Another judge denies injunction on Critical Mass
February 22-28, 2006
Last week a State Supreme Court judge issued a key ruling against the cityâ€™s attempts to halt the Critical Mass bike ride and force the cyclists to obtain a permit for their monthly event. Soon after the decision was released, the cityâ€™s Law Department said it would appeal.
The ruling was another notable marker along the legal and political road cyclists have traveled since the August 2004 Republican National Convention when police arrested hundreds of cyclists on a massive preconvention Critical Mass ride.
With the exception of last Octoberâ€™s ride, which took place four days before a citywide mayoral election, cyclists have been arrested every month during Critical Mass. The most common charges leveled against riders have been parading without a permit and riding in a procession.
The latest ruling dates to a lawsuit the city filed in March 2005 against Timeâ€™s Up!, the East Village bike-advocacy group. Also named in the suit were four members of the group, its executive director, Bill Di Paola, and three volunteers, Matthew Roth, Brandon Neubauer and Leah Rorvig. However, Timeâ€™s Up! claims that it has no formal leaders or membership roster.
Shortly after Justice Michael Stallman issued his ruling last week, the cityâ€™s Law Department released a statement of its intent to appeal. Gabriel Taussig, chief of the Administrative Law Division, said, “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 courtâ€™s denial of our request for a preliminary injunction.”
Taussig said the decision to appeal was made by Law Department attorneys in consultation with the city.
Last Thursday, Timeâ€™s Up! members and civil rights attorneys gathered at the groupâ€™s space on E. Houston St. for a press conference. Outside in the street, several police officers were sitting in an unmarked S.U.V. When attorney Norman Siegel and others approached the vehicle, the officers emerged. Among them was Deputy Inspector Michael Lau, commanding officer of the Fifth Precinct. Asked why they were on scene, Lau replied, “Weâ€™re on routine partol.” Police remained outside for more than an hour.
“Surveillance is increasing and Iâ€™m very troubled by that,” Siegel said. “I understand post-9/11, but thereâ€™s no terrorists in Timeâ€™s Up! This is a press conference about Critical Mass. New Yorkerâ€™s have to wake up to the surveillance thatâ€™s taking place in our city,” he added.
Attorney Steven Hyman said the court decision recognizes “there are legitimate reasons for Critical Mass. The statutes that the city seeks to impose to stop Critical Mass are not, necessarily, at this point in time, applicable.”
In his decision, Justice Stallman referred to another key ruling against the city resulting from a lawsuit filed in federal court in 2004. That suit, Bray v. New York, bore similarities to the current lawsuit, in that the city had also sought an injunction to require Critical Mass riders to get a permit for the monthly ride. In the Bray case, Federal Judge William Pauley denied the cityâ€™s request.
Stallman, referencing Bray, noted the “federal court held that participation in the Critical Mass bicycle rides constitutes â€˜expressive associationâ€™ entitled to First Amendment protection.”
At the time of the Bray ruling, the city may have hoped further legal action was feasible based on Justice Pauleyâ€™s conclusion that a federal court could not properly rule on a state issue.
“Judge Stallman makes a very particular point that there are serious questions as to whether Critical Mass is a parade, a procession, a caravan,” Hyman said. “And there are serious questions as to whether the law applies to Critical Mass.”
Justice Stallman, while criticizing the city in his ruling, sought detente between both parties. “Mutual de-escalation of rhetoric and conduct, and a conciliatory attitude, may help the parties and the Critical Mass riders resolve the litigation,” he suggested.
“The lawsuit moves forward,” noted Gideon Oliver, an attorney representing hundreds of cyclists arrested during the Critical Mass rides. “First Amendment rights have to be exercised or they atrophy,” he observed.
“Judge Stallmanâ€™s opinion is the third opinion from a judge that affirms the rights of cyclists to ride together peacefully and lawfully,” Oliver added.
“Itâ€™s certainly a victory and certainly gives us a sense of justice,” said Brandon Neubauer, a Timeâ€™s Up! volunteer and one of the defendants. However, he thinks a continued, aggressive police stance is inevitable. And, he added, “Theyâ€™re appealing, itâ€™s going through a whole process. Itâ€™s continuing to waste the cityâ€™s money, our money.”
Critical Mass riders have protested their arrests for alleged traffic infractions, which, in other situations, usually result in little more than the issuance of a ticket. However, cyclists arrested in the monthly rides have been held in custody anywhere from several hours to, during the 2004 convention, more than two days. In addition, their bicycles have been seized and held as evidence for as long as a month, an inconvenience for those who use them to commute or to work as messengers – though some cylists use “junker” bikes on the Mass rides, knowing they might be seized.
Aside from sore wrists and shoulders from tight handcuffing that arrested riders have faced, the rides and arrests proceeded mostly injury free until last month. Last month, two motor-scooter police were hurt after colliding in the East Village while, according to witnesses, trying to cut off the front of the ride.
Filmmaker Christopher Ryan, a co-producer of the bicycle documentary “Still We Ride,” was pleased with the court ruling but skeptical of any immediate relief. “The police have ignored these court decisions before and just let the taxpayers pick up the tab,” Ryan said.
Attorney Siegel said the ultimate goal of Critical Mass participants is the ability to ride “free of arrests, free of harassment, free of hostility, in ways that guarantee public safety for all New Yorkers.” He called on City Hall to recognize an event that continues, unimpeded, in almost 400 other cites worldwide. “Mayor Mike,” Siegel invoked, “pick up the phone, call your police commissioner, Ray Kelly, and tell him to chill.”
Siegel added if cyclists continue to be arrested on the charges Justice Stallman discounted, the city risks sending the message that it is above the law.
Police did not return a request for comment by press time.
Copyright 2006, The Villager