448 95f1fivt 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 FIVE BOROUGH BICYCLE CLUB, et 3 al., 4 4 Plaintiffs, 5 5 v. 07-CV-2448 (LAK) 6 6 THE CITY OF NEW YORK, et al., 7 7 Defendants. Bench Trial 8 8 ------------------------------x 9 New York, N.Y. 9 May 15, 2009 10 10:33 a.m. 10 11 Before: 11 12 HON. LEWIS A. KAPLAN, 12 13 District Judge 13 14 APPEARANCES 14 15 DEBEVOISE & PLIMPTON LLP 15 Attorneys for Plaintiffs 16 BY: ERIK C. BIERBAUER, ESQ. 16 SHANYA J. DINGLE, ESQ. 17 STEVE VACCARO, ESQ. 17 BRENDAN W. CALDON, ESQ. 18 EMILY J. MATHIEU, ESQ. 18 JOHN CURLEY, Law Clerk 19 RICHARD BREA, Technician 19 20 CITY OF NEW YORK DEPARTMENT OF LAW 20 OFFICE OF THE CORPORATION COUNSEL 21 For Defendants 21 BY: MARK W. MUSCHENHEIM, ESQ. 22 ROBIN BINDER, ESQ. 22 NICHOLAS R. CIAPPETTA, ESQ. 23 TERESITA V. MAGSINO, ESQ. 23 CHRISTIAN SCHERER, Law Clerk 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 449 95f1fivt 1 (Trial resumed) 2 (In open court) 3 THE COURT: Okay. I'm not sure, Mr. Muschenheim, 4 whether you wanted to be heard further since it was a brief 5 period yesterday afternoon you had, or whether I should go 6 right to the plaintiffs. 7 MR. MUSCHENHEIM: I think it's fine to just go 8 straight to the plaintiffs. 9 THE COURT: Okay. Mr. Bierbauer, Mr. Vaccaro? 10 MR. BIERBAUER: Mr. Vaccaro. 11 MR. VACCARO: Good morning, your Honor. 12 THE COURT: Good morning. 13 MR. VACCARO: When government sets out to target a 14 particular event with a general rule, it's not surprising 15 that -- 16 THE COURT: Can you get closer to the microphone and 17 speak up. 18 MR. VACCARO: Sure. How's that? 19 THE COURT: Better. 20 MR. VACCARO: When government sets out to target a 21 particular event with a general rule, it's not surprising that 22 you end up with unintended and impermissible consequences. We 23 believe the evidence has shown that that's what NYPD has done 24 here with the amended parade rules, and as a result, we have 25 got a burdening of substantial First Amendment conduct that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 450 95f1fivt 1 does not present the evils that the city is trying to regulate. 2 Just by way of overview, I'd like to explain or list 3 what those burdens are. We believe that the 50-person 4 threshold is arbitrary; we believe that there's vagueness in 5 the recognizable group standard; the chief officer requirement 6 remains burdensome and chilling; there's difficulties in 7 obtaining a permit; the fixed route requirement is inflexible; 8 and there's a lack of guidance to the NYPD decision makers with 9 respect -- 10 THE COURT: I'm sorry. You say the what is 11 inflexible? 12 MR. VACCARO: The fixed route requirements. 13 THE COURT: And what's wrong with it being inflexible? 14 The rule against murdering your neighbor is also inflexible. 15 MR. VACCARO: When viewed in the context of the 16 overall permitting scheme, we don't believe that an absolute 17 fixed route requirement should be necessary for groups of 50. 18 We believe the evidence on the Brooklyn Critical Mass rides, 19 which was largely undisputed, shows that rides without a fixed 20 route are permitted to occur on a monthly basis, at many times 21 exceeding 50 persons, and are not presenting problems of 22 traffic disruption or safety that NYPD is unable to handle. 23 Just before I go in and explain the evidence that goes 24 to each of these elements of the permitting scheme that we 25 believe are unconstitutional, I just want to stress that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 451 95f1fivt 1 plaintiffs gave extensive evidence of their interest in riding 2 in groups of 50. It's a real powerful and distinct set of 3 interests that combine expression -- expression, association 4 and travel all in the same activity, and we believe that the 5 Court's constitutional analysis should take account of the 6 distinctive nature of this activity as they're practiced 7 together and not only looking at them separately for purposes 8 of the analysis. 9 THE COURT: I don't understand that. Didn't I take 10 all that into account on the preliminary injunction motion? 11 Didn't the Court of Appeals say the analysis was correct? 12 MR. VACCARO: I certainly don't dispute your Honor's 13 interpretation of its ruling and of the Court of Appeals 14 analysis, but we -- we would like the Court to consider that 15 this is an important, unique and deeply felt motive on 16 plaintiffs' part to engage in this form of constitutionally 17 protected conduct and that that should inform the analysis. 