9:

This document on page 9 stated 20 cyclists participating in December 2007 ride with a detail consisting of 3 Lieutenants, 7 Sergeants and 66 Police Officers

4) Cheat Sheet:

A. This is basically a cheat sheet created by Officer James Cusa, who used to be assigned to the scooter task force.
Q. And it is a cheat sheet listing text that can be written into the narrative box on a summons in connection with violations of different traffic rules, is that a fair summary of it?
A. The text is more a summation of the actual law section, but it could be applied and put in the narrative of a summons.
Q. And would you agree with — Well, at the time you first saw this document, were you aware that section VTL — I’m sorry, that Section 1234 of the Vehicle & Traffic Law did not apply in
New York City?
A. No, I was not aware of that at the time.
Q. Do you have personal knowledge that officers who were handed this sheet in connection with Critical Mass issued summonses for violation of VTL 1234?
A. I have no information about that.
Q. I’d like to read from your deposition transcript, starting ??
“Q. Do you recall at any point learning that it was not against the law to ride more than two abreast in New York City? ”
“Q. When did you learn that?
“A. Several months after we began summonsing, the summonsing portion of enforcement of Critical Mass.
“Q. And how did you learn that?
“A. I obtained a copy of the New York City traffic rules and found that notation within the traffic rules.
“Q. Did you undertake that investigation on your own?”
“A. No.
“Q. What prompted you to look in the Vehicle & Traffic Law to determine the applicability of Section 1234 in New York City?
“A. After I don’t know how many rides where we used that as the violation, somebody said that that does not apply within the confines of New York City, but nobody had a — traffic rules on hand, so I went and got one myself and then verified it.”