5BBC et al vs. NYPD

• Ed DeFreitas, club president in 2007, announces the suit

Click here or scroll down to the bottom for the current status of the case.

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Case History

March 27, 2007

• The complaint (35 pages).
• The order to show cause (3 pages).
• The declaration in support of the order to show cause (3 pages).
• The memorandum of law in support of the motion for preliminary injunction (53 pages).
• Individual Declarations (22 files).

March 28, 2007

• The City responds with a memorandum, exhibits, and three individual declarations.

March 29, 2007

• Plaintiffs respond with a Letter to Judge Kaplan.
• The argument on Plaintiffs' Motion for a Preliminary Injunction was heard today before the Honorable Lewis A. Kaplan of the Southern District of New York. Judge Kaplan stated that he did not have sufficient time to review the parties' submissions in order to decide Plaintiffs' motion by Friday March 30, as Plaintiffs had requested. The Court ruled that it would hear additional evidence next week and then decide in the near future (and not later than April 27 when the next Critical Mass ride in Manhattan is expected to take place) whether or not to preliminarily enjoin the enforcement of the City's parade rules.

March 30, 2007

• The March Critical Mass takes place. Five arrests and nearly 50 summonses are reported. According to press reports, none of the arrests or summons were for "parading without a permit."

April 2, 2007

• The City filed a supplemental affidavit from NYPD Lieutenant Gannon.

April 3, 2007

• The plaintiffs respond to Lt. Gannon's declaration.

April 5, 2007

• Plaintiffs depose NYPD Lt. Caneco on the subject of group bicycle rides.

April 9, 2007

• Plaintiffs write a letter to Judge Kaplan regarding contradictions in Lt. Caneco's statements.

April 10, 2007

• The City responds with their own letter to Judge Kaplan attempting to explain the contradictions.

April 17, 2007

• Judge Kaplan issues a decision denying Plaintiffs' motion for a preliminary injunction. The 5BBC and the other Plaintiffs in the suit look forward to our opportunity to demonstrate on a full record that the City's parade rules are an unjustified and unconstitutional restriction of our right to ride in groups.

May 4, 2007

• Plaintiffs file their first discovery request.

May 23, 2007

• The City files its own discovery request.

September 6, 2007

• Plaintiffs file a brief in the Second Circuit Court of Appeals appealing Judge Kaplan's April 17 decision denying plaintiff's motion for a preliminary injunction.

October 29, 2007

• Fifteen bicyclists who were arrested by the NYPD at Critical Mass rides in October and November 2004 file their own lawsuit against the city seeking damages for false arrest, malicious prosecution, violations of constitutional rights, and more. [This entry updated 5/2009 to show the current status of this case, named Callaghan after the first listed plaintiff. The above link is now the 3rd Amended Complaint, filed in 2008 - after amendment, the case has added dozens more plaintiffs.]
• This case does not involve the 5BBC.

November 8, 2007

• The City files a brief opposing Plaintiff's September 6, 2007 appeal to the Second Circuit.
• The City files notice that they want to depose 4 of the Plaintiffs.

November 9, 2007

• Plaintiffs ask Judge Kaplan to force the City to provide documents that were requested in discovery concerning bicyclists not directly involved in the lawsuit; NYPD logs and other activity records relating to bicyclist arrests; documents concerning NYPD surveillance and infiltration of group bicycle rides; and documents concerning application of the Parade Rules to non-bicycling events

November 16, 2007

• Plaintiffs file an amended complaint.

November 21, 2007

• Plaintiffs file further argument with the Second Circuit appealing Judge Kaplan's decision to not issue a temporary restraining order.

November 28, 2007

• Judge Kaplan issues an order compelling the City to release most of the documents requested by the Plaintiffs on November 9.

November 29, 2007

• Plaintiffs file their second set of interrogatories.

December 6, 2007

• The City answers the November 16 amended complaint.

December 12, 2007

• The City writes a letter asking Judge Kaplan to reconsider his November 28 order.

December 17, 2007

• Plaintiffs file a motion opposing the City's request for reconsideration.

December 18, 2007

• NY City replies, with another letter reiterating their argument.
• Judge Kaplan denies the City's request for reconsideration, scolding them for attempting to "reargue points already made" and for not following proper procedure.

January 3, 2008

• Judge Kaplan issues an Amended Scheduling Order giving various deadlines for the case.

January 10, 2008

• NY City files a second set of interrogatories and document requests.

Febuary 1, 2008

• NYC responds to and objects to the Plaintiff's November 29, 2007 second set of interrogatories.

