1 4c8WbraH 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 REBECCA BRAY, et al., 3 4 Plaintiffs, 4 5 v. 04 CV 8255 (WHP) 5 6 CITY OF NEW YORK, et al., 6 7 Defendants. 7 8 ------------------------------x 8 New York, N.Y. 9 December 8, 2004 9 10:15 a.m. 10 10 Before: 11 11 HON. WILLIAM H. PAULEY III, 12 12 District Judge 13 13 APPEARANCES 14 14 MCLAUGHLIN & STERN, LLP 15 Attorneys for Plaintiffs 15 BY: STEVEN J. HYMAN 16 DEBORAH BERKMAN 16 -and- 17 NORMAN SIEGEL 17 Attorney for American Civil Liberties Union 18 CHRISTOPHER DUNN 18 PALYN HUNG 19 Attorneys for New York Civil Liberties Union 19 20 MICHAEL A. CARDOZO 20 Corporation Counsel of the City of New York 21 New York Law Department 21 BY: ROBIN BINDER 22 SHERYL NEUFELD 22 MICHELLE GOLDBERG-CAHN 23 Assistant Corporation Counsels 23 24 ALSO PRESENT: GIDEON ORION OLIVER 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 4c8WbraH 1 (Case called) 2 (In open court) 3 THE COURT: Good morning. Please be seated. 4 This matter is on for an evidentiary hearing in 5 connection with the city defendants' application for a 6 preliminary injunction. 7 Ms. Binder, what witnesses does the city intend to 8 call? 9 MS. BINDER: Your Honor, the city is relying on the 10 declarations of the witnesses, its witnesses that were 11 submitted to your Honor. And we figured that the format that 12 was agreed to by both sides was that we would, in essence, be 13 calling the witnesses that, whose declarations we submitted and 14 then the plaintiffs' counsel would cross them first thing. So 15 we are submitting to your Honor the declarations that we had 16 previously submitted, and then I believe counsel could, can 17 cross them. And if order of presentation is up to us, then our 18 first witness that we offer for cross-examination is Chief 19 Smolka of the New York City Police Department. 20 THE COURT: Is this a procedure that's acceptable to 21 the plaintiffs? 22 MR. HYMAN: Yes, it is, your Honor. 23 THE COURT: All right. Let's bring out Chief Smolka. 24 BRUCE SMOLKA, 25 called as a witness by the Defendants, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 4c8WbraH 1 having been duly sworn, testified as follows: 2 THE COURT: We'll proceed with cross-examination, but 3 I think, just for purposes of the record, Chief Smolka, do you 4 declare all the statements that you've made in your 5 declarations in support of various motions and in opposition to 6 various motions in this case to be true and correct? 7 THE WITNESS: Yes, sir. 8 THE COURT: Very well. All right. You may inquire, 9 Mr. Hyman. 10 CROSS-EXAMINATION 11 BY MR. HYMAN: 12 Q. Good morning, Chief. 13 A. Good morning. 14 Q. What's your present position, sir? 15 A. I'm the commanding officer of patrol borough Manhattan 16 South. 17 Q. How long have you been in that position? 18 A. April of this year. 19 Q. And prior to that, what was your position? 20 A. I was the executive officer of Manhattan South, two years 21 prior. 22 Q. Now, in terms of April, sir, when you say you became 23 borough, was that -- excuse me. 24 Would your involvement then have anything to do with 25 Critical Mass? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 4c8WbraH Smolka - cross 1 A. It has, yes. 2 Q. So as of April 2004, did you have dealings with regard to 3 Critical Mass? 4 A. Since April of 2004, yes. 5 Q. Now, you're here, sir, asking for an injunction, is that 6 correct? 7 A. Yes. 8 Q. And is that a decision, in part, that you have made? 9 A. Yes. 10 Q. You believe that the police are unable to enforce the laws 11 of the City of New York without an injunction? 12 A. No. 13 Q. No what, sir? 14 A. We can enforce the laws without an injunction, but an 15 injunction would be helpful. 16 Q. Be helpful. But you're capable, are you not, of enforcing 17 the laws as they are written in the City of New York? 18 A. Yes. 19 Q. But you think that an injunction would be helpful? 20 A. Yes. 21 Q. But you, sir, have organized, have you not, how to handle 22 Critical Mass since April? 23 A. Yes. 24 Q. And in April, sir, was there a ride, do you recall? 25 A. I don't recall. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 4c8WbraH Smolka - cross 1 Q. Did you have any involvement in April of 2004 with Critical 2 Mass other than it being, taking place as it did upon your 3 post, so to speak? 4 A. Personal involvement, none that I recall. 5 Q. And in May of 2004, did you have any personal involvement 6 in Critical Mass? 7 A. Not that I recall. 8 Q. Do you recall anything about Critical Mass coming to your 9 attention in May of 2004? 10 A. Specifically, May, no. 11 Q. Let's go to June 2004. Did anything happen that you recall 12 with regard to June of 2004? 13 A. Specifically, no. 14 Q. And in July, sir, were you involved in any of the planning 15 of Critical Mass for the police response and how to deal with 16 Critical Mass in July of 2004? 17 A. At some point in the summer, yes. 18 Q. Do you recall whether it was before or after the last 19 Friday of the month in July? 20 A. I don't. 21 Q. Did you -- do you recall, sir, whether you were involved in 22 any planning on how to respond or deal with the Critical Mass 23 Bike Ride in July of 2004? 24 A. At some point in the summer, whether it was July or June, I 25 don't remember specifically. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 4c8WbraH Smolka - cross 1 Q. When, sir -- when did you become familiar, let us say, with 2 Critical Mass? 3 A. Over the past five to ten years. 4 Q. So you've been aware of it for five to ten years? 5 A. Somewhere in that time frame, yes. 6 Q. And what had you come to learn of Critical Mass during that 7 period of time? 8 A. That it was a bike ride that took place on the last Friday 9 of every month. 10 Q. And over the years, had you any involvement with it until 11 we're talking about this summer of 2004? 12 A. Yes. 13 Q. What? 14 A. I had been on the scene for a beginning rally on several 15 occasions, and I was aware of the ride that took place 16 personally on Halloween of last year. 17 Q. When you say you were personally involved, were you in any 18 way directing the police at that point with regard to Critical 19 Mass? 20 A. In a way, yes. 21 Q. What way? 22 A. For the Halloween ride of last year, I sent resources over 23 to monitor the event. 24 Q. And did you monitor the event? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 4c8WbraH Smolka - cross 1 Q. So that over this period of time, you have had from time to 2 time responsibility or helping to provide monitoring of the 3 events? 4 A. Yes. 5 Q. Correct? 6 In October of 2003, that would have been the Halloween 7 you're referring to, is that correct? 8 A. Yes. 9 Q. At that point, you were not the chief of the borough? 10 A. Commanding officer, no. 11 Q. What was your -- you were executive officer then? 12 A. No. 2. 13 Q. Right. And why were you involved then? 14 A. It was a ride that took place within the confines of our 15 borough. 16 Q. And the Critical Mass then, was there a permit granted? 17 A. No. 18 Q. Was there a permit requested? 19 A. Did they request a permit? 20 Q. Anyone. 21 A. Not to my knowledge, no. 22 Q. Sir, do you know how many years the Critical Mass has been 23 taking place in New York City? 24 A. I became aware of it somewhere within the last five to ten 25 years, five years, perhaps, is my knowledge. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 4c8WbraH Smolka - cross 1 Q. During that time, sir, until, let us go to August of 2004, 2 between the time it started in August 2004, has any permit been 3 applied for by anyone with regard to a Critical Mass Bike Ride? 4 A. I'm not aware of any. 5 Q. Has any demand been made by anyone you know, sir, for such 6 a permit? 7 A. Yes. 8 Q. Who? 9 A. Myself. 10 Q. When? 11 A. Sometime this past year. 12 Q. And who did you make that request to? 13 A. Lieutenant Albano. 14 Q. Was that the summer of 2004? 15 A. Yes. 16 Q. So let us take from the beginning of the, your knowledge of 17 Critical Mass to 2000 -- summer of 2004, had anyone else, to 18 your knowledge, requested a permit for a Critical Mass Bike 19 Ride? 20 A. To my personal knowledge, no. 21 Q. Now, is it fair to say, sir, that between the five to ten 22 years previously and the summer of 2004, rides have taken place 23 on a regular basis on the last Friday of each month? 24 A. Probably. 25 Q. You say probably. Do you believe that it has in fact taken SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 4c8WbraH Smolka - cross 1 place? 2 A. Probably, yes. 3 Q. So, and you know, sir, from the history -- do you know 4 where these rides started; that is, physically where a ride on 5 the last Friday of each month would commence? 6 A. I think so. 7 Q. Where? 8 A. San Francisco. 9 Q. And have you had any dealings with these other cities that 10 have such as San Francisco with Critical Mass? 11 A. Personally, no. 12 Q. But you do know that this has become -- I hate to use the 13 word "movement," but it has become an event taking place across 14 the United States, if not the world, on the last Friday of each 15 month? 16 A. According to Web sites, perhaps, but that's -- I don't know 17 that for a fact. I've read that. 18 Q. You've read that? 19 A. Yes. 20 Q. Do you have any reason to doubt the accuracy of those Web 21 sites? 22 A. I couldn't say, talk about their credibility, no. 23 Q. Okay. Now, the summer of, in the summer of '04, you say 24 you, sir, wanted, and made mention to Lieutenant Albano -- 25 Is that it? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 4c8WbraH Smolka - cross 1 A. Yes. 2 Q. -- that you thought a permit should be required, is that 3 correct? 4 A. Yes. 5 Q. Was that before or after the August 27 Republican National 6 Convention bike ride of Critical Mass? 7 A. Probably before, but I'm not sure. 8 Q. And prior to that time, sir -- well, other than Detective 9 Albano, lieutenant, I'm sorry, did you consult anybody else 10 about the necessity or validity of getting a permit? 11 A. Possibly. 12 Q. Do you recall who? 13 A. No. 14 Q. In, would you say, sir, that the first time you become 15 really involved in Critical Mass is the Republican National 16 Convention? 17 A. Prior to that. 18 Q. By "prior to that," after the July ride but before the 19 August ride? 20 A. It was sometime during the summer. Whether it was June or 21 July specifically, I don't recall. 22 Q. And when you became involved, sir, what did you do? 23 A. I was involved in the planning for the police response to 24 the ride. 25 Q. And in that planning, sir, did you make arrangements for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 4c8WbraH Smolka - cross 1 the use of nets and scooters with regard to the Critical Mass 2 Bike Ride? 3 A. Yes. 4 Q. So prior to that time, sir, you had not done such planning, 5 is that correct? 6 A. Personally? 7 Q. Yes. 8 A. Probably not. 9 Q. So you were now in, you were now the chief officer 10 directing how the response was going to be to Critical Mass, is 11 that a fair statement, in the summer of '04? 12 A. Yes. 13 Q. Sir, how many people were arrested on the Critical Mass 14 Bike Ride, do you recall, for August of '04? 15 A. I'd have to look at the figure. It was sizable. 16 Q. It was sizable. I believe the numbers I'm told, sir, is 17 anywhere between three to 400 bike riders. Does that sound 18 reasonably accurate to you? 19 A. I'd have to look at some police document, but that could 20 be. 21 Q. That, you would agree, sir, was a substantial increase in 22 numbers prior to, as compared to prior rides, is that correct? 23 A. The August ride? 24 Q. The August ride. 25 In August '04, then, when you become involved, is it not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 4c8WbraH Smolka - cross 1 correct, sir, that substantial arrests started to occur? 2 A. Yes. 3 Q. And were any of those arrests for parading without a 4 permit? 5 A. Possibly. 6 Q. Did you instruct people to arrest anyone in the Republican 7 National Convention Critical Mass Bike Ride for parading or 8 taking part in a procession without a permit? 9 A. Yes. 10 Q. Now, at that time, sir, had any notice been sent out or 11 given that a permit was required for such a Critical Mass Bike 12 Ride? 13 A. I don't recall. 14 Q. Well, do you know, sir, if anyone put out fliers -- you've 15 seen fliers in September, October, November, to Critical Mass, 16 for telling them they can't ride unless there was a permit -- 17 in August '04? 18 A. I don't believe there were any fliers in August of '04. 19 Q. So in August '04, when you took over, sir, at that time, 20 there had never been any, to your knowledge, request or demand 21 for a permit of any Critical Mass Bike Ride? 22 A. No, I didn't say that. I think there had been verbal 23 requests. 24 Q. By whom? 25 A. I don't recall. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 4c8WbraH Smolka - cross 1 Q. Not by you? 2 A. Did I convey it personally to anybody? No. 3 Q. So, in August '04, you determined that arrests, that the 4 permits were something that you thought were necessary, is that 5 correct? The summer of '04? 6 A. Possibly. 7 Q. Now, sir, the Critical Mass Bike Ride, do you know whether 8 the police, prior to August '04, had in any way facilitated or 9 helped in the Critical Mass Bike Rides on prior occasions? 10 A. We've been present at prior occasions, yes. 11 Q. Excuse me? 12 A. We've been present at prior occasions. 13 Q. Well, isn't it fair to say, sir, that on some occasions 14 that the supervising officers, and I quote, "have made 15 on-the-spot determinations to provide assistance to Critical 16 Mass rides to ensure their safety and to prevent vehicle 17 traffic from getting into the crowd"? Is that an accurate 18 statement? 19 A. Yes. We were there to protect public safety. Not to 20 facilitate the ride, to protect public safety. 21 Q. Well, public safety includes Critical Mass bike riders, 22 does it not? 23 A. Absolutely. 24 Q. And would you agree with me, sir, that along the ride with 25 Critical Mass police officers with scooters would often escort SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 4c8WbraH Smolka - cross 1 and facilitate the ride? 2 A. They did what they thought was necessary to protect 3 everybody, yes. 4 Q. And that was to provide assistance to Critical Mass? 5 A. That was to protect public safety. 6 Q. Well, sir, I'm not going to keep quibbling, but 7 "determinations to provide assistance" is your words in an 8 affidavit at page, at paragraph 13 of your October 25. So it 9 was to provide assistance, was it not? 10 A. Assistance in helping keep the public safe, yes. 11 Q. Well, but part of that assistance, sir, is, is it not fair 12 to say, involved the use of police officers doing some of the 13 following things: Riding alongside or with the bike riders as 14 they went on their routes that were, they were riding on? Is 15 that correct? 16 A. That may have taken place, yes. 17 Q. And at times, did not the police block intersections for 18 the Critical Mass Bike Ride so they could go through traffic 19 lights? 20 A. They may have. 21 Q. Well, do you believe they did? 22 A. I don't -- I wasn't there. 23 Q. Did you ever hear that that's what they did? 24 A. I've heard that we were there to help keep the bike riders 25 safe, the pedestrians safe, and the motorists, minimize SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 4c8WbraH Smolka - cross 1 inconvenience. That's what I've heard. 2 Q. Sir, you go on in your affidavit to say, "However, this 3 assistance" -- 4 MR. HYMAN: And this is at paragraph 13, your Honor. 5 Q. "-- which may have appeared to be a police escort, was not 6 done to condone event but rather as a result of the on-the-spot 7 determination that action needed to be taken to protect the 8 public safety, including the safety of the participants in the 9 ride? 10 Is that an accurate statement by you? 11 A. Yes. 12 Q. So, you use now, sir, the word "assistance" in one and 13 "escort." Escort means that you were going along with the 14 ride, is that not correct? 15 A. Probably. 16 Q. So, until August, sir, police officers were providing 17 assistance on an ad hoc basis, is that a fair statement? 18 A. They may not have been there for the entire ride. They may 19 have been there for part of it. I don't know exactly what took 20 place at the prior rides. 21 Q. Now, on the August ride, sir, you've indicated in your 22 affidavit that there was -- it disrupted traffic, is that a 23 fair statement? 24 A. Yes. 25 Q. And that you felt that the Critical Mass Bike Ride, in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 4c8WbraH Smolka - cross 1 August of '04, was disruptive of traffic, and that was one of 2 the reasons why you wanted a permit? 3 MS. BINDER: Objection to the form, your Honor. 4 MR. HYMAN: I'll withdraw and rephrase it. 5 THE COURT: All right. 6 BY MS. HYMAN: 7 Q. In August of '04, sir, did you believe that the Critical 8 Mass bike riders were going to disrupt traffic? 9 A. Probably. 10 Q. And did that figure into your equation as to whether you 11 thought a permit were necessary? 12 A. I thought a permit was necessary whether it was for that 13 reason or not. 14 Q. Is that one of the reasons? 15 A. That would have been one, yes. 16 Q. And the other reasons? 17 A. For requesting a permit? 18 Q. Yes. 19 A. This way we could figure out a route, we could devote 20 proper police resources, give public notice, let everybody know 21 what's going on, minimize inconvenience. There are several 22 factors. 23 Q. Now, the disruption of traffic, though, is one thing? 24 A. It is. 25 Q. Am I correct, sir, that a good part of midtown Manhattan SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 4c8WbraH Smolka - cross 1 was closed off to vehicle traffic during the Republican 2 National Convention? 3 A. At times, there were street closures, yes. 4 Q. And weren't there notices all over the city, gridlock 5 alert? 6 A. Perhaps. 7 Q. Perhaps? This was in your command. 8 A. The Friday before was not during the convention. The 9 convention hadn't started yet, sir. 10 Q. No. But leading to the convention, you had not made 11 arrangements -- I mean, sir, if I recall, there were signs on 12 34th Street saying, and this was before the convention, since I 13 was not in town for it, large signs throughout the city saying 14 "gridlock alert, stay out, street closings." Isn't that an 15 accurate -- 16 A. During the convention -- 17 THE COURT: Hold on. Sustained. All right? Just put 18 questions to the witness, unless you want to testify. 19 MR. HYMAN: Maybe later, your Honor, but not now. 20 Q. Was there not gridlock alert in the city at that period of 21 time? 22 A. During the convention, sir, not prior to. 23 Q. In your affidavit, sir, you say groups splintered off the 24 main group. Is that an accurate statement? 25 A. For the August ride? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 4c8WbraH Smolka - cross 1 Q. Yes. 2 A. Yes. 3 Q. What do you mean by "splintered off"? 4 A. Different people headed in different directions. 5 Q. Was there a route that was being escorted by the police 6 that day? 7 A. No. 8 Q. So then how could you splinter off if there was no route? 9 A. They did not stay as one group. They splintered off into 10 several groups. 11 Q. Was there anything wrong with that? 12 A. Yes. 13 MS. BINDER: Objection, your Honor. 14 THE COURT: Overruled. 15 BY MR. HYMAN: 16 Q. What was wrong with it? 17 A. It made the traffic disruptions more severe. 18 Q. Sir, bicycles are permitted to ride in the City of New 19 York, are they not? 20 A. Yes. 21 Q. They are entitled to occupy the roadways? 22 A. With certain restrictions, yes. 23 Q. So that if bike riders decided to go down 35th Street and 24 not stay on Seventh Avenue, let us say, that's their 25 prerogative, is it not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 4c8WbraH Smolka - cross 1 A. Perhaps. 2 Q. Why perhaps, sir? 3 A. If a large group did it and they took over the entire 4 block, thereby preventing vehicles from getting through, 5 possibly emergency vehicles, that would be unlawful. 6 Q. Well, possibly emergency vehicles, sir, if an emergency 7 vehicle came by, riders, like other cars, would have to move to 8 the side and permit that vehicle to pass, am I correct? 9 A. Hopefully. 10 Q. Well, that's the law, is it not? 11 A. That is. 12 Q. And on the 27th, sir, bike riders had a right, did they 13 not, to be driving their bicycles in the City of New York? 14 A. Perhaps. 15 Q. Sir, the issues of where and how they ride, do the police 16 have a right, sir, in your mind, to tell bike riders where they 17 can ride? 18 A. At times, yes. 19 Q. At times. And other than those roadways, sir, or 20 expressways in which bike riding is prohibited by statute, what 21 rights do you believe a police officer has to tell a bike rider 22 where to ride? 23 A. Well, as you said, by statute, there are certain 24 limitations where bikes can and can't go. They have to follow 25 traffic regulations, VTL regulations. And if people are going SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 4c8WbraH Smolka - cross 1 to be in a large group and conduct a procession or something 2 that would prohibit other traffic from getting through, that's 3 when we have the right to intervene. 4 Q. Sir, if bike riders obey the traffic laws, do they have a 5 right to ride where they want when they want? 6 A. You'd have to be more specific with that question. 7 Q. On August 27, did they have a right to ride in the streets 8 of New York that were not closed to traffic? 9 A. I would say no, not 5,000 people all at the same time 10 taking over the entire roadway, shutting things down. They 11 don't have the right to do that, no. 12 Q. By "shutting things down," you mean because they were too 13 many people, too many bike riders in a particular place at a 14 particular time? 15 A. Yes. 16 Q. And when they were on the street, if there were 20 bikes or 17 30 bikes in a particular grouping, is that legal or illegal 18 under your view? 19 A. You'd have to be more specific. 20 Q. Why? 21 A. It would depend upon the location, time of day, traffic 22 conditions, weather conditions, what else was going on. 20 or 23 30, or so, could. It's possible, but I'd have to know 24 specifically what you're talking about. 25 Q. If 20 or 30 vehicles, cars, occupied a street, would that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 4c8WbraH Smolka - cross 1 be legal? 2 A. It sounds like it, yes. 3 Q. But if 20 or 30 bicycles occupied the street, then you're 4 saying it depends on more specific facts? 5 A. I said it may be, yes. 6 Q. What? 7 A. The roadways are designed primarily for the vehicles to 8 travel in. That's what the VTL tells us, the traffic 9 regulations tell us. Bicyclists are allowed to use the roadway 10 also, but not to the exclusion of everybody else. 11 THE COURT: You know, I'm just going to remind 12 everybody, you're in a courtroom, not a sports stadium. If I 13 find that anybody is interrupting the proceeding, I'm going to 14 eject them. That goes for you. All right? 15 Let's proceed. 16 BY MR. HYMAN: 17 Q. Sir, in your affidavit, and in -- well, let me withdraw 18 that. 19 Is there any limitation, sir, in the vehicle and traffic 20 law, to your knowledge, or New York City Department of 21 Transportation, that restricts the number of bicycles at a 22 particular time in a particular place? 23 A. Specifically, no. 24 Q. And, in fact, they can, am I right, sir, when -- I'm 25 reading from a statute. It says, "Bicycles are permitted on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 4c8WbraH Smolka - cross 1 both sides of 40-foot wide one-way roadways." Is that 2 accurate? 3 A. I believe so. 4 Q. And that they may ride on either the left or right-hand 5 side? 6 A. Perhaps. 7 Q. And that they're not required to be at the curb, are they? 8 A. I believe they're supposed to stay near the curb when it's 9 practicable, yes, sir. 10 Q. And if there are enough bicycles or other cars at the curb, 11 then they can occupy the roadway, am I correct? 12 A. To get around a vehicle, yes, sir. 13 Q. Now, did you, on August 27, sir, direct bikers to a 14 situation where you then blocked the street and arrested them? 15 A. No. 16 Q. How did you choose the places where you stopped the bike 17 riding on August 27? 18 A. I personally did not choose those spots. 19 Q. Who did? 20 A. The on scene commander, whoever was there. 21 Q. Now, sir, you indicated that you think a permit is 22 required. Who is supposed to get this permit, in your view? 23 A. It would be an organizer. 24 Q. Are there any organizers, to your knowledge, of Critical 25 Mass? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 4c8WbraH Smolka - cross 1 A. Possibly. 2 Q. Well, possibly. Sir, in your knowledge of the past history 3 of Critical Mass, have you found an organizer that you believe 4 is a person responsible for getting a permit? 5 A. I am not personally aware of an organizer, no. 6 Q. So then who is to get this permit, if there are no 7 organizers? 8 A. Every group has an organizer. 9 Q. That's -- why do you -- well, I'm not going to -- 10 You say every group has an organizer. You have read, have 11 you not, the history of Critical Mass? 12 A. I have. 13 Q. And you've read, have you not, that they say in their 14 materials, that there are no organizers? 15 A. I've read that. 16 Q. You don't believe it? 17 A. No, sir. 18 Q. You think there are secret organizers of Critical Mass, is 19 that it? 20 A. Of sorts, yes. 21 Q. But you haven't found them yet? 22 A. No. 23 Q. So, let me ask you this: In order for someone to get a 24 permit, they have to fill out a form, is that correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 4c8WbraH Smolka - cross 1 Q. Have you reviewed that form at all, sir? 2 A. On occasion. 3 Q. And that form says it "must be signed by a representative 4 of the corporation, organization, or association, giving full 5 name and relationship to the corporation, organization, or 6 association, and a statement as to the source of the 7 representative's authority to sign the application." Correct? 8 A. Yes. 9 Q. So somebody has to go and -- the form requires a sworn 10 statement at the end, does it not? 11 A. I'd have to review it, but if it's on there -- 12 Q. Well, just to save us time, sir, I believe it says, 13 "Penalty for falsification or verification of any statement 14 punishable by a fine or imprisonment." Is what the statement 15 says at the end of your form? So somebody has to sign and be 16 accurate, correct? 17 A. Yes. 18 Q. Now, you're here, sir, and you know that we have five 19 plaintiffs in this case? 20 A. Yes. 21 Q. If Rebecca Bray came to you, sir, and said I have no 22 affiliation, I simply ride in a bike ride, but I'm going to 23 apply for a permit, is she an authorized representative? 24 A. Could be, yes. 25 Q. Could be. What would be the determination? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 4c8WbraH Smolka - cross 1 A. The fact that somebody stepped forward would certainly be a 2 consideration. 3 Q. But she has no authority. I mean, are you saying that 4 anyone could step forward? I could step forward? Norman could 5 step forward? And we simply say, We want a permit? 6 A. Some people have done just that, yes. 7 Q. But what's the source of our authority to sign the 8 application? 9 A. I don't look into that part. I don't know. 10 Q. But somebody has to say they have authority? 11 A. We'd have to make a reasonable decision about that, yes. 12 Q. But we know of no organizers. You say that you believe 13 that they exist, but you have not met one? 14 A. I may have met one; they just haven't stepped forward to 15 say they are. 16 Q. They're undercover? 17 MS. BINDER: Objection, your Honor. 18 THE COURT: Sustained. 19 MR. HYMAN: Withdrawn. Withdrawn. 20 Q. The entire issue of the permit, sir, is to have knowledge 21 of a route, is that it? 22 A. Partly, yes. 23 Q. What else? 24 A. We would be able to give out advance notice of what was to 25 take place, be able to give adequate police resources, notify SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 4c8WbraH Smolka - cross 1 the public about what's going on, make any other changes we 2 deem necessary for public safety. 3 Q. The person filling out the form has to know how many people 4 are coming, about, approximately? 5 A. Approximately. 6 Q. Over the years, sir, that you've been familiar with 7 Critical Mass, it's always been the last Friday of the month, 8 right? 9 A. Generally, yes. 10 Q. And has it always, in recent years, been starting at Union 11 Square Park? 12 A. I believe so, yes. 13 Q. So you already know these facts about Critical Mass? 14 A. Yes. 15 Q. Any reason then you need a permit to meet this contingency 16 that people are going to be coming at the event on the last 17 Friday of the month at Union Square? 18 A. Yes. 19 Q. Why? 20 A. The fact that they start in the park is only one factor. 21 Where they go after that is, has never been told to us in 22 advance. So it's difficult, if not impossible, to prepare. 23 Q. What if people don't know where they're going? What if 24 they're just riding their bikes? Does that -- and there is no 25 route planned by any organizer. How do you deal with that on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 4c8WbraH Smolka - cross 1 your permit form? 2 A. They would have to work with us and select a route. 3 Q. So, it is your view that the police have the right to set a 4 route and that Critical Mass bike riders, in this group, have 5 to follow that route? 6 A. We would agree to a route as we do with other groups, yes, 7 sir. It's part of a process. 8 Q. But who are you going to agree with if they're not 9 organized? 10 MS. BINDER: Objection, your Honor. Asked and 11 answered. 12 THE COURT: Overruled. 13 A. The person who comes in on their behalf to seek the permit. 14 Q. You are seeking an injunction against five plaintiffs. I'm 15 advised, sir, that Justin McSimov was, his first ride was 16 September 24, when his bike was taken. Would he be in a 17 position to get a permit for Critical Mass, having never ridden 18 in the New York group before? 19 A. Probably not. 20 Q. So if Justin came to you and said, I want a permit because 21 I want to ride in Critical Mass, you would not give it to him? 22 A. I can't say sitting right here, no. 23 Q. Sir, how many people attended the Critical Mass in August; 24 do you know? 25 A. Several thousand. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 4c8WbraH Smolka - cross 1 Q. And in September? 2 A. I believe over a thousand. 3 Q. Smaller than August? 4 A. Yes. 5 Q. Would you agree with me, sir, that the events of the week 6 before and during the Republican National Convention were a 7 unique set of circumstances in New York City, for purposes of 8 traffic and pedestrian use and access to the city of 9 individuals? 10 A. Was that a unique set of circumstances that week? 11 Q. Yes. 12 A. Probably. 13 Q. In September, was there a unique set of circumstances when 14 Critical Mass Bike Ride started? 15 A. I don't recall. 16 Q. You were present September 24, were you not? 17 A. Yes. 18 Q. So, was that -- is there anything in your mind, can you 19 tell the Court, was there anything particularly unique and 20 unusual with regard to the bike ride that was taking place that 21 had a thousand or so, as you said? 22 A. Yes. 23 Q. What? 24 A. The size of the group, once again. 25 Q. Well, sir, in prior periods of time, have there not been a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 4c8WbraH Smolka - cross 1 group of about a thousand or so in earlier times? 2 A. Rarely. 3 Q. But there were? 4 A. Rarely. 5 Q. And this time, the thousand or so, that to you was unusual? 6 A. Yes. 7 Q. Now, at that time, did you attempt to stop the ride, in 8 September 2004? 9 A. We attempted to get a permit, and then I entered into 10 negotiations with an attorney. 11 Q. With Chris Dunn? 12 A. Yes. 13 Q. But you agree with me that Mr. Dunn was not authorized to 14 set up a route for Critical Mass? 15 A. I agree with you on that? 16 Q. Yes. 17 A. I don't know. He spoke up on their behalf. 18 Q. He was trying to help? 19 A. Correct. 20 Q. Now, you knew the ride was taking place that night because 21 you had brought all your equipment, right? And manpower? And 22 people power, I should say. Right? 23 A. Yes. 24 Q. So, it was no surprise to you that on September 24, there 25 was going to be a Critical Mass Bike Ride? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 4c8WbraH Smolka - cross 1 A. Correct. 2 Q. At that time, sir, did you, other than try to negotiate 3 something with Mr. Dunn, did you tell the people to leave the 4 park? 5 A. I don't recall that. 6 Q. I mean, you didn't say, Get out of here, there's no ride? 7 A. I don't believe so. 8 Q. And when the ride started, sir, did police officers go with 9 the riders? 10 A. Probably. 11 Q. They were assisting them? 12 A. In September? 13 Q. Yes. 14 A. Yes. 15 Q. Now, there had been no agreed-upon route, had there? 16 A. I proposed a route to Mr. Dunn, and that was the route we 17 were going with. 18 Q. You imposed the route? 19 A. Proposed. I didn't impose. I proposed. 20 Q. And did bike riders on the whole go with it? 21 A. For a while. 22 Q. Well, you proposed a route. How did the police -- 23 withdrawn. 24 There was, sir, as I understand, no written statement of 25 the route, was there? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 4c8WbraH Smolka - cross 1 A. No. 2 Q. You had come up with a route that you determined you wanted 3 the bike riders to follow, is that an accurate statement? 4 A. I proposed a route, yes, sir. 5 Q. Well, when you proposed a route, it had a start out of 6 Union Square, and it was intended to end in Union Square, is 7 that correct? 8 A. Yes. 9 Q. And that route was to go -- do you recall where it was to 10 go? 11 A. I do. 12 Q. Where? 13 A. On Park Avenue to 57th Street, across 57th Street, I 14 believe, to Seventh Avenue, down Seventh Avenue, to Broadway, 15 back to the park. 16 Q. So that, and how did you convey this route to the bike 17 riders? 18 A. I conveyed it to Mr. Dunn, who was speaking, I believe, on 19 their behalf at the time. 20 Q. Well, we know by your testimony, sir, there were over a 21 thousand people there. 22 A. Yes. 23 Q. All right. So talking to Mr. Dunn, he's one person. How 24 did you convey to the thousand people in Union Square at the 25 start of the ride as to what the route was? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 4c8WbraH Smolka - cross 1 A. I conveyed it to Mr. Dunn, who was speaking up on their 2 behalf. 3 Q. But, did Mr. Dunn have a loudspeaker in which he was 4 saying, "I have learned that the following route that the 5 police have proposed" -- 6 A. I don't recall that, no. 7 Q. No. So isn't it a fact, sir, that the way the police 8 proposed the route is that scooters and police officers 9 escorted the route? 10 A. We were along the route, yes. 11 Q. And during that period of time, you blocked traffic? 12 A. At times, yes. 13 Q. Did you cork for the bikers? 14 A. We did our best to facilitate them getting through, sir. 15 Q. And by doing that would mean that you would block off 16 intersections? I'll use that rather than corking. 17 A. At times, yes. 18 Q. So that if they went through an intersection, under those 19 circumstances, even if the light were red, they were permitted 20 to do so? 21 A. If it was done at police direction, yes. 22 Q. And at time, you tried to get the group to, you would stop 23 the group to try to let people catch up? 24 A. And to allow crosstown traffic to go, yes. 25 Q. And people did cooperate, did they not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 4c8WbraH Smolka - cross 1 A. At times, yes. 2 Q. And then at some point, some people went off your chosen 3 route, am I right? 