Judge’s Decision on NYPD Parade Rules Tinted By Windshield Perspective

A federal judge yesterday upheld NYPD rules which effectively outlaw bicycle rides with 50 or more cyclists that proceed without a permit. The case is closely associated with police crackdowns on Critical Mass but affects any group ride of sufficient size.

In his 54-page decision in favor of NYPD and the city of New York [PDF], District Court Judge Lewis Kaplan, a Staten Island native who holds a JD from Harvard Law (Class of 1969), dismissed the case put forward by the Five Borough Bicycle Club, Columbia history professor Kenneth T. Jackson (who organizes educational nighttime rides for students), and several Critical Mass participants. The cyclists’ attorneys argued that the NYPD permit rules violate First Amendment rights to free speech and assembly, and that police have selectively issued citations to cyclists who have not broken any traffic laws.

Judge Kaplan rejected these claims across the board. One of the more fascinating aspects of Kaplan’s ruling is his application of local traffic law to cyclists’ behavior, and the way his judgments about traffic safety influence his judicial opinion. In concluding that NYPD’s 50-person limit on group rides justifiably advances public safety, for instance, Kaplan writes:

Large groups of cyclists may well be more visible than individual cyclists and may take up less space than large groups of vehicles, but countervailing factors such as their lack of predictability and their tendency to try to stay together in a moving column, even if this means going through a red light, nevertheless endanger other travelers and disrupt orderly traffic flow. Their presence may add traffic volume that otherwise would be absent.

This reality was borne out by a video clip of the September 2007 Manhattan Critical Mass ride shown… at trial. As the Court noted at the time, the clip shows a cyclist engaging in dangerous behavior by pulling out and to the right of a motor vehicle that itself was in the process of pulling out of the bike lane to its right. The biker comes up from the motor vehicle driver’s blind spot and passes the motor vehicle on the right just as the motor vehicle begins to pull to the right and out of the bike lane. I find that the video demonstrates the danger of the cyclist’s actions.

According to a court transcript obtained by Streetsblog, Kaplan is in fact referring to video shot in July, 2007, which appears beginning at the :37 mark in the above YouTube clip. It depicts a cyclist traveling south in the Broadway bike lane at 19th Street. When he encounters a BMW SUV partially obstructing his path, he bikes into car traffic and passes the SUV.

This behavior, in Judge Kaplan’s estimation, is the cause of safety hazards and a reason to give legal standing to NYPD regulation of group rides. As for the motorist blocking a bike lane with his multi-ton SUV before merging back into traffic, without much seeming awareness of the cyclist approaching from behind, Kaplan’s opinion gives no indication that such carelessness registers with him.

In another passage, on page 47, Kaplan interprets state law as requiring cyclists to ride as close to the right-hand curb as practicable if they are traveling at "less than the speed of normal traffic." It’s a rather restrictive take on the legality of taking a lane, and omits the fact that the rule in question applies only to two-way streets. At no point in his decision does Kaplan mention the NYPD’s reliance on section 1234 of the New York State traffic law to issue violations to Critical Mass cyclists, which plaintiffs cited as evidence of discriminatory enforcement. Section 1234, which requires cyclists to ride in the right hand curb, does not apply in New York City.

The Five Borough Bike Club says it is disappointed in Kaplan’s ruling and will review the decision with other plaintiffs. No word yet on whether an appeal will be filed.

  • J

    Wow. Does this ruling have any basis in law, or does the judge simply not like bikes? From his statement, it seems that the latter is the case.

  • Wow, this would seem to be about 1000x worse for democracy than the Mayor not pre-issuing his Times Square data to his critics before making a decision, yet I haven’t heard a peep from Sen Liz Krueger on this yet…

  • MtotheI

    This judge may as well have made cycling and bike lanes illegal. It is just far too unsafe for cars to have bicycles on the street. It means they have to yield, be aware of their surroundings, and move at slower speeds. And bike lanes take up space that cars could use for double parking. Jeez, i mean, come on!