18 THE COURT: So if somebody believes, deeply and 19 sincerely believes that a way of expressing their view that 20 society is too materialistic and that private property is a 21 mistake is by shoplifting, the deeply felt nature of that 22 conviction should inform the constitutional analysis of a law 23 that prohibits shoplifting? I just don't see it. 24 MR. VACCARO: To the extent that there's conduct at 25 issue here that is in violation of the law, we are not arguing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 452 95f1fivt 1 that that is the conduct that triggers constitutional 2 protection. 3 THE COURT: Well, that's the fundamental problem with 4 your argument. It is conduct. I understand there are 5 expressive features. I think I took that very much into 6 account two years ago and, were there not, would have applied a 7 radically different and radically more charitable of the city 8 analysis to the whole enterprise. But the Supreme Court in 9 O'Brien and a whole string of cases has made it absolutely 10 clear that where we have conduct and expression mixed together, 11 a particular set of standards applies, which I have applied, 12 and which the Court of Appeals said I applied properly. So it 13 seems to me the only questions that are open here on this 14 issue, if any, are whether the factual record today warrants a 15 result different than two years ago under exactly the same law. 16 Isn't that right? 17 MR. VACCARO: Yes, your Honor, and I will move on and 18 address that issue. 19 One of the points made in your Honor's ruling on the 20 preliminary injunction motion was that evidence that rides of 21 greater than 50 that had been tolerated and accommodated by the 22 city prior to that point, prior to the institution of the new 23 parade rule scheme, did not demonstrate that the city had made 24 exceptions to the rule going forward. We now have a two-year 25 record. The city has made substantial exceptions, and there's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 453 95f1fivt 1 quite a bit of authority suggesting that such exceptions prove 2 that a less restrictive rule, you know, could easily serve the 3 government's interest. The best example, again, the Brooklyn 4 Critical Mass rides, about which there was extensive evidence, 5 and I would point out, the evidence from the city and from 6 plaintiffs was really quite close and that that is, of course, 7 striking in a case where the parties seem to have such direct 8 insoluble positions. 9 THE COURT: Isn't it true that most of the Brooklyn or 10 many of the Brooklyn Critical Mass rides are under 50? 11 MR. VACCARO: Many of the Brooklyn rides are under 50. 12 There is such evidence. We believe there's also evidence of 13 approximately three to five rides a year that approach or 14 exceed 50 in Brooklyn. 15 THE COURT: And isn't there evidence that the 16 environment in Brooklyn between the police department and the 17 riders is just fundamentally different from what it's been in 18 Manhattan? 19 MR. VACCARO: Well, that's really a chicken-and-egg 20 issue. The question is whether the difference in Manhattan 21 stems from the fact that the rides have been deemed from the 22 outset as an illegal event and whether that has been at the 23 root of the problems between the participants in Manhattan -- 24 THE COURT: Well, but let's look at this analytically. 25 I mean, we start from the proposition, I take it, from your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 454 95f1fivt 1 response, that as a factual matter you agree that there is an 2 abundance of evidence that the atmosphere between the police 3 and the Brooklyn Critical Mass riders is fundamentally 4 different than it is in New York, correct? 5 MR. VACCARO: Yes. 6 THE COURT: Okay. So you say it's a chicken-and-egg 7 problem. Now there's absolutely no evidence in the record 8 about any problems in Brooklyn from the beginning of time up to 9 now, isn't that true? 10 MR. VACCARO: That's correct. 11 THE COURT: Okay. And in Manhattan you have a 12 fundamentally different situation, right? 13 MR. VACCARO: What you have in Manhattan, I believe 14 the history of the ride in Manhattan, elicited through the 15 testimony of Officer Wagner in particular but also through the 16 deposition testimony designated from Commissioner Kelly, 17 indicates a scenario in which the police and the bicyclists 18 were cooperating for a period of time and there was a sudden 19 switch in the NYPD's policies towards the Critical Mass events 20 and there's been tremendous antagonism since then. 21 THE COURT: Well, even assuming that to be true, there 22 are certainly events that evidence very substantial, indeed 23 arguably massive misconduct by people involved with Critical 24 Mass, following which the change of which you speak took place, 25 isn't that true? