1 95c1fiv1 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 12, 2009 10 10:57 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 JOHN CURLEY, Law Clerk 18 RICHARD BREA, Technician Support 18 19 CITY OF NEW YORK DEPARTMENT OF LAW 19 OFFICE OF THE CORPORATION COUNSEL 20 For Defendants 20 BY: MARK W. MUSCHENHEIM, ESQ. 21 ROBIN BINDER, ESQ. 21 NICHOLAS R. CIAPPETTA, ESQ. 22 CHRISTIAN SCHERER, Law Clerk 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2 95c1fiv1 1 (In open court) 2 (Case called) 3 THE CLERK: Plaintiff, are you ready? 4 MR. BIERBAUER: Yes. 5 THE CLERK: Defendant, are you ready? 6 MR. MUSCHENHEIM: Yes, your Honor. 7 THE COURT: Good morning. 8 With respect to the business of the laptops, 9 Mr. Vaccaro, Mr. Muschenheim, are you prepared to make a 10 representation that I asked for in the order? 11 MR. VACCARO: Yes, your Honor. 12 MR. MUSCHENHEIM: Yes, your Honor. 13 THE COURT: Okay. Well, if anybody wants to open 14 briefly, I'll hear it. I've certainly read most of the 15 material that's been submitted. 16 MR. BIERBAUER: Eric Bierbauer for the plaintiffs. I 17 would like to open, your Honor, briefly. Before I do so, there 18 was one additional issue that the parties wanted to raise with 19 the Court regarding a new stipulation filed last night that 20 amends the pretrial order. There is a new fact stipulation to 21 deal with documents that defendants produced on May 6. Also, 22 the parties -- 23 THE COURT: Do I have it? 24 MR. BIERBAUER: Yes, your Honor. It was filed 25 overnight, and courtesy copies were delivered. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3 95c1fiv1 1 THE COURT: Okay. 2 MR. BIERBAUER: Also, the parties have designated a 3 small number of additional trial exhibits since submitting the 4 pretrial order. And there are a handful of objections to the 5 new exhibits which are on page 21 of the new stipulation. 6 And finally, the parties agree to move into evidence 7 at this time all exhibits that are not objected to and 8 respectfully so move. 9 THE COURT: Well, I'm not going to deal with that 10 right now because my review here is such that I have deep 11 reservations about the significance of a majority of the 12 exhibits, and just to say that you're going to dump into 13 evidence for my reading pleasure all kinds of stuff, like a 14 videotape of a woman singing the Declaration of Independence or 15 the Bill of Rights on her knees in Union Square Park with 16 nothing else happening on the video, I don't care if the city 17 doesn't object to it. So I want you to go back and take a look 18 at your exhibit lists with that in mind. 19 MR. BIERBAUER: Very well, your Honor. 20 THE COURT: Okay. I take it you know the video I'm 21 referring to. 22 MR. BIERBAUER: I do, your Honor. 23 The First and Fourteenth Amendments draw lines that 24 the police cannot cross. The evidence in this case will show 25 that the NYPD has crossed two constitutional lines. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4 95c1fiv1 Opening - Mr. Bierbauer 1 First, the police have crossed the line that says they 2 cannot selectively enforce the law against people because of 3 how they exercise their rights to freedom of association and 4 expression. The evidence will show that defendants have 5 adopted a policy of relentless zero tolerance police action 6 against the Critical Mass bicycle ride in Manhattan and no 7 other cyclists or cycling groups. The NYPD has arrested and 8 summonsed people in large numbers, set up check points, and 9 followed and intimidated small groups of bicyclists. 10 The evidence will also show that they do this only on 11 evenings when Manhattan Critical Mass occurs, while ignoring or 12 even facilitating comparable group rides at other times. The 13 police target people who are doing nothing unlawful. They 14 regularly summons Manhattan Critical Mass participants under 15 traffic laws of general applicability that do not actually 16 apply as a matter of law to the bicyclists' conduct. 17 The evidence will show they do all this out of a 18 misguided view that Manhattan Critical Mass riders are violent 19 anarchists bent on breaking the law. The net effect, we will 20 show, is that riders who want to do nothing more than 21 peacefully associate to cycle and promote cycling are chilled 22 from doing so. 23 Second, police have crossed the line that says they 24 cannot impose a parade permitting requirement that lacks a 25 factual basis and unduly burdens protected activity. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5 95c1fiv1 Opening - Mr. Bierbauer 1 evidence will show the city arbitrarily sets the number 50 as 2 the standard for requiring parade permits, when the number 3 cannot be justified by public safety or traffic concerns. The 4 evidence will show the city has compounded the error by 5 creating a permit process that is a burdensome mess, making it 6 too difficult for even a responsible, experienced organization, 7 such as plaintiff 5BBC, to know when a permit is required or 8 how to get one. 9 Let me be clear. We are not here to argue that no 10 numerical parade requirement could ever be constitutionally 11 appropriate. We are not here to argue that our clients or 12 anyone else has an unfettered right to ride any place, any 13 time, in groups of any size. We are here to show that 14 particular restrictions imposed by defendants cross 15 constitutional lines. 16 I'd like to focus first on the selective enforcement 17 claim briefly. Plaintiffs Nelson, Blythe, Shura, Son and 18 Gosciak all either participate in Manhattan Critical Mass or 19 formerly participated but do so no longer because of the police 20 crackdown against the ride. Evidence will show that group 21 bicycle rides generally, and in particular Critical Mass, 22 constitute expressive association protected by the First 23 Amendment. 24 To prevail on the selective enforcement claim, 25 plaintiffs must prove that defendants apply or enforce the laws SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6 95c1fiv1 Opening - Mr. Bierbauer 1 against individual plaintiffs in a different manner than they 2 apply or enforce them with respect to similarly situated 3 individuals, and that defendants acted with an intent to 4 inhibit or punish participants in Critical Mass. 5 As to the first element, the evidence will show that 6 for nearly five years, defendants have conducted a unique 7 campaign of aggressive enforcement against plaintiffs and 8 others involved in Manhattan Critical Mass. The crackdown has 9 been enormously effective in deterring plaintiffs and others 10 from participating. Where Manhattan Critical Mass generally 11 drew hundreds of riders in 2003 and 2004, it now draws a few 12 dozen. There is no evidence that the number of participants 13 has ever reached 100 since June 2007. The parties have 14 stipulated that from January to August 2008, Manhattan Critical 15 Mass averaged only 31 participants per month. 16 Plaintiffs do not contend that there should be no 17 policing of Manhattan Critical Mass or that Manhattan Critical 18 Mass riders who break laws should be immunized from being 19 summonsed. Plaintiffs' concern is with law enforcement actions 20 that chill people from riding in Manhattan Critical Mass even 21 when they take all reasonable steps not to violate any laws. 22 The evidence will show that defendants' selective 23 crackdowns sweeps in innocent people and crosses constitutional 24 lines. First, the evidence will show that defendant regularly 25 misapplied traffic laws to Manhattan Critical Mass SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7 95c1fiv1 Opening - Mr. Bierbauer 1 participants. We're not talking about the parade rules here, 2 your Honor, which defendants have enforced at only one Critical 3 Mass ride since they were amended in February 2007. Lacking 4 violations of parade rules to punish, police have instead 5 turned to laws that either do not exist in New York City or 6 clearly do not apply to the conduct of people being summonsed. 7 Evidence will show that right up until the most recent ride on 8 Friday, April 24th, 2009, police assigned to Manhattan 9 Critical Mass detail have issued summonses citing Vehicle & 10 Traffic Law Section 1234. This section prohibits bicyclists 11 from riding more than two abreast. Police still issue summons 12 under VTL 1234 even though the city conceded, in October 2004, 13 in a federal court proceeding that also involved Critical Mass, 14 that VTL 1234 does not apply in New York City. 15 Commissioner Kelly gave testimony at his deposition, 16 which the parties have agreed to include in the trial record, 17 that when the NYPD determines that its officers are enforcing a 18 law incorrectly, in the past the NYPD have put out a 19 departmentwide notice. Defendants have not produced any 20 evidence that such a notice was issued with regard to the 21 incorrect enforcement of VTL 1234. 22 The evidence will show that officers policing 23 Manhattan Critical Mass also repeatedly misapplied another 24 traffic law, Section 4-12(p)(3) of Chapter 34 of the rules of 25 the city. Defendants read this rule to require cyclists to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8 95c1fiv1 Opening - Mr. Bierbauer 1 ride to the far left or right of the roadway, a debatable legal 2 point. But in any event, the parties agree that the rule 3 applies only on one-way roadways that are at least 40 feet 4 wide, yet NYPD officers assigned to Critical Mass detail 5 regularly have issued summonses under 4-12(p)(3) to bicyclists 6 traveling on streets narrower than 40 feet or with two-way 7 traffic. 