Volume 74, Number 47 | March 30 - April 05, 2005

Villager photos by Bob Arihood

Police arrested Critical Mass riders last Friday night.

With lawsuit and nets, city keeps chasing Critical Mass

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.”

Villager photo by Bob Arihood

Confiscated bicycles were piled onto a police truck at last Friday’s Critical Mass ride.

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 bike.

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 all.”

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 train.”

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 Amendment.”

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.”

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