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 455 95f1fivt 1 MR. VACCARO: There is some evidence of misconduct by 2 some Critical Mass participants following the change in policy. 3 THE COURT: You say the misconduct followed the change 4 of policy. 5 MR. VACCARO: That's correct. There is some evidence 6 of that. But viewed in context of the history of it, we just 7 think that that context is very important when you consider 8 that the NYPD was tolerating or facilitating rides of thousands 9 during the period leading up to the Republican National 10 Convention. 11 THE COURT: And then they found themselves with your 12 riders on the West Side Highway, on the FDR Drive, on the 13 Queensboro Bridge, and all sorts of other things, which, seems 14 to me, the police commissioner is entitled to say is simply not 15 going to be tolerated. 16 MR. VACCARO: And we completely understand the police 17 commissioner's determination, and we're not here to argue that 18 that is an improper determination. What we're saying is that a 19 50-person rule is a bad proxy for trying to regulate that 20 conduct. There are many other more -- 21 THE COURT: Why is it a bad proxy? I listened to your 22 first witness -- forgive me, I don't remember her name 23 offhand -- admitting that she went up on the Queensboro Bridge 24 and, oh, my goodness, she didn't know it was illegal. Well, 25 okay. I have no reason to question that. She seemed like a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 456 95f1fivt 1 perfectly nice lady and an intelligent person, and I'm going to 2 assume that she never would have done it if she had known that 3 she shouldn't have done it. And if somebody had filed an 4 application for a permit and said, we're going to go over the 5 Queensboro Bridge, and behaved in a normal, cooperative way 6 like everybody else, the police department would have said, you 7 can't go on the Queensboro Bridge, and if there was goodwill 8 and cooperation on both sides, none of this ever would have 9 happened. But there isn't. There is what seems to me to be 10 essentially an ideological position on the part of some people 11 involved with the Critical Mass, at least, that, you know, they 12 just don't have to behave like everybody else. 13 MR. VACCARO: It is not that ideological position 14 we're attempting to champion here, your Honor. We're trying to 15 focus on the evidence that shows that setting a 50-person 16 requirement triggering a parade permit -- 17 THE COURT: Well, what's the number in your view; 53, 18 47, 92? I mean, how do you get to this? 19 MR. VACCARO: I think that the evidence showed that 20 there's a wide range of group bicycle rides that involved 50, a 21 hundred, 150. I don't know what the number should be, and it's 22 not our burden to show what it is, but we believe the evidence 23 shows that 50 is significantly too low. It should be multiples 24 of that. The rides such as those organized by the Five Borough 25 Bicycle Club, the Montauk Century and the Five Borough Bicycle SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 457 95f1fivt 1 Club day trips that occasionally go over 50 riders, there's 2 absolutely no evidence to suggest that they create any problem 3 at all. And where the police have required permits from those 4 rides and they've been obtained, the fact that the NYPD has not 5 even shown up at the origination points of those rides, we 6 think it's very significant and shows that there's never been a 7 concern and there will not be. 8 THE COURT: But I just don't get that. I mean, I 9 assume the NYPD doesn't show up for every high school baseball 10 game in the city of New York either, but I suppose that if, 11 several weeks running, a riot broke out after a game between 12 Erasmus Hall and Midwood, they'd be there. 13 MR. VACCARO: The point is that there have been 14 decades of this activity and there hasn't been any riots 15 breaking out at these rides, which constitute a substantial 16 amount of protected conduct that is burdened by the parade 17 rules. There hasn't been that history. The history has been 18 there to some degree with Manhattan Critical Mass in the 19 context of everything leading up to the RNC. We think that if 20 the city is concerned about regulating that event, they should 21 be regulating the configuration of the bicyclists, the conduct 22 of the bicyclists and the number of the bicyclists perhaps, but 23 with the number -- 24 THE COURT: Isn't it a reasonable thing to do, if 25 that's the objective, and, I suppose, at least part of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 458 95f1fivt 1 objective, to say, we want to know where you're going? What's 2 the problem? 