4 A. The agreed-upon route with me and Mr. Dunn, yes. That 5 route, yes. 6 Q. And when they did, sir, did the police escort them? 7 A. No. 8 Q. So you were only escorting and providing assistance to 9 those who were following your proposed route? 10 A. Yes. 11 Q. And when they went off, sir, if they, as a group, whatever 12 number that may be, obeyed the traffic laws, did they violate 13 any law? 14 A. Yes. 15 Q. What? 16 A. They would have been parading without a permit at certain 17 points, possibly. 18 Q. But there was no permit prior to their leaving this route, 19 was there? 20 A. They may have been doing other -- disorderly conduct is 21 possible. 22 Q. Well, when you say "disorderly conduct," what do you mean, 23 sir? 24 A. They would have been taking over the roadway to the 25 exclusion of other vehicles, which is not permitted. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 4c8WbraH Smolka - cross 1 Q. Well, I haven't found that in a traffic law, sir. Do 2 you -- do you have a cite that says bike riders cannot occupy 3 the roadway? 4 A. I didn't say it was in the traffic laws. I said it could 5 be disorderly conduct, which is not in the traffic laws. 6 Q. All right. And disorderly conduct, can you tell the Court 7 what section of the law you're talking about? 8 A. I'd have to refer to a Penal Law to get the exact section. 9 Q. Do you recall the substance of the section? I don't need 10 the number. 11 A. It has to do with taking over the roadway or sidewalk to 12 the exclusion of other people. 13 Q. So, when a biker was on the, in the roadway, you 14 authorized, instruct -- did you instruct police officers to 15 arrest bikers who were in the middle of roadways? 16 A. You're using the word "biker." Sir, it was not a biker. 17 Q. How many bikers constitutes a procession, sir? 18 A. That would have to be determined by the size of the roadway 19 and various other factors. 20 Q. Well, I mean how -- you say that a permit is required, in 21 your mind. How many bikers is necessary to constitute the need 22 for a permit? 23 A. I don't know that there's a minimum number. 24 Q. So you can't tell this Court at what point a permit is 25 required? It's a judgment call? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 4c8WbraH Smolka - cross 1 A. For the most part, yes. 2 Q. Whose judgment? 3 A. Well, if I was issuing a permit, then it would be my 4 judgment. 5 Q. Now, the night of September 24, you didn't issue a permit, 6 am I right? 7 A. Correct. 8 Q. Yet you have charged people who left your proposed route 9 for parading without a permit, is that correct? 10 A. I believe so. 11 Q. And there are charges now pending in the criminal courts in 12 the state of, in the City of New York with regard to that, am I 13 right? 14 A. Yes. 15 Q. And when you did this charging or determined to charge 16 them, you knew that there was no permit for the main group? 17 A. Yes. 18 Q. But you didn't charge them? 19 A. That's correct. 20 Q. Why? 21 A. Because I made a determination with Christopher Dunn that 22 we would go along with the route, we would provide police 23 assistance if everybody stuck to the route. A matter of public 24 safety. 25 Q. So there was no need for a permit; it was only to stay SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 4c8WbraH Smolka - cross 1 within the confines of what you believed the route should be? 2 A. No. There is a need for a permit. But at that point in 3 time, time of night just before they were ready to leave was 4 not the time to get a piece of paper. 5 Q. Sir, would you agree with me that the ride of Critical Mass 6 on September 24 was in the main, orderly, and proper? 7 A. No. 8 Q. You think that there were serious problems? 9 A. Yes. 10 Q. But would you agree with me, sir, that in the main, most of 11 the riders were abiding by the route that you had proposed? 12 A. For a point, for a while, yes. 13 Q. Well, didn't they -- let me read you a quote, sir: "Most 14 of the participants did follow the last-minute, agreed-upon 15 route that Mr. Dunn and I had worked out. However, some did 16 not." 17 Does that sound familiar to you? 18 A. Yes. 19 Q. That's your words, am I correct? 20 A. Yes. 21 Q. At paragraph, I believe, nine of the affidavit, of 10/25. 22 Sir, you used the phrase "most of the participants." That 23 means certainly more than a few, right? 24 A. For the September ride? 25 Q. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 4c8WbraH Smolka - cross 1 A. September, yes. 2 Q. So most of the participants did follow the route? 3 A. For September, yes. I was thinking of October. 4 Q. Right. 5 A. For September, yes. 6 Q. So you didn't need an injunction for September? 7 A. I believe that we do, yes, or did. 8 Q. Well, you would agree with me that most of the participants 9 did, when somebody went off and you determined to violate the 10 law, you arrested them, am I right? 11 A. For the most part, yes. 12 Q. Police were able to handle the situation of Critical Mass 13 on September 24, yes? 14 A. For the most part, yes. 15 Q. So the injunction that you're requesting is sort of 16 something in addition that you need? 17 A. Yes. 18 Q. You don't think there is -- laws of the City of New York 19 are enough; you need a court to tell you, to tell people to 20 obey the law? 21 MS. BINDER: Objection. 22 THE COURT: Sustained. 23 BY MS. HYMAN: 24 Q. Sir, on the 24th of September, you authorized the taking of 25 bicycles, did you not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 4c8WbraH Smolka - cross 1 A. Yes. 2 Q. And the five bikes that you took, those were of individuals 3 who were not charged, am I correct? 4 A. From what location, sir? 5 Q. On 36th Street. The five plaintiffs in this action. 6 A. I don't know specifically whether they were arrested or 7 not. 8 MS. BINDER: Your Honor, I'm just going to object to 9 this on relevancy grounds, because I believe that the scope of 10 this hearing is as to the city's motion for preliminary 11 injunction and not as to the plaintiffs' claims against the 12 police department about which there are no factual disputes. 13 THE COURT: I will sustain your objection except I 14 presume that this is just a very preliminary question, moving 15 to some area. 16 MR. HYMAN: That's exactly correct, your Honor. 17 THE COURT: All right. 18 MS. BINDER: Thank you, your Honor. 19 BY MS. HYMAN: 20 Q. Now, sir, on October 29 is the next Critical Mass ride, 21 correct? 22 A. Yes. 23 Q. How did you know that ride was to take place? 24 A. Prior history, probably. 25 Q. Excuse me? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 4c8WbraH Smolka - cross 1 A. Prior history, the fact that it was the last Friday of the 2 month. 3 Q. And at that time, sir, where did they assemble? 4 A. In Union Square Park. 5 Q. Did you ask them to leave the park? 6 A. No. 7 Q. Sir, in August, where did they assemble? 8 A. Same spot. 9 Q. Did you ask them to leave the park? 10 A. No. 11 Q. So, on August, when you were in charge, September, and 12 October, you did not ask them to leave the park? 13 A. I don't believe so, no. 14 Q. Did you arrest anyone in the park for being in the park 15 prior to the ride starting? 16 A. I don't know. 17 Q. Now, at, in the September, the October ride, sir, did you 18 authorize the use of handing out a flier and having a sound 19 truck there? 20 A. Yes. 21 MR. HYMAN: Your Honor, can I show the witness the 22 document? 23 THE COURT: Yes. Let's just mark it though for the 24 purposes of the record. 25 MR. HYMAN: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 4c8WbraH Smolka - cross 1 THE COURT: As Plaintiffs' Exhibit 1. Do you need a 2 tag? 3 MR. HYMAN: It can go right on. 4 Your Honor, can I show this to the witness? 5 THE COURT: You may. 6 MR. HYMAN: Thank you. Do you have a copy, Robin? 7 MS. BINDER: Yes, I do. Thank you. 8 BY MS. HYMAN: 9 Q. Is this that -- 10 MR. HYMAN: Whoops, whoops, whoops. 11 Your Honor, I'm sleeping at the switch. Can I mark as 12 Exhibit 2 -- 13 THE COURT: You can mark anything you want. Here are 14 some stickers. Mark them yourself. This is federal court. 15 MR. HYMAN: I just want to, what I did is I used the 16 26th, your Honor. 17 THE COURT: All right. And if you've got a copy for 18 me, that would be helpful. 19 MR. HYMAN: I do, your Honor. 20 THE COURT: Thanks. 21 MR. HYMAN: And we'll mark this as Exhibit 2, your 22 Honor. 23 THE COURT: Fine. 24 BY MR. HYMAN: 25 Q. Let me show you Exhibit 2. I apologize, Chief. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 4c8WbraH Smolka - cross 1 Sir, is that the leaflet that was handed out on October 29? 2 A. Yes. 3 Q. Now, sir, prior to October 29, when you were advising 4 cyclists with regard to what they were legally and not legally 5 able to do, did you not inform them that they had to ride not 6 more than two abreast? 7 A. Say that again, please. 8 Q. Did you not inform, prior to October 29, bicyclists that it 9 was illegal for them to ride more than two abreast in the City 10 of New York? 11 A. Riding two abreast is not the problem. 12 Q. Well, but if you would just answer my question. Did you 13 advise New York critical riders that they had to ride two 14 abreast; that was the law? 15 A. I don't know that we did. 16 Q. Let me show you Exhibit 3 and ask if you recognize this 17 document. And I would note, sir, that it's attached to 18 Mr. Albano's affidavit. 19 Does it not say, sir, in Exhibit 3, bicyclists must ride in 20 usable bicycle lanes or near the curb or edge of the roadway 21 and not ride more than two abreast? 22 A. That's what it says. 23 Q. That was inaccurate, was it not? 24 A. I don't know that to be inaccurate, no. 25 Q. As you sit here now, sir, do you still instruct your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 4c8WbraH Smolka - cross 1 officers to tell cyclists that they have to ride two abreast? 2 A. Two abreast, I don't know. But the rest of this -- 3 overall, it seems to be accurate, yes. 4 Q. But I'm asking about two abreast, sir. 5 A. Have I personally given the instruction about two abreast? 6 No. 7 Q. Have you told them that bicyclists can ride two abreast? 8 A. I have not personally told them anything about being two 9 abreast. 10 Q. Sir, on the 29th, on the route, how many people showed up 11 for the 29th, bike riders? 12 A. September 29? 13 Q. October. 14 A. October 29? 15 Q. Halloween. 16 A. It was a sizeable group. 17 Q. Do you know if it was more or less than the 2003 Halloween 18 ride that you were involved with? 19 A. I have to see a number. We have it documented somewhere, 20 or estimate. I don't recall it offhand. 21 Q. And then there was a suggested route, is that correct? 22 A. For this past October? 23 Q. Yes. 24 A. Yes. 25 Q. And that route, the bicyclists were escorted by the police? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 4c8WbraH Smolka - cross 1 A. October, yes. 2 Q. Now that route, sir, was to -- I believe if you look at 3 Exhibit 2, was that the route that you had proposed? 4 A. Yes. 5 Q. And that route, sir, was to start at Union Square and come 6 back to Union Square? 7 A. That's what it says. 8 Q. And it does say, does it not, sir, that it was to go across 9 a park, across 55th Street, to Fifth Avenue, go down on Fifth 10 Avenue, to Broadway, and south on Broadway back to Union 11 Square? Is that correct? 12 A. Yes. 13 Q. And is that the route that you and others in the police 14 department had determined that you wanted the cyclists to use? 15 A. Yes. 16 Q. Now, how, sir, did you -- well, withdrawn. 17 When, sir, you were planning for this ride, did you have 18 discussions with your subordinates as to how they were to deal 19 with the Critical Mass Bike Ride? 20 A. Some, yes. 21 Q. And were they informed of this route? 22 A. The people I spoke to were, yes. 23 Q. And you spoke to people who were supposed to speak to other 24 people to tell them the route? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 4c8WbraH Smolka - cross 1 Q. And if people deviated from the route, you regarded that as 2 doing something for which you could arrest the bike riders, if 3 they deviate? 4 A. Possibly, yes. 5 Q. Because they were now, in your mind, I gather, not riding 6 with a permit? 7 MS. BINDER: Objection. 8 THE COURT: Sustained as to form. 9 BY MS. HYMAN: 10 Q. Did you, sir, determine that, and tell people that if they 11 deviated from the route, they could be arrested? 12 A. Yes. 13 Q. And did you also tell your subordinates that if they 14 deviated from the route, they could be arrested? 15 A. Those I spoke to, yes. 16 Q. And do you know if your orders with regard to this matter 17 were implemented -- implemented? 18 A. For the most part, yes. 19 Q. Sir, does Fifth Avenue lead to Union Square Park? 20 A. Directly? 21 Q. Yes. 22 A. No. 23 Q. So that if someone were to go up out of Park Avenue, across 24 55th Street, and down Fifth Avenue, would they end up in Union 25 Square Park unless they made another turn? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 4c8WbraH Smolka - cross 1 A. Indirectly, no. 2 Q. They would have to come across a street such as 12th 3 Street, 15th Street, am I right, to get back? 4 A. No. 12th Street would not bring you back. 5 Q. 15th? 6 A. Yes. 7 Q. Right. You're right. 12th is below 14th. I apologize. 8 So 12 is below, but 15, did you have, sir -- do you recall 9 whether you had netting across the road on 15th Street? 10 A. Possibly. 11 Q. Did you know when you had the netting that there had been a 12 deviation from the route that you had proposed? 13 A. I'm not sure what you mean. 14 Q. Well, sir, the reason for a net, I gather, is to block off 15 and stop bicyclists or pedestrians from entering an area? 16 A. Correct. 17 Q. So, if you had, for instance, netting at 15th Street, you 18 would prevent people from coming from Fifth Avenue back to 19 Union Square Park, am I right? 20 A. No. 21 Q. Doesn't 15th Street, if you were to be on Fifth Avenue, to 22 get to Union Square Park have to cut through to 15th, as one 23 block? 24 A. That's one way, yes. 25 Q. So a net across the road there would stop people from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 4c8WbraH Smolka - cross 1 getting back to the park? 2 A. If it was deployed, yes. Rolled up on a corner, it would 3 not. 4 Q. Do you know if it was deployed? 5 A. I don't believe it was. 6 Q. Do you, sir, know about what happened at Fifth Avenue, 7 Broadway, and 23rd Street, that intersection at Madison park? 8 A. I do. 9 Q. Now, according to the route, sir, that you proposed, am I 10 right you went, you were having the bicyclists come down Fifth 11 Avenue and at 23rd Street go on to Broadway so they would get 12 back to the park, correct? 13 A. Correct. 14 Q. In fact, in your affidavit to the Court, you indicated, did 15 you not, that there were serious problems with the ride because 16 ultimately only a few hundred people, I think, are your words, 17 got back to Union Square? Do you recall saying that, sir? 18 A. Yes. 19 Q. So you were surprised at the number of, the few number of 20 people that had ended up back at Union Square when the time of 21 the ride had ended, am I right? 22 A. Correct. 23 Q. You have since learned, have you not, sir, that in fact the 24 police cut off Broadway with either netting or some kind of 25 ribbon across the road, am I right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 4c8WbraH Smolka - cross 1 A. Yes. 2 Q. At the time you filed your affidavit with the Court, you 3 did not know that? 4 A. I don't recall when I became aware of it. 5 Q. Well, you didn't tell the Court initially, in your 6 affidavit, did you, that you had changed the route from Exhibit 7 2? 8 A. That's not correct, sir. 9 Q. You told the Court that you had changed the route? 10 A. You're not phrasing it the right way, no. 11 Q. What's the right way, sir? 12 A. The riders had deviated from the route long before they got 13 down to that point. They had already left the route prior to 14 getting to 23rd Street and Broadway. 15 Q. Well, at 23rd Street, sir, we have pictures, do we not, 16 that you've seen? 17 A. I have. 18 Q. That are attached to our papers? 19 A. Correct. 20 Q. And those pictures indicate, do they not, that there were a 21 large number or a number of bike riders with police officers at 22 23rd and Fifth? 23 A. That's correct. 24 Q. It also indicates, does it not, sir, these pictures, that 25 there were bikers going towards, on 23rd, west on 23rd Street? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 4c8WbraH Smolka - cross 1 A. Correct. 2 Q. So, and that there were police officers with them at that 3 point? 4 A. There were police officers there, attempting to stop them 5 because you can see in the picture that crosstown traffic was 6 still running. They weren't being directed necessarily to go 7 west on 23rd Street. They were being stopped for traffic. 8 Q. Do you know whether they were being directed west on 23rd 9 Street, as you sit here now? 10 A. Personally, no. 11 Q. So, you will agree with me that a large group of riders 12 ended up making a right turn at 23rd Street? 13 A. They ended up doing that, some of them, yes. 14 Q. And that, sir, took them to west, correct? 15 A. They chose to go west. 16 Q. But police officers were with them? 17 A. Police officers were there directing traffic, you can see, 18 and there were some officers on scooters, yes. 19 Q. And police officers could have blocked or gone to the front 20 and said you're going the wrong way? 21 A. They may have. 22 Q. We have a witness, sir, that says police directed them on 23 to 23rd Street. Do you dispute that? 24 A. I don't know that for a fact, no. 25 Q. But if they are correct that police officers were directing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 4c8WbraH Smolka - cross 1 them on to 23rd Street, then they didn't intentionally deviate 2 from the route you had selected, did they? 3 A. At that point, no. 4 Q. So that going west at that point, they were not going to be 5 anywhere near Union Square Park unless they went down some 6 other road? 7 A. I don't believe that they were directed to go westbound, 8 no. I believe that they were directed to stop for traffic, 9 which you can clearly see crossing at 23rd Street. 10 Q. If they were on 23rd Street and escorted through lights, 11 were they violating any law? 12 A. They could have been, yes. 13 Q. Why? 14 A. It could have been disorderly conduct, could have been 15 parading without a permit. I don't know how many or what the 16 exact circumstances were. 17 Q. Do you know how many arrests there were that night? 18 A. We have it written down. I don't know the exact number 19 myself, no. 20 Q. Were there any arrests in the 15th Street area? 21 A. I'd have to look at the police records. I don't know. 22 Q. You don't know whether people coming back to Union Square 23 Park were arrested? 24 A. I do know people were arrested. At what point or where, I 25 don't know. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 50 4c8WbraH Smolka - cross 1 Q. Sir, let's go to November 26. At that point, sir, November 2 26, you knew again there was going to be a ride, correct? 3 A. Yes. 4 Q. You planned for it? 5 A. Yes. 6 Q. And if you go to Exhibit 1, you actually handed out a 7 flier, right? 8 A. I don't have Exhibit 1. 9 Q. If you take a look at Exhibit 1 in front of you, sir -- 10 A. I don't have Exhibit 1. I have two and three. 11 Q. You don't have Exhibit 1? You're right. Here it is. My 12 apologies, sir. 13 Now, in this one, sir, you didn't permit a ride to go 14 ahead, did you? 15 A. Correct. 16 Q. You told the people that it's dangerous and illegal to ride 17 a bicycle in a procession on the public streets when, if a 18 permit for the procession has not been issued, correct? 19 A. Yes. 20 Q. And you then told them no permit has been issued for 21 November 26, correct? 22 A. Correct. 23 Q. And if you choose to ride in a procession, you will be 24 arrested, correct? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 4c8WbraH Smolka - cross 1 Q. Now, where did they -- this was again Union Square Park? 2 A. Yes. 3 Q. Did you tell the people to leave the park? 4 A. Per se, no. 5 Q. In fact, I gather that having everybody in one place at 6 Union Square allows you to communicate when you bring a sound 7 truck in as you did on October 29 and November 26, so that 8 everyone can hear what you are telling them as to how they are 9 to behave? 10 A. Yes. 11 Q. You don't want people scattered about; you want them in one 12 place so you can talk to them and tell them what you propose, 13 correct? 14 A. I guess. 15 Q. I mean, it's helpful for them to be in one place? 16 A. If they're not in one place, then there's no Critical Mass 17 ride. So if they were in different places, there wouldn't be a 18 Critical Mass Bike Ride. 19 Q. Taking, sir, this flier, if people are in the park, and 20 they are told by you to go home, in essence, right -- 21 A. Yes. 22 Q. -- what do you expect them to do? 23 A. I don't agree with that. 24 Q. You don't -- you were telling them that they couldn't ride? 25 A. You said to tell them to go home. I did not tell anybody SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 4c8WbraH Smolka - cross 1 to go home. 2 Q. I was being less than literal, and I'll change the 3 question. 4 Did you tell them that there was not going to be a ride? 5 A. According to the flier, yes. An unlawful ride, yes. 6 Q. And, sir, if people -- did a ride take place on November 7 26? 8 A. No. 9 Q. So the police department were successful in preventing a 10 ride on November 26? 11 A. Perhaps. 12 Q. Well, you tell the Court there's no ride. So you must have 13 been successful in stopping it. 14 A. There was not a typical ride that we know, no. 15 Q. And people left the park, not en masse? 16 A. As a typical ride, no, they did not. 17 Q. And typically, sir, do they not leave from the northeast 18 side of the park going up Park Avenue? 19 A. They have in the past, yes. 20 Q. So that coming, at that point in time, did people do what 21 was typical, or was there something new and different as to how 22 people behaved on November 26? 23 A. November 26 was different. 24 Q. You didn't have an injunction in place, did you? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 4c8WbraH Smolka - cross 1 Q. You didn't need an injunction on November 26, did you? 2 A. It would be helpful, yes. 3 Q. But you didn't need it? 4 A. It would have been helpful. 5 Q. But you accomplished, sir, what you wanted to accomplish, 6 and that was no ride without your view of a permit, am I 7 correct? 8 A. A ride as to -- our objective is to uphold the law. That 9 was our objective. 10 Q. And in your view, on the night of November 26, did you 11 uphold the law? 12 A. When violations were committed, yes, we did. 13 Q. And you arrested people that night? 14 A. I believe so. 15 Q. And did you arrest them for riding in a procession without 16 a permit? 17 A. There may have been, yes. 18 Q. Do you know how or where that took place? 19 A. I believe on Union Square West, but I'm not sure. 20 Q. And do you know the circumstances under which this, these 21 arrests took place; that is, what they were doing when they 22 were arrested, these individuals? 23 A. No. 24 Q. Do you know how many were in this group that were arrested 25 on, west of Union Square? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 4c8WbraH Smolka - cross 1 A. It may have been seven. 2 Q. So, in your mind, sir, then seven constituted a procession? 3 A. It constituted -- in the mind of whoever made the arrest, 4 yes, sir. 5 Q. And do you know what they used to determine in their mind 6 whether it was, what was happening constituted a procession? 7 A. I do not know. 8 Q. Well, how is a police officer, sir, to know whether a group 9 of seven constituted a procession? 10 A. Well, we had supervisors there. We also had attorneys 11 there, who, everybody -- they made that determination. 12 Q. Any particular objective facts that you can tell this Court 13 as to how you decide when it constitutes a procession? 14 A. I would have to look at the arrest report, sir, I don't 15 know what the exact charges were. 16 Q. Those cases are pending in criminal court, are they not? 17 A. Perhaps. 18 Q. Well, if they were arrested, were summonses or desk 19 appearance tickets issued? 20 A. I don't know if they've been disposed of or not yet, sir. 21 Q. Did you personally instruct anyone to be arrested that 22 evening? 23 A. Perhaps. 24 Q. Under what circumstances? 25 A. I observed people riding bicycles on the sidewalk. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 4c8WbraH Smolka - cross 1 Q. Illegal? 2 A. Yes. 3 Q. Did you give them a traffic summons? 4 A. I don't know how they were handled. 5 Q. But you know Critical Mass doesn't say it has a right to 6 ride on the sidewalk; you know that? 7 A. I don't know that. 8 Q. Well, when they're riding -- well, have you seen anything 9 says that they have a right to ride on the sidewalk? 10 A. Have I seen that? No. 11 Q. And if this group of seven, sir, obeyed traffic signals, 12 they had a right to be riding in a group of seven, am I 13 correct? 14 A. Possibly. 15 Q. Possibly? 16 A. Yes. 17 Q. What's the determination, sir? 18 A. Traffic conditions, weather conditions, lighting, 19 pedestrian conditions. It would be several factors. 20 Q. If seven cars were on the street, where these bikes were 21 proceeding, would it depend on their arrest for weather 22 conditions, traffic conditions, lighting conditions? 23 A. The vehicles lined in a row, no, sir. 24 Q. So you treat bicycles different than cars for purposes of 25 determining whether there's "a procession"? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 4c8WbraH Smolka - cross 1 A. I believe the law treats it that way, yes, sir. 2 MR. HYMAN: I have nothing further here at this time, 3 your Honor. 4 THE COURT: Ms. Binder, do you have redirect? 5 MS. BINDER: We do, your Honor. Ms. Neufeld will do 6 the redirect. 7 THE COURT: Fine. How long is your redirect? 8 MS. NEUFELD: I would say approximately ten to 15 9 minutes. 10 THE COURT: We're going to take a ten-minute recess. 11 Then we'll reconvene. All right? 12 (Recess) 13 THE COURT: Ms. Neufeld, you may redirect Chief 14 Smolka. 15 MS. NEUFELD: Thank you, your Honor. 16 REDIRECT EXAMINATION 17 BY MS. NEUFELD: 18 Q. You testified earlier during cross-examination that an 19 injunction prohibiting the Critical Mass rides from taking 20 place as they currently do would be helpful, is that right? 21 A. Yes. 22 Q. Can you describe a little bit the ways in which it would be 23 helpful? 24 A. I think it would give us more backing as far as if people 25 were to go off and violate the law, it would give us the added SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 4c8WbraH Smolka - redirect 1 support of having an additional charge from the federal court, 2 backing us up in determining that the conduct has to be lawful. 3 Q. Is there any difference in the resources that the police 4 department uses now to deal with the current, with the Critical 5 Mass rides as they currently occur and the resources that the 6 police department would use if Critical Mass had obtained a 7 permit? 8 A. Yes. 9 Q. What are those differences? 10 A. Without knowing where they're going to go or what they're 11 going to do, we need more resources to protect public safety, 12 whereas if they had a route, we knew what it was going to be, 13 and they were to stick with it, we would require less personnel 14 and equipment in order to make it come off safely. 15 Q. Is there any difference in the Critical Mass ride when you 16 first started to monitor it and now? 17 A. Yes. 18 Q. What are those differences? 19 A. The volume, for one. Last several months, there have been 20 more people than in years past. 21 Q. Anything else? 22 A. Conduct, perhaps. There're more unlawful conduct of late. 23 Q. What do you mean by "unlawful conduct"? 24 A. Confrontations with drivers, physical altercations at 25 times, people blocking the street, holding up traffic, things SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 4c8WbraH Smolka - redirect 1 of this nature. 2 Q. And you testified earlier, and in your declarations, that 3 you have observed several Critical Mass bicycle rides, is that 4 right? 5 A. Yes. 6 Q. From your observations of those rides, do Critical Mass 7 Bike Riders generally obey traffic laws? 8 A. No. 9 Q. What sorts of laws have you observed Critical Mass bicycle 10 riders not obeying? 11 A. Primarily vehicle traffic laws, running -- disobeying 12 steady red lights, blocking traffic when other traffic, 13 vehicles have the right of way, things of this nature. 14 Q. On cross-examination earlier you discussed some elements of 15 the permit requirement, is that right? 16 A. Yes. 17 Q. Can a permit be given just to a ride participant? 18 A. It should be somebody who represents the group. 19 Q. Are there other events that you know of that receive a 20 permit where just the participant gets the permit on behalf of 21 the group? 22 A. Just the participant, no. 23 Q. Is there any difference between the Critical Mass bicycle 24 ride and day-to-day bicycle traffic? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 4c8WbraH Smolka - redirect 1 Q. Can you describe those differences? 2 A. Volume, No. 1. Day-to-day bicyclists generally obey 3 traffic regulations. They do not block other vehicles. They 4 don't stop people who have the right of way. They conduct 5 themselves perhaps in a more lawful manner, orderly manner. 6 Q. Is there any difference between the Critical Mass bicycle 7 ride and other parades or processions that are permitted by the 8 department? 9 A. I'm not sure what you mean. 10 Q. The make-up of the Critical Mass ride, as you've observed 11 it. Does it seem to you to be the same sort of make-up, their 12 activities, as other parades and processions that have received 13 permits from the department? 14 A. Aside from the obvious, it's all bicyclists. I'm not aware 15 of other events that we have that are solely all bicyclists, if 16 that's what you mean. 17 Q. On September 24, was the route that you agreed upon with 18 Mr. Dunn effectively the same thing as a permit? 19 A. It could have been, yes. 20 Q. Have you had other experiences where permits have been 21 requested at the last minute? 22 A. Yes. 23 Q. In those instances, is a piece of paper given out? 24 A. No. 25 Q. What happens, in those situations? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 4c8WbraH Smolka - redirect 1 A. We come to an agreement with the organizer or the 2 spokesperson, whoever it may be, and we go on with whatever the 3 activity is that we've agreed upon. 4 Q. And you treat those activities as if a permit had been 5 given? 6 A. Yes. 7 Q. How often would you say that occurs? 8 A. Depends upon the frequency of -- usually in conjunction 9 with some type of demonstration. Several times a year. 10 Q. Are bicyclists allowed to ride in the middle of the 11 roadway? 12 A. Possibly. 13 Q. Under what circumstances? 14 A. If there was something blocking, say, the right-hand lane 15 and they had to move over so they could travel freely, that 16 would be okay. 17 Q. Turning to the October 29 Critical Mass Bike Ride, did you 18 tell riders what they had to do if they decided to go off the 19 designated route? 20 A. I'm not sure what you mean. 21 Q. Did you -- I'd actually like to turn your attention to the 22 flier that had been marked as Plaintiffs' Exhibit No. 2. In 23 the middle of that flier, does it give any instructions to the 24 riders about what they would have to do if they wanted to leave 25 the route? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 4c8WbraH Smolka - redirect 1 A. Yes. 2 Q. What were those instructions? 3 A. They were asked to dismount from the bicycles and walk away 4 from the route. 5 Q. Were they asked to do anything else? 6 A. Obey all traffic regulations when they were riding. 7 Q. During the October ride, where were you? 8 A. I started out at Union Square Park. 9 Q. And then where did you go? 10 A. I relocated to 34th Street and Fifth Avenue. 11 Q. And then what happened? 12 A. I waited for the riders to come down. They were at 42nd 13 Street. They were held for a light at 42nd Street. Then when 14 they proceeded south, they turned off and made a right-hand 15 turn, which put them westbound on 39th Street. 16 Q. Was that turn authorized by the police department? 17 A. No, it was not. 18 Q. Do you know if the police department had any role in 19 causing the riders to deviate at that point? 20 A. We did not. 21 Q. But you did discuss earlier a situation where the police 22 department did block a part of the route that had been 23 predesignated in the area of Union Square, I mean, in the area 24 of Madison Square Park and 23rd Street? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 4c8WbraH Smolka - redirect 1 Q. Did you direct the officers of that area in any way to 2 change the route that had been set forth in the flier? 3 A. No. 4 Q. If someone had come in today to apply for a permit for 5 future Critical Mass rides, would the police department give 6 them a permit? 7 A. We would sit down and have discussions, yes. 8 MS. NEUFELD: Nothing further, your Honor. 9 THE COURT: Mr. Hyman? 10 MR. HYMAN: No recross, your Honor. 11 THE COURT: All right. 12 Chief, early in your testimony, in response to a 13 question from Mr. Hyman, you said that the city can enforce the 14 laws without an injunction. Do you recall that testimony? 15 THE WITNESS: Yes, sir. 16 THE COURT: If the city can enforce the traffic laws 17 and other ordinances without an injunction, why is it that you 18 believe that an injunction would be, in your words, helpful? 19 THE WITNESS: I believe the added weight behind the 20 Court imposing the injunction, apparently some people are not 21 fearful of being arrested for a traffic violation, and they go 22 about committing these various violations. I think the 23 injunction would help give weight to it and perhaps a more 24 severe penalty. 25 THE COURT: Well, would it be the police department's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 4c8WbraH Smolka - redirect 1 intention, if an injunction were granted, to be hauling 2 bicyclists into the federal court as opposed to taking them in 3 to the criminal court, across the street, for some violation of 4 a city ordinance? 5 THE WITNESS: No, sir, but I believe that people 6 knowing that they would now be violating an injunction would 7 stay away and not commit the other infractions. I believe 8 there would be a deterrent. 9 THE COURT: One of the standards, one of the legal 10 standards for a preliminary injunction is the showing by the 11 entity seeking a preliminary injunction of irreparable injury. 12 Given the police department's experience both on 13 November 26 and October 29, what's the irreparable injury that 14 the city can point me to that it would suffer if an injunction 15 were not granted? 16 THE WITNESS: In order to keep everybody safe, both 17 the bicyclists, pedestrians, motorists, making sure emergency 18 vehicles go through, we devote a large amount of resources, 19 personnel and equipment, to do this, who, people who could be 20 solving homicides, perhaps doing other thing, keeping the city 21 safe in another way, yet are forced now to come down to keep 22 the bicyclists and everybody else safe, to keep traffic moving. 23 So we devote a large amount of resources to these Critical Mass 24 Bike Rides. 25 THE COURT: Can you estimate for me the number of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 4c8WbraH Smolka - redirect 1 police personnel who were deployed in connection with the 2 October 29 Critical Mass ride? 3 THE WITNESS: Several hundred. 4 THE COURT: How about the November 26 assembly in 5 Union Square Park? 6 THE WITNESS: The same number, I'm pretty certain. 