  • skd

    If the law is wrong, and this judge erred in his ruling, bicyclists should take direct action against the city of New York. Hundreds of bicycles should ride down the street and ride real slow too. A bicycle Boston Tea party.

  • NattyB

    This isn’t good.

    The judge is supposed to apply the law and make findings of facts. If he err’ed in applying the law, then that’s easily appealable.

    But, for his findings that, Critical Mass etc . . . is dangerous, that finding of fact is hard to overturn on appeal, even if it is ridiculous on it’s face.

  • So lame that this decision comes on the heels of the very good news that flowed from Bloomberg’s and Sadik-Khan’s victory re permanent changes to Broadway as StreetsBlog reported here:

    http://www.streetsblog.org/2010/02/11/bloomberg-sadik-khan-commit-to-a-world-class-21st-century-broadway/

    Good one, skd, Bicycle Teabaggers unite!

  • skd,

    YES! Bicycle Boston Tea Party! Could we push cars into the Boston Harbor as well? Sorta symbolic? I think that would be awesome if we all rode single file down Wilshire Boulevard, but taking the right hand lane (since it’s necessary) to City Hall. Can you imagine 300 cyclists riding single file at 12mph from Santa Monica to DTLA? Completely legal, not a parade since we are all obeying CVC and merely heading the same direction…that would be a REAL Critical Mass! I can imagine the effect would be quite similar in NYC.

  • bike people

    Re: SKD

    The Boston Tea Party may have been direct action, but it was illegal to board the ship and dump the tea into the harbor.

    Riding a bicycle down the street is not illegal. If more than 50 bicyclists just happen to end up riding down the same street together…oh well.

  • Yes, perhaps I got a bit overzealous…But what if, like on Bike to Work day or something, NYC, DC, LA, SF, and any other city that wanted to organize, did a single file line cross-town to City Hall, with the goal of getting 100s and 100s, no 1000s, of cyclists in each city…and it was simultaneous? I just think that would be totally amazing.

    On another note, a few months ago, about 100 truckers in California protested by driving their semis, at the same time and caravan-style, from Long Beach to Downtown LA and circling City Hall for a few hours, honking their horns and creating massive traffic jams. They were not issued tickets nor were they required to get a permit for their “parade”. This ruling is absolutely a double-standard. And those truckers riding in circles around City Hall were more dangerous to the pedestrian population downtown than cyclists are riding in a group anywhere. Of course, again, this was LA, and the ruling is in NY, BUT, I wouldn’t doubt the same thing could/would happen here or that the trucker thing wouldn’t have been dealt with the same way there.

  • danceralamode, bike people, my understanding is that 50+ cyclists riding single file in the same direction is potentially illegal since NYPD gets to define a group, not that actual cyclists who make up that so called group. I also suspect NYPD gets to decide when the group reaches the magic number of 50 and begins enforcing their rules.

  • This singling out of a mode of transportation is really bizarre. It’s taking a class of people and making totally different free speech rights & rules for them merely their mode of transportation. Think about that for a minute…

    Now whenever you are talking to someone just ask them to imagine if you replaced the word “cyclists” with something else, literally anything else and it would sound ridiculous: “Tenants”, “Lawyers”, “Union members”, “Basketball players”, “Students” etc

  • Stacy,

    Think of it this way (and I’m in LA, so I don’t know NYC law/policies, so forgive me for that lack of knowledge)…if 1000 people are attending a Lakers game at Staples center, and these 1000 people all happened to take some form of Metro that got them to, say, Union Station, then used their bikes to ride to the Staples Center (like 8 miles away at most), unless they were disobeying traffic laws, the LAPD would have no reason to pull them over unless they were illegally targeting them. Cyclists riding single file down a street and obeying traffic laws are doing nothing different than the motorists who are driving in the same direction and possibly have the same destination.