3 MR. VACCARO: The problem is one of requiring citizens 4 to basically register their itinerary with the NYPD and obtain 5 advance approval of that itinerary before they engage in 6 constitutionally protected conduct, which is group travel. 7 THE COURT: The Thanksgiving Day Parade is traveled by 8 citizens. Do you think that it's unconstitutional to say to 9 Macy's that before you have the Thanksgiving Day Parade, you've 10 got to come to the police department and tell us where it's 11 going? 12 MR. VACCARO: Of course not, your Honor. That's a 13 very different event that we're talking about here. The Macy's 14 Day Parade, there's a clear city interest in knowing where 15 those balloons are going to be headed in Manhattan. The 16 problem we've got here is that it's a square peg into a round 17 hall. We've got these groups of bicyclists who are meeting for 18 day trips, for the Montauk Century -- and I just point out on 19 the Montauk Century, this is the vagueness issue as well as the 20 overinclusiveness issue. 21 THE COURT: But you've already argued the vagueness 22 issue to the Court of Appeals, right? Am I not right about 23 that? 24 MR. VACCARO: I believe that the record is different 25 now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 459 95f1fivt 1 THE COURT: Well, but the statute didn't change, so 2 whatever level of definition is in the parade regulations is a 3 constant, and you made the vagueness argument before and you 4 lost at two levels. So how is that even open for 5 consideration? 6 MR. VACCARO: We believe that the subsequent history 7 of the application of the recognizable group standard as 8 evidenced by the city's insistence that a group of individuals 9 who aren't even within visual contact of each other constitute 10 a group of 50. 11 THE COURT: Where's the evidence of that? 12 MR. VACCARO: That is in the record shown by the 13 correspondence, the permitting correspondence with respect to 14 the Montauk Century event where plaintiffs each year since the 15 preliminary injunction motion asked for an exemption from the 16 parade rules based on the fact that there's never 50 people in 17 the same place at the same time once they get on the road for 18 the Montauk Century. We have put in those exhibits showing 19 that correspondence. Mr. Ravin, in addition, in his direct 20 testimony discussed that, as a direct participant in that 21 process, and we believe that it shows that the recognizable 22 group standard is apparently so malleable that it can reach 50 23 people who you can't even see all at once, stretched out over 24 miles. We think that that's a significant difference since the 25 record that was the basis for the two rulings on vagueness that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 460 95f1fivt 1 your Honor refers to. 2 The 5BBC day trips also often are in such a 3 configuration in which they are not even in visual contact with 4 each other. They're not -- And so we think the configuration 5 is a legitimate concern on the city's part in terms of the 6 potential to block traffic, but when there's a showing that the 7 individuals aren't truly proceeding as a group but really 8 proceeding along the same route to the same destination, that 9 there certainly is language that could be embodied in a 10 constitutionally acceptable permitting scheme that would allow 11 such events to go forth without the burden of the permitting 12 scheme, permitting requirement. 13 The other points I wanted to bring out were the chief 14 officer requirement. Your Honor was -- there were issues with 15 how the evidence went in on that point. But I just want to be 16 clear that what we've got with the chief officer requirement is 17 that NYPD has said in court that they're going to treat it as a 18 contact person sort of arrangement and they have taken out of 19 the application the text from Section 10-110(a)(5) of the city 20 administrative code that sets forth what the responsibilities 21 of the chief officer are. But 10-110(a)(5) still reads that 22 the chief officer of any procession, parade or race, for which 23 a permit may be granted by the police commissioner, shall be 24 responsible for the strict observance of all rules and 25 regulations included in said permit. And we think that NYPD, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 461 95f1fivt 1 no more than Department of Transportation, can simply ignore 2 this requirement that sets forth in the law, by removing -- 3 THE COURT: Under Chevron deference, they are entitled 4 to construe it pretty much any way they want, and if there is 5 any rational way to view it, I'm bound by their interpretation, 6 right? 