Parade permit law found unconstitutional

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Anonymous's picture
Anonymous

"JUDGE FINDS NYC PARADE PERMIT LAW UNCONSTITUTIONAL:

""CRITICAL MASS"" BIKERS' CHARGES DISMISSED

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

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

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

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

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

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

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

""While some Decisions from the Criminal Court over the course of the past year have upheld the constitutionality of the permit requirement,"" said Oliver, ""this Verdict is the first to result from a full trial, at which the Court heard 3 days' worth of testimony from11 NYPD Officers which it said 'highlighted deficiencies in the City's parade permit scheme.'""

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

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

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

Anonymous's picture
Evan Marks (not verified)
And Voila! the police are now our best buddies!

Then my alarm clock rings.

Anonymous's picture
gerry (not verified)
riding without a permit

"for those interested in the pertinent sections of the decision pertaining to recreational cyclists-

The People of the State of New York, v. Jennifer
Bezjak, Jameson Rollins, Kimberly Perfetto, Kyle Jones, Brendan Oram, Teresa Carta, Joel Fitzpatrick, Tyler Hartz,
Defendants.

2005NY011706

CRIMINAL COURT OF THE CITY OF NEW YORK, NEW YORK COUNTY

2006 NY Slip Op 26006; 2006 N.Y. Misc. LEXIS 33

January 9, 2006, Decided

Where the permit requirement would include almost any imaginable procession on the City's streets, without regard to size or number of participants, the
statute is hopelessly overbroad. Dearborn, supra at 608

Rule 19-02 defines a parade or procession as ""any march, [**15] motorcade, caravan, promenade, foot or bicycle
race, or similar event of any kind, upon any public street or roadway.

Thus, a promenade is defined as ""a leisurely
walk or ride esp. in a public place for pleasure or display"";

Therefore, a parade as defined in the statute can be descriptive of the activity of an individual or a small group.

Improbable though it may be, under the City's permit scheme as written, a person promenading, or two persons racing, are conceivably required to obtain a
permit from the City of New York. Similarly, a funeral procession, two or three cars displaying political posters traveling one behind the other, caravan style,
or a small group of friends biking together could run afoul of the law.

The fact that the defendants were part of a group exceeding 50 bicyclists does not [*6] preclude a facial challenge to the scheme.

Furthermore, the court may not simply presume that an official[note-police officer] will adhere to standards not evident on the regulation's face or embodied in authoritative decisions or practice.

Accordingly, the permit scheme is not narrowly tailored but is overly broad and, therefore, unconstitutional on
its face.

Bicycles are vehicles entitled to the use of the public roads. However, from a practical perspective, they differ in important respects from motorized
vehicles. They generally move at a slower speed than cars, and bicyclists are more vulnerable to injury. These distinctions are recognized in the traffic
rules that provide special lanes for bicycles and, in the absence of such lanes, require that they travel at the margins of the roadway. These regulations serve the dual purpose of affording bicyclists a measure of protection at the same time that they structure a traffic flow less likely to be impeded by slower
moving vehicles.

While a single cyclist's disregard of these regulations may not amount to an obstruction of vehicular traffic, a large group of cyclists riding together, and spread across the roadway from curb to curb, effectively creates a roadblock that slows and impedes the passage of other traffic.

pattern of weaving around and in front of motor vehicles, the risk of provoking public disorder is real and imminent and the bicyclists are plainly
demonstrating an intent to cause such disorder or a reckless disregard of creating a risk thereof.

Here, the evidence established, beyond a reasonable doubt, that each of the eight defendants were participants in a group of at least fifty bicyclists and, as part of that group, rode their bikes in a manner which obstructed the flow of vehicular traffic.

Accordingly, each of the defendants is found guilty of violating Penal Law Section 240.20(5).


"

Anonymous's picture
Richard Rosenthal (not verified)
Hmm, think of the implications...