    I see your point is to warn us what the NYPD would do; but that practice screams discrimination to me. If we are riding single file, you cannot reasonably suspect us of being a group no more than you could suspect vehicles that travel single file over a few miles of city block’s as being a group. I’m sure there are more then 50 cars heading to roughly the same destination at any given time in NYC; it’s absolutely a restriction of cyclists’ rights upon the roadway, which in CA would be a misinterpretation of the CVC since cyclists are, by law, given all the rights (and responsibilities) of motorists (again, I’m considering what this judgment would be like in CA, since I don’t know NY law). I’m guessing it is a similar misintepretation by this judge. (Guessing, again.)

    Your warning is well-received though. To plan such an event would require us to be very aware of those potential claims and citations.

  • Clarence

    Random Question: does this mean all of those people who assembled to have a snowball fight in Times Square could have been arrested? What is so different about that?

  • In that linked video, could someone explain to me what police are stopping cyclists for? Not only are they allowing people riding the wrong direction to continue on their ways, they’re stopping people that seem to be breaking no laws. Can someone help me understand this?

  • Building on what Glenn said about discrimination based on transportation habits:

    I would be willing to be that during a Critical Mass ride, the commandeered streets are likely moving more human beings more quickly than those streets would be otherwise in their usual auto-dominated state.

  • Rickey Butler

    I’m tired of hearing the contradictory argument on the cyclists rights on the road. if you are going to ride in the street, follow the rules of the road. Stay in your lane and if a car cuts you off, too bad! What do you do when a car cuts you off if you’re in another car? You honk, yell, throw up the finger, whatever, you DONT go cruising into someone else’s lane to go around them. I’d also expect to get a ticket if I were going the wrong way, or riding in the middle of the road. I’m all for bike friendly cities but comon’ people, there are still a shit ton of cars out there and the change is going to take a while. So relax, follow the rules, and we’ll get there someday.

  • Judge Lewis Kaplan and the NYPD: Partners for the destruction of the constitution.

    The NYPD policy toward Critical Mass, as dictated by Ray Kelly and Michael Bloomburg, is discriminatory, unconstitutional, wasteful, and ultimately very unsafe for people riding bicycles in Manhattan on the last Friday of the month. There is only one night of the month that the traffic laws that cyclists are supposedly subject to are enforced.

    For those of you who have not experienced “Critical Mass” in NYC and are confused by the apparent lack of lawlessness you see in the video, consider that this is the whole point. Judge Kaplan has just given the blessing for the NYPD to continue to undermine the constitution, the traffic laws of NYC, and the authority of law enforcement and the justice system. At the cost of our freedom.

    You can follow similar issues at my new blog:

    http://criticalmasspanic.blogspot.com/

    WE ARE TRAFFIC! LET’S JAM!! MASS EVERY DAY!!!

  • Bill from Brooklyn

    Folks, I think that the judge’s decision is poorly reasoned and wrong and that his opinion is not well crafted. That said, I would suggest that you read the actual decision itself before making assumptions about what it says and what it means. I would also suggest reading his decision from 2007 denying the request for injunctive relief.

    Although it is not a good decision and it is a decision that arose from a mostly auto-centric view of the world, the decision is more narrow and focused on the parade permit requirement than it is strictly anti-cyclists. The judge considered whether the objections the plaintiffs raised regarding such requirements, be they constitutional objections (such as 1st amendment objections) or traffic law objections were sufficient to override the public order/safety rational behind the parade requirement.

    From my reading of the opinion, the most critical factor in the judge’s thought process was related to the past behavior of Manhattan Critical Mass, epically the rides on to the FDR and the West Side Highway, and the actions in blocking access for emergency vehicles such as fire and ambulances. Given those actions, I believe the judge deemed that the parade permit requirement was a rational means for NYPD to provide for public safety. I disagree with this decision, but it is not a declaration of war against cyclists.

    Also, although an appeal is possible (how will it be funded?) there is no reason to expect that a different outcome on appeal of this narrow question is more likely than not – it could happen, but it isn’t a sure thing by any stretch, especially given that the denial of the injunction was upheld on appeal.