Febuary 7, 2008

• NYC files a supplemental response to the Plaintiff's second set of interrogatories.

February 14, 2008

• Deposition of NYPD Lt. Daniel J. Albano regarding the production of documents related to the case. Exhibits referred to in the deposition are listed below:
• Exhibit 1 - notice of deposition.
• Exhibit 2 - Plaintiff's first request for production of documents.
• Exhibit 3 - Plaintiff's second request for production of documents..
• Exhibit 4 - Defendant's responses and objections to Plaintiff's second set of interrogatories.
• Exhibit 5 - NYPD detail rosters and assignment sheets for March 25, 2005 Critical Mass operation.
• Exhibit 6 - NYPD Aviation Unit Flight Data Sheet for March 25, 2005 Critical Mass operation.
• Exhibit 7 - "Cheat Sheet" used by the NYPD when issuing summonses during Critical Mass operations.
• Exhibit 8 - Declaration by Lt. Albano during a previous Critical Mass case, where he describes how the NYPD removed bicycles "left unattended on public property", how he approached the Time's Up group to ask them to obtain a permit for Critical Mass, and more.
• Exhibit 9 - An article published in the NY Daily News under the byline of Police Commissioner Ray Kelly, claiming that "extemists have hijacked" the Critical Mass rides.
• Exhibit 10 is the New York City report Bicyclist Fatalities and Serious Injuries in New York City, 1996-2005. [link above is to the NYC Department of Transportation web site, which has a better quality version than that filed with the Court.]
• Exhibit 11 - NYPD Chief of Transportation Michael Scagnelli writes to Transporation Alternatives just before the August 2004 Critical Mass advising that the police will take action "against future violators of the law"
• Exhibit 12 - Another letter from Chief Scagnelli, this time to Time's Up, in September 2004, suggesting that Time's Up apply for a permit for the Critical Mass.
• Exhibit 13 - email from Lt. Albano regarding questions about how the NYPD's new Parade Rules affect Bike Month events.
• Exhibit 14 - NYPD summary of the June 30, 2006 Critical Mass.
• Exhibit 15 - The NYPD TARU unit, famous for videotaping the public at Critical Mass and other public events, is called in to record the public hearing held on the Parade Rule changes at 1 Police Plaza.
• Exhibit 16 - NYPD "command log" from the November 26, 2004 Critical Mass.
• Exhibit 17 - there is no Exhibit 17. Move along now.
• Exhibit 18 - This large document (11 MB) lists the arrests and summonses for the Critical Mass rides on December 29, 2006 (page 1), November 30, 2007 (page 8), October 26, 2007 (page 29), September 28, 2007 (page 42), May 25, 2007 (page 64), and June 29, 2007 (page 77).
• Here are the Critical Mass arrest and summonses summary memos broken out into individual documents. Filesizes range from 1 to 4 MB:
• December 29, 2006 arrests and summonses
• May 25, 2007 arrests and summonses
• June 29, 2007 arrests and summonses
• July 27, 2007 arrests and summonses
• September 28, 2007 arrests and summonses
• October 26, 2007 arrests and summonses
• November 30, 2007 arrests and summonses

February 20, 2008

• Plaintiffs file a motion to compel the City to disclose information about use of undercover police operatives during group bicycle rides.
• Exhibit A - Plaintiff's Document Request Nos 7(c) and 11.
• Exhibit B - Declaration of Eileen Clancy (on NYPD's use of undercovers).
• Exhibit C - Supplemental Declaration of Eileen Clancy.
• Exhibit D - Notice of Filing of DVD exhibit.
• Exhibit E - Plaintiff's Interrogatory requesting description of NYPD use of undercover surveillance in connection with group bicycle rides.
• Exhibit F - "Defendants failed to timely respond ..."
• Exhibit G - "... and instead requested or simply took ..."
• Exhibit H - "... several extensions of time ..."
• Exhibit I - NYC's initial response to Plaintiff's Interrogatory.
• Exhibit J - NYC's supplementary response to Plaintiff's Interrogatory.
• Exhibit K - Defendant's general and specific responses to Plaintiff's Document Requests Nos 7(c) and 11 dated June 5, 2007 do not refer to law enforcement privilege.
• Exhibit L - November 21, 2007 letter from Mark Muschenheim to Judge Kaplan raising only relevance objections to Plaintiff's motion to compel production of documents concerning use of undercover personnel.
• Exhibit M - McNamara vs. City of New York, 04-Civ.9216 (S.D.N.Y. April 20, 2007), decision ordering the City to produce documents related to the use of undercover officers at RNC-related demonstrations.
• Exhibit N - "The press has documented the use of undercover personnel at Critical Mass and other group bicycle rides."
• Exhibit O - "On January 25, 2008, Plaintiffs proposed a confidentiality order to protect sensitive law enforcement information from public disclosure, to which the Defendants still have not responded."