From the opinion:

Bicycles are vehicles entitled to the use of the public roads. However...(t)hey generally move at a slower speed than cars....

....

(A) large group of cyclists riding together, and spread across the roadway from curb to curb, effectively creates a roadblock that slows and impedes the passage of other traffic.

...

Accordingly, each of the defendants is found guilty of violating Penal Law Section 240.20(5).


-----End of excerpts from opinion-----

I'm not going to take the time now to see if there isn't a bar in the vehicle code to cyclists riding more than two abreast in NYC; there may be. However, if there isn't, then what about riding eight abreast across the entire width of the road if the group is going the speed limit? Must one allow for/give room to people wishing to break the law by speeding in which case are you guilty of obstructing/impeding would-be law breakers?

Anonymous's picture
Carol Wood (not verified)
The scary part

"""These regulations serve the dual purpose of affording bicyclists a measure of protection at the same time that they structure a traffic flow less likely to be impeded by slower moving vehicles.""

This reasoning sounds more appropriate to a highway than to a city street. By its standard, traffic calming measures, or the presence of any non-fast-moving vehicle in the street, could be seen an impediment and violation of Penal Law Section 240.20(5).

""...a large group of cyclists riding together, and spread across the roadway from curb to curb, effectively creates a roadblock that slows and impedes the passage of other traffic.""

By the same reasoning, wouldn't a line of backed-up cars on a side street create the same illegal curb-to-curb impediment? What's the difference?

The judge seems to ignore the reality of crowded city streets, in favor of protecting the DOT's ""traffic flow.""

""While a single cyclist's disregard of these regulations may not amount to an obstruction of vehicular traffic, .... [due to a] pattern of weaving around and in front of motor vehicles, the risk of provoking public disorder is real and imminent....""

To a city bike commuter, this argument is scary. It simply isn't possible to ride in this city without weaving around cars. Very little space is set aside for bikes, and what little space there is, is invaded by vehicles.

Yet while an automobile takes up 12 times as much space as a bike and clogs every intersection, bikes are judged as creating public disorder?

""Here, the evidence established, beyond a reasonable doubt, that each of the eight defendants were participants in a group of at least fifty bicyclists and, as part of that group, rode their bikes in a manner which obstructed the flow of vehicular traffic. Accordingly, each of the defendants is found guilty of violating Penal Law Section 240.20(5).""

So parade permit or no, 50 bicyclists riding in the street are committing a crime of disorderly conduct; drivers are just exercising their protected rights.

We recreational cyclists better hope that more people DON'T start riding in the city, lest we find ourselves charged with obstructing traffic because too many of us are on the road.

Either that, or expect to continue challenging the city's irrational, disparate treatment of drivers and cyclists. That's what this conflict is fundamentally about.

--------------

P.S. Richard, there is no law against riding two abreast in NYC. I believe there is in some circumstances in the state code, but the city code supercedes that here. Rich Conroy will know."

Anonymous's picture
<a href="http://www.OhReallyOreilly.com">Peter O'Reilly</a> (not verified)
city code supercedes state code

No. Motor Vehicle code is regulated solely by the State.

Anonymous's picture
Richard Rosenthal (not verified)
Yes, but...

I believe there is a qualification in the NYS code that carves out exceptions in some provisions of the code for municipalities with populations in excess of one million people...which, in NY state, is, I think, only New York City.

Anonymous's picture
<a href="http://www.OhReallyOreilly.com">Peter O'Reilly</a> (not verified)
one million people

"That exception applies to physical items like ""traffic control devices"" and signs.

See here:
http://tinyurl.com/awtgs


By the way, my original intent was not meant to quibble with Carol, rather her comments just reminded me of Piermont and Grand View-On-The-Hudsons' illegal enforcement of cyclists using the roadway that passes through these places."

Anonymous's picture
Richard Rosenthal (not verified)
Multiple exceptions in NYS V&T Code for 1,000,000 pop. towns

Peter's above citation is but one mention in the New York State Vehicle & Traffic Code of exceptions or applications in it for municipalities having more than one million people.