    The key questions surround what happens going forward. How will NYPD enforce the parade requirements? Will it be done with a strict hand or with a gentle hand.

    The tough problem is what do organizers of group rides do when they don’t know how many people will show. Do they flood NYPD with permit requests, just to be safe? What do you do as a group ride leader when unexpectedly more than 50 people show for your ride – I was on a TA Queens ride last fall, where the organizers were concerned that the size of the ride was getting large enough to perhaps reach parade permit requirements.

    What kind of process will NYPD have to process parade permits on a timely and rational basis – they are suppose to be given at least 36 hours advance notice and basically with some exceptions are suppose to grant the permit unless there is good reason to believe the parade will be disorderly or disturb the peace? If NYPD can’t process these requests in a timely and rational manner, will there need to be future litigation on that issue?

  • Excellent point, Bill from Brooklyn. I guess I just wonder what constitutes a “ride” as many “rides” are informal, and Critical Mass itself has no centralized leadership…in LA we never know how many people will show, much like a movie theater that has a set schedule does not know how many people will show up for the monthly midnight screening…

  • Bill from Brooklyn

    Dancer, clearly the revision to the parade or procession requirements in NYC were as a result of the issues concerning Manhattan Critical Mass. NYC previously had parade requirements, but they were deemed to be too vague and gave too much discretion to the police. The newer requirement from 2007 that was challenged is more specific and limits to a degree discretion. Given that Critical Mass does not have a leader or set destination, it is also harder to apply for a permit and designate the “chief officer” required by the permit application process.

    Also, to clarify there are many different requirements regarding “parades or processions” as they are called and as I recall the one in question refers to a recognizable group of 50+ and applies to pedestrians, bikes, other vehicles moved by human power and ridden animals. There are other requirements for marches, motorcades etc.

  • Jeffrey W. Baker

    Bill from Brooklyn, have you never seen cars blocking emergency vehicles? I reckon it happens daily, and I’ve certainly seen 2500+ bicyclists suddenly pile off the street to clear a path for the fire department in San Francisco, a maneuver of which a regular traffic jam is incapable.

  • If 50 vehicles all move together at the same time on 7th avenue, is that a parade? I don’t think so,it’s called getting the green light.

  • What laws were these cyclists breaking? What citations were they receiving? Is there no answer to that question?

  • The video depicts an NYPD checkpoint a block north of Union Square, which they set up during the hour before the usual start time of Critical Mass. Plaintiffs referred to this video to illustrate claims that the officers were trying to discourage participation in Critical Mass by “profiling” at the checkpoints, issuing summonses only to cyclists who were headed toward Union Square and who appeared to be potential Critical Mass participants (as opposed to delivery bicyclists).

    The plaintiffs made the argument that hundreds of summonses were issued at these “profiling” operations and put forward by NYPD as proof of lawlessness at Critical Mass rides, even though the summonses were issued to individual cyclists before the ride as shown in the video. Summons records that the Five Borough Bike Club has posted online (check the portion of the case history under February 14, 2008) indicate that on the date this video was shot, for instance, a large proportion of citations were issued before 7 p.m. and were handed down for riding outside the bike lane. Kaplan did not discuss this aspect of the plaintiffs’ case in his decision.

  • Wow. That is an outrageous abuse of power.

  • Random Question: does this mean all of those people who assembled to have a snowball fight in Times Square could have been arrested? What is so different about that?

    NYPD cracked down on a water fight at Union Square last year, and forced the annual pillow fight to move from Union Square to a heavily guarded area in Lower Manhattan.

  • I think this law is ridiculous. Fifty cyclists is nothing. More people than that will be on a bus in NY. Imagine a cycling friendly business decides to celebrate and treats their employees to lunch and 50 of those employees decide to ride to the restaurant.

    So I think the way around (read protest) this requirement to have a parade permit for 50+ cyclists is to get rid of Critical Mass Ride. . . and start a Critical Mass Destination (all participants provide own transport.)

    This is along the lines that DancerALaMode mentioned with people going from Union Station to Staples Center, just so happens by bicycle.