7 THE COURT: Thank you, Chief. 8 Anything further from counsel? 9 MR. HYMAN: Not from me, your Honor. 10 THE COURT: All right. Chief, you're excused. You 11 may step down from the witness stand. If you're going to stay 12 and you want, you can be seated at counsel table with the 13 city's attorneys, if you want to stay. 14 THE WITNESS: Thank you, sir. 15 (Witness excused) 16 THE COURT: Ms. Binder, would the city defendants 17 please call their next witness. 18 MS. BINDER: Your Honor, our next witness is 19 Lieutenant Dan Albano. 20 THE COURT: While he's coming up, let me just advise 21 counsel that it's my plan today, we'll proceed now until 1:15. 22 We're going to take our lunch recess at 1:15, until 2:30, 23 because I have a matter on involving American Express at 2:00 24 that's going to take me 15 minutes, and I don't want to keep 25 you waiting. And then we'll resume at 2:30 and we'll proceed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 4c8WbraH Smolka - redirect 1 until just a couple moments before 4:00, because there's a 2 memorial service today for Judge Knapp at 4:00 in the 3 ceremonial courtroom, and my presence is needed there. 4 Then we'll resume tomorrow morning, if we don't finish 5 today. And it seems likely that we're not going to finish 6 today. We'll resume tomorrow morning at 9:30. But let's 7 administer the oath to the witness. 8 DANIEL J. ALBANO, 9 called as a witness by the Defendants, 10 having been duly sworn, testified as follows: 11 THE COURT: Lieutenant Albano, do you declare under 12 the penalties of perjury that the statements that you have made 13 in affidavits that you have previously submitted in this case 14 are all true and correct? 15 THE WITNESS: I do, sir. 16 THE COURT: Very well. Now you may inquire, Mr. 17 Siegel. 18 MR. SIEGEL: Thank you, your Honor. 19 CROSS-EXAMINATION 20 BY MR. SIEGEL: 21 Q. Good afternoon, Mr. Albano. 22 A. Good afternoon. 23 Q. Mr. Albano, are you currently employed by the New York City 24 Police Department? 25 A. I am. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 4c8WbraH Albano - cross 1 Q. What is your current position with the New York City Police 2 Department? 3 A. I'm a lieutenant in the police department, assigned to the 4 legal bureau. 5 Q. And in that capacity, what are your day-to-day 6 responsibilities, sir? 7 A. To give advice to police officers regarding various issues. 8 Q. Regarding the issue of Critical Mass, and you were in the 9 courtroom when Chief Smolka was testifying, have you given 10 advice to Chief Smolka over the last few months with regard to 11 these issues? 12 A. Yes, I have. 13 Q. Would you be specific what kind of advice you have given to 14 him? 15 A. I've had a number of discussions with Chief Smolka about 16 Critical Mass. 17 Q. Specifically, did you have any discussions with regard to 18 the drafting of the content of the fliers that were discussed 19 in Exhibits 1, 2, and 3? 20 A. No, I didn't. 21 Q. And, Mr. Albano, how long have you been in the position 22 that you just testified to? 23 A. About ten years. 24 Q. Lieutenant Albano, how long, to your knowledge, have 25 Critical Mass Bike Rides been taking place in the City of New SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 4c8WbraH Albano - cross 1 York? 2 A. I became aware of them in July. Prior to that, I was 3 unaware of their existence. 4 Q. July of what year, sir? 5 A. This year. 6 Q. 2004? 7 A. Yes. 8 Q. And prior to July 2004, you had no knowledge, with regard 9 to an activity called Critical Mass Bike Ride? 10 A. I don't recall. 11 Q. Is that a no? 12 A. I don't recall having any knowledge of it, no. 13 Q. Okay. Thank you. 14 And, Lieutenant Albano, how long have you personally been 15 monitoring Critical Mass Bike Rides? 16 A. I haven't been monitoring. 17 Q. Have you attended any of the Critical Mass Bike Rides? 18 A. Yes, I have. 19 Q. Which ones? 20 A. August, September, October, November. And I may have been 21 at the July one. 22 Q. So, at least four and possibly five? 23 A. Possibly. 24 Q. In fact, the last four or possibly five rides for Critical 25 Mass? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 4c8WbraH Albano - cross 1 A. Yes, I have. 2 Q. Are you aware, have knowledge of Critical Mass Bike Rides 3 in other cities in the United States? 4 A. Only through, by viewing Critical Mass' Web site. 5 Q. The answer -- 6 A. Or Time's Up Web site. 7 Q. To be responsive to my question, the question was: Are you 8 aware of Critical Mass Bike Rides in the United States? 9 A. Yes. 10 Q. And have you, in fact, reached out or contacted any other 11 police departments in the cities across the United States? 12 A. No. 13 Q. Why not? 14 A. That, I wasn't asked to do that, and I didn't see any 15 reason for it. 16 Q. Is it fair to say that the police department has 17 articulated on more than one occasion that they had some 18 concerns and some problems with regard to the logistics of the 19 Critical Mass Bike Rides in New York City? 20 A. I'm not aware of that statement, if anyone made that 21 statement. 22 Q. Did you ever make such a statement? 23 A. No, I haven't. 24 Q. You sat in court today, at a minimum, and did you hear that 25 Chief Smolka articulate any problems or concerns about Critical SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 4c8WbraH Albano - cross 1 Mass Bike Rides? 2 A. I wasn't sitting in the courtroom. 3 Q. Okay. Prior to the September 2004 flier, which informed 4 riders that they needed a permit, did you ever request a parade 5 permit for Critical Mass pursuant to the Administrative Code, 6 Section 10-110? 7 A. I visited Time's Up's headquarters sometime, I believe it 8 was, I think it was in September, and met with a number of 9 people that are affiliated with Time's Up and discussed the 10 possibility of meeting with them to discuss a route for the 11 ride, the upcoming ride, or a permit. 12 Q. Did you ever tell them that they needed a permit? 13 A. I invited them to discuss the issue of a permit that -- and 14 they were informed, however, that if they wanted to have a 15 ride, yes, they would need a permit or at least a discussion 16 with us about a route. 17 Q. And at that time, did you say to them that if they did not 18 have a permit, that they would be breaking the law? 19 A. Yeah, I had a discussion with about, at least five or six 20 people that evening. So I would have to recall -- 21 Q. Take your time. 22 A. I, I believe I did inform people that if they engaged in 23 illegal activity, they would be arrested. 24 Q. The question though was: Did you specifically tell them 25 that if they did not have a permit, under the Administrative SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 70 4c8WbraH Albano - cross 1 Code Section 10-110, that they would be breaking the law? 2 A. I don't recall the specific statements that I made. But 3 that was the general tone of the conversation, statement that 4 if they broke the law, they would be arrested. 5 Q. But is it fair for me to assume, based on your answers, 6 that the answer to my previous question is no? 7 A. I think my statement speaks for itself. 8 Q. Let me try it once more. 9 A. Sure. 10 Q. Did you specifically say to anyone at Time's Up that if 11 they did not have a permit and they rode, that they would be in 12 violation of Administrative Code Section 10-110? 13 A. I don't recall making that exact statement. 14 Q. Okay. With regard -- you said that you were at August, 15 September, October, November, 2004, correct? 16 A. Right. 17 Q. When you went to Union Square Park, did you see the police 18 department hand out fliers? 19 A. Yes. I'm not sure if we handed out fliers at every one of 20 the rides, but I know there were several rides we did hand out 21 fliers, yes. 22 Q. September of '04? 23 A. I believe so. 24 Q. October of '04? 25 A. October, yes. I think that's the one we had a proposed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 71 4c8WbraH Albano - cross 1 route on, yes. 2 Q. November of '04? 3 A. Yes. November, yes. 4 Q. Did you write the fliers? 5 A. No. 6 Q. Did you have any input into the content of the fliers? 7 A. No. 8 Q. In paragraph 5 of your declaration, submitted to the Court, 9 you state, and I quote, "In recent months, the Critical Mass 10 events have grown tremendously in size." 11 Do you remember making such a statement? 12 A. I don't have a copy of my declaration. I'd like to see a 13 copy. 14 MR. SIEGEL: Your Honor, if I may, we'd like to 15 refresh the witness' recollection. I don't think I have to put 16 it in as an exhibit -- 17 THE COURT: No. It's already part of the record in 18 this case. You don't have to mark it. Just show it to him. 19 MR. HYMAN: Can I hand up, your Honor -- 20 THE COURT: Yes. 21 MR. SIEGEL: Thank you. 22 THE WITNESS: Thank you. 23 BY MR. SIEGEL: 24 Q. Look at paragraph 5. 25 A. Paragraph 5, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 72 4c8WbraH Albano - cross 1 Q. That statement is accurate? 2 A. Yes, that is accurate. 3 Q. Could you please tell the Court specifically what you meant 4 by that? 5 A. Meant by that, from my discussions with members of the 6 service assigned to patrol borough Manhattan South that this, 7 when Critical Mass first started was a rather small event. 8 Over the last couple of months, it's grown. July ride, I 9 believe, there was about 1,500 or more people. I'm not sure of 10 the number. At one point, they took over the FDR Drive. 11 August, like I said, I attended the August ride. There was 12 about 5,000. A smaller number for the next couple of months. 13 But, nonetheless, had grown considerably since its inception. 14 Q. But your statement is in recent months? 15 A. Yes. 16 Q. Would you agree that the circumstances surrounding the 17 August 2004 Critical Mass ride were sui generis? 18 A. In comparison to what? 19 Q. The other Critical Mass Bike Rides. 20 A. Comparison to when it started earlier, at a handful of 21 people? 22 Q. Let's just take either that -- let's begin there. 23 A. Okay. 24 Q. What's the answer then? 25 A. Yes, it would be a bit unusual, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 73 4c8WbraH Albano - cross 1 Q. What about in comparison to the Critical Mass Bike Rides 2 that you personally attended in the last four or five months? 3 A. They had several thousand attendees. 4 Q. And the question was: Was August unique? 5 A. Not in light of the last couple of months. 6 Q. Isn't it true, Lieutenant Albano, that starting in the 7 summer of 2003, Critical Mass Bike Rides increased, generally 8 speaking, to about a thousand, 2,000, each ride? 9 A. I don't know the specifics of that. 10 Q. Did you ever have any conversations with anyone at the 11 police department about the history of Critical Mass Bike 12 Rides? 13 A. Yes, some general conversations. 14 Q. Well, just a little while ago, you were talking about 15 making a comparison between August 2004, and from the beginning 16 of Critical Mass Bike Rides. 17 A. Yes. They've grown considerably. 18 Q. Well, do you have any knowledge with regard to, starting in 19 the summer of 2003, as to the size of the Critical Mass Bike 20 Rides? 21 A. There were less than what we've seen recently. 22 Q. Let's examine that. September of 2004, how many were 23 there? 24 A. September of 2004? I believe the number was 2,000. That's 25 just -- I have a vague recollection of the exact number. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 74 4c8WbraH Albano - cross 1 Q. And how many bike riders were there at the last bike ride 2 in November of 2004? 3 A. That was much more sparsely attended. 4 Q. Could you quantify it for me? 5 A. 200. 6 Q. Do you have any -- 7 A. That was the night after Thanksgiving. It was poor 8 weather. I recall that night. 9 Q. Do you have any knowledge with regard to July of '03? 10 Approximately 800 people turned out, is that a fair statement? 11 A. I wouldn't know. From what I understand, it was, the 12 numbers in the hundreds didn't happen until closer to this 13 year. 14 Q. Is it fair to say that in July of '03, there were 1,600 15 people? 16 A. I don't know, Mr. Siegel. I don't know exact numbers. I 17 just know that these rides have grown. 18 Q. What about ballparks, are we talking about many hundreds or 19 a few hundred? 20 A. Again, I know that the ride has grown from a small group of 21 people to something that now is a problem. 22 Q. Right. But the question that I'm getting at, Lieutenant, 23 is: When did that occur? Your testimony says in the recent 24 months, and I'm trying to find out whether or not the fact is 25 true that the numbers began to increase significantly in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 75 4c8WbraH Albano - cross 1 summer of 2003. 2 A. It came to my attention in my capacity in the police 3 department in July of 2004. 4 Q. Right, you've stated that. So prior to September -- July 5 of 2004, you had no knowledge of Critical Mass Bike Rides. But 6 since then, is it fair to say that you have had many 7 conversations and discussions with different people in the 8 police department about Critical Mass Bike Rides? 9 A. That's not fair to say. I've had some conversations. Not 10 many. 11 Q. Well, with regard to some conversations, did any of the 12 conversations focus in on the number of participants in 13 Critical Mass Bike Rides? 14 A. Other than that, it started out very small, and it's grown 15 considerably to where now there are thousands. 16 Q. Have you read Chief Smolka's affidavits that were submitted 17 in this court? 18 A. I've spoken to him. 19 Q. That's not the question. Have you read his sworn testimony 20 that's been submitted to this Court? 21 A. I don't think so. 22 Q. Did you review his affidavit in your capacity as an 23 attorney? You are an attorney for the police department, 24 right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 76 4c8WbraH Albano - cross 1 Q. Did you have any input into his affidavits? 2 A. I've discussed the issue with Chief Smolka, yes. 3 Q. Did you review his affidavits before they were submitted? 4 A. Did I -- I'm sorry. 5 Q. Did you review his affidavits before they were submitted? 6 A. I may have. 7 Q. Are you familiar with his affidavit of October 25, where it 8 says, "It appeared to me" -- 9 A. Again, I don't have his affidavit in front of me. I'd like 10 to see it. 11 Q. I'm going to read a sentence. 12 A. I'd like to see it, please, if I could. 13 Q. Let's go one step at a time. Let me see if, by reading it, 14 it refreshes your recollection. If it doesn't, then we will do 15 what we did with your affidavit, submit it to you: "It 16 appeared to me that there were approximately 1,200 cyclists 17 participating in the September 24 event." 18 Do you remember that? 19 A. I'd like to see the affidavit. 20 Q. Okay. 21 MR. SIEGEL: With your Honor's permission? 22 THE COURT: Please show the affidavit to Lieutenant 23 Albano. 24 THE WITNESS: Thank you. 25 MR. SIEGEL: You're welcome. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 77 4c8WbraH Albano - cross 1 THE WITNESS: What paragraph are we talking about? 2 MR. SIEGEL: Paragraph 9. 3 THE WITNESS: Nine? 4 MR. SIEGEL: Page 4. 5 THE WITNESS: Thank you. 6 MR. SIEGEL: October 25. You're welcome. 7 THE WITNESS: Okay. 8 BY MR. SIEGEL: 9 Q. Does that refresh your recollection? 10 A. Yes. 11 Q. And the previous question that I asked you about how many 12 people were there on September 24, would that change your 13 testimony? 14 A. Paragraph 9 makes no reference to the number of people that 15 were at that ride. 16 Q. Would you like to change your testimony with regard to how 17 many people participated on September 24? 18 A. Paragraph 9 makes no reference to the number of people. 19 MR. SIEGEL: If I may, can I approach? 20 THE COURT: Absolutely. 21 MR. SIEGEL: Thank you, your Honor. 22 THE WITNESS: Am I looking at the right one? 23 MR. SIEGEL: Probably not. Or I'm not looking at the 24 right one. No. 25 MR. HYMAN: Your Honor, there are three declarations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 78 4c8WbraH Albano - cross 1 THE COURT: All right. Let's find the right one. 2 BY MR. SIEGEL: 3 Q. Got the same page now? 4 A. Okay, page 4, paragraph 9. 5 Q. Right. 6 A. Yeah, 1,200 cyclist. 7 Q. Do you care to change your testimony from the answer you 8 gave? 9 A. 1,200 cyclists is a fair statement. 10 Q. Okay. 11 I'd like to go back to your declaration, and if we could 12 look at paragraph 8, you said in your declaration, paragraph 8, 13 that you went to the Time's Up offices. Is that correct? 14 A. Yes, sir, I did. 15 Q. Could you explain to the Court what prompted you to go? 16 A. Chief Smolka asked me to go. 17 Q. And what was the purpose of your visit? 18 A. To try to reach out to the Critical Mass participants to 19 hopefully get some cooperation from them, so that we could make 20 this a fun event rather than a confrontation. 21 Q. A fun event? What did you mean by that? 22 A. Something where everyone enjoys themselves, like we have -- 23 enjoys themselves. No one gets arrested. No one's bicycle 24 gets seized. We have a number of events like that, where 25 everyone enjoys themselves and goes home and has a safe time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 79 4c8WbraH Albano - cross 1 And by cooperating with us, we could assure that that would 2 happen, and that was my purpose in going to their offices. 3 Q. And did you specifically say that to the people that you 4 interacted with? 5 A. Most certainly did, yes, sir. 6 Q. And what were the responses? 7 A. The responses were that there is no organization, there's 8 no cohesion, they would like to cooperate, but they can't 9 because no one's in charge. 10 Q. Did you know that before you went there? 11 A. I may have. I may have. I was aware of their philosophy, 12 yes. 13 Q. So the visit confirmed the statement that you just 14 previously made, that there's no organizers, no organization, 15 no leaders? 16 A. Well, I, I -- it's confirmed to the extent that they said 17 it. I don't know if I believe it. 18 Q. Well, the question wasn't whether you believe it or not. 19 The question was: What did they say to you in response to your 20 statements? 21 A. As I testified, that there is no cohesion, there's no 22 organization. 23 Q. No organizers, no leaders. Correct? 24 A. I don't know if that's correct. I don't think so. 25 Q. No. Is that -- the question only goes to what they said to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 80 4c8WbraH Albano - cross 1 you and what your understanding of what they said to you. 2 A. Yes, that's what they said to me, right. That's what they 3 said. 4 Q. It's not a trick question. 5 A. It's not a trick answer. 6 THE COURT: Yes. Let's try to spare the court 7 reporter the commentary. Let's just put questions to the 8 witness. 9 MR. SIEGEL: I have no objection to a motion to strike 10 that statement that was made. 11 Q. In paragraph 9, Lieutenant, of your declaration, you say 12 you wanted to "make every effort to enable the Critical Mass 13 ride to continue in a lawful manner"? 14 A. Yes, that's correct. 15 Q. Assuming bicycle riders rode in the street of New York, and 16 stopped for lights, and obeyed all traffic rules, in your 17 opinion, is that lawful? 18 A. Yes, it is. 19 Q. Lieutenant Albano, are you familiar with the New York City 20 Century Bike Tour, which is produced by Transportation 21 Alternatives, started in 1989, the New York City Century Bike 22 Tours, held on the second Sunday in September, approximately 23 about 5,000 riders? Are you familiar with that ride? 24 A. I'm not familiar with that specific ride. But I know that 25 there are a number of sanctioned bicycle rides in the city SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 81 4c8WbraH Albano - cross 1 every year. And by sanctioned, I mean a permit. 2 Q. Well, specifically this New York City Century Bike Tour, 3 which attracts 5,000, do they have a permit? 4 A. I'm not specifically aware of that tour. 5 Q. So you don't know whether they have a permit? 6 A. 5,000 bicyclists, I imagine they do. 7 Q. If I told you they didn't have a permit, would that 8 surprise you? 9 A. No, not necessarily. 10 Q. Why not? 11 A. Because we have a number of events, as you well know, Mr. 12 Siegel, we have a number of events where people engage in 13 things that would normally need a permit, a parade, or 14 procession permit, where we work out some type of designated 15 route and permit that activity. I've done it with you a number 16 of times. 17 Q. What about Bike New York. Are you familiar with that bike 18 ride? 19 A. Mr. Siegel, I handle a lot of these things. I don't know 20 specifically. 21 Q. If the answer is no -- 22 A. Specifically, no. 23 Q. What about the Fast and Fabulous Bike Ride? 24 A. Again, specifically, no. We have a number of bike tours 25 each year in the city. I'm not aware of, intimately familiar SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 82 4c8WbraH Albano - cross 1 with each one. 2 Q. Or do you have knowledge whether Fast and Fabulous has a 3 permit? 4 A. I'd have to check police department records. As I sit 5 here, no. 6 Q. What about the Five Borough Bike Club Ride? Are you 7 familiar with that ride? 8 A. Is that the same as the New York Bike Tour? 9 Q. I do not -- I'm not -- I don't -- 10 THE COURT: Let me put it this way, generally 11 questions only go in one direction. 12 MR. SIEGEL: You -- your Honor -- 13 THE COURT: So I'll save Mr. Siegel this one time. 14 Let's put the next question. 15 THE WITNESS: Your Honor, some of these, some events 16 are known by a number of different names. 17 THE COURT: All right. 18 BY MR. SIEGEL: 19 Q. Let me just ask and try to shorten this. 20 A. Sure. 21 Q. Let me just read a few more and see whether any of these, 22 you have knowledge of any, specifically that you know whether 23 the police department requires a permit for these groups: 24 The New York City Cycling Club, the Sierra Club, Staten 25 Island Bicycle Association and the Weekday Cyclists. Are you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 83 4c8WbraH Albano - cross 1 familiar with any of these bike rides? 2 A. Not specifically, no, sir. 3 Q. So you do not know at this point whether the police 4 department requires a permit from any of these bike rides? 5 A. If it's a ride, I imagine we would require a permit, yes. 6 Q. And if you found out that they didn't have a permit, would 7 that surprise you? 8 A. Not necessarily. 9 Q. And why not? 10 A. As I stated before, we have a number of parades and 11 processions each year, some of which I've negotiated with 12 yourself, where we have, we designate a route and a permit is 13 not required. 14 Q. Would it surprise you if even that didn't happen with any 15 of these people and that they just rode? 16 MS. BINDER: Objection to the form, your Honor. 17 THE COURT: Sustained as to form. 18 BY MR. SIEGEL: 19 Q. Would you be surprised to find out that they did not have a 20 permit? 21 A. Not necessarily. 22 Q. Would you be surprised if there was no agreement with the 23 police department on the route? 24 A. Depends on the size of the ride. 25 Q. Could you explain that? Is it two, 20, 50? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 84 4c8WbraH Albano - cross 1 A. Depends on the size of the ride, the location, the time of 2 the, the date and time of the event, a number of different 3 factors. 4 Q. If, hypothetically, someone's riding up Park Avenue South, 5 what factors do you take into account whether there's a permit 6 required or not? 7 A. One person? 8 Q. Well, take one person. Start there. Does one person need 9 a permit? 10 A. Of course not. 11 Q. Do two people need a permit? 12 A. Of course not. 13 Q. On the evening of November 26, 2004, would it surprise you 14 if people riding together were arrested and charged with 15 parading without a permit? 16 MS. BINDER: Objection to the form, your Honor. 17 THE COURT: Sustained as to form. 18 BY MR. SIEGEL: 19 Q. Would it surprise you if on November 24, two people riding 20 were arrested? 21 A. On November 24? Where? 22 Q. On 14th Street. In Union Square. 23 A. I'm not aware of that happening. 24 Q. Would it surprise you, given your statement -- 25 MS. BINDER: Same objection. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 85 4c8WbraH Albano - cross 1 BY MR. SIEGEL: 2 Q. -- two arrests? 3 A. I didn't make that statement. 4 MS. BINDER: I have an objection, your Honor. 5 MR. SIEGEL: Could we read it back? 6 THE COURT: Look, there have been lots of questions 7 that were not objected to that started out with whether or not 8 Lieutenant Albano would be surprised. It's a little late in 9 the day to be objecting on that ground. 10 I have only one other issue. You have just in your 11 question said November 24, and I'm wondering if you -- 12 MR. SIEGEL: November 26. 13 THE COURT: -- if you misspoke. 14 MR. SIEGEL: I did. 15 THE COURT: All right. 16 MR. SIEGEL: November 26. 17 THE COURT: Why don't you put a brand new question to 18 the witness. All right? 19 BY MR. SIEGEL: 20 Q. Are you aware of any arrests on the evening of November 26, 21 2004? 22 A. Yes, I believe there were some arrests, yes. 23 Q. And do you know the circumstances surrounding any of those 24 arrests? 25 A. Just one arrest, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 86 4c8WbraH Albano - cross 1 Q. What are the circumstances of that one arrest? 2 A. Someone was riding their bicycle on the sidewalk. 3 Q. Are you aware of any people riding in the street, two 4 abreast, who were arrested? 5 A. No, I wasn't involved with circumstances of the other 6 arrests. 7 Q. In your declaration, paragraph 13, you referenced the flier 8 that the police department handed out prior to the September 24 9 Critical Mass Bike Ride. "You say that bike riders may not 10 ride more than two abreast." 11 Mr. Albano, is that statement legally correct? 12 A. That portion of the statement, no, is not correct. Not 13 legally correct. 14 Q. So there is no legal prohibition with regard to riding two 15 abreast? 16 A. Purely as two abreast, no, there is not. There are city 17 traffic rules that address other issues for riding bicycles. 18 Q. Mr. Albano, if someone applied for a permit for the last 19 Friday of every month at 7:30 p.m., at Union Square Park, would 20 they get the permit every month? 21 A. Every month, Mr. Siegel? I'm sorry. 22 Q. Yes. 23 A. I didn't understand. Can you say it again, please? I'm 24 sorry. 25 Q. Sure. If someone applied for a permit for the last Friday SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 87 4c8WbraH Albano - cross 1 of every month at 7 p.m., at Union Square Park, would they get 2 the permit? 3 A. We take it into consideration. We'd consider that permit, 4 as we do with every applicant. 5 Q. Would there be any conditions on the permit? 6 A. Any -- I'm not sure I understand what you mean, conditions 7 on the permit. 8 Q. Well, would you, when you reviewed -- well, let's put it 9 this way. When you reviewed the application, what would you be 10 taking into consideration? 11 A. The route. The time. Any other events that were taking 12 place that day. What our traffic intelligence tells us about 13 the applicant's proposed route. They might want to pass a 14 construction site or a street excavation, and we'd have to 15 negotiate a different route. Those are the types of things we 16 look for. 17 Q. So, is it fair to say if someone did what I just asked you, 18 there would be no guarantee that the permit would be 19 automatically granted? 20 A. Not for every month. But certainly we would offer 21 alternatives, and I would imagine that there would be a number 22 of months that you would be able to get your permit, and the 23 months where you could not, for the dates that you picked, we 24 would offer you an alternative. 25 MR. SIEGEL: One second, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 88 4c8WbraH Albano - cross 1 THE COURT: Take your time. 2 MR. SIEGEL: Thank you. 3 No further questions. Thank you, Lieutenant Albano. 4 THE WITNESS: Thank you, sir. 5 THE COURT: Redirect examination? 6 MS. NEUFELD: I do, your Honor. 7 REDIRECT EXAMINATION 8 BY MS. NEUFELD: 9 Q. Good afternoon, Lieutenant. 10 A. Good afternoon. 11 Q. Lieutenant Albano, with respect to who may be issued a 12 permit, would it be possible for a Critical Mass ride 13 participant to come in and apply for and be granted a permit? 14 A. Yes, we've done that. That's not unusual at all. We've 15 done that with other groups. The Halloween parade comes to 16 mind. 17 Q. Can you describe a little bit about the person who obtains 18 a permit for the Halloween parade? 19 A. There's, my recollection is that there is one lady that 20 applies for the permit every year. She, she gets the permit, 21 we grant the permit. The route is set up. It's usually, I 22 believe it's north on, I think Eighth Avenue, down in the West 23 Village, and anyone in the community that feels like marching 24 is welcome to march. 25 Q. Are you aware of whether that permit applicant has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 89 4c8WbraH Albano - redirect 1 connections to the other people that end up participating in 2 the parade? 3 A. There's many parades. That one in particular, and there's 4 many others where the organizers have no connection to the 5 participants. Some of the walkathons for, you know, to fight 6 various diseases are set up very similarly. 7 Q. Does the city, to your knowledge, give permits for any 8 other bicycle-only event? 9 A. Yes, there's a number of them. The New York Bike Tour, I 10 think, is one. There's a bikathon for, I think, multiple 11 sclerosis. There's a couple others. I think I mentioned in my 12 affidavit that we grant permits for every year. I think there 13 is about ten in the last year or two. 14 Q. You testified earlier, if I'm correct, on cross-examination 15 that you have observed directly some of the more recent 16 Critical Mass rides, is that right? 17 A. Yes, I have. 18 Q. And have you observed any of those other bicycle-only 19 events that the city has given permits for? 20 A. I believe the New York Bike Tour I was assigned to one 21 year. 22 Q. And do you recall observing any differences between the New 23 York Bike Tour and the Critical Mass Bike Ride and the way that 24 those take place? 25 A. Yes, I think the critical difference is the way we're able SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 90 4c8WbraH Albano - redirect 1 to police it. We know there's a destination -- there's a 2 starting point. There's a route. There's a destination. You 3 know, we've -- escort officer will take the ride by blocking 4 traffic so that it's safe for the participants and the rest of 5 the community. That is not the case with Critical Mass. 6 Critical Mass, we don't know where their destination is. 7 We don't know what route they're going to take. It then forces 8 us to use more resources than we normally would, and along the 9 route, I've seen Critical Mass participants block traffic, 10 block cross-traffic so that the cross-traffic doesn't interfere 11 with their ride. In fact, they call it corking. That's a term 12 I learned from them. 13 Q. If the Critical Mass ride were to obtain a permit -- 14 A. Yes. 15 Q. -- would the police department take on that role of 16 blocking intersections where necessary? 17 A. Yes. The police department would block intersections. 18 We'd escort the ride to make sure that it was a safe ride, and 19 what we would also do, which is very important that we do that 20 at virtually every parade and procession is that extra officers 21 are assigned to a designated intersection that is designated 22 for cross-passage of emergency vehicles. The fire department 23 is made aware of that designated cross-street as is the 24 ambulance people. So we're -- we're able to ensure that any 25 emergency vehicle has to, that has to cross the line of march SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 91 4c8WbraH Albano - redirect 1 or route of the parade, can do so quickly and without 2 interference. 3 Q. If Critical Mass Bike Ride were to obtain a permit, would 4 there be any difference between them and other permitted 5 bicycle riders? 6 A. I can't see a difference. I think it would be as an 7 enjoyable event for the participants and the community as the 8 other events that we run every year. 9 Q. Turning to the traffic laws that apply in the City of New 10 York, you testified earlier on cross-examination that there is 11 a provision of state law which requires, which states that 12 bicycle riders cannot ride more than two abreast and that that 13 does not apply in the City of New York, is that right? 14 A. Yes, that's true. 15 Q. Are there other traffic regulations that do apply to where 16 on the road bicycles may ride in the City of New York? 17 A. Yes. There's a city traffic regulation, I believe it's an 18 article of Section 412 that directs bicyclists to the nearest 19 curb on the left or right side as practicable. 20 Q. And based upon that, do you interpret the law as allowing 21 bicycle riders to ride in the middle of the street? 22 A. On some occasions, that may be necessary, depending on, you 23 know, some obstruction in the traffic and that the law allows 24 for that. But as a general rule, they're supposed to ride as 25 close to the, to either curb as practicable. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 92 4c8WbraH Albano - redirect 1 Q. If a group bike ride or bike tour were to obey all traffic 2 rules, including the rules you just discussed, would they need 3 a permit? 4 A. No. Not if you obeyed all the traffic laws, no. 5 MS. NEUFELD: Thank you. I have nothing further. 6 THE COURT: Recross. 7 RECROSS-EXAMINATION 8 BY MR. SIEGEL: 9 Q. Good afternoon again, Lieutenant. 10 A. Good afternoon, once again. 11 Q. With regard to your testimony about the Halloween parade -- 12 A. Sure. 13 Q. -- I just want to ask a couple of quick questions. 14 The person who gets the permit, is she a member of an 15 organization? 16 A. I don't think so. 17 Q. Is she an organizer of the event? 18 A. To the best of my knowledge, it's the same person every 19 year. Unfortunately, I just -- her name escapes me right now. 20 Q. The question was: To the best of your knowledge, is she an 21 organizer of the event? 22 A. Yes. 23 Q. And isn't it true that on the application for a parade 24 permit by the police department, that it asked the applicant to 25 "state the name and address of the corporation, organization, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 93 4c8WbraH Albano - recross 1 or association that application is being made on behalf of"? 2 A. I, I -- I'm not that familiar with what the questions that 3 are asked on the parade permit. If you let me look at one, I 4 can answer the question. 5 MR. SIEGEL: Your Honor, can I refresh his 6 recollection? 7 THE COURT: Yes. 8 MR. SIEGEL: Thank you, your Honor. I only have one 9 copy. 10 THE WITNESS: You want to stand here? Where is this? 11 Can you point me -- 12 MR. SIEGEL: If I may. 13 THE COURT: Go ahead. 14 THE WITNESS: Okay. 15 A. Yeah. On the second line, it does ask the applicant to 16 state the name and address of the corporation, organization, or 17 association. 18 Q. And would you please read to the right on that line what it 19 asks for in the application? 20 A. "Relationship of applicant to corporation, organization, or 21 association." 22 Q. Thank you. 23 MR. SIEGEL: No further questions. 24 THE COURT: Anything further, Ms. Neufeld? 25 MS. NEUFELD: No, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 94 4c8WbraH Albano - recross 1 THE COURT: Lieutenant Albano, you are excused as a 2 witness. You may step down. 3 (Witness excused) 4 MR. HYMAN: Your Honor, could we ask the city if they 5 could produce for us a blank copy of the application permit? 