7 MR. VACCARO: That is correct under Chevron, your 8 Honor. However, we don't believe that nullifying this 9 provision would meet that standard. That's number one. 10 THE COURT: And that's what "responsible for" means, 11 doesn't it? What do you think it means? 12 MR. VACCARO: Going to my second point, it could very 13 well mean vicarious civil liability in the context of 14 litigation arising from -- 15 THE COURT: Come on. Come on. I mean, it's just not 16 a -- that argument will not go over here or in any other court 17 in the land. It's just not a serious point. It's not a 18 personal comment, Mr. Vaccaro. I understand you're very 19 sincere about this, and I appreciate that, in representing your 20 client. But it's just not going anywhere. 21 MR. VACCARO: There was significant evidence at trial 22 concerning the special conditions that may be imposed on these 23 permits. There do not appear to be any guidelines or internal 24 procedures to guide the discretion of the officers who were 25 setting these conditions. Chief Paragallo testified, and there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 462 95f1fivt 1 are exhibits in the record concerning the conditions that were 2 put on a particular day trip of Five Borough Bicycle Club in 3 November 2007 in which the bicyclists sought permission to use 4 a lane of traffic that was not granted. There were the 5 conditions of strict adherence to all traffic rules, which none 6 of the witnesses could name any precedent for. 7 THE COURT: Well, but the fact of the matter is that 8 under the Vehicle & Traffic Law and the traffic rules of the 9 city of New York, everybody, pedestrians, motorists and 10 bicyclists, is obliged by law, on pain of penalty, to strictly 11 adhere to all traffic rules. Now we all certainly know that 12 most of the time there isn't a cop around and sometimes even 13 when there is a cop around that they either don't see or they 14 look the other way, and that's a fact of life. But the simple 15 truth of it is that the so-called condition is meaningless 16 because all it does is restate what is the law anyway, isn't 17 that right? 18 MR. VACCARO: In this case it's not right, because 19 there was an additional condition that the bicyclists may not 20 proceed more than two abreast, which is -- 21 THE COURT: Well, that's different from strict 22 adherence to the traffic laws. 23 MR. VACCARO: That's correct. It was one of the 24 additional conditions that was added along with strict 25 adherence to the traffic laws. And -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 463 95f1fivt 1 THE COURT: But that's a different point. 2 MR. VACCARO: Yes, your Honor. I -- and on that 3 different point, we think that the -- when you put together the 4 special conditions that were applied to that ride, it 5 demonstrates that NYPD has unfettered discretion to apply 6 unreasonable and arbitrary restrictions on small processions as 7 to which there's no evidence that they would cause any traffic 8 disruption or safety hazards. 9 THE COURT: Well, one of the problems here is that 10 they don't know in advance whether they're dealing with a small 11 procession, even by your standard, because your people refuse, 12 as a matter of principle, to tell them how many people they 13 expect, right? 14 MR. VACCARO: Whether it's a matter of principle, I 15 can't speak for every situation, but generally these rides are 16 done on a show-and-go basis, as you say, that people don't 17 preregister. 18 THE COURT: Well, I understand that, but believe me, 19 somebody had an idea that 4,000 people were going to show up on 20 that occasion as opposed to 50. 21 MR. VACCARO: Yes. But the point I'm trying to make 22 is that the 50-person threshold as the sole trigger for the 23 permitting requirement is sweeping in not only events which 24 people suspect are going to include 4,000 people but a number 25 of events which could easily draw 40 people or 60 people, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 464 95f1fivt 1 that is one of the key issues that plaintiff Five Borough 2 Bicycle Club is trying to bring to the Court and explain that 3 these are rides that should not be within the sweep of the 4 50-person rule. 5 Again, turning to Section 10-110(a)(2), there is a 6 detailed requirement already written into the statute providing 7 for parades to be conducted in certain places and not others, 8 on certain days of the week and not others, and at certain 9 times of the day and not others. We think that a 24/7 10 five-borough rule that requires a permit on any event that 11 exceeds 50 is much broader than what's been justified by the 12 evidence here and it burdens the substantial conduct of rides 13 that have never been associated with traffic disruption or 14 safety problems. This is evidence right here in the statute 15 that it's possible to have a framework that does not burden 16 rides, that in no way implicates the city's interests, and we 17 think that -- we think that the 24/7 rule that the city is 18 establishing is just not justified by the evidence. 