    And of course, you and your closest 48 friends can make arrangements to “bike-bus” to the destination.

    I would imagine it would be something like 10+ meeting places for 49 cyclists to meet up all over the city, and from those locations head to one central location for a “party” of sorts. Of course there would have to be some video evidence that show that no more than 49 riders were in a group riding together (roll call?) and video of the cops stopping cyclists like the video above.

    I think it would be awesome to do this for an event like a Knicks or Yankees game, Broadway Show, or Concert. Whether you actually go to the game/show doesn’t matter. What would be cool is . . .

    “I am just riding my bike to go support my local team/actor/musician, officer. I think these other cyclists might be going too. Not really sure. . .”

  • matt bikes

    I’ll read the opinion but if there are appealable aspects (with a reasonable likelihood of success), I’d help contribute to the cost of an appeal.

  • Emily Litella

    Carma beats dogma everytime.

  • Mike

    I’m not sure I understand the ruling exactly – this isn’t really about just having 50 cyclists who happen to be in one place, but rather a “demonstration” that includes riding in a pack -and- blowing lights and blocking intersecting streets, right?

    If it’s an order against 50 law-abiding cyclists existing in one place, that’s stunning, but if it’s a ruling that prohibits a demonstration without a permit, what’s not to get?

  • Bill from Brooklyn

    Mike and others who are confused about the ruling: Again I would suggest reading the actual decision and I would even more strongly suggest reading the prior decision from 2007 where the same judge refused injunctive relief (it is a better written decision than this one). BTW, that decision was upheld on appeal.

    To reiterate, I disagree with the decision and I even more strongly disagree with the revised parade permit rule that was the subject of the litigation. The litigation in question challenged the parade permit requirement on various grounds. The judge rejected the challenges (most of which were constitutional in nature) and at the risk of oversimplifying found that the parade permit requirement supported a reasonable government interest as pertains to public safety and traffic flow.

    As regards the parade permit requirement, since there appears to be some confusion about what it says and requires, it applies to “any procession or race which consists of a RECOGNIZABLE group of 50 or more pedestrians, vehicles, bicycles, or other devices moved by human power, or ridden or herded animals proceeding upon any public street or roadway.” If you fit that definition, you are suppose to apply for a permit at least 36 hours in advance of the ride and the permit is suppose to be granted except if it is expected to disturb the peace or upon some other exceptions. The litigation did not challenge the NYPD’s decision process – that could be challenged in the future if there are issues with the NYPD not granting legitimate permits.

  • J. Mork

    I wonder what a “procession or race” is. It seems to me like 50 5BBC riders out on a group trip might not be either.

    This is what happens when the police get to create, interpret and enforce the rules all by themselves.

  • Marco

    Bill – thanks for the advice and direction. To me, the decision does not seem entirely unreasonable within the context of how the pre- and post-2004 MCM rides seemed to have panned out. I’m not a constitutional lawyer, but from a *practical* perspective, the law seems to have worked correctly.

    To the extent that a moving group like CM causes a danger or disruption, it seems that they should have the same obligation as any other “parade” group that has the same impact on other citizens (particularly pedestrians). Maybe 50 is the wrong number, but it seems like the Plaintiff’s experts arguing differently were totally unpersuasive. Beveridge’s admission of never actually seeing a CM ride was awful.

  • Bill from Brooklyn

    Marco, in the scheme of things I have less problem with the judge’s decision (especially the better crafted 2007 decision) than I do the actual parade permit rules. From a practical stand point, there is no doubt that the revisions to the parade requirements were made as a direct result of the NYPD’s issues with the Manhattan Critical Mass Rides. At some point, they turned to the old parade requirements as a means to control Manhattan Critical Mass but the courts found problems with the old requirements that granted broader discretion to the NYPD. Thereafter, they proposed new more specific rules, first requiring permits for groups (all groups not just cyclists) of 20, than 30 and finally after negative public backlash on the lower numbers arrived at 50 as the magic number.