6 I'm using somebody else's, and I don't really -- 7 THE COURT: I think that would be appropriate. And I 8 think we should -- we're going to mark, we'll deem it marked as 9 Plaintiffs' Exhibit 4, a blank copy of a parade permit 10 application. 11 MR. HYMAN: Thank you, your Honor. 12 MS. BINDER: We'll try to get one, your Honor, as 13 quickly as we can. 14 THE COURT: Ms. Binder, would the city defendants call 15 the next witness. 16 MS. BINDER: Your Honor, we call Elizabeth Smith. 17 ELIZABETH W. SMITH, 18 called as a witness by the Defendants, 19 having been duly sworn, testified as follows: 20 THE COURT: Ms. Smith, do you affirm as true all of 21 the statements made in your declaration submitted in this case 22 in connection with the city's application for a preliminary 23 injunction? 24 THE WITNESS: I do. 25 THE COURT: Very well. You may cross-examine, Mr. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 95 4c8WbraH Albano - recross 1 Hyman. 2 MR. HYMAN: Thank you, your Honor. 3 CROSS-EXAMINATION 4 BY MR. HYMAN: 5 Q. Ms. Smith, what is your present responsibility and title at 6 the Department of Parks? 7 A. My title is chief of marketing and corporate sponsorship. 8 And, in that role, I have responsibility for marketing, special 9 events, sponsorship activity, and general outreach to the 10 private sector. 11 Q. How long have you been in that position? 12 A. Since September of 2002. 13 Q. And was there someone in that position prior to your taking 14 that position? 15 A. No. 16 Q. Do you know who was responsible for special event permits? 17 Is that your area? Who was responsible for that before you? 18 A. In the Parks Department, at the headquarters of the Parks 19 Department, it was under the jurisdiction of Katherine 20 Langhammer. The special events department in the arsenal takes 21 care of major special events, but special events are also 22 permitted out of the boroughs as well. 23 Q. And a special event permit is what? 24 A. A special event permit is a document that allows a group of 25 people to reserve a certain space on parkland for a certain SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 96 4c8WbraH Smith - cross 1 event for a certain amount of time. 2 Q. And what's the purpose of such a permit? 3 A. The primary purpose of a special event permit is to make 4 sure that the event that is, wants to be at a certain venue is 5 appropriate for that venue and to prevent any conflict for 6 other competing uses of that space. 7 Q. Now, the permit, I gather, requires somebody to request it, 8 is that correct? 9 A. Yes. Yes. 10 Q. And does that permit require somebody to provide the name 11 of the organization, the sponsor, things of that nature? 12 A. I think the -- I'm not sure of the answer to that question. 13 I think that someone could request a permit on behalf of an 14 activity. 15 Q. Let me show you an exhibit we'll mark as Exhibit 5, which 16 is an application. Okay? I'll ask if you can identify that. 17 A. This is a special event permit application for the Parks 18 Department. 19 Q. Is that the application that has to be filled out? 20 A. Yes, it is. 21 Q. And is there a fee for this? 22 A. Yes. $25. 23 Q. Who pays the fee? 24 A. Whoever fills out the applicant -- whoever fills out the 25 application. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 97 4c8WbraH Smith - cross 1 Q. Is there a requirement for insurance or bonding? 2 A. Not in all cases, no. 3 Q. But the form makes reference to it, does it not? 4 A. In certain cases, we require bonds, if we feel it's 5 appropriate. In many cases, in usual cases, we don't. 6 Q. But who makes that decision? 7 A. We do. 8 Q. Any particular guidelines that you can tell us for the 9 granting or exempting of a bond? 10 A. A bond? If we feel that there is going to be particular 11 requirements for cleaning up the parkland, or there's other 12 requirements that we think may need to be covered after the 13 event, we will require a bond. But it is, it's not usual. 14 Q. The purpose, I gather, is to have knowledge, is that 15 correct, of the event? 16 A. Yes. 17 Q. That's the real purpose, right? 18 A. Well, the real purpose, as I stated before, was that a 19 certain space or venue in a park can be reserved for that use, 20 and that it doesn't, that there are no other competing uses for 21 that space. 22 Q. Are you familiar with Critical Mass? 23 A. Yes. 24 Q. When did you become familiar with it? 25 A. Recently. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 98 4c8WbraH Smith - cross 1 Q. How recently? 2 A. Probably a month ago. 3 Q. A month ago would put us in November? 4 A. Approximately. 5 Q. And what caused you to become familiar with Critical Mass? 6 A. The issue that we're discussing today. 7 Q. Which is what? 8 A. The issue of Critical Mass and the size of their event in 9 New York. 10 Q. And how did you become knowledgeable of it? 11 A. I became knowledgeable of it when the, our Parks Department 12 and the legal counsel informed me that we were going to be 13 participating in these discussions. 14 Q. Okay. So you're -- and I -- you learned of this through 15 your counsel? Anybody else? 16 A. I had heard about the, I had heard about the rides prior to 17 talking to our legal counsel about it. I had heard about the 18 size of the event in Union Square Park. 19 Q. And who did you hear from? 20 A. The Manhattan special events director. 21 Q. Who was a Parks Department employee? 22 A. Yes. 23 Q. And who was that? 24 A. Ana Carey. 25 Q. And was Ms. Carey a long-time employee of the Parks SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 99 4c8WbraH Smith - cross 1 Department? 2 A. I think she has been a Parks Department employee for 3 several years. 4 Q. Did she tell you of the history of Critical Mass? 5 A. No. 6 Q. Did anyone tell you of the history of Critical Mass? 7 A. No. 8 Q. Did somebody suggest to you that you should prepare an 9 affidavit with regard to this proceeding? 10 A. Yes. 11 Q. Who? 12 A. Who asked me to prepare an affidavit for this proceeding? 13 Q. Yes. 14 A. Our legal counsel. 15 Q. And prior to that, had you made any effort to get 16 information about whether there was a permit needed for a 17 Critical Mass event? 18 A. No. 19 Q. So, until your legal counsel presented you with -- excuse 20 me. 21 Was that affidavit drafted by legal counsel? 22 A. I believe so. 23 Q. Were you presented with the document in its present form 24 that it's been filed with the Court? 25 A. There were some amendments and additions to it, prior to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 100 4c8WbraH Smith - cross 1 its being filed. 2 Q. Did you make those amendments or additions? 3 A. Some of them. 4 Q. Do you recall what they were? 5 A. They primarily had to do with the addition of some 6 additional examples of other events that require permits from 7 the park. 8 Q. Now, in your considering signing this affidavit, did you do 9 any investigation of your own about Critical Mass? 10 A. No. 11 Q. Do you know how many times Critical Mass has used park 12 property? 13 A. I don't know the exact number, no. 14 Q. Do you know how, when for the first time they used park 15 property? 16 A. I don't know that. 17 Q. Did anyone tell you that Critical Mass has been going on in 18 New York City for five to ten years? 19 A. I understand it's been going on for several years, but I 20 didn't know that term. 21 Q. And did anyone tell you where Critical Mass rallies or -- I 22 withdraw that -- where Critical Mass rides began; that is, 23 physically where they started? 24 A. Historically or currently? 25 Q. Historically. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 101 4c8WbraH Smith - cross 1 A. Historically, I'm not sure. I know currently they get 2 together in Union Square Park. 3 Q. And how long have you determined that they have started in 4 Union Square Park? 5 A. I am only aware that over the last several months they've 6 convened there, but I don't know the history of it. 7 Q. Have you heard Chief Smolka's testimony as to the length of 8 time they have been in the park? 9 A. I heard some of his testimony, not all of it. 10 Q. But just the question of length of time that they've been 11 starting in Union Square Park. 12 A. I don't recall that, no. 13 Q. If I told you it was years, would that surprise you? 14 A. No. 15 Q. Did you ever discuss with Chief Smolka or any member of the 16 police department the need for a permit by Critical Mass? 17 A. I never did, no. 18 Q. The area that Critical Mass starts in, am I right to say 19 that it is a paved area surrounded by police fencing with 20 access on several small, access to Park Avenue South and, from 21 Broadway? 22 A. I'm not sure of the police fencing, but it is a paved area, 23 yes, on the north side of Union Square Park. 24 Q. And it's where the Green Market is held, is it not? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 102 4c8WbraH Smith - cross 1 Q. So, over the years, can you tell me if that is the area 2 that Critical Mass has used? 3 A. No, I can't tell you that, because I've already told you 4 I've only been aware of the Critical Mass rides for the last 5 several months. But that is where they have been convening in 6 that time. 7 Q. Do you have any personnel of the Parks Department in or 8 around Union Square? 9 A. There is a park manager, but his office, I do not believe, 10 is in Union Square. 11 Q. So there are no park, I think you call them PEP in your 12 affidavit, or -- what is it, park enforcement patrol, PEP? 13 A. Park enforcement patrol. They are Parks employees. They 14 do not reside in Washington Square, I mean in Union Square. 15 They're deployed from other areas in the Parks Department. 16 Q. Can you tell me the number of times the Parks Department 17 has sent a PEP person; that is, a Parks enforcement officer or 18 other employee to supervise or review the Critical Mass events? 19 A. No, I can't tell you that, because I don't -- 20 Q. Do you know if they've ever been sent? 21 A. I don't know if they have. 22 Q. So, to your knowledge, has anyone from the Parks Department 23 ever monitored the use of the park by Critical Mass from its 24 inception until November 26? 25 A. I understand that there have been park staff on site during SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 103 4c8WbraH Smith - cross 1 the times when the Critical Mass riders are assembling in Union 2 Square Park, yes. 3 Q. And how long has that been going on? 4 A. I don't know. I know for the last several months, there 5 have been park staff there. 6 Q. And did you know in -- well, when you say several months, 7 can you give me some time frame, Ms. Smith? 8 A. No. I just -- I understand that over the last several 9 gatherings there has been park staff on Union Square at the 10 time. 11 Q. Okay. So let us take August. Do you know if August they 12 gathered at Union Square? 13 A. I believe there was park staff there. 14 Q. And did anyone report back to you about what happened from 15 your Parks employee who was there? 16 A. No. 17 Q. Did you ask for a report? 18 A. No. 19 Q. And what about September; was somebody there? 20 A. I believe so. 21 Q. Did anyone report back to you on what transpired? 22 A. No. 23 Q. Did you ask for it? 24 A. No. 25 Q. What about October? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 104 4c8WbraH Smith - cross 1 A. Same. 2 Q. Same question? 3 A. Same answer. 4 Q. Okay. And how about November? 5 A. Same. 6 Q. So, during that entire period of time, you have received no 7 reports from anyone about what transpired at Critical Mass 8 events, right? 9 A. Right. 10 Q. You know that the event takes place, do you not, now the 11 last Friday of every month? 12 A. I understand that's true, yes. 13 Q. Do you now understand that it's been going on for years? 14 A. I understand that now, yes. 15 Q. And do you understand that for all those years, there's 16 never been a permit given and none, to my knowledge, ever 17 requested? 18 A. I understand that is true. 19 Q. Have you ever, prior to your affidavit, said to anyone 20 involved in the Critical Mass events, You need a permit? 21 A. As far as I understand, we have not requested a permit. 22 Q. So the first time you are requesting a permit -- well, 23 withdrawn. 24 Do you know whether the police are present at Union Square 25 during the Critical Mass events? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 105 4c8WbraH Smith - cross 1 A. I don't know that. 2 Q. Has anyone told you that the police are present? 3 A. No. I wouldn't be surprised if the police were present, 4 but I, but no one has told me that. 5 Q. And do the police, from time to time, enforce the Parks 6 Department regulations? 7 A. If necessary, yes. 8 Q. Do you know that the police have been present at the park 9 and worked with the -- withdrawn. 10 Do you know whether the police have ever requested that 11 individuals attending a Critical Mass event leave the park 12 because they do not have a Parks Department permit? 13 A. I have not heard that that has happened. 14 Q. Have you ever requested the police to do so? 15 A. Not that I know of. 16 Q. So, is it then fair to say that the first time the Parks 17 Department of the City of New York has requested a permit for 18 the use of the Parks for a Critical Mass event is in this 19 request for an injunction? 20 A. I believe that is true. There may have been discussions 21 about this with the Manhattan borough commissioner and the 22 event, but I personally do not know of any other time prior to 23 this. 24 Q. So, to your knowledge, the first time there's been any 25 request for a permit by Critical Mass is really in your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 106 4c8WbraH Smith - cross 1 affidavit filed with this Court saying, Give us an injunction 2 to enforce the law? 3 A. This is the first time I have heard of it. 4 MR. HYMAN: I have nothing further, your Honor. 5 THE COURT: Redirect. 6 MS. BINDER: One moment, your Honor. 7 Your Honor, we have a few questions. 8 Ms. Goldberg-Cahn will inquire. 9 THE COURT: That's fine. 10 MS. GOLDBERG-CAHN: Thank you, your Honor. 11 REDIRECT EXAMINATION 12 BY MS. GOLDBERG-CAHN: 13 Q. Is the paved area you spoke of earlier part of the Parks 14 property? 15 A. Yes, it is. 16 Q. Do you know why Critical Mass came to your attention in the 17 last month or so? 18 A. The event has gotten very large. And it is -- there has 19 been some discussion with regard to how we were going to manage 20 the event in the park. 21 Q. What do you mean about how you're going to manage the 22 event? 23 A. Just to make sure that there are no other competing uses 24 for that parkland and that we have appropriate staff there. 25 Q. Ms. Smith, do you have any role in the direction of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 107 4c8WbraH Smith - redirect 1 Parks enforcement patrol officers to take any enforcement 2 action? 3 A. No. 4 Q. And why is it that you testified earlier you did not seek 5 reports regarding what occurred at the last few months' 6 Critical Mass rides? 7 A. Well, the Manhattan special events office has been 8 monitoring those events, and I just -- they have not brought it 9 to my attention. And for many months, there hasn't been -- 10 previously when the event was smaller, there hasn't been any 11 issues to report. 12 Q. What issues are you referring to? 13 A. Excuse me? 14 Q. What issues are you referring to? 15 A. In terms of the size of the event? 16 Q. Yes. 17 A. What's your question? I'm sorry. 18 Q. What types of issues are you referring to when you say 19 there are competing uses in the park? 20 A. Well, we understood that there was an issue at one of the 21 recent Critical Mass rides where the Green Market was loading 22 out of the park at a certain time when they're required to 23 leave, and there was a conflict on the use of pathways with the 24 Critical Mass riders coming at a time before the Green Market 25 had loaded out of the park. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 108 4c8WbraH Smith - redirect 1 MS. GOLDBERG-CAHN: Thank you. Nothing further. 2 THE COURT: Mr. Hyman. 3 MR. HYMAN: Very briefly. 4 RECROSS-EXAMINATION 5 BY MR. HYMAN: 6 Q. You referred to the size of the event. How do you know the 7 size of the event? 8 A. How do I know about the size of the event? I've been told 9 about the size of the event. 10 Q. Who told you? 11 A. Well, in preparation for these discussions, I've been told 12 what the numbers have been with regard to this event. 13 Q. Do I understand that that would be Mr. Albano or Chief 14 Smolka? 15 A. No. I heard it internally from the Parks Department. 16 Q. But you've seen no reports, and you can't tell me the size 17 of the event, can you? 18 A. I have, I have only been told by park staff what the size 19 of the event has been. I was not at the event. 20 Q. Do you know how many people were at the November 26 rally, 21 or event? 22 A. I understand -- I have been told several hundred were 23 there. I was not at the event myself. 24 Q. Do you know how many were at the October event? 25 A. I believe more than that, but I don't know exactly. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 109 4c8WbraH Smith - recross 1 Q. And do you know how many were at the September event? 2 A. Again, I understand that there were many more at those 3 events, particularly those surrounding the Republican National 4 Convention, but I don't know exactly how many. 5 Q. The Republican National Convention was in August? 6 A. Late August, yes. 7 Q. So I'll leave that out. 8 Do you know how many attended the Halloween event in 9 October of 2003? 10 A. No. 11 Q. Do you know whether that event was smaller or bigger than 12 the October 2004 Halloween event? 13 A. The Halloween event, is it a Critical Mass event? Is it? 14 What. 15 Q. Let me rephrase the question. 16 In Critical Mass, on October 29, was the last Friday of the 17 month in 2004, and there was a Critical Mass event. Are you 18 familiar with that? 19 A. Yes. 20 Q. And you've indicated you've been told that the size has 21 grown? 22 A. Yes. 23 Q. You have no numbers for us? 24 A. Not exact numbers, no. 25 Q. Do you know whether that number is greater than October SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 110 4c8WbraH Smith - recross 1 2003 in the last Friday of the month? 2 A. I do not know exactly how big the October 2003 event was. 3 Q. And what about a comparison of the September 2003 to the 4 September 2004; do you have any knowledge of that? 5 A. I only understand that the number of participants in the 6 event has grown substantially in the last year. So I would 7 guess that there would be more, but I don't know the exact 8 numbers. 9 Q. And the last year could be, could be April, May, June, 10 right? 11 A. I'm estimating. 12 Q. In fact, you don't really know whether the group -- the 13 size of the groups on each occasion, do you? 14 A. I don't know the exact number. I understand that several 15 thousand riders have gathered in Union Square Park in the last 16 couple of events. So there are substantial. 17 Q. Is 1,200 substantial? 18 A. Yes. 19 Q. Do you know if there were 1,200 a year ago? 20 A. I don't know that. 21 MR. HYMAN: I have nothing further, your Honor. 22 THE COURT: Anything further, Ms. Goldberg-Cahn? 23 MS. GOLDBERG-CAHN: Yes. Very quickly, your Honor. 24 THE COURT: You can proceed. 25 REDIRECT EXAMINATION SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 111 4c8WbraH Smith - redirect 1 BY MS. GOLDBERG-CAHN: 2 Q. Ms. Smith, what activity is a permit required for in the 3 parks? 4 A. Excuse me? 5 Q. What activity is a Parks Department special events permit 6 required for? 7 A. It's required when there is gatherings -- well, the rules 8 are very specific. When you want to have a reserved space for 9 20 or more people, a Parks permit is required. 10 Q. And what is the purpose of the issuance of a permit? 11 A. As I had mentioned before, the principal purpose of the 12 issuance of a permit is to reserve that space to prevent any 13 conflict on the use of that space and to make sure that the use 14 of that space is appropriate by the people who are requesting 15 it, that it's an appropriate venue for the activity. 16 Q. Based on the information you have regarding the past 17 Critical Mass rides, is the north plaza of Union Square Park 18 what you would think would be an appropriate venue for a ride 19 for a gathering of this size? 20 A. Yes, it would be an appropriate space for it. 21 Q. Would there be any impediment to the issuance of a permit? 22 A. No. 23 MS. GOLDBERG-CAHN: Thank you. I have nothing 24 further. 25 MR. HYMAN: Nothing further, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 112 4c8WbraH Smith - redirect 1 THE COURT: Ms. Smith, during your tenure, have you 2 received any reports or any information from the Parks 3 enforcement patrol concerning the Critical Mass gatherings at 4 Union Square Park? 5 THE WITNESS: I have not. 6 THE COURT: All right. Thank you very much. You're 7 excused as a witness. You may step down. 8 (Witness excused) 9 THE COURT: Ms. Binder, do the city defendants have 10 any further witnesses to call? 11 MS. BINDER: We don't, your Honor, because the 12 plaintiffs indicated that these three witnesses were the 13 witnesses that they would like to cross-examine, and so those 14 are the witnesses we had called. 15 THE COURT: All right. 16 MS. BINDER: We've submitted a declaration from 17 Mr. Primeggia from DOT, but the plaintiffs have chosen not to 18 cross-examine him. 19 MR. HYMAN: That's correct, your Honor. 20 THE COURT: I have that declaration. All right. So 21 for the purposes of the city's application, does the city rest? 22 MS. BINDER: Yes, we do, your Honor. 23 THE COURT: All right. Mr. Hyman, do the plaintiffs 24 have witnesses to call? 25 MR. HYMAN: Your Honor, we have put affidavits in. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 113 4c8WbraH Smith - redirect 1 The city has requested the right to cross-examine three 2 witnesses. 3 THE COURT: Under the same protocol? 4 MR. HYMAN: That is correct, your Honor. 5 THE COURT: All right. Well, like the city, you'll 6 have the option of deciding who the first witness is. So who 7 do the plaintiffs call? 8 MR. HYMAN: Do you want to start now, your Honor? 9 THE COURT: We've got five minutes. Let's use it. 10 For the record, who are you calling? 11 MR. HYMAN: Steven Faust, your Honor. 12 THE COURT: All right. 13 STEVEN FAUST, 14 called as a witness by the Plaintiffs, 15 having been duly sworn, testified as follows: 16 THE COURT: Now, Mr. Faust, you've submitted a 17 declaration in connection with this case, have you not? 18 THE WITNESS: Yes, sir. 19 THE COURT: And do you affirm all of the statements in 20 that declaration to be true and correct? 21 THE WITNESS: Yes, I do. 22 THE COURT: Very well. All right. You may 23 cross-examine, Ms. Binder. 24 MS. BINDER: Thank you, your Honor. 25 CROSS-EXAMINATION SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 114 4c8WbraH Faust - cross 1 BY MS. BINDER: 2 Q. Good afternoon, Mr. Faust. 3 A. Yes. 4 Q. You're a member of certain bicycle clubs, are you not? 5 A. Yes. 6 Q. And according to the declaration that you submitted in this 7 case, you've served as a bicycle tour leader for certain 8 bicycle clubs since 1965, is that correct? 9 A. That is correct. 10 Q. Now, what do you mean by a tour leader? 11 A. For clubs like the American Youth Hostels Bicycle 12 Committee, we would set up rides, day rides, or multiday rides, 13 usually on weekends. Club membership would be informed of 14 them, and many of the rides are open to nonmembers. We would 15 preplan a route, decide for a meeting place, go out to where 16 we're riding and return people. Usually the point of the event 17 is to go to a destination, often see various sites along the 18 way and complete an interesting day on the road. 19 Q. So tour leader is a planning role? 20 A. That's part of it, yes. 21 Q. And you participate in the rides as well? 22 A. Yes. 23 Q. You state you act as a marshal for something called the 24 Annual New York Five-Borough Bike Tour, is that correct? 25 A. Yes, that is correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 115 4c8WbraH Faust - cross 1 Q. What is a marshal? 2 A. The Five-Borough Bike Tour -- 3 Q. I asked you what a marshal is. 4 A. Marshal is, I'll -- 5 Q. Okay. Well -- 6 A. The tour is 30,000 cyclists. To safely move 30,000 7 cyclists, we have several hundred riding marshals, several 8 hundred people on the ground, supporting the ride. What we do 9 is go from the front, the middle, the rear, we handle 10 intersection traffic control, we handle safety, we handle first 11 aid. We provide people with directions. We deal with lost 12 children. It's soup-to-nuts management of a large number of 13 people. 14 Q. And you've participated in various bicycle committees? 15 A. Yes. I was invited to participate in Mayor Koch's first 16 bicycle advisory committee when he was elected in '78. I serve 17 on the federal, on the Transportation Research Board's 18 Committee on bicycle and bicycle facilities which designs and 19 sets national standards for bicycle programs, and currently 20 participate with the New York Metropolitan Transportation 21 Council's advisory committee to bicycles and pedestrians. 22 There have been others. 23 Q. Okay. And you reside in Brooklyn, is that correct? 24 A. That is correct. 25 Q. So it's fair to say that you frequently ride a bicycle in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 116 4c8WbraH Faust - cross 1 New York City? 2 A. Yes. 3 Q. And you've been doing so for many years? 4 A. Since the 1950s. 5 Q. So you recognize that when bicycles are riding in the city 6 streets, bicycles are required to obey traffic regulations? 7 A. Absolutely. 8 Q. And they're required to stop at red lights? 9 A. Sure. 10 Q. And to obey no-turn signs? 11 A. Yes. 12 Q. And one-way street designations? 13 A. Of course. 14 Q. And on two-way streets, they have to stay on the right side 15 of the road? 16 A. Correct. 17 Q. And if there's a designated bike lane, then the bicycles 18 are required to stay in the bike lanes, is that fair? 19 A. Wrong. 20 Q. Excuse me? 21 A. I said that's wrong. 22 Q. That's wrong? Okay. 23 A. I was part of, as one of the, as part of the committee, we 24 drafted the legislation for those bike lanes. The New York 25 City bike lanes are substandard, the ones that were originally SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 117 4c8WbraH Faust - cross 1 included in those original designations. We know when we wrote 2 that up, the initial plan was those lanes were to keep cars out 3 of the bike lanes, not to force bikes to stay into them. The 4 intent was that there would be enough space for cyclists to 5 ride on the roads safely and not be run down by cars, not be 6 hit by car doors swinging open in their face. The fact that we 7 designed, that the city only had four feet available meant that 8 the cyclists had to stay to the outside edge, actually outside 9 lane in order to be outside of a swinging car door. 10 So, no, those lanes were not designed to keep the bikes in. 11 They were designed to keep the cars out and to provide adequate 12 space for cyclists to ride safely on the street. 13 Q. Mr. Faust, are you familiar with the provision of the 14 Department of Transportation regulations applicable to bicycles 15 in the City of New York that states -- it's Section 4-12(p)(1): 16 "Bicycle riders to use bike lanes. Whenever a usable path or 17 lane for bicycles has been provided, bicycle riders shall use 18 such path or lane only except under any of the following 19 situations: When preparing for a turn at an intersection or 20 into a private road or driveway; when reasonably necessary to 21 avoid conditions, including, but not limited to, fixed or 22 moving objects, motor vehicles, bicycles, pedestrians, 23 pushcarts, animals, surface hazards that make it unsafe to 24 continue within such bicycle path or lane"? 25 A. Yes, I'm familiar with that. That's the legislation that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 118 4c8WbraH Faust - cross 1 we drafted. 2 Q. That's a regulation of the City of New York, is it not? 3 A. That is a regulation. Now are you asking me what it means? 4 Q. I'm asking you if that is the regulation. 5 A. That is the regulation as it stands, correct. 6 Q. And it's your testimony that it doesn't mean that bicycles 7 are required to use bike lanes when they're provided? 8 A. I gave you the reason why the lanes, as built, except for 9 perhaps the Lafayette Street lane, are utterly -- they're 10 substandard. Therefore, a cyclist not riding in those lanes is 11 acting exactly in accordance with the conditions that you 12 stated, which is to stay outside of unsafe conditions. 13 Q. Okay. Let's -- 14 A. And -- okay. 15 Q. Let's turn to the situation where there is no bicycle lane. 16 THE COURT: We're going to have to do that after the 17 luncheon recess. 18 MS. BINDER: Okay. 19 THE COURT: All right? Mr. Faust, you can step down. 20 We're going to recess. We'll resume at 2:30 this afternoon. 21 Have a good lunch. 22 (Luncheon recess) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 119 4c8WbraH Faust - cross 1 2 AFTERNOON SESSION 3 2:30 p.m. 4 THE COURT: Good afternoon. Please be seated. 5 Where is Mr. Faust? 6 THE WITNESS: Right here, your Honor. 7 THE COURT: Come on up. 8 All right. Ms. Binder, you may continue with your 9 cross-examination of Mr. Faust. 10 MS. BINDER: Thank you, your Honor. 11 Q. Mr. Faust, before the break, we were talking about bike 12 lanes. In a situation where there is no bike lane, you would 13 agree, wouldn't you, that New York City traffic regulations 14 require that bicycles must ride as near as is practicable to 15 either the right-hand curb or the left-hand curb if it's a 16 one-way street or the edge of the roadway? 17 A. Subject to roadway conditions, subject to parked cars, 18 double-parked cars, and the other condition that if you are on 19 one side of the street and intend to make a turn on a 20 subsequent street, if you're on the left and you need to make a 21 right-hand turn, you're prepared to do that safely by doing it 22 as much as several blocks in advance as the cross-traffic, as 23 the adjacent traffic adjusts, which wouldn't mean that at 24 various times cyclists will be properly out in the middle of 25 any particular avenue's roadway. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 120 4c8WbraH Faust - cross 1 Q. But there are also various times when cyclists would not be 2 properly out in the middle of the roadway, do you agree with 3 that? 4 A. I really have times when I don't find that terribly often. 5 They're traffic, and given New York City traffic conditions, 6 one has to ride where it's safe. If there's upcoming turning 7 traffic, you know you don't want to be to the inside edge of 8 cars turning around you, so you move away. There are a lot of 9 situations where it's very appropriate for cyclists to be out 10 in the middle of the roadways, despite what it seems to say in 11 the legislation. 12 Q. But you would agree, wouldn't you, Mr. Faust, that if there 13 are no obstructions and the bicyclist isn't preparing to turn 14 left in the several blocks and there are no other safety 15 reasons for being out in the middle of the roadway, then the 16 cyclist is properly at the right or left side of the roadway on 17 a one-way street? 18 A. If you're trying to have me state that if a police officer 19 thinks that the cyclist is not turning or any other of the 20 conditions, I can't put myself into the police officer's mind, 21 but from my experience, I don't think that they evaluate or are 22 properly evaluating those conditions. Therefore, I couldn't 23 agree with your statement, because it would put me in a 24 position where it's not consistent with safe operations. 25 Q. Mr. Faust, I'm not asking you about police officers. I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 121 4c8WbraH Faust - cross 1 asking about your understanding of what the traffic regulations 2 require. 3 A. I -- 4 Q. It's your understanding, isn't it, forgetting about any 5 police officer's understanding, it's your understanding that a 6 bicyclist is required to stay to either the right side or the 7 left side of a roadway unless there is a safety or practicality 8 reason for being in the middle of the road, or unless the 9 bicyclist is preparing to make a turn, isn't that correct? 10 A. No. It's not. 11 Q. Okay. Well, let's move on. 12 You are one of the event creators of Bike New York, is that 13 correct? 14 A. Yes. 15 Q. You're one of the founders of that event? And that's a 16 five-borough event, is that true? 17 A. It was originally called the Five-Borough Bike Tour in 18 1977. It is currently the Bike New York Great Five-Borough 19 Bike Tour. 20 Q. And it's an annual event? 21 A. It's an annual event, every spring. 22 Q. And how is it organized? 23 A. It is organized as a special event. It is organized almost 24 in a paramilitary manner, given the size of the operation. 25 It's the functional equivalent of running two mechanized SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 122 4c8WbraH Faust - cross 1 infantry divisions on a 46-mile route around the city ending up 2 with an amphibious assault on the Battery. 3 Q. Let me stop you. How do your riders join this event? 4 A. That is a paid event. They pay, they send a check, they 5 register. So it's 30,000 riders. There is an entire business 6 dedicated to running this ride. 7 Q. Do you cut it off at 30,000? 8 A. The ride has largely, it's not like the New York City 9 Marathon in the sense of a -- let me put it this way. It runs 10 around 30,000, and that is about what has been coming in. 11 There hasn't been an official cutoff. It's about 30,000 12 riders, which is the same size as the New York City Marathon. 13 Q. Do these 30,000 riders follow a particular route that's 14 designated in advance before the ride? 15 A. Yes, they do. 16 Q. Is it the same route every year? 17 A. No. The route is varied slightly. It is almost the same 18 route. There are minor modifications, depending on major 19 roadway reconstructions, bridge conditions. That type of 20 event. 21 Q. Where, generally, does it go? 22 A. Okay. 23 Q. I mean, you don't have to get that specific. 24 A. It hits all five boroughs, which is the point of the name. 25 THE COURT: Hold on. The court reporter can only take SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 123 4c8WbraH Faust - cross 1 one person at a time. 2 MS. BINDER: I apologize. 3 THE COURT: Mr. Faust, tell us where it starts, 4 roughly what path it travels, and where it concludes. 5 THE WITNESS: Yes, sir. 6 It starts at the Battery here in Manhattan. That's 7 the registration point. The start line is actually up at 8 Franklin Street and Church. So the entire length of Church 9 Street, all the way back past the Trade Center into the 10 Battery, is the starting area. Proceeds up Sixth Avenue, 11 through Central Park, out of Central Park to the 145th Street 12 Bridge, over to the Bronx. Does a run through the Bronx. 13 This year, the Third Avenue Bridge was out of 14 commission, so we had to do some -- I think we used the Madison 15 Bridge downtown. We take over the FDR Drive, Harlem River FDR 16 Drive down to 63rd Street, where we proceed up streets to the 17 Queensboro Bridge. Use the, usually use the upper level of the 18 Queensboro Bridge, up to Astoria, to the park underneath the 19 Triboro Bridge. Come back down along the Brooklyn waterfront. 