19 I'd just like to point out that, lastly, that with 20 respect to the VTL 1231 claim, very briefly, that we think that 21 New York law rather than federal law should govern whether 22 there's a private right of action under VTL 1231. The Sheehy 23 v. Big Flats Community Day case decided by the Court of Appeals 24 sets forth the test. It's whether the plaintiff -- three 25 elements: Whether the plaintiff is one of a class for whose SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 465 95f1fivt 1 particular benefit the statute was enacted; whether the 2 recognition of a private right of action would promote the 3 legislative purpose; and lastly, whether recognizing the right 4 would be consistent with the legislative scheme. We think that 5 the most important issue raised by plaintiffs' claim under 1231 6 in terms of a private action would be the third element, the 7 consistency with the legislative scheme. We think there's a 8 broad declaration of equal rights and equal responsibilities 9 for motorists and bicyclists. We think that recognizing those 10 rights as enforceable by individual bicyclists would be 11 consistent with the scheme. There is a New York State case 12 that has implied the possibility of a private right of action 13 under another section of the VTL, which is VTL 1212. The case 14 is Lewis v. City of New York, 19 N.Y.S.3d 1109, and we would be 15 happy to provide full briefing on this issue if your Honor 16 wants to hear more about the private right of action under VTL 17 1231. 18 THE COURT: Have you made out any violation, even 19 assuming there were a private right of action? 20 MR. VACCARO: We believe the violation is established 21 by the evidence showing that NYPD has systematically enforced 22 the traffic rules, in particular VTL 1231 and 4-12(p)(3), in a 23 manner that deprives bicyclists of their ability to travel the 24 roads safely. 25 THE COURT: So do you think that someone who drives on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 466 95f1fivt 1 the FDR Drive regularly has a cause of action against the city 2 on the ground that the city has deprived that motorist of the 3 right to ride safely on the FDR by not strictly enforcing the 4 speed limit? 5 MR. VACCARO: In that case, the individual would be 6 seeking to hold the city responsible derivatively for the acts 7 of other private individuals, so I think that that's a scenario 8 somewhat different than the one we have here. 9 THE COURT: No, they're seeking to hold the city 10 directly responsible for the city's action in failing strictly 11 to enforce the speed limit. Or not strictly enforcing the 12 requirement that cabs pull to the curb before taking on or 13 discharging a passenger. Or not strictly enforcing the rules 14 about going through red lights against city buses. We could go 15 on on this, forever. 16 MR. VACCARO: That's true, your Honor, but we do think 17 that the case that we're proposing, which is one of NYPD's 18 specifically enforcing traffic rules that push bicyclists to 19 the margin of the road even when they would, under the face of 20 the traffic rules, have a right to proceed further out in the 21 road, is a more direct example -- 22 THE COURT: Well, how so? I've never understood that 23 argument in this case right from the beginning. The Vehicle & 24 Traffic Law says traffic's got to keep to the right. And the 25 very statute you asked me to imply or infer a private cause of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 467 95f1fivt 1 action from, 1231, says that you have the same obligations as 2 anybody else. So if motorists are required to go to the right, 3 why aren't bicyclists? 4 MR. VACCARO: Which code, which provision of the code 5 are you referring to that requires traffic to keep to the 6 right, your Honor? 7 THE COURT: Let me see if I can find it quickly. 8 1120, for example. 9 MR. VACCARO: We believe that 4-12 of the 34 Rules of 10 the City of New York explicitly permits bicyclists to proceed 11 on the left- or the right-hand side of the roadway and that 12 that more specific provision of the law would be applicable -- 13 THE COURT: Well, it does on one-way streets more than 14 40 feet wide. 15 MR. VACCARO: That's correct, your Honor. 