2006-01-10 Judge Finds Parade Permit Unconstitutional – Free Wheels





Oliver & Oliver

Yesterday, New York City Criminal Court Judge Gerald Harris decided that the City’s parade permit law is “hopelessly overbroad” and “‘constitutes a burden on free expression that is more than the First Amendment can bear.’”

Judge Harris’s written Verdict in People v. Bezjak, et al. dismissed the parading without a permit charges against all of the 8 people who were arrested on the night of the January 2005 Critical Mass bicycle ride, but held each guilty of disorderly conduct, a verdict the cyclists may consider appealing.

“The City has arrested and prosecuted over 2,000 people since August of 2004 for violating a law this Decision clearly finds unconstitutional on its face,” said Gideon Oliver, the cyclists’ attorney. Oliver “challenged the City to reconsider its aggressive stance toward policing First Amendment activities in general, and Critical Mass bicycle rides in particular” in light of the 17-page Verdict.

According to Bruce Bentley of the National Lawyers Guild, the vast majority of the 1,806 Republican National Convention arrests resulted in parading without a permit prosecutions. Since the RNC, the City has arrested almost 350 bicyclists for parading without a permit, and sought injunctions in State and Federal Courts that would subject participants in future Critical Mass rides to criminal penalties of up to a year in jail.

Yesterday’s Verdict offered several examples of events that appear to require a permit under the law as written in order “to highlight the virtually unfettered discretion reposed in the Police Commissioner to determine when any particular event may be found to fall within the amorphous definition of parade or procession and, thus, requires a permit.”

According to the Verdict, “a person promenading, or two persons racing, . . . a funeral procession, two or three cars displaying political posters traveling one behind the other, caravan style, or a small group of friends biking together” might be required to obtain permits under the law as written.

The Verdict also found the permit law is unconstitutional because even a person who “unknowingly participates in a permitless march may be arrested, fined or imprisoned. Thus, bystanders or onlookers, stirred by the passion evoked by a political march, join in at their peril.”

“While some Decisions from the Criminal Court over the course of the past year have upheld the constitutionality of the permit requirement,” said Oliver, “this Verdict is the first to result from a full trial, at which the Court heard 3 days’ worth of testimony from 11 NYPD Officers which it said ‘highlighted deficiencies in the City’s parade permit scheme.’”

Dave Rankin, a FreeWheels Board member who assisted during the trial, said that the 8 defendants were “pleased with the vindication of their First Amendment rights.” However, Rankin noted that the trials of about 30 bicyclists arrested for “parading without a permit” in February, March, April, May, June, and July of 2005 are all currently scheduled to begin later this month, and said it was “unclear whether the District Attorney’s Office would consider declining to prosecute the parading without a permit charges in those cases in light of the Court’s ruling.”

Recognizing that neither the City nor other Judges are technically bound by this Decision, Oliver said he is nevertheless “hopeful that others will be convinced by Judge Harris’s careful consideration of the 600-plus page record in these cases and the Verdict’s logical application of well-settled United States Supreme Court precedents.”

According to the Verdict, “there was testimony [at trial] that the practice of the Police Department is in a state of flux – while Critical Mass rides have been occurring for years, only recently have the police made arrests for proceeding without a permit.”

Some of the practices the NYPD has deployed in policing Critical Mass bicycle rides since August of 2004 have drawn wide criticism. A December 22, 2005 New York Times article by Jim Dwyer recently led attorneys in the Handschu lawsuit to take steps that could ultimately lead to contempt proceedings against the City in Federal Court for spying on peaceful protesters – including participants in Critical Mass rides – in violation of Court-approved guidelines binding on the City.

A copy of the January 9, 2006 Decision in People v. Bezjak is available online at:

FreeWheels (www.bicycledefensefund.org) is a volunteer-run, non-profit advocacy group started by bicyclists who have ridden in and been arrested at Critical Mass. We are dedicated to providing the resources necessary to fight New York City’s attack on the civil rights of bicyclists and assisting those arrested, ticketed, or harassed for bicycling. We raise money for arrestees’ legal expenses, and provide arrestees with resources, information and support in defending their Constitutional Rights. FreeWheels believes the NYPD’s crackdown on the Critical Mass ride is an assault not only on the rights of bicyclists, but on the Constitution itself. FreeWheels is not financially associated with Critical Mass. Nor are we spokespeople for Critical Mass, which is a leaderless gathering of bicyclists. Critical Mass rides take place in many cities around the world on the last Friday of every month.

By FreeWheels

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