20 When they reach downtown Brooklyn, they go up on to 21 the Brooklyn-Queens Expressway, staying on that on to the Belt 22 Parkway, all the way down to the Verrazano Bridge, Fourth 23 Avenue exit. Come up Fourth Avenue, Fort Hamilton Parkway, get 24 on to the Verrazano Bridge. Usually, we use the lower level 25 Staten Island-bound direction, so three-quarters of the bridge SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 124 4c8WbraH Faust - cross 1 is still open to traffic, but we still take over one-quarter of 2 the bridge. Across the bridge, have a large event at Fort 3 Wadsworth. One of the reasons for the event is so we don't 4 overload the ferry. We send people down to Bay Street to the 5 Staten Island ferry. 6 So it's a complete loop beginning to end. 7 BY MS. BINDER: 8 Q. About how long is the route? 9 A. The route's about 46 miles. 10 Q. And do most riders do the whole thing? 11 A. Many do. So we've got, you've got a very large chunk 12 finishing the entire ride. 13 Q. About how long does it take for most riders to finish the 14 entire ride? 15 A. Start line kicks off at 8 a.m. The first of the riders are 16 coming back across the ferry at about 12:30. The last of them 17 are coming across at about 5 p.m. So it's part -- for some 18 people, it's the entire day. 19 Q. Now, this event obtains a permit from the Parks Department 20 to gather in Battery Park for the ride, does it not? 21 A. As far as I know. I might as well point out, I do not get 22 the permits. I know nothing about filling out the permits, but 23 I must agree with you I'm sure we get permits for a number of 24 the rides. 25 Q. And so do you know whether the ride also gets a permit for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 125 4c8WbraH Faust - cross 1 Central Park from the Parks Department? 2 A. I know the park is obviously informed. Most likely, that 3 is included in the overall Parks Department permit. We occupy 4 the east drive of Central Park entirely, so I'm sure that's one 5 of those situations that fits the, fits the Parks Department 6 criteria of trying to make sure it's rational and other users 7 are not interfered with. 8 Q. Does this event obtain a parade permit from the New York 9 City Police Department? 10 A. I am reasonably certain it would. Again, it fits the 11 criteria because we're taking over otherwise, roadways 12 otherwise closed to cyclists. 13 Q. So this permit allows participants of the bike tour to 14 proceed on an established route through city streets and across 15 certain bridges as you've described? 16 A. That's correct. 17 Q. To your knowledge, and participants, as you said, proceed 18 en masse through more than one lane of traffic on city streets 19 and on otherwise prohibited roads and bridges? 20 A. At this point, it's not even -- we take over entire 21 roadways. And motor vehicles -- all motor vehicles except for 22 our support vehicles, which are part of the group, all motor 23 vehicles are banned from the route. So this is a complete 24 takeover of given streets. 25 Q. And the police department directs vehicular traffic to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 126 4c8WbraH Faust - cross 1 allow the bike tour to pass through, isn't that right? 2 A. That's correct. 3 Q. And they allow the bike tour on the city streets to pass 4 through red lights, to keep the event moving, isn't that 5 correct? 6 A. Right. 7 Q. Now, are you familiar with the Multiple Sclerosis Bike 8 Tour? 9 A. The MS Tour, yes. 10 Q. Have you participated in it? 11 A. I've marshaled that also. 12 Q. And then you're aware that that event also has a permit 13 from the Parks Department to gather in Battery Park before its 14 ride? 15 A. Yeah. The MS is a little bit smaller than the 16 Five-Borough, but it's a similar situation where they take over 17 entire highway segments for an hour or so, and it would -- 18 yeah. 19 Q. How many riders are typically in the MS ride, if you know? 20 A. There are several thousand. I don't actually know the 21 total numbers. I just -- I don't know the total number. It's 22 several thousand. 23 Q. And do you know the length of that route? 24 A. Yeah. The MS Tour, the basic run is from lower Manhattan, 25 up the FDR Drive, up to in Woodlawn Park, coming back down on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 127 4c8WbraH Faust - cross 1 the Henry Hudson Parkway, as far down as 57th Street, using the 2 parkway. At that point, they turn off and move off to, I 3 believe, 11th Avenue, 11th or Tenth. 4 A portion of the group finishes the ride back down at lower 5 Manhattan, but another portion continues through the Holland 6 Tunnel, up along the Jersey Shore, past the George Washington 7 Bridge, up to at least I think the New York State border, turns 8 around, comes back down the George Washington Bridge, back down 9 Riverside Drive, and returning to lower Manhattan. 10 By the time the route is coming down Riverside Drive at the 11 tail end of the ride, we no longer have the streets blocked 12 off. Riders are riding in mixed traffic at that point. The 13 blocking is done while the group is in a tight mass and on the 14 expressways. 15 Q. But that route also -- I mean, excuse me. 16 That MS Bike Tour also has a parade permit from the New 17 York City Police Department, does it not? 18 A. I would assume that it does. I do not know for sure, but I 19 assume it does. 20 Q. Are you familiar with the Bronx Borough President's Bicycle 21 Ride? 22 A. Which is usually called Tour de Bronx, yes, I am. 23 Q. What is that bicycle ride? 24 A. That's been run for a few years now starting at, near 25 Yankee Stadium at the Bronx Municipal Building, and it does a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 128 4c8WbraH Faust - cross 1 full circumference of the Bronx. They are trying, and I think 2 very successfully, showing off the rehabilitated neighborhoods 3 in the Bronx, the waterfront parks that people don't know that 4 exist. This year's ran through the Woodlawn Cemetery. They, 5 you know, it covers a, about 40-some-odd miles just in the 6 Bronx alone. 7 Q. And it goes through the city streets of the Bronx, correct? 8 A. It goes through city streets. It is a ride that is done, 9 at least at the initial 20 or so miles, is done as a fairly 10 tight mass. There's a short ride that's done as a tight mass 11 fully escorted by marshals and police. The longer portion of 12 the ride, they -- riders ride, knowing a written route and with 13 some markings on the ground, and they just ride on their own. 14 There's no, no police coverage out on the streets, no police 15 escorts. 16 Q. But you're aware that the police department has issued a 17 permit for that ride as well, are you not? 18 A. I would assume that they have, in this situation, that I 19 explained. 20 Q. Are you familiar with something called the Cop Enterprises 21 Bicycle Ride? 22 A. No. Under that name, I don't know it. 23 Q. Now, Mr. Faust, you rode in Critical Mass on October 29 of 24 this year, is that correct? 25 A. Yes, I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 129 4c8WbraH Faust - cross 1 Q. And you endeavored to follow the route authorized by the 2 police department? 3 A. Yes, I did. 4 Q. Have you ridden in other Critical Mass rides? 5 A. No, I have not. 6 MS. BINDER: I have nothing further, your Honor. 7 THE COURT: Redirect examination, Mr. Hyman? 8 MS. HYMAN: Please, your Honor. 9 REDIRECT EXAMINATION 10 BY MS. HYMAN: 11 Q. Mr. Faust, you indicated that you assume that they have a 12 permit. Why do you assume that? 13 A. I'm sorry. Which they? 14 Q. The particular -- 15 A. The rides? 16 Q. The bike rides you were asked by Ms. Binder. 17 A. Because of the particular nature of the ride, in this case, 18 in these cases where major -- two factors: Major normal city 19 streets which would normally be open to bicycles are being 20 taken over entirely by a large number of people for a long 21 period of time. Something on the order of an hour or so. 22 But more particularly, more particularly, with these rides, 23 particularly the MS and the Five-Borough Bike Tour, we are 24 using nonbicycle legal roadways. We're using certain bridge 25 roadways, like the Verrazano, which has no bicycle access SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 130 4c8WbraH Faust - redirect 1 otherwise without being on the roadway, and they don't normally 2 allow bikes on the roadway. We're using the FDR Drive. 3 One of the factors on these is we're moving something on 4 the order of 12,000 bikes per lane per hour, which is four 5 times as many people as there are moved in cars. So we are 6 actually moving a tremendous number of people. This is a mass 7 transit volume, not just a highway volume. It's that heavy. 8 But we are definitely closing it to cars, and we certainly 9 would need the police department's permission and cooperation 10 in this. There's no way we couldn't do this without the police 11 department's cooperation. 12 Q. Now, coming, you indicate on at least the MS and I think 13 one other that bikers return unescorted. Would you explain how 14 that occurs? 15 A. The -- well, the MS specifically, the latter half of the 16 ride, which is a 50, 60-mile ride going up into Jersey and 17 returning down into 9W and the George Washington Bridge, by the 18 late afternoon, when these riders are returning, they're coming 19 in a long stream of a few bikes, a few bikes, a few bikes. 20 It's not a mass. And they can, just like any other cyclist, 21 become part of traffic. They ride down Riverside Drive, and 22 the other roads. They follow normal traffic rules, and it is 23 not necessary to expend the energy to put police to keep waving 24 them through because they will move along with traffic without 25 a safety problem to the cyclist or to the other traffic. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 131 4c8WbraH Faust - redirect 1 It's a typical, it's a large number of cyclists, but it's 2 not the 12,000 per hour that we're trying to move in the early 3 phases of the ride. Tail end of the Five-Borough Bike Tour, 4 comparably, the riders hit, the riders hit Fort Wadsworth, down 5 Bay Street. We do not actually close Bay Street to traffic. 6 Cyclists go down with cars going down. Once they return to 7 Manhattan, we've got 20 to 30,000 riders coming off the Staten 8 Island Ferry, and they all return home without special escort, 9 without any special street closures. They arrived at the 10 Battery in the thousands. They leave from the Battery in the 11 thousands. They leave as traffic on the roadway. They don't 12 need special escorts. 13 Q. So, to your knowledge, then, the permit is for the closing 14 of streets, the special circumstance? 15 A. Exactly, closing and special roadways. 16 Q. When they, for instance, the mass of riders coming back, 17 then from the Staten Island Ferry, you don't know if a permit 18 for that -- 19 A. There is no permit on that side. 20 Q. And what happens to these riders? What do they do? 21 A. They go up Church Street, they go up Water Street. They go 22 up the Hudson River Greenway. They go up and out and across to 23 home. They ride back to Brooklyn. They ride to Manhattan. 24 Some of them get down on the subways. Subways are open to 25 cyclists for this. And they go home. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 132 4c8WbraH Faust - redirect 1 Q. And Critical Mass, sir, you participated in the Critical 2 Mass? 3 A. That one month in October. 4 Q. And do Critical Mass, in your estimation, if they adhere to 5 the particular traffic rules, they are similar to those coming 6 back from the Staten Island Ferry, right? 7 A. Yeah, they definitely would be comparable. Large numbers 8 of bicycles, but not something requiring a total street 9 closure. Not something taking over an entire roadway system. 10 They can move through as traffic. 11 Q. Sir, I just want to ask you about -- you were asked whether 12 you were at the October 29 Critical Mass, and I gather that was 13 your first? 14 A. Yes, it was. 15 Q. What happened at 24th, 23rd Street and Fifth Avenue? Would 16 you just tell the Court briefly what led up to it and what 17 happened there? 18 A. I'd been riding, taking photographs, throughout the entire 19 ride. And I stopped to take some pictures of the Flatiron 20 Building and the riders. And as I reached 24th Street, I'm 21 realizing something's funny here because I've got this orange 22 barricade tape, and that's strange. So I snap a picture of 23 that. And going, you know, this isn't the route we're going to 24 be taking. I mean, I knew, I had read the form, so I knew what 25 route the police had asked us to take. And I knew if we didn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 133 4c8WbraH Faust - redirect 1 go down Broadway we were not going to go back on the route they 2 wanted us to. 3 However, I had been following police instructions, and 4 there had been police at practically all intersections 5 throughout the entire route. They had been escorting us, 6 moving us along as a fast, almost a train, and we reached this 7 point, and here is a motorcycle, a motor scooter officer and 8 barricade tape saying do not go this way. 9 I'm following the rules. We go down the slot that points 10 toward Fifth Avenue. We go one further block. And everybody 11 is being pointed to the right, to the west, along 23rd Street. 12 I had been at Madison Square about two minutes taking 13 pictures, watching, you know, many cyclists I was with had 14 passed, and they were all turning smoothly at that 15 intersection, and I came around and I turned smoothly along 16 with it, and there were more behind me turning. And we were 17 all pointing west on 23rd Street. 18 Q. Did you at that point -- well, what did you think the 19 police were telling you at that point, as a rider in the 20 Critical Mass Bike Ride? 21 A. First thing is turn. They're having me turn. Police have 22 decided whatever, for whatever reason, there is something wrong 23 with the other route, we will have a turn. 24 This is something that, you know, with the Five-Borough 25 Bike Tour, if we get an oil spill or an accident, we will turn SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 134 4c8WbraH Faust - redirect 1 the route and on the fly make adjustments to a routing. So 2 it -- it surprised me a bit, but there they were. The police 3 certainly weren't upset. I didn't see anybody jumping up and 4 down yelling at us, you're taking the wrong route. This is 5 what the officers wanted us to do. 6 Q. What happened then at 23rd Street? 7 A. We proceeded in the westbound lanes. Proceeded across 8 Sixth Avenue because if we were going to head south, we 9 couldn't turn left at Sixth; that's an uptown street. So it 10 didn't even -- I'm going, that's nice. We're riding along, 11 we're approaching Seventh Avenue, and I'm saying, What is 12 going, what are these people doing? What do they want from me? 13 It was basically about Tenth, 11th Avenue when I said 14 something is very peculiar here, but we had been escorted and 15 herded along up until this point. So, you know, the only thing 16 I knew for sure is I wasn't going to ride my bike straight 17 across to New Jersey. But other than that, you know, I was a 18 bit confused, and going, okay, how do we, you know, operate 19 safely at this point? 20 Q. Did the cyclists -- can you estimate the number that were 21 with you in this group? 22 A. It was, it was quite a few hundred, because, as I said, 23 there had been cyclists passing me for two minutes, and there 24 were definitely still cyclists behind me coming. So it was in 25 the order of hundreds. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 135 4c8WbraH Faust - redirect 1 Q. And did they occupy the right side of 23rd Street? 2 A. Yes. 3 Q. And they then went to, you went to Tenth or 11th Avenue 4 then? 5 A. We proceeded to 11th Avenue, which is the end of 23rd 6 Street. And since we needed to go southbound, at that point, I 7 mean, obviously, we weren't going across to Jersey. We turned 8 left on 11th and then left, half left again on West Street to 9 pick up West Street and proceeded south on West Street. 10 Q. Did you make an effort to return to Union Square? 11 A. Well, at this point, we were still heading south, which 12 would be in the proper direction, so we were at -- 23rd is 13 obviously above Union Square, so we're heading south at this 14 point. 15 I'll be honest, I was half joking with people that maybe 16 the police were letting us do or encouraging us to do something 17 a little wicked so that we could end the night by thinking we'd 18 gotten something over, but they really hadn't lost control of 19 the situation, and the next morning, they would declare victory 20 and this whole thing would peter out. And we'd get off this 21 whole RNC level of chaos. So I'm halfway thinking, maybe they 22 deliberately just wanted to let us have some fun and get us 23 back in and call it quits. 24 I really wasn't sure what was happening, because we had 25 been under such tight control up until that point. I couldn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 136 4c8WbraH Faust - redirect 1 understand what they were doing. 2 Q. Were there any escorts at this point when you're heading 3 south on Tenth or 11th? 4 A. When we finally reached 11th or West Street, there was no 5 direct escort until I came around onto, what, Carlton Street. 6 We all turned left on West Street at Carlton. And a large 7 black SUV with blinking emergency lights, which meant it was 8 obviously one of the police SUVs, turned onto Carlton and moved 9 along with the group at about the group's speed at that point. 10 Q. Do you know who was in that vehicle? 11 A. It was totally black. It's one of those Darth Vader SUVs. 12 Q. And did you then at any point attempt to get back now that 13 you're down at Carlton to Union Square where the riders are? 14 A. The ride, the ride, at this point -- again, now I'm 15 following people. We came across to Sixth Avenue, in the 16 village. We turn left, go uptown with traffic on Sixth Avenue 17 and make a right at West 12th Street, which would be a little 18 bit below Union Square, but it's heading back toward home base 19 for the ride. 20 Q. And were you obeying traffic signals? 21 A. At this point, we actually were rejoined by a large number 22 of motor scooter officers, so I think we may have been escorted 23 through some signals. Mostly we were pretty much obeying the 24 traffic. 25 Q. When there were no police escorts, did you obey the traffic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 137 4c8WbraH Faust - redirect 1 signals? 2 A. I will probably say that given the situation, it was a 3 little difficult. I probably went through a light or two here. 4 MS. HYMAN: Okay. No further questions. 5 THE COURT: Recross? 6 MS. BINDER: Yes, your Honor. 7 RECROSS-EXAMINATION 8 BY MS. BINDER: 9 Q. Mr. Faust, you testified a little while ago that it was the 10 MS bike ride and some of the other bike tours, at some point 11 the route became unregulated and bikers were unescorted by the 12 police department and, at that point, they abided by traffic 13 regulations. Remember that? 14 A. Yes. 15 Q. And as a long-time cyclist, are you familiar with a 16 practice known as corking? 17 A. I've heard the term. 18 Q. And is that when the bicyclists stop their bicycles in an 19 intersection to block traffic so that other bicyclists behind 20 them can pass through a red light unimpeded by the oncoming 21 traffic? 22 A. That would be a reasonable description, something that's 23 also done while we're escorted by the police department as 24 well. In fact, they usually start it off. 25 Q. And that's so the large group can be kept together, is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 138 4c8WbraH Faust - recross 1 correct? 2 A. Kept together, and actually moved through with less impact 3 on traffic than if they individually stopped and started. 4 Q. And you recognize, don't you, that unless police officers 5 or traffic agents wave the bicycles through an intersection, 6 that practice of corking violates traffic regulations 7 applicable to bikes? 8 A. Does this have something to do with the MS Tour? 9 Q. It's a question generally about bicyclists being 10 required -- 11 A. Under -- 12 MS. BINDER: Your Honor, I ask that the witness answer 13 the question and not ask me questions. 14 THE COURT: Why don't you put the question to the 15 witness again. 16 BY MS. BINDER: 17 Q. You recognize, don't you, that unless police officers or 18 traffic agents wave bicyclists through an intersection, the 19 practice of corking violates traffic regulations applicable to 20 bicyclists, in general? 21 A. I would say that there are situations where traffic safety 22 requires that certain adjustments to traffic flow have to take 23 place. 24 Q. But if traffic safety conditions didn't require that, you 25 recognize that corking is a violation of the traffic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 139 4c8WbraH Faust - recross 1 regulations unless it's authorized by the police department? 2 A. It's inconsistent with the usual operations. 3 Q. Now, you talked about arterial highways to some extent. To 4 the extent that Critical Mass has gone on to the FDR Drive, you 5 would agree, wouldn't you, that they would need a parade permit 6 to do that? Wouldn't you? 7 A. I haven't been with Critical Mass on the FDR, so I don't 8 know if I can address that. 9 Q. But you would agree that any bicycle group that goes on the 10 FDR highway in a group needs a parade permit? 11 A. If you're going -- no, actually. I would say there are 12 times when there is -- I don't know if I really want to go into 13 a long -- I don't know how much you want to discuss here. But 14 there is an issue of specific protests and activities and 15 parade permits. Normally, you don't ride a bicycle on an 16 express highway. 17 Q. Because it's prohibited by applicable traffic regulations? 18 A. Because given the fact that there's no shoulders on that 19 road, it's not really safe to operate a bicycle on there. 20 Q. And you would agree that it's prohibited by traffic 21 regulations, would you not? 22 A. I would like to point out there are arterial highways that 23 cyclists do use safely and legally. 24 Q. Is the FDR -- 25 A. This particular one, the FDR is not appropriate for riding SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 140 4c8WbraH Faust - recross 1 on the roadway. 2 MS. BINDER: I have no further questions, your Honor. 3 MS. HYMAN: Nothing further, your Honor. 4 THE COURT: All right. 5 Mr. Faust, turning to the situation at, in the 6 vicinity of Madison Square Park -- 7 THE WITNESS: Yes, sir. 8 THE COURT: -- and when you turned right on to 23rd 9 Street and proceeded west, were you -- did you observe at that 10 time escorts by the police? 11 THE WITNESS: Yes. We had a number of motor scooter 12 officers mixed in with the group, and they were just flowing 13 with us, as they had been all the way through. There was at 14 least one -- I know it's in the photograph, maybe more officers 15 who were standing at the intersections watching, dealing with 16 traffic for us. There was very specifically the barricade tape 17 and the motor scooter officer blocking off literally the only 18 proper route downtown. I mean, the way Madison Square is laid 19 out, it's practically a railroad track situation. You switch 20 to the downtown Broadway route or you don't. And once you 21 don't, you're not on that route. You're on a different route 22 entirely. 23 THE COURT: And at what point between Fifth Avenue and 24 23rd Street and 11th Avenue and 23rd Street, did you observe 25 that the police escorts left you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 141 4c8WbraH Faust - recross 1 THE WITNESS: I probably was aware of it at about 2 Tenth Avenue. We rolled through Sixth. We rolled -- Seventh 3 would have been the logical place to make a southbound turn. 4 Nothing happened there. No change in direction. Eighth, of 5 course, is uptown. Ninth is a downtown. Somewhere toward, 6 somewhere toward Ninth, Tenth, about Tenth Avenue, I'm going, 7 what, there is something wrong here. Or something's changed. 8 THE COURT: All right. And in response to a question 9 from Mr. Hyman, you said that after you turned south from 23rd 10 Street at about 11th and then proceeded to head sort of back in 11 the direction of Union Square Park, he asked you whether there 12 were occasions when you may not have observed the street -- 13 THE WITNESS: Traffic signals. 14 THE COURT: -- traffic signals. And if I'm recalling 15 your answer, it was something like there may have been 16 occasions when the circumstances didn't allow it or didn't 17 permit it. Just tell me what you mean by that. 18 THE WITNESS: There are times when once -- part of the 19 problem with this is if you start your group -- as I said, I've 20 been a tour leader for 40 years, and I give people very clear 21 instructions. You know, you will treat a red light, you know, 22 knowing people are human, you will treat it like a stop sign, 23 at the least. You will not just roll through it. And 24 preferably, you'll stop and wait, but at least don't be an 25 idiot and just roll through a red light. You start the group SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 142 4c8WbraH Faust - recross 1 with that setup. And you keep that going throughout the 2 process. 3 What we had here was the opposite. We had a group 4 that was started as a rolling, a nonstop, rolling procession by 5 the police. That was their setup, from Union Square at 17th 6 Street. It was the front rolls, the sides are held, we go up 7 the middle. 8 You've now taken several thousand, you know, a 9 thousand or so cyclists and you've set them in motion. You've 10 run them through over an hour of streets, and it becomes 11 something very difficult to suddenly change that. And it can 12 actually, if you've got a group, get them out of the 13 intersection. Keep them moving. We were on West Street. It's 14 not a place to hang around. It's -- you're on there, you use 15 it, you get off of it. 16 Would I have preferred if we had probably done a 17 measured, deliberate intersection by intersection, you know, 18 traffic light by traffic light? Probably would have been 19 better. I mean, I've run all these type of things. We've run 20 with several hundred people with escorts, where we close off 21 the side streets, we move through. We have almost no -- we 22 have a very light impact. 23 I've also moved several hundred people where we go 24 along, we wait for the lights, then we move along another 25 series of blocks, then we wait for the lights. It can work SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 143 4c8WbraH Faust - recross 1 both ways, but after an hour of being paraded, being herded, 2 really, is, railroaded through, and then the police disappear 3 and then wonder, it's a body in motion. They've set it in 4 motion. And then they're sitting there going, gee, I don't 5 know why they're still rolling so fast. 6 It became that kind of a situation. Is it exactly 7 perfectly per all the regulations, your Honor? It's not. 8 THE COURT: Did you return to Union Square Park that 9 night? 10 THE WITNESS: No, actually, I didn't. As I said, I 11 reached 12th Street. We were riding on 12th, and about halfway 12 between Sixth and Fifth Avenues, everything stopped, and we see 13 that there's officers doing something at Fifth Avenue. 14 About the same time, the police SUV decided he wanted 15 to get up through the group, puts on his siren. And this is 16 where I must contend with 40 years of running groups, we have 17 never, ever blocked an emergency vehicle. I mean, we can do 18 something that cars can't. We picked up and we moved. 19 Everybody just got right up against the cars or into the 20 sidewalk. That road was clear in 15 seconds, and he made it to 21 about six cars from the end of Fifth Avenue, where there was a 22 bunch of cars trapped by the police who were at the Fifth and 23 12th intersections. 24 So we slowly walked up to Fifth Avenue. And 25 apparently there was a police chorus line. It's a term of art. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 144 4c8WbraH Faust - recross 1 We use this with the Five-Borough where we have to split groups 2 like going into Central Park. We overload, so at Fifth Avenue 3 and 59th, we have a chorus line of cyclists standing, and we 4 push people into the trance and go trot, trot, trot, trot, 5 change the angle and valve everybody over to the other side. 6 So the police were using the motor scooters at a valve 7 at Fifth and 12th. They'd been sending people down Fifth 8 Avenue. They then -- they started to move them across on East 9 12th Street, and I took a look at this and there was another 10 line of police on Tenth Street. And I'm going I didn't come 11 here to get arrested. I came here to have fun. Something was 12 getting strange, something was getting funny. And it was also 13 getting close to 9:00. 14 So I looked at this and said I think I've had enough 15 of this. This looks like it's going to get into more and more 16 chaotic situation. I walked half a block south to 11th Street, 17 got on my bike, rode to Tenth Street. There was, as I said, 18 the line of police there. I looked at them. They looked at 19 me. I rode through. I went across on Eighth Street. 20 About that time, I looked to see where the helicopter 21 was. There was a helicopter all night. If you've been in 22 Vietnam, you know to look for the helicopter, that the action 23 is at the front of the ride. You look for where the front of 24 the helicopters are pointing, so the helicopters were hovering 25 over the Time's Up headquarters. I said, let's go see what's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 145 4c8WbraH Faust - recross 1 happening, I went down Mercer to Houston, crossed Houston, 2 stayed about a half hour at Time's Up, helped somebody with a 3 flat tire, and went home. 4 THE COURT: All right. Thank you. 5 Any further questions for Mr. Faust? 6 MS. BINDER: No, your Honor. 7 MS. HYMAN: No, your Honor. 8 THE COURT: Mr. Faust, you're excused as a witness, 9 sir. You may step down. 10 (Witness excused) 11 THE COURT: Mr. Hyman, would the plaintiffs please 12 call their next witness. 13 MS. HYMAN: Yes. Mr. Stecklow. 14 WYLIE STECKLOW, 15 called as a witness by the Plaintiffs, 16 having been duly sworn, testified as follows: 17 THE COURT: All right. Mr. Stecklow, you've 18 previously submitted a declaration in this case. Do you 19 solemnly affirm all the statements in that declaration as true 20 and correct? 21 THE WITNESS: Actually, your Honor, upon further 22 review, I have a few corrections to make, if I may. 23 THE COURT: All right. 24 THE WITNESS: I'm pulling out a copy of my affidavit, 25 paragraph 10. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 146 4c8WbraH Faust - recross 1 THE COURT: Hold on. 2 Go ahead. 3 THE WITNESS: Where I wrote, "the ride continued until 4 approximately 35th Street." I now understand that to be 39th 5 Street. 6 In paragraph 11, the last sentence says, "I note from 7 my cell phone bill this call was placed at 9:01." That should 8 be 8:11 p.m. 9 And in paragraph 15, where it says, "according to the 10 attached phone report, this call was at 9:21," that should be 11 8:20 p.m. 12 THE COURT: I'm sorry. That was in paragraph 15? 13 THE WITNESS: Yes, your Honor. 14 THE COURT: What's the -- 15 THE WITNESS: The correct time would be 8:20 p.m. 16 THE COURT: All right. Other than that, are the 17 statements as amended now all true and correct? 18 THE WITNESS: Yes, your Honor. 19 THE COURT: All right. I think, for the record, and 20 for the benefit of counsel for all sides, have you had occasion 21 to be in this courtroom -- 22 THE WITNESS: Yes, your Honor. 23 THE COURT: -- at another time? 24 THE WITNESS: Yes, your Honor. 25 THE COURT: And was that in connection with your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 147 4c8WbraH Faust - recross 1 prospective jury service in a case? 2 THE WITNESS: Yes, your Honor. 3 THE COURT: All right. And that was recently, was it 4 not? 5 THE WITNESS: Yes, your Honor. It was about a month 6 ago. 7 THE COURT: And for reasons not known to you, or me, 8 were you a juror who was peremptorily dismissed? 9 THE WITNESS: I knew I was dismissed. I didn't know 10 until this moment that it was due to a peremptory challenge. 11 THE COURT: All right. Well, it was at the conclusion 12 of jury selection. 13 THE WITNESS: Correct, your Honor. 14 THE COURT: All right. 15 MS. HYMAN: Your Honor, just as a further little 16 anecdote, he was here the morning the city came in with the 17 order to show cause. 18 THE COURT: All right. Anyway, district courts do 19 many things. 20 Cross-examination. 21 MS. BINDER: By Ms. Goldberg-Cahn, your Honor. 22 THE COURT: All right. You may proceed. 23 CROSS-EXAMINATION 24 BY MS. GOLDBERG-CAHN: 25 Q. Good afternoon. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 148 4c8WbraH Stecklow - cross 1 A. Good afternoon. 2 Q. You participated in the October 29 ride, is that correct? 3 A. That is correct. 4 Q. And the police department set up a designated route for 5 that ride, is that true? 6 A. I believe the police designated a route that they would 7 like the ride to take. I don't believe that that was agreed 8 upon by anybody. 9 Q. And you were aware of the streets that had been designated 10 by the police for that ride, is that true? 11 A. Yes. I was one of the individuals, I think, who was given 12 a map or at least a, something, I think, that had been 13 designated as an exhibit to this issue that the police had 14 passed out that day. 15 Q. So you were aware that the route designated by the police 16 was to go up Park Avenue, go west on 55th Street, south on 17 Fifth, down to 23rd, Broadway, into the park, is that correct? 18 A. Yes. I believe that was the route the police had requested 19 that the bike ride take. 20 Q. Yet, you admit to deviating from the route at about 35th -- 21 well, now 39th Street and Fifth Avenue, is that correct? 22 A. Yes, that's correct. 23 Q. And you admit that you turned north up Sixth Avenue to 42nd 24 Street and then left into Times Square, is that correct? 25 A. That is correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 149 4c8WbraH Stecklow - cross 1 Q. Isn't it true that the ride turned at 39th Street because 2 the riders wanted it to turn? 3 A. I wasn't at the front of the ride. I was towards the 4 middle of the ride. I turned because that's where the ride was 5 going. I can't speak to the minds of the others. 6 Q. So you turned off where the other riders turned off, is 7 that correct? 8 A. Yes, I believe that to be true. 9 Q. And you were riding about halfway back in the ride, is that 10 what you just said? 11 A. Yes. 12 Q. So it's true that you couldn't tell exactly why the ride 13 turned off Fifth Avenue at approximately 39th Street, correct? 14 A. Yes, that's correct. 15 Q. So you simply followed the crowd? 16 A. In this instance, I was following the ride. 17 Q. You admit that you were riding off the route at about 18 Eighth Avenue, isn't that correct? 19 A. Can you tell me what you mean by "the route"? 20 Q. The designated route by the police department for the ride, 21 as set forth in the flier. 22 A. As I previously stated that on 39th Street, the ride took a 23 turn and I followed the ride. That wasn't the ride that the 24 police or the route the police had hoped the ride would take. 25 Q. But you admit that at one point you were riding on Eighth SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 150 4c8WbraH Stecklow - cross 1 Avenue, correct? 2 A. Yes. And that, I believe, was at the designation of the 3 police. 4 Q. Isn't it true that you just followed the ride? 5 A. But up to the point that you questioned me, we hadn't 6 gotten to Eighth Avenue. Once we got toward Eighth Avenue, the 7 police were then directing me towards Eighth Avenue and to turn 8 right and go up there. 