    For arguments sake, I will grant that there were issues with Manhattan Critical Mass (though personally I think that most such issues were overblown). However, in trying to address these supposed Manhattan Critical Mass issues, the revised parade requirements have created potential unnecessary inconveniences, other problems and lots of uncertainty for other groups that organize rides in the City such as TA/Local TA Committees or 5BBC (disclosure I am a member of both). As I noted above, what does a leader do when unexpectedly over 50 people show for ride?

  • Marco

    Bill – you make really good points, and the answer to your question isn’t obvious to me. But as a practical matter, do the parade requirements apply if the group is generally following the traffic laws, and, separately (and I realize that this isn’t entirely a reasonable question when discussing constitutionality) do you think that the NYPD would actually enforce the permit requirement in that case?

    So much of this seems to be about obstruction of peds/cars and corking. If the cyclist group was willing to figure out a way to keep a pack while not violating, what do you think that means in terms of the law that has just been confirmed? It seems that the judge/law *presumes* violations once the pack gets to a critical mass – so to speak. If these violations actually didn’t occur due to a specific effort by the participants to be “unobstructive,” does that put this issue on different footing?

    Thanks for your insight into this.

  • This is really sad, and I have am in mystified by the video. It appears if you are young and white and riding a bike, you can be profiled and ticketed for breaking a law which you have not yet broken in New York City. Why is Critical Mass in NYC such and embarrassment to NYPD, the mayors office, and to the notion of Critical Mass altogether? So sad.

  • Marco-

    I’d love to hear any thoughts on how “to figure out a way to keep a pack while not violating” traffic laws. The best Critical Masses are the ones that stick together and go slow to accommodate every rider who may be participating. But once the gathering swells to a particular size, this seems impossible to do, given the timing of traffic lights. I suspect that in the unlikely event everyone in the group decided to increase the density of the pack to avoid running reds, traffic on the street would be far more delayed than if corkers, being individual cyclists or courteous police officers, hold up a light for a cycle or two to let bicycle traffic through.

    During the last year and a half of riding in Critical Mass rides in Manhattan, I can report the following: Police have not used the parade regulation at all to discourage the ride (given the pending court judgement). Instead, they harrass cyclists, issuing tickets for not having proper lights/bells, not being in the bike lane (even if obstructed), not riding far enough to the side of the road, which is a gross mis-interpretation of RCNY § 4-12 (p) “Bicyclists may ride on either side of one-way roadways that are at least 40 feet wide,” and of course running reds. But the fact is most riders who show up to CM are wise to this, and so CM runs few if any reds. But still are ticketed for such an offense.

    The cops don’t need the parade ruling in their favor, all they need is traffic court to buy into their abuse of the written laws. Which in my experience, it is. Kaplan just affirmed the abuse of power at the highest level.

    Feel safer on the streets? I hope eveyone interested can show up next week on Friday to at least witness what occurs at Union Square North at 7pm.

  • Matt H

    Lewis Kaplan… I knew the name sounded familiar.

    He’s the one who issued that ridiculous ruling in 2000 about 2600 Magazine’s rights to post computer code as speech. (In this case, code that decrypted DVDs.)

    http://en.wikipedia.org/wiki/Universal_v._Reimerdes

    Can’t say I’m surprised he issued another poorly reasoned decision, or at least one that I find personally uncongenial.

  • J

    What about the daily procession of vehicles headed towards the Lincoln and Holland Tunnel? That daily parade of cars is characterized by the following:

    -No designated leader or central organization
    -Typical meeting time of around 4PM(?) and several meeting locations
    -Groups of more than 50 moving en masses toward a common destination
    -Consistently break the following traffic laws: blocking the box (similar to corking), blocking crosswalks, right turns on red, running red lights, excessive honking
    -Severely impede the movement of emergency vehicles
    -Generally disrupt the movement of all other vehicles

    Shouldn’t they be subject to parade permits as well?

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  • Jericho Barker

    Thanks for this post about that kind of subject. It was useful for me at least.

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