I'm not about to take the time to do more than lay before readers here the following sections that make mention of these exceptions and applications:

Vehicle and Traffic Law § 207
Uniform traffic summons and complaint.

Vehicle and Traffic Law § 236
Creation, personnel.

Vehicle and Traffic Law § 237
Functions, powers and duties.

Vehicle and Traffic Law § 241-A
Complaint procedure for satisfied or wrongfully im

Vehicle and Traffic Law § 375
Equipment.

Vehicle and Traffic Law § 401
Registration of motor vehicles; fees; renewals.

Vehicle and Traffic Law § T4A16
Registration of Dealers and Transporters

Vehicle and Traffic Law § 415-A
Vehicle dismantlers and other persons engaged in t

Vehicle and Traffic Law § 415-B
Local regulation of vehicle dismantlers in cities

Vehicle and Traffic Law § 498
Inter-municipal for-hire vehicle operation.

Vehicle and Traffic Law § 509-A
Definitions.

Vehicle and Traffic Law § 510
Suspension, revocation and reissuance of licenses

Vehicle and Traffic Law § 1111
Traffic-control signal indications.

Vehicle and Traffic Law § 1111-A
Owner liability for failure of operator to comply

Vehicle and Traffic Law § 1193
Sanctions.

Vehicle and Traffic Law § 1204
Officers authorized to remove illegally stopped ve

Vehicle and Traffic Law § T7A33
Miscellaneous Rules

Vehicle and Traffic Law § 1220-A
Liability for violation of a local law prohibiting

Vehicle and Traffic Law § 1224
Abandoned vehicles.

Vehicle and Traffic Law § 1229-B
Operation of school, camp and charter omnibuses wi

Vehicle and Traffic Law § 1603
Delegation of powers.

Vehicle and Traffic Law § 1620
Speed limits on state highways, and on Indian rese

Vehicle and Traffic Law § 1632
Application of article.

Vehicle and Traffic Law § T8A39
Regulation of Traffic by Cities and Villages

Vehicle and Traffic Law § 1642
Additional traffic regulations in cities having

Anonymous's picture
<a href="http://www.OhReallyOreilly.com">Peter O'Reilly</a> (not verified)
New York State Bicycle and Pedestrian Laws

"The 1 million figure also applies to highways, but that's not relevant to bicycles.

Maybe the 2 abreast rule applies to Mount Vernon and Scarsdale, but it is not true in Yonkers. Instead, in Yonkers cars must be equipped with steering wheels on the right side of the car and bicycles must be ride to the ride side as much as permissable. Meanwhile folks riding bikes in Palookaville must only ride them on the sidewalks. Ok, you guess it, I'm being facetious at this point, beyond the obvious.

Seriously, here's the link to the New York State Bicycle and Pedestrian Laws:
http://www.dot.state.ny.us/pubtrans/share.html

There's no mention about riding two abreast being prohibited other than passing a vehicle.

This begs the obvious question, if the rules of the road apply to bikes as much as they do to cars, then how is it possible for a a cyclist to pass another without violating the vehicle code? Are both cyclists subject to ticketing? Note we're talking NY State here and not to be confused with places like Palisades Ave in Englewood Cliffs, NJ.

Or how about motorcycles with side cars? Or side by side bicycles like the ones below? Does the 2 abreast rule still apply?




(thumbs up, excellent book by the way)




"

Anonymous's picture
<a href="http://www.OhReallyOreilly.com">Peter O'Reilly</a> (not verified)
fearing or following the law (of unintended consequences)

I reckon it's a hassle to get a parade permit, but if Critical Mass was required such, then it would be perfectly acceptable for its participants to ride through red lights and have their equipment, in this case bikes secured to posts adjacent to the parade route without fear of confiscation, among other offerings that a permit provides.

cycling trips