9 Q. Regarding the ambulance that you set forth in your 10 declaration that you say that you observed on 42nd Street at 11 around Eighth Avenue, that was off the designated route, 12 correct? 13 A. Yes. 14 Q. In fact, the ambulance was observed while you were riding 15 three avenues west of the designated route, correct? 16 A. No. The ambulance was observed on 42nd Street. 17 Q. And Eighth Avenue? 18 A. No. It was between Seventh and Eighth Avenue. 19 Q. So at least two blocks west of the route, correct? 20 A. Sure, yes. 21 Q. The ambulance could have been heading towards an emergency, 22 isn't that correct? 23 A. Absolutely. It could have been, yes. 24 Q. And if the ambulance was heading towards an emergency, you 25 wouldn't see anyone in the back of the ambulance, is that true? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 151 4c8WbraH Stecklow - cross 1 A. I don't know. I don't know what EMT procedures are. 2 Q. Isn't it fair to say that if they were heading towards an 3 emergency, there wouldn't be a sick or injured person in the 4 back of the vehicle? 5 A. There might be EMT people in the back of the vehicle. I 6 don't know how many people are regularly in an EMT vehicle. 7 Q. But it's fair to say that you don't know who would or 8 wouldn't have been in the back had they been heading towards an 9 emergency? 10 A. That is fair to say. 11 Q. Isn't it also possible that you couldn't see anyone or any 12 movement in the back from what you called in your declaration 13 to be your vantage point? 14 A. Yes. That's what I affirmed, that from my vantage point, 15 it didn't seem like there was anybody or any movement in the 16 back of an ambulance. 17 Q. But it is possible that there may have been, in fact, 18 somebody in the back of the ambulance, but you just couldn't 19 see them? 20 A. Yes, that is possible. 21 Q. In your declaration, you indicate that the ambulance was 22 stopped. Is that true? 23 A. I'm sorry. Can you repeat that? 24 Q. That the ambulance stopped at some point between Seventh 25 and Eighth Avenue on 42nd Street -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 152 4c8WbraH Stecklow - cross 1 A. Yes, that's accurate. 2 Q. -- when you were trying to look in? 3 A. Yeah. At that point is when I stood up on top of my pedals 4 trying to gain a vantage point to see if I could see anybody in 5 the back of the vehicle. 6 Q. The ambulance could have been stopped because it couldn't 7 clear through traffic or cyclists, is that possible? 8 A. It was stopped because, I believe the police were on Eighth 9 Avenue stopping traffic, trying to direct traffic in certain 10 ways, and that the ambulance was going down the middle of 42nd 11 Street and that there were cars going in each direction as well 12 as bicycles going in one direction and pedestrian traffic, and 13 because of the large amount of track going on, I believe the 14 ambulance had to stop and wait for the cars in front of them to 15 clear out of the way. 16 Q. It's possible it was stopped because it couldn't get 17 through the traffic at that moment? 18 A. At that moment, it's possible, yes. 19 Q. So you really have no basis for your statement that the 20 ambulance was used by the NYPD to fractionalize the ride, is 21 that correct? 22 A. That was my opinion. 23 MS. GOLDBERG-CAHN: Thank you. I have nothing 24 further -- 25 Oh, sorry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 153 4c8WbraH Stecklow - cross 1 Q. Isn't it true that the flier handed out by the police 2 department told you possible consequences for deviating from 3 the designated route? 4 A. If you would let me look at it, I'll let it refresh my 5 recollection. 6 MS. HYMAN: I think it's two. 7 MS. GOLDBERG-CAHN: Can I hand the witness what's been 8 marked as Exhibit 2? 9 THE COURT: Yes. Proceed, Ms. Goldberg. 10 THE WITNESS: Thank you. 11 BY MS. GOLDBERG-CAHN: 12 Q. After looking at the flier that's marked as Plaintiffs' 13 Exhibit 2, the flier indicated possible consequences for 14 deviating from the police-designated route, isn't that true? 15 A. I believe this document was handed out and that it caused 16 certain problems in that many things that were stated in here I 17 didn't believe to be valid. So it was sort of difficult to 18 understand which were valid and which were sort of just police 19 overemphasis of their authority. 20 Q. But it did state possible consequences for deviating from 21 the route, whether you agreed with them or not, is that 22 correct? 23 A. Yes. It says, If you wish to leave the route, please 24 dismount your bicycle and walk away from the route. Bicyclists 25 who do not follow the above route and all traffic rules, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 154 4c8WbraH Stecklow - cross 1 including those listed below, are subject to arrest." I didn't 2 believe that there was any sort of rule of law that required 3 people to dismount from a bicycle when they were going to leave 4 a bike ride. 5 Q. But the flier indicates that if you deviate from a route, 6 you could subject yourself to arrest, correct? 7 A. Yes, that's what it said. 8 Q. Yet, as you testified earlier, when you turned right on 9 39th Street, you chose to deviate from the route anyway because 10 that's what the riders in front of you had done, isn't that 11 true? 12 A. Yes. And I don't, as I stated, I don't believe that we 13 were violating any rule. This was not a rule of law that the 14 police threw at us. This was their hope for this ride. I 15 think that the ride may have gone on in that direction, if the 16 police would have been more fair with the riders. But as the 17 police stopped everybody at 53rd Street and made everybody wait 18 for the whole ride to get together and then allowed people to 19 turn, I think at that point, the individual riders believed 20 that the police were more than trying to keep a safe situation 21 but were really trying to take complete and total control of 22 the situation. 23 Q. However -- 24 A. I don't believe that there was anything that riders were 25 doing wrong by going on whichever route they were choosing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 155 4c8WbraH Stecklow - cross 1 Q. However, despite what was in the flier informing you that 2 you could subject yourself to arrest if you deviate from the 3 route, you chose to deviate from the route at 39th and 4 approximately Fifth Avenue, as opposed to following the ride, 5 is that true? 6 A. Yes. 7 Q. And you could have stayed on the designated route and 8 stayed down? 9 A. There's a lot of things I could have done, but I chose to 10 join the Critical Mass ride. That was the first time I was on 11 the ride. I wanted to be a part of the ride. Unfortunately, 12 as I was stopped at Eighth Avenue and indicated by the police 13 to turn right and up, I was no longer on the Critical Mass 14 ride. 15 Q. But you could have chosen to remain on the route, yes or 16 no? 17 A. I could have chosen to remain on the route as dictated by 18 the police, sure, I could have chosen that. I could have 19 chosen to stay home as well, but I chose to go out and join the 20 Critical Mass Bike Ride. 21 MS. GOLDBERG-CAHN: Thank you. I have nothing further 22 at this time. 23 THE COURT: Mr. Siegel, redirect. 24 REDIRECT EXAMINATION 25 BY MR. SIEGEL: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 156 4c8WbraH Stecklow - redirect 1 Q. In your affirmation, at paragraph 16, in part, you say the 2 NYPD had successfully used the ambulance, an emergency vehicle, 3 as an instrument to fractionalize the ride. Do you remember 4 making that statement? 5 A. Yes. 6 Q. In response to one of the questions on cross, you described 7 that statement as your opinion? 8 A. Yes. 9 Q. Is that correct? 10 A. Yes. 11 Q. Could you explain to the Court the basis for this opinion? 12 A. Certainly. As the ride turned left on 42nd Street heading 13 west, and we crossed through Times Square, across Broadway, 14 across Seventh Avenue, a, I heard an ambulance. I looked 15 behind me. I saw the ambulance. We also had a lot of police 16 at that point on the scooters. They didn't seem all that 17 concerned. 18 When I heard the ambulance, I was very concerned because I 19 knew that was one of the big issues in this litigation, and the 20 reason why the police were saying that they needed to control 21 this ride better was that if an emergency vehicle needed to get 22 by, this ride could really become a problem for that emergency 23 vehicle. So I was very concerned when I saw that. The police 24 didn't seem concerned at all. We pulled over, the vehicle 25 started to go through. It did stop at some point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 157 4c8WbraH Stecklow - redirect 1 At Eighth Avenue, the police had another vehicle stopped 2 there. I don't recall at this point, a month and a half, two 3 months later, if the ambulance stopped there. Part of my 4 memory believes the ambulance may have even stopped on the 5 corner of 42nd and Eighth. I tried to find out if there was 6 any way to ascertain whether this vehicle was actually on an 7 emergency or being used by the police. 8 I came up short in my attempt at getting that information, 9 although I believe a FOIA request may have been eventually able 10 to get it, I didn't think it would be timely enough. My hope 11 was that the city, with their own way of sifting through their 12 bureaucracy, would be able to get that information since I was 13 able to pinpoint the nine-minute time period when that 14 ambulance came through Times Square. 15 Q. And were you able to get any of that information? 16 A. No. 17 Q. One other thing. You just testified that "we pulled over." 18 Would you explain who the "we" were and what the pullover was? 19 A. Sure. There were riders, bicyclists. There were scooter 20 police officers. And there were also traffic automobiles. The 21 ambulance is going down the middle of 42nd Street. So there 22 were traffic in both directions had to pull to the side. We 23 were on the right side. There was, I believe, a line of 24 vehicles sort of not necessarily parked but maybe double parked 25 on the right-hand side as well. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 158 4c8WbraH Stecklow - redirect 1 So the bikes pulled over, scooters pulled over. I tried to 2 maneuver a little past where I had stopped, and the scooter 3 officer in front of me pushed his scooter into the front of my 4 bike. I moved a little to the side again and tried to go 5 again, and he once again pushed right in front of me. At that 6 point, I was concerned, seeing in front of me that the police 7 were stopping everybody. I also didn't want to get arrested. 8 I felt I was there to enjoy the ride as well as to observe 9 a bit. I got off the vehicle, off my bicycle. Went on to the 10 sidewalk and, at that point, realized that the police were now 11 pushing us up Eighth Avenue. I thought that's where the ride 12 was going. I got back on my bicycle, went up Eighth Avenue 13 stopping at all the red lights. Maybe by the time I got to 14 50th, 54th Street, there was three or fewer bicyclists with me, 15 so I realized I was no longer on Critical Mass Bike Ride, so I 16 turned and headed back downtown going to Union Square. 17 Q. From what you observed on 42nd Street between Seventh and 18 Eighth, did in any way the bicycle riders impede the emergency 19 vehicle or ambulance? 20 A. No, not at all. I think the last witness said at best 21 bicycles can avoid emergency vehicles and open up lanes of 22 traffic like no other vehicle can. 23 Q. And finally, another question, Mr. Stecklow. In your final 24 paragraph of your affirmation, in part, you say, "However, 25 experienced Critical Mass participants indicated the energy and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 159 4c8WbraH Stecklow - redirect 1 fun involved in this ride was much less and much different from 2 prior rides due to the overwhelming police presence." 3 Could you further elaborate on this statement? 4 A. Sure. This was my first Critical Mass Bike Ride. I 5 actually bought the bicycle that I rode, I think, a day or two 6 beforehand because I was excited to join the ride and see what 7 all the excitement was. I was told Halloween was a very 8 special ride. Everybody dressed up, and there was a lot of fun 9 energy in the air. I arrived at Union Square approximately 7 10 p.m. I had been called by a friend who -- I had been called by 11 a friend who was not riding -- 12 MS. BINDER: Objection to the hearsay, your Honor. 13 Move to strike. 14 THE COURT: It is hearsay. I'll sustain the objection 15 to what friends told him or other people told him. 16 BY MR. SIEGEL: 17 Q. Please continue. 18 A. Although I believe from what my friend had told me, my mind 19 was that there was a lot of police there, or that I should be a 20 bit concerned about it and be aware of my safety. I got to 21 Union Square approximately 7 p.m. There were an enormous 22 amount of police there. I was shocked and surprised that this 23 was our best use of the police officers in the City of New York 24 on a Friday evening. 25 The ride started eventually. There were many officers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 160 4c8WbraH Stecklow - redirect 1 giving these papers out. I spoke to a few of the officers. 2 Q. For the record, explain what you just held up. 3 A. I'm holding up Plaintiffs' Exhibit 2. 4 Q. Thank you. 5 A. There were, there were a few officers I spoke to, and they 6 were very nice individuals and one on one everybody was getting 7 along very well. However, with the police presence, the number 8 of officers there and the van there, every now and then telling 9 us rules that they were dictating to us that I personally 10 didn't believe had a basis in law for the most part, it was not 11 a positive energy in the air. 12 The ride started by heading north on Park Avenue, which was 13 part of the route that was dictated by the police. I was a 14 little surprised that the ride was starting out exactly as the 15 police had wanted but thought this was a good sign. There were 16 a tremendous number of police officers on Park Avenue blocking 17 every street as we went up. 18 There were also a tremendous amount of police officers on 19 scooters on the other side parked to our left who were going 20 parallel to us. At one point, as we were going past, I think 21 it's around 35th Street, where Park Avenue has the underpass 22 that goes under about ten or 12 blocks to Grand Central, we 23 were pushed to the right. We weren't going to take the tunnel; 24 it's a half a street rather than a full street because of the 25 way the tunnel starts, and the police vehicle decided at that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 161 4c8WbraH Stecklow - redirect 1 point they needed to pass us. So we were then bunched 2 together, and I was very concerned about hitting other riders 3 or having somebody hit us. 4 We eventually made it all the way up to 53rd Street when I 5 had to stop because two blocks ahead the police had stopped the 6 entire ride. There wasn't this feeling of openness. When we 7 got to Fifth Avenue, I didn't feel the police presence as much; 8 I didn't notice the police on the side streets. They weren't 9 blocking the street. I felt more open at that point. People 10 were smiling, although I was also surprised there didn't seem 11 to be any vehicular traffic on Fifth Avenue. So I assumed the 12 police had closed it off. 13 When we got to 42nd Street, another reason why I felt that 14 the ambulance was not being used as an emergency vehicle was 15 basically the, the conduct of the police and the individuals 16 there. From being in the city for over 20 years, I've seen, 17 you know, emergency vehicles in the streets almost every day. 18 This just didn't feel like there was any sort of sense of 19 urgency, expediency by the police or by the vehicle. 20 At the end of the ride, I was back down Union Square, 21 speaking to a few different people. I did see police officers 22 walking about. We saw netting up on the ground in different 23 streets. It was that sort of negative energy that was in the 24 air that just didn't jibe well with an open, positive feeling 25 of a free ride. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 162 4c8WbraH Stecklow - redirect 1 MR. SIEGEL: Thank you, Mr. Stecklow. 2 No further questions, your Honor. 3 THE COURT: Any recross? 4 MS. BINDER: No, your Honor. 5 THE COURT: Mr. Stecklow, what route did you use to 6 return to Union Square Park? 7 THE WITNESS: I believe I turned right on 54th Street 8 to Seventh Avenue, took that down to 42nd Street, where I 9 turned left, to either Broadway or Fifth, down in that 10 direction. I believe it must have -- it was Broadway, and I 11 crossed over on 23rd Street because I ran into two other bikers 12 at that point. 13 THE COURT: Did you ultimately come down Broadway to 14 Union Square Park? 15 THE WITNESS: Yes. 16 THE COURT: All right. Did you observe any netting up 17 on any street, as you approached Union Square Park? 18 THE WITNESS: I observed netting on streets but not 19 up. It wasn't stopping me. I did observe it there, and I was 20 a little wary of the fact that at any point -- 21 THE COURT: It was off to the side? 22 THE WITNESS: It was on the side. It just wasn't 23 being held up. It was on the street. I thought it could be in 24 place to be used at the right moment. It wasn't yet up. 25 THE COURT: All right. Anything further from counsel? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 163 4c8WbraH Stecklow - redirect 1 MS. HYMAN: No, your Honor. 2 MS. BINDER: No, your Honor. 3 THE COURT: Mr. Stecklow, you're excused, sir. You 4 may step down. 5 (Witness excused) 6 THE COURT: Would the plaintiffs please call their 7 next witness. 8 MS. HYMAN: Matthew Roth. 9 MATTHEW ALMON ROTH, 10 called as a witness by the Plaintiffs, 11 having been duly sworn, testified as follows: 12 THE COURT: Good afternoon, Mr. Roth. You've 13 submitted an affidavit or declaration in connection with this 14 case. Do you affirm as true and correct all of the statements 15 that you made in that declaration? 16 THE WITNESS: Yes, I do, your Honor. 17 THE COURT: Very well. I'm going to ask you to keep 18 your voice up and speak into the microphone. 19 THE WITNESS: Okay. 20 THE COURT: You may inquire. Who is going to -- 21 MS. BINDER: It's Ms. Neufeld, your Honor. 22 THE COURT: Fine. Remember, we're going to take a 23 recess at five minutes to four so I can get to the memorial 24 service downstairs. 25 CROSS-EXAMINATION SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 164 4c8WbraH Roth - cross 1 BY MS. NEUFELD: 2 Q. Good afternoon, Mr. Roth. 3 A. Hello. 4 Q. You have participated in many Critical Mass bicycle rides, 5 isn't that right? 6 A. Yes. As I stated in my affidavit, approximately 35 rides. 7 Q. And prior to most of those 35 rides, it's fair to say that 8 you gathered with other cyclists in Union Square Park, right? 9 A. Yes. In the last, I think the very first time that I went 10 on a ride, it had been in Union Square south, Halloween ride of 11 2000. And then it's been Union Square north since that point. 12 Q. And it's fair to say when you gathered in Union Square Park 13 with other cyclists, there were at least 20 others with you, 14 correct? 15 A. At least, yeah. There were -- I think the smallest ride 16 that I participated on was about 50 riders, and that was in 17 December. It was frigid. 18 Q. But you had all together gathered in Union Square Park? 19 A. Yes. 20 Q. And typically, before the rides you remain in Union Square 21 Park for about a half an hour, is that right? 22 A. Yeah, about, typically half an hour, depending on when you 23 arrive. I mean, the rides have, the precedent has been to 24 leave at 7:00, but occasionally, it delays a little bit, 15 25 minutes or so. So depending on when you get there. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 165 4c8WbraH Roth - cross 1 Q. So it's fair to say that some riders are there for at least 2 half an hour? 3 A. Yes. 4 Q. And on some of the rides, there were hundreds, if not 5 thousands, of other riders with you, is that right? 6 A. Yes, as early as June of 2003, we estimated that there were 7 about 800 riders. By July -- 8 Q. I just -- 9 A. -- coordination. 10 Q. Thank you. Thank you. 11 And when it's time for the ride to start, a group of bikers 12 will just start to leave together in a group, is that right? 13 A. Yeah. I think it's typically when people grow anxious, 14 you'll hear bells ringing and people start hooting, and there 15 used to be a guy who had a trumpet and he would play the race 16 standard. 17 Q. And everybody would be together en masse in a big group out 18 into the park and out to the street? 19 A. Yes. 20 Q. And it's the Critical Mass philosophy that bicycles are 21 traffic, correct? 22 A. Yes. 23 Q. And you state that in your declaration at paragraph 4? 24 A. That bicycles have the, are supposed to follow the same 25 regulations as automobiles. They ought to have the same SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 166 4c8WbraH Roth - cross 1 privileges as automobiles, and within the City of New York, 2 those are particular. 3 Q. And it's also, as you state, Critical Mass' philosophy that 4 the Critical Mass ride doesn't need a permit from the police 5 department because bicycles are traffic, right? 6 A. Exactly. 7 Q. Yet the majority of cyclists on the Critical Mass rides 8 don't obey traffic regulations, do they? 9 A. No. That precedent has started, and, as I had stated in 10 the affidavit, in other cities as well. Initially, police, 11 their first response, as early as '92, '93, in San Francisco, 12 was to -- 13 Q. Mr. Roth, I don't mean to cut you off, but my question was: 14 Do the cyclists obey traffic regulations while their on the 15 Critical Mass rides? 16 A. I'm explaining to you that a precedent has been established 17 in many cities around the world, including New York, by the 18 police department to encourage riders to go through red lights, 19 steady red lights, to keep the ride close and together. 20 Paragraph 10 in Chief Smolka's original declaration said 21 that they stopped the ride at 47th Street to allow the ride to 22 catch up. 47th and Park. This was the September 24 ride. So 23 it's something that police in this city, police in other 24 cities, mayors in other cities have been quoted as saying, that 25 it's important to keep the ride together for the safety of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 167 4c8WbraH Roth - cross 1 riders so that cars don't get involved. So, yes, people go 2 through the lights. 3 Q. Okay. So people go through the lights; you admit that? 4 A. Yes. 5 Q. Right. And people also don't ride only next to the curb; 6 you're not riding all single file down the road, are you? 7 A. Exactly. 8 Q. And it's fair to say that the Critical Mass riders take up 9 the entire roadway from right to left? 10 A. Yes. 11 Q. And so no cars can get in, but no cars can pass you, right? 12 A. Exactly. For the safety of the riders, safety of the 13 automobiles, experience has shown that when cars do go into the 14 middle of the ride with bicyclists' varying levels of skill and 15 comfort riding their bikes, a car weaving in through there is 16 not safe. 17 Q. So, in fact, it's fair to say that during Critical Mass 18 rides, cyclists often get off of their bicycles to block 19 intersections to prevent cars from getting in the mix with the 20 ride, right? 21 A. Yeah. I don't know where the term "corking" originated, 22 but it's something that describes that practice. It's 23 something that the police started, like I said, from the 24 beginning -- 25 Q. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 168 4c8WbraH Roth - cross 1 A. -- in the very first Critical Mass. It's something riders 2 copycat. It's a precedent, and it's never been punished 3 before, except in rare incidences. Riders haven't seen the 4 negative impact of it until recently, until last August. 5 Q. Well, that's not entirely true, is it? You state in your 6 declaration that during the Giuliani administration, the police 7 department had been making arrests when people were observed 8 corking, isn't that right? 9 A. Right. Like I said, in occasional instances there were 10 arrests. 11 Q. So that would indicate it's not legal for a bicyclist to 12 take it upon themselves to police a ride, isn't that right? 13 A. If there were precedent established and the police did it 14 consistently, then I think cyclists would get the impression 15 that that's not what's supposed to be done. 16 Q. Critical Mass rides typically follow a different route each 17 time, isn't that correct? 18 A. Yes. 19 Q. And, in fact, at some points, the Critical Mass ride has 20 gone on the FDR Drive, isn't that right? 21 A. Yes, I've seen that happen three times. 22 Q. And you would agree, though, that normally bicyclists are 23 not permitted on the FDR Drive, isn't that right? 24 A. I'm aware of that now. I wasn't aware of it even as early 25 as July of this year, the last time I'd been on it. Yes, I now SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 169 4c8WbraH Roth - cross 1 know the FDR is exclusively for vehicles. I thought that West 2 Street also was, but I've since found that that's not the case. 3 Q. So you would agree that if Critical Mass wanted to go on 4 the FDR Drive, they would have to obtain a permit from the 5 police department? 6 A. I wouldn't encourage Critical Mass. The times I've been on 7 it, I've been near the back of the ride typically with the 8 feeling of looking out for slower riders and trying to keep the 9 amounts tight. I wouldn't advise anybody to do that. 10 Q. Yet you did it three times? 11 A. I did, and now I know -- 12 Q. And you stated out of the three to four years, each ride 13 has a theme? 14 A. Typically. Usually, the reason the ride, I think, became 15 such a strong community event was initially a themed ride, the 16 Earth Day celebration, which coincides and complements the 17 bicycle-riding message of nonpolluting transportation. So that 18 ride, and I believe the first one, as I said in the affidavit, 19 was in the spring of '99 or 2000. I could look. 20 Q. That's okay. 21 THE COURT: Are you done, Mr. Roth, with your answer? 22 THE WITNESS: Yes. 23 THE COURT: Ms. Neufeld, we're going to have to 24 suspend now until tomorrow morning. I think we'll be 25 comfortably able to finish tomorrow morning, and I'll have some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 170 4c8WbraH Roth - cross 1 questions for counsel when the presentation of evidence is 2 complete. So rather than start at 9:30, we'll start at 10:00 3 tomorrow morning. I'll see you back here. 4 Mr. Roth, you're excused. You may step down, sir. 5 (Witness excused) 6 THE COURT: We'll see you tomorrow morning at 10:00. 7 MS. NEUFELD: Thank you, your Honor. 8 THE COURT: Have a good evening. 9 (Adjourned to December 9, 2004, at 10:00 a.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 171 1 INDEX OF EXAMINATION 2 Examination of: Page 3 BRUCE SMOLKA 4 Cross By Mr. Hyman . . . . . . . . . . . . . 3 5 Redirect By Ms. Neufeld . . . . . . . . . . 56 6 DANIEL J. ALBANO 7 Cross By Mr. Siegel . . . . . . . . . . . . 65 8 Redirect By Ms. Neufeld . . . . . . . . . . 88 9 Recross By Mr. Siegel . . . . . . . . . . . 92 10 ELIZABETH W. SMITH 11 Cross By Mr. Hyman . . . . . . . . . . . . . 95 12 Redirect By Ms. Goldberg-Cahn . . . . . . . 106 13 Recross By Mr. Hyman . . . . . . . . . . . . 108 14 Redirect By Ms. Goldberg-Cahn . . . . . . . 111 15 STEVEN FAUST 16 Cross By Ms. Binder . . . . . . . . . . . . 114 17 Redirect By Ms. Hyman . . . . . . . . . . . 129 18 Recross By Ms. Binder . . . . . . . . . . . 137 19 WYLIE STECKLOW 20 Cross By Ms. Goldberg-Cahn . . . . . . . . . 147 21 Redirect By Mr. Siegel . . . . . . . . . . . 155 22 MATTHEW ALMON ROTH 23 Cross By Ms. Neufeld . . . . . . . . . . . . 164 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 172 4c9WbraH 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 REBECCA BRAY, et al., 3 4 Plaintiffs, 4 5 v. 04 CV 8255 (WHP) 5 6 CITY OF NEW YORK, et al., 6 7 Defendants. 7 8 ------------------------------x 8 New York, N.Y. 9 December 9, 2004 9 10:00 a.m. 10 10 Before: 11 11 HON. WILLIAM H. PAULEY III, 12 12 District Judge 13 13 APPEARANCES 14 14 MCLAUGHLIN & STERN, LLP 15 Attorneys for Plaintiffs 15 BY: STEVEN J. HYMAN 16 DEBORAH BERKMAN 16 -and- 17 NORMAN SIEGEL 17 Attorney for American Civil Liberties Union 18 CHRISTOPHER DUNN 18 PALYN HUNG 19 Attorneys for New York Civil Liberties Union 19 20 MICHAEL A. CARDOZO 20 Corporation Counsel of the City of New York 21 New York Law Department 21 BY: ROBIN BINDER 22 SHERYL NEUFELD 22 MICHELLE GOLDBERG-CAHN 23 Assistant Corporation Counsels 23 24 ALSO PRESENT: GIDEON ORION OLIVER 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 173 4c9WbraH 1 (Hearing resumed) 2 MATTHEW ALMON ROTH, resumed. 3 THE COURT: Good morning, everyone. Be seated. 4 Are the parties ready to continue? 5 MS. NEUFELD: Yes, your Honor. 6 MS. HYMAN: Yes, your Honor. 7 THE COURT: Mr. Roth, do you understand that you 8 continue to be sworn as a witness in this proceeding under 9 oath? 10 THE WITNESS: Yes, I do. 11 THE COURT: We'll continue with your cross-examination 12 of Mr. Roth, Ms. Neufeld. 13 MS. NEUFELD: Thank you. 14 CROSS-EXAMINATION cont'd 15 BY MS. NEUFELD: 16 Q. Good morning, Mr. Roth. 17 A. Good morning. 18 Q. At the end of the day yesterday we were talking about 19 themed Critical Mass rides, and you stated that a couple of 20 times each year the ride has a theme, is that right? 21 A. Yes. 22 Q. And during the themed rides, participants typically wear 23 costumes, is that right? 24 A. Those who know about it, those who want to participate in 25 it, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 174 4c9WbraH Roth - cross 1 Q. And when the riders are dressed up in costumes riding in 2 the street as a group, the riders don't look that much 3 different from the Halloween parade, does it? 4 A. Depending on the theme, probably not. 5 Q. Do you know when the next Critical Mass bike ride is going 6 to take place? 7 A. Yes. It's the last Friday of every month, so it would be 8 the 31st. 9 Q. Is there a ride scheduled for any other time in this month? 10 A. In what sense? 11 Q. A Critical Mass ride. 12 A. It's always the last Friday of every month. 13 Q. If I told you that the Time's Up Web site advertised a ride 14 for December 24, would you know anything about that? 15 A. Yes, I think that was a mistake. I think they've since 16 fixed that. It was someone's blunder. 17 MS. NEUFELD: Thank you. I have no further questions. 18 MS. HYMAN: No questions, your Honor. 19 THE COURT: In the city's motion papers, the city 20 refers to a planned ride on December 24. To your knowledge, 21 has any anticipated ride by Critical Mass on December 24 been 22 cancelled? 23 THE WITNESS: As far as I know, that was a mistake in 24 the Web master putting that up on the Web site. 25 THE COURT: So the only ride scheduled for this month SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 175 4c9WbraH Roth - cross 1 is the ride on the last Friday of the month, which would be New 2 Year's Eve, December 31. 3 THE WITNESS: As far as I know. As habit would have 4 it, that's probably when people would show up. So I don't know 5 of any ride on the 24th. 6 THE COURT: Have you participated in any Critical Mass 7 ride in New York that's occurred on New Year's Eve? 8 THE WITNESS: No. I've participated in Time's Up 9 organized rides on New Year's Eve. We every year have a New 10 Year's Eve ride. But not in a Critical Mass, no. 11 THE COURT: How is a Time's Up organized ride 12 different than a Critical Mass ride? 13 THE WITNESS: The Time's Up actually has, in a similar 14 way as Mr. Faust had said, we have, we'll have ride leaders, 15 sometimes we'll have a sweep and a ride leader and a drop 16 system so that people who are participating in a ride that is 17 sponsored by Time's Up will have a sense of where it's going. 18 They'll have a direction and a route. A Critical Mass ride is 19 a ride that people attend of their own will. It's not 20 organized by anybody, and it's completely independent of Time's 21 Up. 22 THE COURT: All right. Thank you, Mr. Roth. 23 Any further questions for Mr. Roth, Ms. Neufeld? 24 MS. NEUFELD: Two questions, your Honor. 25 THE COURT: Go ahead. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 176 4c9WbraH Roth - cross 1 CROSS-EXAMINATION cont'd 2 BY MS. NEUFELD: 3 Q. Mr. Roth, what is your affiliation with the group Time's 4 Up? 5 A. I'm sort of an ad hoc fashion have become the media and 6 legal liaison for Time's Up. When I was arrested in August, 7 August 29, group bike ride that was not a Critical Mass ride. 8 It -- after I got out, I realized how many cyclists had been 9 arrested, and there were continuing to be more arrests through 10 the rest of the RNC. And in total, there were close to 400 11 cyclists who had been arrested and deprived of their bicycles. 12 And Time's Up being an advocacy group, we were in a position 13 where we could speak out against that and try and gather 14 information. 15 I had many people being, how do I get my bike back, how do 16 I deal with the criminal legal system. So we started to 17 investigate. We asked the National Lawyers Guild lawyers to 18 come and speak to us. We had Legal Aid lawyers come and speak 19 to us, had a property specialist come speak to us about how the 20 bikes might be returned or not. So really my role in Time's Up 21 in a public sense in terms of being quoted in the press, etc., 22 is a byproduct of my arrest, byproduct of the police tactics 23 from the Republican National Convention. 24 Q. Would it be fair to say that if there was going to be a 25 ride, a Critical Mass ride at some point during the month that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 177 4c9WbraH Roth - cross 1 Time's Up would know about it? 2 A. Yeah. I think anybody -- I mean, every Critical Mass ride 3 that's happened for the last six years has been on the last 4 Friday of the month. So people who come from Austin, Texas, 5 expect that there's probably a Critical Mass ride in New York 6 on the last Friday of the month, just like a New Yorker going 7 to Austin, Texas, would expect that there's a Critical Mass 8 ride on the last Friday of the month. So, yes, people in 9 Time's Up know about the rides, but people in Copenhagen know 10 about the rides. 11 Q. But you also said in response to the judge's question that 12 there's also always a ride on New Year's Eve? 13 A. It's a separate Time's Up ride. 14 Q. Even if it's not the last Friday of the month? 15 A. Absolutely. We've had those -- I think we've had them for 16 seven or eight years. 17 Q. And Time's Up publicizes all those rides on the Web site? 18 A. Yeah. We publicize all our rides and publicize other 19 groups' rides as well, and we've publicized Critical Mass for a 20 long time. Because it's a beautiful statement of what our 21 cities could look like if we celebrated bicycles rather than 22 criminalize them. 23 Q. Aside from the last Friday of every month and New Year's 24 Eve, is there any other time that a Critical Mass ride occurs 25 not on the last Friday of the month? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 178 4c9WbraH Roth - cross 1 A. Not that I know of. Not in this city. Some cities, I 2 think, have them on Thursdays or Tuesdays or other times, but 3 it's almost, I think -- in most cities around the world, it's 4 the last Friday. 5 Q. So then it would be fair to say though that there's no 6 specific significance to the ride occurring on the last Friday 7 of the month, is that right? 8 A. Just precedent. Just the fact that that's -- the very 9 first ride in San Francisco in 1992 was the last Friday of 10 September, and it's been that since, and then other cities that 11 have, have Critical Mass and have adopted them have pretty 12 consistently done them on that same day. 13 Q. But they have been on other days of the week, right? 