October 7, 2008

• Deposition of NYPD Officer Kenneth Wagner of the First Precinct Scooter Task Force.

November 10, 2008

• Report of Andrew Beveridge on traffic enforcement against cyclists on the last Friday of the month in the Union Square area. Among his findings is that non-commercial cyclists are 337 times more likely to receive a summons on Critical Mass nights at Union Square than during other nights.

November 21, 2008

• Deposition of NYPD Deputy Commissioner of Public Information Paul Browne

January 9, 2009

• Deposition of NYPD Assistant Chief Stephen Paragallo

January 9, 2009

• Deposition of NYPD Deputy Inspector Dennis DeQuatro
• Audio excerpt: "They don't look like Critical Mass guys..." from NYPD radio transmissions of June 27, 2008 (see PDF page 56 of the DeQuatro deposition above). Playing time: 2 minutes, 34 seconds.

January 13, 2009

• Deposition of former NYPD Deputy Chief Bruce Smolka

January 28, 2009

• The Second Circuit denies Plaintiffs' appeal of the denial of the request for preliminary injunction.

January 22, 2009

• Deposition of NYPD Chief Michael Scagnelli

February 7, 2009

• Plaintiffs file a Motion for Leave to File a Second Amended Complaint

February 17, 2009

• Deposition of Police Commissioner Ray Kelly

February 23, 2009

• Plaintiffs file a Reply Memorandum in support of the previous Motion for Leave to File a Second Amended Complaint
• Exhibit A - Deposition of Police Commission Ray Kelly
• Exhibit D - Deposition of Officer Wagner
• Exhibit E - Several NYPD post-Critical Mass reports
• Exhibit G - Deposition of NYPD Assistant Chief Stephen Paragallo
• Exhibit H - Deposition of former NYPD Deputy Chief Bruce Smolka

February 24, 2009

• Judge Kaplan denies plaintiffs' request to amend the complaint.

March 11, 2009

• Deposition of Assistant Chief James Tuller

April 19, 2009

• The trial date is set for Tuesday, May 12, 2009, 11 AM at the United States Courthouse, 500 Pearl Street, Room 12D. We hope you can attend to show your support for group bicycling! Since the trial schedule may change at the last minute, please check this page on May 11 for any status updates.

May 11, 2009

• The trial will start as scheduled on Tuesday, May 12. See you there!

May 12, 2009

• The trial opened as scheduled, and is moving along at a brisk pace. The full transcript of the day's proceedings is now online.
• The trial resumes at 9:30 AM, Wednesday May 13, 2009, at 500 Pearl Street room 12-D, Judge Lewis Kaplan's courtroom.
• Please remember that cell phones, cameras, and other electronics are not permitted in the courtroom and must be checked with the security guards downstairs.

May 13, 2009

• The trial resumed as scheduled. The full transcript is online.
• The trial resumes at 9:30 AM, Thursday May 14, 2009, at 500 Pearl Street room 12-D, Judge Lewis Kaplan's courtroom. Please remember that cell phones and other electronics are not permitted in the courtroom and must be checked with the security guards when entering the building.

May 14, 2009

• The trial finished today. The full transcript is online.
• There will be a (probably short) session Friday, May 15, 2009 at 10:30 AM for oral argument (same place, 500 Pearl St room 12-D, be sure to check cell phones etc. with the security staff when entering the building).

May 15, 2009

• Oral arguments took place this morning. Transcript is online.

February 16, 2010

• Nine months after the trial ended, Judge Kaplan issued his ruling, dismissing the case.
• The 5BBC is disappointed by Judge Kaplan's 54-page decision and will respond further after we and the other Plaintiffs have had a chance to study it.

March 8, 2010

• The City asks the Court to order the plaintiffs to pay allowable costs, such as deposition transcripts, trial transcripts, witness fees, docket fees, and printing and duplication costs for transcripts admitted as evidence at trial. The total costs requested are $31,880.81.

March 22, 2010

• The plaintiffs do not appeal. The case is over except for the matter of costs, which the plaintiffs will dispute.

July 13, 2010

• Judge Kaplan issues his decision regarding the final amount of the costs and who is liable. The costs are reduced to $16,000 and liability is split to $4000 for the 5BBC and $2000 for each of the six individual plaintiffs.