16 THE COURT: But what about two-way streets? What 17 about one-way streets that are less than 40 feet wide? Why 18 aren't bicycles just as responsible for keeping to the right as 19 motorists, under your analysis? 20 MR. VACCARO: We think that bicycles have the same 21 obligations as motor vehicles to do so as far as is practicable 22 and safe, and we have submitted a great deal of evidence 23 indicating that NYPD has been forcing bicyclists into the 24 dooring zone, into a hazardous zone where numerous injuries 25 have been shown to occur to bicyclists, and we don't believe SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 468 95f1fivt 1 there's any provision of the Vehicle & Traffic Law that would 2 require the bicyclists to proceed in that manner. 3 THE COURT: Your insistence on your right, alleged 4 right to ride anywhere on the roadway at all cannot possibly 5 have any rational connection to staying outside the range of a 6 car or truck door opening against the right or left side of the 7 road, it just can't, because the road's too wide. Your 8 position is you can ride down the middle of Madison Avenue. 9 Well, I don't find that anywhere. I find the contrary. 10 MR. VACCARO: I have nothing further, your Honor. 11 THE COURT: Okay. Thank you. 12 Mr. Muschenheim? 13 MR. MUSCHENHEIM: Your Honor, I will be very brief. 14 The discussions that Mr. Vaccaro had about the burden 15 on the Five Borough Bicycle Club in complying with the parade 16 permit I think are -- it is simply a incidental burden. Much 17 of the testimony that came out was that many of these rides, 18 most of these rides, people prepare a cue sheet, and what 19 we're -- which sets forth the route that these rides are going 20 to be taking. All we're asking in that one-page application is 21 to give us that information. In many instances they already 22 have that information. So we're just asking, provide that 23 information to us, through the application. 24 In terms of the Montauk Century, you'll see in the 25 record that there is a back-and-forth between Mr. Vaccaro and I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 469 95f1fivt 1 on it during those application periods. I believe that at 2 least the first application Mr. Vaccaro said that while the 3 groups left at different points, that it was conceivable that 4 they could all regroup at one point and be over 50, and that's 5 why we decided that a permit was needed. 6 In terms of 1231, under the Sheehy case, it's -- and 7 basically the analysis is very similar to the Blessing 8 analysis. Under federal -- federal law, the plaintiff has to 9 be one of the class for whose particular benefit the 10 legislature enacted the statute, and if you look at the 11 legislative history back from the 1950s, as to 1231, the 12 statute was enacted for the general safety of -- general 13 highway safety, and that obviously is for the benefit of 14 everyone, not just bicyclists. 15 And I think that's all I have. 16 THE COURT: Okay. Thank you. 17 Any response, Mr. Vaccaro? 18 MR. VACCARO: Yes, very briefly, your Honor. 19 In the correspondence that Mr. Muschenheim referred to 20 concerning the permitting of the Montauk Century, there were 21 very, very clear statements that the ride organizers would 22 ensure that groups of 50 would not congregate anywhere within 23 New York City, if the city was willing to consider an 24 exemption, and that such a gratuitous congregation of 50 was 25 highly unlikely in any event. We made the offer that the ride SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 470 95f1fivt 1 would never involve a group of 50 in the same place at the same 2 time, and the city, for now three years, has said that 3 nonetheless, essentially because of -- you have this many 4 people following the same route, that's enough to trigger the 5 permitting requirement. 6 THE COURT: Okay. Thank you. 7 Look, I've set page limitations and a briefing 8 schedule. I'll tell you, quite frankly, that I've heard 9 absolutely nothing in this trial, or today, that even begins to 10 suggest that the Second Circuit and I were wrong on the 11 constitutionality of the parade rule or that the facts are 12 materially different and require a different result under the 13 analysis that's already been approved at two levels of the 14 federal judiciary. I have heard nothing to suggest that there 15 is any private right of action under Section 1231 of the 16 Vehicle & Traffic Law, and I am quite skeptical about whether, 17 even if there were, there has been a factual showing that there 18 has been any violation of it. 19 As I said yesterday, the part of the case that I want 20 to think about in depth more is the questions relating to 21 enforcement. I'm certainly not going to stop anybody from 22 briefing, within the limits I've set, 1231 and the parade rules 23 arguments, and obviously if you do and if you persuade me, I'll 24 certainly come to a different view. Indeed, I would do that if 25 a consideration of the evidence further warrants it. But the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 471 95f1fivt 1 likelihood that that's going to happen just doesn't seem very 2 great. 