14 A. Brooklyn's Critical Mass is the second Friday of the month. 15 MS. NEUFELD: Thank you. 16 THE COURT: Anything further? 17 MS. HYMAN: No, your Honor. 18 THE COURT: All right. Mr. Roth, you're excused as a 19 witness. You may step down. 20 THE WITNESS: Thank you, your Honor. 21 (Witness excused) 22 THE COURT: Do the plaintiffs have any further 23 evidence that they wish to present in connection with this 24 hearing? 25 MS. HYMAN: We do not, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 179 4c9WbraH 1 THE COURT: Do the plaintiffs rest? 2 MS. HYMAN: The plaintiffs rest. 3 THE COURT: Do the defendants have any additional 4 evidence they want to offer in rebuttal? 5 MS. BINDER: No, your Honor, we don't. 6 THE COURT: Do the defendants rest? 7 MS. BINDER: Yes, we do. 8 THE COURT: All right. Then the record with respect 9 to the city's application for a preliminary injunction is 10 closed. I have some questions for counsel, so why don't we 11 turn to that. I'd be prepared to hear from counsel if either 12 side wishes to make any sort of closing statement or summation 13 in this regard. 14 Does the city wish to do that? 15 MS. BINDER: Your Honor, perhaps at the conclusion of 16 your questions, we could make a brief statement. I would 17 prefer to hear what your Honor -- 18 THE COURT: All right. Maybe that's the best way to 19 proceed. 20 Ms. Binder, are there any cases interpreting the 21 phrase "parade or procession" as it's used in the 22 Administrative Code 10-110? 23 MS. BINDER: Not to my knowledge, your Honor. 24 THE COURT: How does Critical Mass constitute "group 25 activity" under the Parks Department's permit scheme, if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 180 4c9WbraH 1 there's no organization to it and no leader? 2 MS. BINDER: It's still a group, your Honor. It's a 3 group that gathers together for a specific purpose in a city 4 park for a period of time, prior to riding in the Critical Mass 5 ride. 6 And in fact, other similar events have Parks 7 Department permits to do exactly that because they are a group 8 that's getting ready to ride. They're a group that's gathering 9 there, and they take up a lot of space. And it's because they 10 take up a lot of space as a group that they need the Parks 11 Department's special event permit. 12 THE COURT: Has the city formulated any plans on what 13 it intends to do on December 31, assuming that bicyclists 14 congregate in Union Square Park without a permit? 15 MS. BINDER: Do you mean absent the granting of an 16 injunction, your Honor? 17 THE COURT: Yes. Let's assume for a moment that there 18 is no injunction. What does the city plan to do? Or how would 19 an injunction affect what the city does on December 31? 20 MS. BINDER: An injunction would affect what the city 21 does on December 31 because an injunction would enable the city 22 to keep, keep riders in the first instance from gathering in 23 Union Square Park and possibly to prevent the ride from taking 24 place leaving Union Square Park, and also presumably an 25 injunction would deter people from coming out in the first SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 181 4c9WbraH 1 place. 2 In response on a question yesterday that your Honor 3 asked Chief Smolka, it is not the city's intention to involve 4 federal marshals in this or to involve this Court in injunction 5 proceedings. The purpose of an injunction, in addition to 6 giving the police department the authority to stop the ride, if 7 people rode illegally and violated the injunction, if that is a 8 Penal Law violation under the criminal contempt statute, and 9 that is a misdemeanor, it's a harsher criminal, it carries 10 harsher criminal penalties than just violating Administrative 11 Code 10-110 or engaging in disorderly conduct. 12 Those are violations, but criminal contempt is a 13 misdemeanor. It's a crime, and that statute says if a court 14 order is violated and it doesn't specify state or federal 15 court, if there's a court order and it's violated, that's 16 criminal contempt. That's a stiffer penalty. Presumably, 17 people will stay away knowing about the injunction and knowing 18 about the stiffer penalty, and the police department will have 19 a more controllable event that they can nip in the bud with the 20 injunction. It makes enforcement a lot easier with them. 21 That's what they would do with the injunction. 22 Without the injunction, I don't believe they have a plan yet. 23 THE COURT: Where would those criminal contempt 24 charges be lodged? 25 MS. BINDER: Criminal court, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 182 4c9WbraH 1 THE COURT: Can you point me to any other situation 2 where the city or some municipal subdivision has obtained a 3 federal court injunction and then sought to enforce violations 4 of that injunction by way of criminal contempt in state court? 5 MS. BINDER: Offhand, I can't point you to any 6 situation, although I could certainly check into it and get 7 back to you. But I can provide the Court with a copy of the 8 Penal Law that authorizes the police department to do just 9 that. It is a violation of a court order, whether the court is 10 the federal or state court, for -- if there is a court order, 11 it would be criminal contempt. That is a crime, and that is 12 how the police department intends to enforce the injunction if 13 your Honor issues an injunction. 14 THE COURT: What about the criminal proceedings that 15 are pending in state court now with respect to arrests that 16 were made either in the November ride or the October ride? 17 What's the status of those proceedings? 18 MS. BINDER: I don't believe there have been any 19 proceedings yet, your Honor, but I'm not a hundred percent sure 20 of that. I do know they're violations. They're -- and the 21 quote/unquote tickets that are issued are adjudicated like 22 disorderly conduct summonses which pretty much makes it a 23 person comes in and there is -- if there's a guilty plea, 24 there's a fine assessed right away. If there is a request for 25 trial or if there is a motion to dismiss, then that would delay SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 183 4c9WbraH 1 things, but I don't know the status of anything. 2 Certainly as to the November ride, nothing's been 3 adjudicated, and I don't know the status of anything from 4 October. But they are violations. They carry penalties. They 5 carry a fine or, I think imprisonment of ten days or less. Or 6 I don't think those are routine -- that that sort of sentence 7 is routinely imposed. 8 THE COURT: Is that the same penalty with respect to 9 disorderly conduct? 10 MS. BINDER: Yes, your Honor. 11 THE COURT: What's the penalty with respect to 12 criminal contempt in the state court? 13 MS. BINDER: It's a misdemeanor, your Honor. I think 14 it may be -- 15 THE COURT: Punishable up to a year? 16 MS. BINDER: I would need to check, your Honor. I 17 don't know. Possibly. But I don't know. I would need to 18 check. 19 THE COURT: Is it the purpose of the city's 20 application for preliminary injunction here to simply increase 21 the potential penalties that it would seek to have imposed on 22 persons who either assemble in Union Square Park for the 23 purposes of Critical Mass ride or participate in Critical Mass 24 ride? 25 MS. BINDER: Your Honor, the main purpose of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 184 4c9WbraH 1 city's application is to encourage Critical Mass to get a 2 permit. That would be the best solution to the problem. If 3 Critical Mass is not getting a permit, then the city is -- the 4 purpose in asking for the injunction is to try to stop the ride 5 from happening without a permit. But the city is not looking 6 to arrest a lot of people for criminal penalties. 7 The city is hoping that the possibility of criminal 8 penalties will keep people from showing up at the ride and will 9 allow the city to manage the ride by stopping it. But the 10 injunction carries, the injunction, violating the injunction 11 would carry a stiffer penalty than violating the Administrative 12 Code. And that, presumably, will keep people away. 13 THE COURT: What is the irreparable injury to the city 14 here in this case, absent a grant of a preliminary injunction? 15 MS. BINDER: Your Honor, without a parade permit, the 16 ride causes more traffic congestion and the potential for a 17 safety problem is greater than if there was a parade permit. 18 Yes, the police can do some things to help manage the 19 ride without knowing where the route is going to go. But, you 20 know, scooters staying in the middle of the ride and trying to 21 follow it, and radioing ahead only goes so far, especially if 22 the ride keeps turning, and if the ride splinters off into 23 several big groups, it becomes difficult to police. Without a 24 police presence, the blocking of the intersections by Critical 25 Mass riders who were stopping traffic while they go through, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 185 4c9WbraH 1 not only does it back traffic up, but there's a potential for 2 harm to the cyclists and to motorists and to pedestrians. 3 It's just a situation, especially with the large 4 rides, not every ride is large, but some of these rides have 5 had thousands of people, and they're basically running amok. 6 And that is irreparable injury. But even inconvenience to 7 motorists is irreparable injury, because that's not 8 compensable, your Honor. So that's essentially what the 9 irreparable injury is, if there is no permit. 10 Now, the question, if there would be a permit, if the 11 riders asked for a permit, that would eliminate this problem, 12 but if the riders nonetheless refused to get a permit with the 13 injunction -- 14 THE COURT: Then what would happen? 15 MS. BINDER: Then what would happen is -- 16 THE COURT: Let's assume for a moment that I issue an 17 injunction, and let's further assume that notwithstanding that 18 injunction, which paralleled the city's request for an 19 injunction that, oh, let's say a thousand bicyclists did 20 congregate in Union Square Park at about 7 p.m. on New Year's 21 Eve, what's the city going to do? 22 MS. BINDER: What I imagine the city would do is to 23 put a net around the park so that the riders can't leave the 24 park, because the ride has been found to be illegal and 25 enjoined by this Court. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 186 4c9WbraH 1 THE COURT: Well, the city's also asking this Court to 2 enjoin an assembly at Union Square Park, isn't it? 3 MS. BINDER: Yes. 4 THE COURT: So if people happen to congregate there at 5 7:00, wouldn't that in and of itself be a violation of the 6 injunction that the city defendants are seeking here? 7 MS. BINDER: Yes, it would, but -- 8 THE COURT: What would the city do in that event? 9 MS. BINDER: The city could close the park to begin 10 with, your Honor. I mean, the city could close the park to 11 begin with, to keep people from gathering. 12 The purpose of this is not to arrest a lot of people. 13 The city is not looking to arrest people. But the city is 14 looking for a way to stop, unless there's a permit, which would 15 obviously be our first choice. We're not trying to stop the 16 ride, but the ride obviously requires a permit. If the group 17 says that they can't abide by that provision of law, then the 18 ride is illegal, and we would determine the best way to stop 19 the ride. And we could close off the park or we could keep the 20 riders from leaving the park. 21 Nobody's going to be -- you know, it's not the city's 22 intention to round up a lot of bicyclists and subject them to 23 criminal sanctions. But the possibility of a criminal 24 sanction, we think, will help us manage the ride in addition to 25 having a court order saying that the ride is illegal, and that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 187 4c9WbraH 1 absent the grant of permits by the Parks Department and the 2 police department, the riders can't gather in the first 3 instance and can't leave the park if they somehow get into the 4 park. And that's what we would be doing, we'd be stopping the 5 ride. 6 THE COURT: What has the city done in earlier Critical 7 Mass rides to enforce Section 10-110 of the city Administrative 8 Code? 9 MS. BINDER: What the city has done in earlier rides 10 is to give out isolated summonses for violating 10-110. And in 11 the more recent ride, there was some, there was some discussion 12 about possibly stopping the ride with netting. But I don't 13 believe that was done, your Honor. 14 THE COURT: But why isn't the next step to simply 15 issue more summonses under Section 10-110 if the city feels 16 it's being violated or under the vehicle and traffic laws, if 17 the city feels that bicyclists are disobeying traffic laws? 18 MS. BINDER: The problem with issuing individual 19 summonses, your Honor, is there's not enough person power to 20 find everybody, to cite everybody who is violating the 21 parade-permitting statute. They, the department tried 22 individual summonsing, and the individual summonsing hasn't 23 stopped the ride. Many more people are violating the 24 parade-permitting statute than are getting summonses for it. 25 THE COURT: Well, how many summonses have been issued, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 188 4c9WbraH 1 let's say, with respect to the October ride? 2 MS. BINDER: That's part of the record, your Honor. 3 We're going to get to that, your Honor. 4 The other problem is with individual summonses, as the 5 group splinters off, the police department can't catch up. So 6 it's a game of cat and mouse all over the city. That's not an 7 effective way to enforce this requirement. 8 35 in October, your Honor. 9 THE COURT: How about in November? 10 MS. BINDER: 17. 11 THE COURT: In the city's view, is every participant 12 in a Critical Mass ride violating Section 10-110, or is it only 13 those people participating in the ride who violate a traffic 14 regulation that are -- 15 MS. BINDER: Your Honor, the city's position is that 16 the Critical Mass ride, as it's constituted, is a traffic 17 violation because it is taking up the entire roadway. And 18 riders are supposed to stay to the side of the roadway and not 19 to impede vehicular traffic. And even before it starts running 20 lights, the Critical Mass ride itself is a procession because 21 it is taking up the entire roadway and ultimately because it 22 does start running lights. But the traffic violation is 23 being -- taking up the entire roadway with bicycles, and that 24 is a violation of the city traffic regulations. 25 THE COURT: But what evidence do I have before me that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 189 4c9WbraH 1 any one of the five plaintiffs in this action violated any 2 traffic regulation or law? 3 MS. BINDER: If they participated in any Critical Mass 4 ride, then, by definition, they would have had to violate a 5 traffic violation because the Critical Mass ride's not only a 6 traffic regulation but also Administrative Code 10-110 because 7 Critical Mass rides, as they are currently constituted, are 8 processions. 9 THE COURT: But what if the cyclists, if these five 10 cyclists were, for the sake of argument, tacking close to the 11 curb, on the right side of the road and that they stopped at 12 every intersection where there was a traffic light and were 13 otherwise obeying all of the traffic regulations in the City of 14 New York, and they weren't riding their bicycles on the 15 sidewalk? 16 Are they in the city's view guilty of violating 17 Section 10-110? 18 MS. BINDER: Your Honor, the plaintiffs conceded that 19 they participated in these rides and these rides -- it would be 20 impossible to stop at a red light if the ride is continuing. 21 It would be smashed into by bicycles behind them. 22 By definition, the ride doesn't contemplate that any 23 participant is, can be complying with traffic regulations, and 24 by conceding that they've participated in Critical Mass and 25 would like to continue to participate in Critical Mass as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 190 4c9WbraH 1 Critical Mass currently is, they, by definition, are violating 2 the law. 3 The hypothetical that your Honor poses, I don't see 4 how it would be possible in the context of the Critical Mass 5 ride. If they participated in the ride, then they've done 6 those things. 7 THE COURT: But rides that they may have participated 8 in may -- they may have done so under the auspices of the 9 police. 10 MS. BINDER: The only auspices of the police, your 11 Honor, were in September, when there was an agreed-upon route 12 with Mr. Dunn and in October when there was a route 13 preauthorized by the police department. Otherwise, the fact 14 that, otherwise, we have an unpermitted parade that the police 15 department is trying to manage traffic around. And the fact 16 that the police department is trying to manage traffic so that 17 nobody gets hurt doesn't mean that the police department 18 sanctioned the ride or that the people who are in the ride 19 aren't violating the applicable code provisions. 20 THE COURT: All right. I think I have your argument. 21 Let me hear from the plaintiffs. 22 MS. BINDER: Thank you, your Honor. 23 THE COURT: Thank you, Ms. Binder. 24 MS. HYMAN: Your Honor, Mr. Siegel and I were going to 25 break up our argument so we both would have the pleasure of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 191 4c9WbraH 1 arguing before you, in terms of my part being the procedural 2 aspect, Mr. Siegel dealing with the constitutional and 3 injunctive aspect. 4 If I may, may we break it up that way, your Honor? 5 THE COURT: Sure. Just keep your voice up and do it 6 from the podium. 7 MS. HYMAN: I'll come to the podium, your Honor. 8 Having said how we break it up, your Honor, and 9 listening to Ms. Binder answer your questions, I am, may be 10 difficult to be precise here in terms of the breakdown. I'm 11 astonished that the city is basically seeking to enforce its 12 traffic laws by coming to a federal court and seeking an 13 injunction against bike riders, and claiming that only by 14 coming into this court they will get the gravitas to enforce 15 the traffic laws and the Administrative Code of the City of New 16 York, a principle and a contention, your Honor, that I, in the 17 years that I've been practicing, I've never heard of before. 18 They have basically said we can enforce the laws. We 19 are, all right, we can do it, but we really need something 20 more. And I guess the city council and the state legislature, 21 they just haven't given them enough. So why don't we come not 22 to a state court, not to some legislative body, but let us come 23 to a federal court and sue five individuals who we agree are 24 not organizers and get an injunction against them so then we 25 can now enforce a law that, by way of a contempt proceeding, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 192 4c9WbraH 1 and bring criminal charges in a criminal state court, of a 2 federal injunction. 3 It is a principle, your Honor, I don't even know where 4 to begin to pick at, because it is so -- I don't mean to be 5 disrespectful to my colleagues -- absurd in its, in what it 6 stands for. This Court is not a traffic court, but they are 7 attempting to make you into a traffic judge. But they don't 8 want to come back here and enforce that law; they want to take 9 it to state court and say we have Judge Pauley's criminal -- 10 injunction that these bike riders have violated, and we don't 11 want to prosecute them for running a red light. We want to 12 prosecute them for contempt. But we don't want to go back to 13 Judge Pauley and do that, because, after all, how would we go 14 to a federal court and ask a federal court to enforce a traffic 15 law. So we're coming to you, state criminal court judge, and 16 we're going to ask you to impose a penalty of one year. 17 An unclassified misdemeanor is one year, your Honor. 18 If this is a class B misdemeanor, I believe it's 90 days. But 19 I think it's one year, but I was not prepared for that issue, 20 so I can't answer the level of crime. If it's one year, your 21 Honor, it's also a jury trial. 22 So let us put that -- I've made the general statement. 23 Let us apply it to the law, your Honor, and looking at 1367, it 24 seems to me that what we heard from the witness stand, what we 25 heard from counsel, I think we meet four of four criteria of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 193 4c9WbraH 1 1367 as to why this Court should not do it. 2 It's interesting, your Honor, you have written on 3 1367, in Reich v. Giuliani, and now you have written on it as 4 well in the preliminary injunction case in Bray. And the city 5 apparently has not taken you seriously. You state, your Honor, 6 in the Bray case, "This Court declines the city invitation to 7 wander into a Serbonian bog before a state court has had an 8 opportunity to illumine the path." 9 You further state, "Even if the doctrine of laches was 10 not a bar, the need to adjudicate novel and complex state law 11 issues militates against the exercise of supplemental 12 jurisdiction." 13 And finally, you state, your Honor, "Thus where 14 pendent claims hinge on unresolved issues of law, 'especially 15 when those issues concern the state's interest in 16 administration of its government,' the principles of comity and 17 federalism weigh heavily in favor of leaving such decisions to 18 state courts." 19 THE COURT: Is novelty alone a sufficient basis to 20 decline to exercise jurisdiction, or must it be both novel and 21 complex? 22 MS. HYMAN: I can't cite you a case, your Honor, as I 23 stand here, to answer that issue. I think that the clause in 24 1367 is novel and complex. I don't want to concede that this 25 isn't complex, because while it deals with a -- the issue of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 194 4c9WbraH 1 10-110, as the heart of the argument, the complexity is in how 2 you would interpret it, what laws, what the scope of an 3 injunction would be, where and how you would apply it to 4 individuals. 5 THE COURT: The definition in the code of a parade or 6 procession doesn't apply only to groups with leaders, does it? 7 MS. HYMAN: It does not. It uses the term "parade or 8 procession." But what is a parade or procession? And how does 9 it apply to a legalist group is not a question that can be 10 answered; it's not a simple answer. It is the complexity that 11 I think in part I'm referring to. And it certainly is novel. 12 Everyone agrees that this issue has not been determined. 13 Chief Smolka says that the five people that we have 14 wouldn't qualify for a permit, basically, that they are not 15 organizers. He knows they're organizers. He doesn't know 16 where they are. They're undercover someplace. 17 THE COURT: I think I sustained the objection to that 18 question about undercover. 19 MS. HYMAN: All right. 20 THE COURT: But he did say -- 21 MS. HYMAN: Now I'm in argument, your Honor. Am I 22 allowed to say it in argument? All right. 23 The issue is, your Honor, that the question of 24 organizers is a question of who can apply for a permit. But 25 that is only one aspect. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 195 4c9WbraH 1 The second aspect is: Does this ride require a 2 permit? So there are two issues, neither of which the city has 3 offered a definitive answer on, nor can it. Is it a procession 4 when there are seven? You heard Chief Smolka say that, seven 5 people were arrested. The city's statement is that it's a 6 parade or procession because there are a lot of people and they 7 violate the law. That seems to be what they're, what the 8 parade or procession is. 9 Yet we have no proof, your Honor, that independently, 10 they violate the law. There's been a lot of testimony of 11 police assistance in going through red lights. Mr. Faust 12 indicated that he tries to obey the law when there are no 13 police assistance. At times, he will go through the red light. 14 That's not a basis to make it a parade or procession. That's a 15 basis to give a traffic ticket. 16 The fact that it takes up the roadway, a bicycle is 17 entitled to take up the roadway, your Honor. It says as near 18 as practical to the curb. If there are 20 bicycles, I can't 19 believe that this Court is going to interpret the state law on 20 bicycles using the street and saying that for purposes, this 21 court will say that there can't be 20 bicycles crossing the 22 street, that that is illegal, because there is nothing in the 23 law that says that. They first started at two abreast. That 24 fell apart because of what's been found, and now it's as near 25 as practical to the curb, not must be at the curb, but near as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 196 4c9WbraH 1 practical. 2 Is this Court going to say that that then becomes a 3 procession? These are -- it seems to me, your Honor, that 4 these are in fact the novel, complex issues that should be at 5 least determined, if it applies in a state court. And there 6 are now cases, September, October, November, August, all 7 apparently involving these issues. I know of at least one or 8 two, your Honor, personally. We are involved in one case 9 ourselves in which a parade, where that permit issue was -- and 10 it's the September ride that that one came in. It was added 11 after the fact, I might note. 12 The same with August. I'm told that there are parades 13 without permits. I think the chief admitted to that. So the 14 issue is before a state court. It's before Mr. Morgenthau. I 15 think the testimony yesterday of Chief Smolka should go to 16 District Attorney Morgenthau as to whether there is any basis 17 to prosecute for parade without a permit in the August one when 18 there was no notice. 19 This ride has been going, and you heard his testimony, 20 endlessly, for six, ten years. Chief Smolka comes on the scene 21 and he has created chaos. He has created this problem, and 22 nobody else. Until Chief Smolka came into this issue, Critical 23 Mass was a ride that went fine. Maybe there was an arrest or 24 two, maybe there was a summons or two. We have heard no 25 testimony of a problem. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 197 4c9WbraH 1 Chief Smolka, in his affidavit, says I became involved 2 in this sometime in July or the summer. He testifies to 3 summer. Look at what's happened since our Chief Smolka has 4 become the orchestrator of how Critical Mass is handled: 5 August, almost 400 arrests. October, September arrests, and 6 you issue an injunction against what he's doing in seizing 7 bicycles. October, they set up a route, and then it gets 8 deviated by the police. And then they arrest people trying to 9 get back to Union Square. November, they entirely -- they're 10 here on an injunction, and they go in November, and they shut 11 it down and arrest people. There's evidence from Mr. Oliver 12 that they arrest people for parading without a permit and say 13 they have to be two abreast. 14 Your Honor, the issue of why there is a problem today 15 is, I submit, more in how Chief Smolka has handled this 16 situation than in how Critical Mass has operated its bike ride. 17 Why, for so many years, was it without significant problem? 18 The issue of size, your Honor, you picked it up in the argument 19 originally. They concede that in July of '03, the numbers were 20 similar to the numbers in July of '04, 12, 1,500 people. 21 THE COURT: But the problem certainly started before 22 Chief Smolka came on the scene because when Critical Mass goes 23 on to the FDR Drive, wouldn't you agree that that's a problem? 24 MS. HYMAN: That was a violation of the traffic laws, 25 your Honor. Not a violation of something bigger than that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 198 4c9WbraH 1 Yes, Mr. Roth concedes he didn't know it, he now 2 wouldn't do it again. And should it be done? Of course not. 3 But is that a reason to be here and ask this Court for an 4 injunction? That some people took it upon themselves to 5 violate a traffic law and go on to the FDR, where there are no 6 signs, by the way, saying no bicycle prohibited that I know of, 7 but be that as it may, it's illegal, it shouldn't be done, it 8 won't be done by people who testified about it and know of it. 9 Do we need an injunction to say don't go on the FDR 10 Drive? I think not, your Honor. I think that takes the issue 11 too far. But that, your Honor, is the novel-complex side of 12 this. I hope I've at least illuminated enough our position 13 with regard that it is complex, even in the interchange now, 14 your Honor. This is not a simple issue, as the city would say, 15 enforce the parade, procession issue, and it's not complex at 16 all. But it -- there are many issues. Your Honor will be 17 shutting down a ride with people saying get a permit when they 18 know no one can come forward and get a permit, basically 19 stopping the ride. 20 THE COURT: How is Critical Mass not a bicycle 21 procession or a caravan or a motorcade on bicycles? 22 MS. HYMAN: Do you want to do that one? 23 MR. SIEGEL: All right. 24 MS. HYMAN: Yeah. 25 MR. SIEGEL: Your Honor, a procession is when the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 199 4c9WbraH 1 participants are going through the street and with permission 2 do not have to obey some of the traffic laws such as the 3 lights. 4 Let me begin by saying what we do know, which is 5 pedestrians, because there have been cases and numerous 6 experiences with regard to what pedestrians can do. And from 7 that, I think it's illustrative to then take what we know about 8 what pedestrians can and cannot do, and then apply those 9 principles to what bicyclists can or cannot do. 10 When you have a pedestrian walking on the sidewalk, as 11 sometimes happens, you don't need a permit. Footnote, as long 12 as you're not taking up the sidewalk so that other people 13 walking could not do that. Pedestrians on the sidewalk, I 14 advise people don't take up more than 50 percent of the 15 sidewalk. You don't need permission from the government, you 16 in fact can walk and have your demonstration. But, when you 17 get to the corner, before you go into the street, you have to 18 obey all the traffic and vehicular laws. So very often, when 19 people marching on a sidewalk participate in a First Amendment 20 activity, they walk from corner to corner. When they get to 21 the corner, they have to make sure that they're complying with 22 the traffic laws. 23 Very often the police escorting them actually say to 24 them, go through, don't worry about the green light because the 25 objective of the police department at that point is to expedite SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 200 4c9WbraH 1 the march so that it can happen quicker, rather than longer. 2 If, on the other hand, the pedestrian wants to go into 3 the street where they don't have a right to be, when they go 4 into the street, that's usually when they go and get a permit. 5 And why? Because they don't have a right to be in the street. 6 And when they get the permit, which happens many, many times, 7 the group of people then walk from 57th to 56th to 55th to 42nd 8 Street, where the rally is. And they do not stop for lights 9 because the permit has given them the right to now disregard 10 that traffic law. 11 So in the context of pedestrians, that's pretty clear. 12 And I think most people would agree that those are the 13 principles. 14 Now, taking those principles, let's look at the 15 bicyclists, and I don't think there's any case law with regard 16 to 10-110. So this could be a case of first impression. But 17 bikes on the sidewalk, no. Can't ride a bike on a sidewalk. 18 You ride on the sidewalk, you'll get a ticket because it's 19 clear you don't have a right to be on the sidewalk. 20 Now, bikes on the streets, if bikes are on the street, 21 55th, 56th, down to 42nd, if the bicyclists' objective is to 22 ride straight through and disregard the lights, then you need 23 the permission, because you need the government's permission to 24 supersede, in effect, those restrictions on that activity. 25 That's where a permit would be applicable. And you've touched SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 201 4c9WbraH 1 upon it a couple of times. Let me see if I can clarify it 2 myself. 3 If the bicycle riders, 57th down, in my example, if 4 they stopped for the lights, if they did that and complied with 5 the other applicable traffic rules and regulations, it's our 6 position they have that right. That's lawful. And if they did 7 it exactly that way, there's no need for the government's 8 permission, a permit, to participate. Therefore, we believe 9 that 10-110 is not applicable to the Critical Mass bike ride 10 with major qualifications, that there's compliance with the 11 traffic rules and regulations. 12 And if there is any deviation from the traffic rules 13 and regulations, there's an adequate remedy of law. We don't 14 need an injunction. The adequate remedy of law is a summons or 15 an arrest. And that's the way this issue, in our opinion, 16 should be dealt with. 17 If I may, since I'm up here -- 18 Do you want to continue. 19 MS. HYMAN: No. 20 MR. SIEGEL: Let me see if I can also add, from 21 personal experience, you've asked about 10-110, parading 22 without a permit, and what's the status in the criminal courts. 23 There are numerous criminal cases that are pending. As Mr. 24 Hyman, my cocounsel, pointed out, and at least anecdotally the 25 cases that I know, the charge with regard to violation of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 202 4c9WbraH 1 10-110, parading without permit, has been added after the 2 arraignment. But these charges would be for August, September, 3 October, and November, the last four months. 4 I know this because when I went to court on some of 5 the cases I represent the people, and you get the file, there's 6 the added charge that wasn't at the arraignment with regard to 7 parading without a permit. In two cases that I'm involved in 8 from August, those cases -- 9 THE COURT: What was the initial charge? Was it 10 disorderly conduct? 11 MR. SIEGEL: Correct. 12 THE COURT: All right. 13 MR. SIEGEL: In two cases that I'm involved in, last 14 week, the district attorney's office dismissed the cases. 15 There were two disorderly conducts and then the added charge of 16 parading without a permit. In both of those instances, even 17 though an ACD was initially offered, we refused that, we're 18 ready to go to trial, the D.A. decided to dismiss the cases. 19 There are other cases that are pending where motions 20 to dismiss, based on 10-110 being unconstitutional, are pending 21 or lawyers are in the process of filing those motions. I know 22 of at least three other attorneys, other than Mr. Hyman and 23 myself, who have told me that they have cases representing 24 people where 10-110 is a charge and they either have or are 25 planning to file, once they get our motion papers, the motion SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 203 4c9WbraH 1 to dismiss. 2 THE COURT: And are those others that you know about, 3 those 10-110 charges, charges arising out of a Critical Mass 4 event between August and November, or something else? 5 MR. SIEGEL: There -- yes. The answer is yes. 6 THE COURT: Okay. I asked it in the disjunctive. Are 7 they all three? 8 MR. SIEGEL: Sometimes we can say objection sustained. 9 THE COURT: Are they all Critical Mass? 10 MR. SIEGEL: They're Critical Mass or related to 11 Critical Mass. 12 THE COURT: Okay. 13 MR. SIEGEL: So I just want to update you on that. 14 And I think that as we say in our brief, the 15 appropriate place to deal with this issue should have been in 16 the state court, but even if it, if you disagreed whether it 17 should, it's there now. And therefore, there are cases to 18 point out to the federal courts that when there are criminal 19 cases pending in the state court, a federal court decision 20 could create some inconsistency with the state court system in 21 interpreting the applicability or constitutionality of state 22 provisions. 23 If I may, in my main points that I want to make to 24 you, and I'll try to do them briefly, we respectfully submit 25 that the defendants should not prevail on their application for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 204 4c9WbraH 1 preliminary injunction. As you yourself have noted in the 2 October 28 decision, "Preliminary injunctive relief is an 3 extraordinary remedy and should not be routinely granted." 4 Now, there's a two-prong test, you know it as well as we do, 5 probably better, and therefore, I can just cite you page 14 and 6 15 of our brief that addresses it. 7 In this case, as cocounsel Hyman has pointed out, the 8 city here comes in asking you for this extraordinary relief to 9 enforce its own state statutes and local ordinances, which the 10 city has already, in our opinion, demonstrated that it is 11 perfectly capable of enforcing itself. Chief Smolka's 12 testimony yesterday said, in response to your pointed question, 13 we can enforce the law, but it would be helpful if we got the 14 injunction. Well, with due respect, helpfulness is not the 15 standard for granting preliminary injunctive relief. 16 Moreover, Ms. Binder, with her responses to your 17 questions this morning, the transcript is the quintessential 18 prior restraint. She's telling you they need this weapon to 19 stop people from gathering as well as participating in what you 20 have already recognized is a First Amendment-protected 21 expressive association activity. From her words is classic law 22 school teachings with regard to what prior restraint is about. 23 A federal injunction enforcing local ordinances is simply not 24 the correct relief to grant the defendants. As already, 25 defendants have the adequate means, it's to summons, it's the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 205 4c9WbraH 1 arrest. It's the enforcement of the criminal law and the 2 traffic and vehicular laws. 3 What happened particularly on Friday evening, November 4 the 26th, the day after Thanksgiving, clearly demonstrates that 5 the tools are already available to the city to sufficiently 6 enforce the laws as they interpret it. We have a difference of 7 opinion, but as they interpret it, they carried it out on that 8 evening. And the defendants' purported need for preliminary 9 injunction, in our opinion, is a nonexistence. 10 There's a case we cite in our brief that I'll spend a 11 minute on, City of New York v. Andrews. If I remember 12 correctly, my former colleague, Chris Dunn, was very involved 13 in that case. The NYPD sought an injunction to control a 14 street prostitution business. If I remember, it was Long 15 Island City, in Queens. 16 The state court dismissed the action entirely, finding 17 that the relief requested was extraordinary injunctive relief 18 of a nature unprecedented in New York and that as a general 19 matter, prosecution of criminal matters should be left to the 20 criminal courts and not to the civil court. 21 Furthermore, the Court held that the civil court may 22 not serve as an ad hoc alternative to the criminal court by 23 enjoining criminal activity. Here, it was a state court which 24 deemed that the injunctive mechanism was clearly inappropriate 25 to help the NYPD, help the NYPD enforce the criminal law. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 206 4c9WbraH 1 Judge Smilka's request for help in Andrews, that was the same 2 rationale, and the state court said no. I would respectfully 3 submit that you should follow that approach with regard to the 4 roles of civil criminal courts as well as here, the federal 5 state system. 6 Quickly, we respectfully submit that the defendants 7 have unclean hands. This circuit has held time and time again, 8 and I quote, "He who comes into equity must come with clean 9 hands." 10 I would respectfully ask you to look at Mr. Faust's 11 affidavit as well as his testimony yesterday, specifically with 12 regard to the October 29 ride. I would also ask you to look at 13 Gideon Oliver's declaration with regard to the November 26 14 ride. 15 Irreparable harm, your very first question, right on 16 target. Yesterday as well as today. Where's the beef? Where 17 is the irreparable harm? 18 Irreparable harm, an important ingredient, cannot be 19 presumed; it must be demonstrated. And, respectfully, we 20 submit the defendants have not done that. 21 Defendants allege that they do not need to show 22 irreparable harm, at one point in their papers, as it is shown 23 that its laws are being violated. This is neither the standard 24 for irreparable harm nor have the defendants demonstrated that 25 its laws have been violated. What happens over and over again, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 207 4c9WbraH 1 in the papers, in this proceeding, yesterday as well as today, 2 is the mantra of public safety is articulated. Well, the 3 defendants' mantra of public safety does not prove irreparable 4 harm. And without that ingredient, the injunction cannot be 5 granted. 6 Let me move on to the merits. We respectfully submit 7 that defendants cannot and should not prevail on the merits. 8 Plaintiffs and other Critical Mass riders did not violate 9 10-110(c). And moreover, it is facially unconstitutional. The 10 Administrative Code makes it a violation to participate in, and 11 I quote, "a procession, parade, or race, for which a permit has 12 not been issued when required by the section." 13 38 RCNY 19-02(a) defines "a parade or procession as 14 any march, motorcade, caravan, promenade, foot, or bicycle 15 race" -- race, not ride -- "or similar event of any kind upon 16 any public street or roadway." 17 What defendants fail to understand is that the 18 Critical Mass bike rides are not any of the above. And as 19 such, 10-110(c) does not apply to the rides. We have stated 20 over and over again that the rides are simply unorganized, that 21 participants join on a spontaneous ad hoc basis. What 22 differentiates these rides from parades or processions is that 23 point that I came up with to begin with, and so I won't 24 reiterate that point. 25 10-110(c) makes it a violation to participate in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 208 4c9WbraH 1 procession, parade, or race. It is not intended, not intended 2 to regulate lawful traffic, and we believe that that's what the 3 Critical Mass ride is. And again, if there have been instances 4 in the past where people have violated the rule of law, there's 5 no excuse for that, and the way that we should confront that 6 issue is to clearly say that when you are riding in the street, 7 you must abide by the law and the rules. And if you don't, 8 you're subject to a penalty. And we submit the penalty should 9 be, as they do to an automobile, an automobile goes through a 10 red light, they get a ticket. It's a summons. They don't get 11 hauled off into the criminal process. They're not put in the 12 system where they come out 24 hours later. They get a ticket. 13 That's the appropriate remedy. 14 Now, finally, we believe that 1367, as Mr. Hyman said, 15 should you decline the jurisdiction, dismiss the counterclaims, 16 if in dicta you want to say go to the state court, that is all 17 appropriate. You should not and need not get to the 18 constitutionality of the sections that I'm going to talk about 19 because of the procedural points that I think heavily weigh in 20 favor of you not going where I'm now going to go. 21 I wish that I didn't have to make these points, but in 22 the way the process has evolved, I will now try to briefly 23 touch upon these points, referring you to our brief. 24 Even if participants in the Critical Mass rides' 25 conduct did fall under the gamut of 10-110, we contend that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 209 4c9WbraH 1 that provision is facially and an unconstitutional prior 2 restraint as an expressive activity because the 3 parade-permitting process conditions the exercise of expressive 4 activity on official permission may constitute a prior 5 restraint. 6 The heart of prior restraints are that they give 7 public officials, people like Chief Smolka, the power to deny 8 use of a forum in advance, in advance of the actual expression. 9 A facial challenge to a statute will be one of licensing law 10 gives "the government official the power to discriminate based 11 on the content or viewpoint of speech, or by suppressing 12 disfavored speech or disfavored speakers." In order to sustain 13 the facial challenge, the law must have a close enough nexus to 14 expression or to conduct commonly associated with expression. 15 This circuit has previously held that 10-110 are regulating 16 permits for parades and processions, etc., has a close nexus to 17 conduct commonly associated with expression. That's the 18 McDonald v. Safir case in the Second Circuit. 19 Now, the history of that, to some extent, is directly 20 affected by Judge Scalia's decision in the Thomas case out of 21 Chicago, but the Second Circuit pre-Thomas, both in McDonald 22 and Diana Beal v. New York City, and Beal and McDonald, when 23 McDonald was alive, were people who worked together on various 24 issues. And the circuit, in Beal, as well, when they've looked 25 at 10-110, have said, it's got, it's constitutionally suspect. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 210 4c9WbraH 1 So even though Scalia out of Chicago deals with 2 something that's similar that we can see, but can be 3 distinguished, when the circuit here has looked at 10-110, 4 which, perhaps, is the only answer we have to your question of 5 do we have any precedent with regard to 10-110, it's those 6 cases. Now, I grant both of them were remanded back, and in 7 looking at the history, I'm not sure it went anywhere. And it 8 could be that those particular people did carry the issue on, 9 and in some way, if you got to the merits, this case could be 10 the remand from the Second Circuit to try to figure out what do 11 we do with 10-110, especially in view of the fact that the 12 changes, which I'll touch upon, in our opinion really don't put 13 the city in a position that they're immune from constitutional 14 challenge. 15 Forsyth County, Hare Krishnas case we cite from the 16 U.S. Supreme Court, set forth and are instructive -- I'm sure 17 you know them -- with regard to the importance and what the 18 standards are with regard to how a court should be looking at 19 these kinds of ordinances, especially because there's protected 20 constitutional expressive activity that's involved and how 21 sensitive the federal courts as well as the U.S. Supreme Court 22 are to making sure that the government does not directly or 23 indirectly create burdens for people who want to express First 24 Amendment activity. 25 Under 10-110, two particular provisions. First 110-4 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 211 4c9WbraH 1 where the police commissioner is afforded unlimited discretion 2 by the "special permit portion of the law, which inherently we 3 submit allows arbitrary applications." The Second Circuit 4 again, when they had McDonald, looked at the language of 5 10-110, and said that it was not "sufficiently precise to 6 survive the facial challenge." 7 Also, there are people that are there with their bikes 8 who don't necessarily leave en masse for whatever reason. What 9 they're doing is standing there, which is their constitutional 10 right to be there. If this was on a public street corner, I 11 don't think anyone would think seriously that the government 12 had a right to ask for a permit or permission for people to 13 stand there. The context of Union Square and the parking lot, 14 that's the equivalent, in my opinion, to a street corner. 15 The representative from the Parks Department agreed 16 that it was an appropriate place for people to be. I think in 17 her testimony -- it came out from Smolka, in fact, the police 18 department would like people as a practical matter to be there, 19 and so it's only recent that this issue comes up. 20 And what's the legitimate interest? On the other 21 hand, before I get to that, although I concede it's not on all 22 fours, the Nemo case, out of Portland, Oregon, in the federal 23 court, where Critical Mass survived at least in our opinion a 24 similar attack on its passage through a city park in Portland, 25 could be instructive, I do concede that the public solicitation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 212 4c9WbraH 1 part of that ordinance is distinguishable from here, but I 2 think it's helpful and illustrative for us as well. 3 The legitimate government interest, the Parks 4 Department representative argued two things: A, we need 5 knowledge; and, 2, otherwise, there could be interference with 6 other permitted events. 7 Knowledge? They have knowledge. It's the last Friday 8 of every month, in perpetuity. With regard to other events, 9 there's adequate remedies of law, less drastic than a prior 10 restraint. The disorderly conduct provisions. If, 11 hypothetically, there's a permitted event for December 31 of 12 this month, and there's an event there, a platform, speakers, 13 people congregating, and, hypothetically, it starts at 6:00 or 14 even at 7:00, if Critical Mass people come and there's an event 15 that has been permitted, they would have to do what every other 16 New Yorker does in that situation, be respectful of the permit, 17 and either stand there as part of the permitted event or leave. 18 And if in fact, in any way they interfered with that activity, 19 they could be asked and should be asked to leave. And if they 20 do not, that would be a subsection of the disorderly conduct 21 penal code. I think it's as simple as that. 22 So the activity that Critical Mass is participating in 23 is similar to the exception, which might be a way out, of 24 casual use of the park. This is not impacting on the Parks' 25 property. It's not an event by any stretch of the imagination. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 213 4c9WbraH 1 It's people standing. If you did grant an injunction, what's 2 the consequence of that? I say to some friends tonight, meet 3 me Saturday at noon at the Sheetmetal, and then we'll go over 4 and catch a movie. Meet me at the boat house and we'll go over 5 to have brunch on Sunday. Oh, wait a minute, let me get a 6 permit before we do that. 7 I mean, the logical extension of getting into the word 8 I was going to use, Serbonian, it would open more doors again 9 with regard to the practical aspects of New Yorkers' day-to-day 10 lives when in fact they're interacting with park property. 11 Numerous examples of people doing exactly what I was saying, 12 let's meet in the park and let's then do X, Y, and Z. It's a 13 casual interaction with park property. Not what I think this 14 provision was intended to do. 15 And finally, the burdens: Defendants have admitted, 16 and this Court has noted, Critical Mass has no leader. It's no 17 organization. If the defendants want someone to come forward 18 and apply for the permit, the implication is you'll get the 19 permit, but my experience is there's no guarantees. When I 20 asked Lieutenant Albano, is there a guarantee, there is no 21 guarantees. And in the Parks Department, this woman filled out 22 those forms on the numerous occasions; they are burdensome. 23 Some people think the $25 is not a biggy, but for some people 24 in this town, it is. 25 The signature of an officer of an organization, I know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 214 4c9WbraH 1 what happens, the technocrat says, just sign it. I'm a lawyer. 2 I advise the client, if you're not an officer of the 3 organization, do not sign it. Because at the very bottom, in 4 the fine print part, that you represent that all of this is 5 truthful, and if the city's going to find some provision about 6 a misdemeanor or violating a court order, you never know what's 7 going to happen if you sign something that you're not who you 8 say you are. There's liability. 9 Also, the testimony with regard to cleanup bonds, you 10 know, I respectfully, based on my experience, don't think the 11 cleanup bonds are waived. Very often, they're imposed on 12 groups who were unfavored in a selective way. So even that 13 aspect in and of itself in my opinion creates unnecessary 14 burdens on what, on standing, and on the equivalent of a public 15 street. So, in whole, the manner in which the defendants seek 16 to apply this permitting structure to the five plaintiffs and 17 other Critical Mass riders, in our opinion, is an 18 unconstitutional prior restraint on the First Amendment right 19 to association, and you should find accordingly. 20 So where do we wind up? We wind up where we begin. 21 We respectfully request that you dismiss the defendants' 22 counterclaims and deny their motion for preliminary injunction. 23 We thank you very much, your Honor. 24 THE COURT: Thank you, Mr. Siegel. 25 We're going to take a break. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 215 4c9WbraH 1 (Recess) 2 THE COURT: Mr. Hyman, you wanted to make one 3 correction. 4 MS. HYMAN: Your Honor, 1367 states if the claim 5 raises a novel or complex issue of state law, I was wrong in 6 conceding it. So I was -- it is an "or" apparently, your 7 Honor, not an "and." 8 THE COURT: All right. 9 MS. HYMAN: That was the correction I wanted to make. 10 THE COURT: Ms. Binder, before you address the 11 arguments of plaintiff's counsel, I understand that Mr. Dunn 12 would like to make a couple of remarks. He's filed an amicus 13 brief in this case, and I'm going to permit it, and then you 14 can -- in the interests of trying to wrap everything up in one 15 fell swoop, I'm going to give Mr. Dunn the opportunity to speak 16 for a couple of minutes before you address the Court. 17 MS. BINDER: Before I address the Court? 18 THE COURT: Yes. 19 MR. DUNN: Thank you, your Honor. And I will be 20 brief. 21 I wanted to pick up on a point that you made when you 22 asked Ms. Binder about the evidence that the city has put in 23 concerning the conduct of the plaintiffs who are before you, 24 because I think that goes to a central issue that is 25 dispositive of the city's claim. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 216 4c9WbraH 1 I fully sympathize with the city's concern about the 2 management of this event, and certainly as I think is evident 3 from all the discussions, this whole Critical Mass phenomenon 4 is a fascinating one. But, of course, this is not a law school 5 symposium. This is an Article III Court with limited 6 jurisdiction. You have before you five individuals who 7 apparently have participated in past Critical Mass rides. 8 Intriguingly, for purposes of the city's motion for a 9 preliminary injunction, those individuals are effectively 10 invisible. I have reviewed the affidavits, as I'm sure you 11 have, and I've been here for the testimony. I do not see a 12 single piece of evidence from the city concerning any of the 13 five individual plaintiffs who are parties before you. 14 Ms. Binder, in response to your queries -- and the 15 city is asking for an injunction, of course, against the five 16 of them, and in addition to that against perhaps thousands of 17 other people, we don't know who they are, how that group of 18 people might be defined, they're certainly not before you as 19 parties. And we have also learned that what the city has in 20 mind is perhaps ending up with an injunction from you against 21 these thousands of people who are not here that they think they 22 are then going to stick in criminal court and perhaps be 23 seeking criminal penalties that might have imprisonment terms 24 of up to one year, and that, needless to say, presents an 25 extraordinary scenario of questions of your jurisdiction and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 217 4c9WbraH 1 the reach of Article III and Rule 65. 2 With respect to just the five individuals, Ms. Binder, 3 in response to your question, said, Well, we know because they 4 have said in prior affidavits they have participated in past 5 rides, and she then said you can presume from that that their 6 conduct has been unlawful. However, as you pointed out, one 7 can envision a scenario in which those individuals could well 8 have participated in a ride in an entirely lawful manner. 9 You can also envision a scenario in which they 10 participated in an unlawful matter, but the fact of the matter 11 is, based on the record, you don't know which is the case. And 12 it is the city's burden in seeking a preliminary injunction, 13 to, of course, as an initial matter, show that the party 14 against whom they are seeking relief engaged in some unlawful 15 conduct. They have the burden, just like when we're the ones 16 normally coming in here seeking preliminary injunctions against 17 them, we've got the burden. Here, ironically they're the ones 18 seeking the preliminary injunction. With that comes the 19 burdens that the plaintiffs normally have, and they simply have 20 put in no evidence whatsoever before you about any unlawful 21 conduct by any of the five plaintiffs. And even with respect 22 to the past rides, as you have heard, and you indicated in some 23 of your questioning, the police department clearly was 24 condoning those rides. The police department clearly by its 25 own statements in its own testimony was shepherding those rides SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 218 4c9WbraH 1 for whatever reason they were doing it. And while I don't want 2 to get in a situation where no good deed goes unpunished, the 3 fact of the matter is there is every reason to believe that 4 everybody who participated in those rides believed they were 5 acting in an a lawful manner consistent with police directives, 6 and probably they were. 7 There is simply no evidence that would support a 8 preliminary injunction even against the five individuals who 9 happen to be, in fact, plaintiffs properly before you. But 10 beyond that, and that's just the least of it, the city wants 11 you to enjoin the participation of the thousands of other 12 people. There is absolutely nothing in the record about any 13 relationship whatsoever between the five individuals before you 14 and any of these other nonparties. And under Rule 65, the City 15 has the burden clearly for establishing a qualifying 16 relationship between a nonparty and a party that would entitle 17 it to an injunction that you would issue to extend to the 18 nonparty. And the record is simply devoid of any evidence 19 whatsoever on that point. 20 The only thing that is in the record, the only thing 21 is the fact that these plaintiffs participated apparently in 22 past rides. It's just their participation, that is it. And 23 moreover, I note that none of them participated in the November 24 ride. Apparently only two of them participated in the October 25 ride. Even their participatory connection to the ride is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 219 4c9WbraH 1 extraordinarily tenuous. 2 So given all that, your Honor, it's our position that 3 notwithstanding all these very interesting questions about 4 jurisdiction, notwithstanding these questions about Critical 5 Mass and about all these somewhat bizarre, for a federal court 6 discussion, discussions about the Vehicle and Traffic Law, you 7 don't need to get to any of that, because the city has failed 8 in its most basic requirement of presenting you with any 9 evidence of unlawful conduct by the plaintiffs and of any 10 connection between the plaintiffs and the rest of the 11 nonparties the city seeks to enjoin. And for that reason, and 12 that reason alone is sufficient, you should deny their request 13 for preliminary injunction. 14 Thank you. 15 THE COURT: Thank you, Mr. Dunn. 16 Ms. Binder. 17 MS. BINDER: Thank you, your Honor. 18 First of all, the city is not trying to turn this 19 Court into a traffic court. This is a serious public safety 20 issue. This is not about stopping traffic violations in a 21 vacuum. 22 Secondly, Administrative Code 10-110 and its 23 application to the Critical Mass bike ride, first of all, the 24 dismissal of summonses by prosecutors or criminal court judges 25 does not mean that the Critical Mass bike ride is not a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 220 4c9WbraH 1 procession. Those cases are governed by proof beyond a 2 reasonable doubt in a particular case. And the fact that a 3 prosecutor may have not wanted to prosecute a particular 4 summons does not mean that the underlying code provision 5 doesn't apply here. 6 Similarly, the fact that seven people were arrested 7 doesn't mean that the entire procession was only seven people. 8 It could mean that seven people were the ones that the police 9 department managed to stop. You're not saying seven people is 10 a procession. We are saying Critical Mass is a procession and 11 I think is obviously a procession. 12 We know from the case that Mr. Siegel and Mr. Dunn 13 tried before your Honor, United Yellow, that there is such a 14 thing as a vehicular procession that requires a permit. In 15 this case bicycles are in the entire roadway, and they are a 16 procession. I think that that fact is pretty obvious. And 17 plaintiffs' suggestion that this, the Critical Mass bike ride 18 is obeying traffic regulations is disingenuous. 19 Yes, Mr. Faust came in and testified that his groups 20 abide by traffic regulations when they are not being escorted 21 by the police under a permit. But Mr. Faust hasn't been a 22 Critical Mass participant. His only participation was in the 23 October ride when he endeavored to follow an authorized route 24 that was sanctioned by the police department. 25 Mr. Roth sat here and conceded that Critical Mass SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 221 4c9WbraH 1 violates traffic regulations, not only by not stopping at red 2 lights, but also, I mean, by not staying to one side of the 3 road and proceeding down the middle of the road, taking up the 4 entire roadway. He conceded that they take up the entire 5 roadway, as Mr. Faust did. So I don't think anyone can 6 seriously suggest that this is not a parade or a procession. 7 Similarly, I don't think anyone can seriously suggest 8 that the Parks permitting requirement doesn't apply. Mr. 9 Siegel read from your Honor's decision in the National Council 10 of Arab Americans case where social gathering was one of the 11 examples of a special event activity that would require a 12 permit. It's a gathering of 20 persons or more, and it can be 13 for social reasons. Picnics are covered when they're 14 organized. These activities require Parks Department permits. 15 Turning to the question of whether injunctive relief 16 is appropriate, Mr. Siegel cited a state law case that 17 suggested, at least in his view, that if criminal penalties are 18 available, the city isn't entitled to injunctive relief. Well, 19 that simply is not the law of New York State. There is a New 20 York State Court of Appeals case that goes back to the 1930s, 21 People ex rel Bennett v. Lehman, and it stands for the 22 proposition that the city -- in that case it was the state, but 23 that the state or its subdivisions are entitled to get, to seek 24 injunctive relief to enjoin conduct that's in fact prohibited 25 by criminal statute. And in fact in the context of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 222 4c9WbraH 1 prostitution, the city routinely goes into court to commence 2 abatement actions against houses of prostitution where criminal 3 penalties have proven to be inadequate in order to get an 4 injunction to stop the use. And there are probably scores of 5 such cases. 6 THE COURT: Those are all cases that start and end in 7 the state court, aren't they, involving New York State criminal 8 statutes? 9 MS. BINDER: Yes, they do, your Honor. But the point 10 I'm trying to make is not only is Mr. Siegel wrong in his 11 recitation of state law, but also that all of the state law 12 principles that we're relying on to come into court here are 13 well established. 14 The fact that there isn't a particular state law case 15 that says a bicycle procession that takes up the entire road 16 and has hundreds of people and proceeds down Fifth Avenue is a 17 procession covered by the parade permit statute doesn't mean 18 that there are novel issues of state law presented to your 19 Honor. The city has long -- the state law is well settled in 20 terms of the city's entitlement to an injunction. The state 21 laws of statutory interpretation are well settled, and it seems 22 to me that this isn't a novel question simply because nobody 23 has ever actually written a decision that says a bicycle 24 procession is a parade requiring a parade permit. The state 25 law issues here are not novel, and, nor are they complex. This SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 223 4c9WbraH 1 is a simple case. Is this, you know, is this a parade, and it 2 would seem to us that there's a simple answer to that question. 3 The simple answer is yes. 4 THE COURT: Thinking just a little bit further on the 5 request for an injunction that would then, if I understood your 6 earlier argument, be enforced by the city in state court via 7 the criminal contempt statute, in the first instance, isn't it 8 this Court itself that has the greatest interest in seeing that 9 its orders are complied with? 10 MS. BINDER: Your Honor, I don't think coming back to 11 this Court for any sort of contempt proceeding is at all 12 practical. The police department's intention, the city's 13 intention for asking for this injunction is, A, to require this 14 group to get a permit; and, B, if this group doesn't get a 15 permit, to stop this group from riding in its present form. 16 And if there are individuals -- 17 THE COURT: How will you stop them from riding in its 18 present form? By charging people with criminal contempt in the 19 state court? 20 MS. BINDER: No, your Honor. By stopping the ride. 21 By putting up netting, by keeping people out of the park, by 22 keeping people from leaving the park. But if there are 23 individuals who insist that I'm going to ride, come hell or 24 high water, then there is the additional tool of criminal 25 enforcement. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 224 4c9WbraH 1 The notion, though, that there's a criminal penalty 2 available is what would deter, hopefully, the people from 3 coming out to begin with, because there would be announcements 4 that say there's a federal court injunction. If you violate 5 that, you're committing a crime. I would think that most 6 people would not want to violate it, but if they did, yes, the 7 police department could issue summonses, and those summonses 8 could carry stiffer criminal penalties than ordinary violations 9 of Administrative Code 10-110. 10 THE COURT: You have to conceivably create a whole new 11 wave of litigation in the criminal courts of New York over a 12 federal court order? Right? Under the city's theory? 13 MS. BINDER: Under the city's theory, if the federal 14 court order was unambiguous, a state court criminal judge could 15 determine whether there was a violation of that criminal court, 16 of that, of your Honor's order of the federal court order using 17 a beyond a reasonable doubt standard of proof, yes. That would 18 be, that would be very possible. That happens all the time. I 19 don't think it makes a difference in terms of criminal contempt 20 as a penal statute, and we can look into this issue for your 21 Honor if you want us to. I don't think it makes a difference 22 where the court order came from. 23 You know, when the police, when there's any sort of 24 court order or order of protection, the police department, the 25 police officers will issue a summons saying you violated an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 225 4c9WbraH 1 order, and the criminal court judge will look at the order and 2 make a decision using a beyond a reasonable doubt standard as 3 to whether there was in fact a crime committed. I don't think 4 that the fact that the order comes from a federal court or a 5 state court makes any difference to the analysis, your Honor. 6 Lastly, or second to lastly, federal law applies here. 7 That's another reason for your Honor to keep the case. Mr. 8 Siegel went on and on about many different concepts of federal 9 law. Mr. Siegel argues this is a prior restraint relying on 10 Second Circuit cases that were decided before Justice Scalia's 11 decision in Thomas. That decision specifically held that these 12 permitting requirements are time, place, and manner 13 restrictions and not prior restraints. We are not trying to 14 stop the ride. We are trying to apply a permitting scheme 15 that's a time, place, and manner scheme. And we are entitled 16 to do that. And the problem that the Second Circuit found with 17 the parade permit regulations, not only was that prior to 18 Thomas, but the police department has subsequently adopted 19 regulations to cure the deficiencies, and that's all laid out 20 in our memo of law; I'm not going to belabor it. 21 But these are clearly not prior restraints, and, in 22 any event, this is a federal offense that makes your Honor's 23 jurisdiction, exercising supplemental jurisdiction all the more 24 appropriate. Your Honor has the discretion to decline or not 25 to decline. I don't think there's a basis for declination SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 226 4c9WbraH 1 because I don't think these issues are novel or complex. 2 Finally, Mr. Dunn made some points in an amicus 3 submission to your Honor and then gave a little oral 4 presentation regarding those points. We got that submission 5 the day before yesterday, and I had submitted a letter to your 6 Honor, asking for permission -- 7 THE COURT: I granted your application -- 8 MS. BINDER: -- to address -- 9 Thank you. 10 THE COURT: -- to respond to the amice submissions. 11 It may not have been docketed. 12 MS. BINDER: We will respond to Mr. Dunn's arguments 13 in writing. We have not, because of this hearing, had an 14 opportunity to look at the cases he cites, and so -- thank you, 15 your Honor. 16 And we request that our motion for preliminary 17 injunction be granted. 18 THE COURT: I thank you, Ms. Binder. 19 Counsel, I want to thank you for your arguments and 20 your presentations. Decision reserved. I'll do my best to get 21 a memorandum and order out on this. But I can't tell you 22 exactly when. Have a good afternoon. 23 MS. HYMAN: Your Honor, just procedurally, we also 24 have a motion for summary judgment, and we've agreed on 25 scheduling. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 227 4c9WbraH 1 THE COURT: Right. And I have approved that. I also 2 entered an order last night with respect to the scheduling of 3 that summary judgment motion. 4 MS. HYMAN: Okay. 5 THE COURT: All right? It should be on ECF and 6 available. 7 MS. HYMAN: Right. 8 THE COURT: All right. Thank you. 9 o0o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 228 1 INDEX OF EXAMINATION 2 Examination of: Page 3 MATTHEW ALMON ROTH 4 Cross By Ms. Neufeld . . . . . . . . . . . . 173 5 Cross By Ms. Neufeld . . . . . . . . . . . . 176 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300