3 This is not something I haven't thought about a great 4 deal for a couple of years now. And I think in particular, the 5 arguments about the burden of the permitting application 6 process and the so-called chief officer requirement are just so 7 devoid of merit as not to be worth the paper or the toner that 8 might be devoted to anybody writing any further on it. And in 9 consideration to everybody's feelings, I'm not saying what I 10 really think about it. I understand all the other arguments, 11 but those in particular really are very problematic. 12 So I'll take the case under consideration. I'm really 13 doing no more today than saying you know where I'm likely to 14 wind up on two of the issues. 15 Okay. That's it. I do want to say one other thing. 16 I don't think anybody is more aware than I that I run a tight 17 ship in the courtroom. But I do seriously express my 18 appreciation to the lawyers on both sides for getting the case 19 in in three days, for putting before me what I need, and for 20 doing it in good spirit, despite the emotions on all sides. 21 And I want to say also that of course, as I think I said two 22 years ago, I really am not unsympathetic to the bicyclists. 23 I'm not. There was a time when I was younger where I rode my 24 bike, you know, all over the part of the city I grew up in and 25 parts I didn't. I have staff who are avid bicycle riders. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 472 95f1fivt 1 understand the arguments about bikes versus things that burn 2 fossil fuel. I'm not unsympathetic to any of it. And I'm 3 assuming everybody, or at least most everybody, is operating in 4 good faith. Certainly all the lawyers are. A great deal of 5 what I have heard here are arguments that belong in the city 6 council chamber. You know, go persuade them the number isn't 7 50. Not my job, except in the most outrageous cases. Persuade 8 the mayor, persuade the police commissioner. But there surely 9 are important public interests at stake here, not just the 10 wishes of people who, for whatever motive, want to ride 11 bicycles. And, you know, like everything else, I have a 12 perfect right and you have a perfect right to swing your arm 13 around as far and as fast and as often as you want. It stops 14 right in front of my nose. And that's the ultimate balance in 15 this case. And usually in our society, the people who get to 16 decide how close to the nose you can come are the city council 17 and the mayor, not judges. 18 So I thank you all. Have a good weekend. 19 MR. MUSCHENHEIM: Your Honor, I'm sorry. Just one 20 housekeeping -- one final housekeeping -- 21 THE COURT: More housekeeping? 22 MR. MUSCHENHEIM: God willing, housekeeping. 23 MR. VACCARO: We're not clean yet. 24 MR. MUSCHENHEIM: I spoke with Mr. Bierbauer and 25 Mr. Vaccaro earlier. There, you know, we have been -- we had a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 473 95f1fivt 1 stipulation that we submitted on the night before trial, or 2 perhaps the morning of trial, and there are obviously -- there 3 were exhibit lists exchanged, and over, you know, during the 4 trial what we thought would make a lot of sense would be to 5 submit one stipulation that sets forth all of the exhibit 6 lists, and we have a column with the objections that we still 7 had and I would also have a column that indicated some of those 8 documents are confidential, and we could do that by Monday. 9 And we think that would facilitate -- 10 THE COURT: Well, if you think it will help, I'm not 11 going to stop you from doing it. The amount of paper for what 12 is at issue here -- and I'm not being critical about it -- if 13 there were a paying client in this case, this never would have 14 happened, and it shouldn't happen even when there's not a 15 paying client. I mean, it's just incredible. I tried merger 16 cases as a lawyer with less paper than this. I mean, it's just 17 out of all proportion. Not that complicated. 18 Okay. Thank you. 19 THE CLERK: All rise. 20 o0o 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300