8 Second, evidence will show that police have crossed 9 constitutional lines by selectively adopting a zero tolerance 10 approach to traffic and bicycle equipment violations by riders 11 in Manhattan Critical Mass. This contrasts sharply with the 12 NYPD's approach to traffic and equipment offenses by bicyclists 13 at other times. Plaintiffs will provide expert testimony that 14 in total, the rate of summonsing in the Union Square area, the 15 13th Precinct, during Manhattan Critical Mass evenings is 169 16 times higher than on other Friday evenings. Summonses for some 17 bicycle equipment violations were only issued -- 18 THE COURT: Doesn't that assume that there is an equal 19 number of equipment violations on the other nights? 20 MR. BIERBAUER: The rate is a strictly numerical 21 figure. There is explanation which will come from our expert 22 witness that the number of -- the increased number of cyclists 23 in the Union Square area could not, as a mathematical matter. 24 Be expected to justify the increased summonsing rate on 25 Manhattan Critical Mass evenings. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 9 95c1fiv1 Opening - Mr. Bierbauer 1 THE COURT: Suppose for the sake of argument that on 2 all of the other evenings there is not more than a single 3 bicyclist in the area. 4 MR. BIERBAUER: We believe that that would not be a 5 reasonable assumption, given screen line counts that show the 6 number of people riding into Manhattan. 7 THE COURT: Will there be evidence on that point? 8 MR. BIERBAUER: There will be evidence on that point. 9 Evidence will show that defendants apply zero 10 tolerance traffic enforcement to Manhattan Critical Mass 11 participants even though police officials acknowledge that they 12 do not believe that present participants in Manhattan Critical 13 Mass rides have a greater propensity to violate the laws 14 compared to other New York City bicyclists. Further, police 15 take the zero tolerance approach against Manhattan Critical 16 Mass even when the entire group is 50 or fewer. Moreover, 17 evidence will show that officers assigned to police Manhattan 18 Critical Mass are instructed by their superiors to follow small 19 groups of bicyclists, sometimes groups of five or fewer, who 20 ride away from the gathering point for Critical Mass at Union 21 Square Park. Officers are instructed that if they simply 22 believe that the small group is likely to meet up with other 23 Critical Mass participants later, the officers have no 24 discretion not to write a summons if they observe any traffic 25 or equipment violation by a member of the small group, no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 10 95c1fiv1 Opening - Mr. Bierbauer 1 matter how minor. Police who could be spending their time 2 preventing violent crimes instead have spent their time 3 following bicyclists practically to the bicyclists' own 4 doorsteps. 5 Evidence will further show that zero tolerance is 6 selectively applied by police, who are positioned at 7 checkpoints in the Union Square area on Critical Mass nights, 8 even before the Critical Mass ride begins. 9 Police have also crossed the line by using 10 intimidating tactics against Manhattan Critical Mass 11 participants. For example, evidence will show that officers 12 have used scooters and other vehicles to cut off bicyclists, 13 handcuff bicyclists when issuing them traffic summonses, and 14 following bicyclists into the subway. Police have monitored 15 the headquarters of a bicycling organization, Time's Up!, that 16 police believe is associated with Critical Mass. 17 As to the second element, evidence will show that 18 defendants do not police other group bicycle rides in a similar 19 way as Critical Mass. Even for large rides that have no parade 20 permits, defendants have produced no evidence that they 21 exercise zero tolerance traffic policing. 22 This takes me to the third element, the question of 23 why defendants have cracked down on Manhattan Critical Mass. 24 The relationship between NYPD and Manhattan Critical Mass was 25 not always so fraught. In 2003 and 2004, hundreds and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 11 95c1fiv1 Opening - Mr. Bierbauer 1 sometimes more than 1,000 riders participated in Critical Mass 2 rides. Evidence will show that these large groups sometimes 3 rode across the entire width of roadways, with police escorting 4 them and allowing riders to go through red lights to keep the 5 group together. Bicyclists did not tell their routes to police 6 in advance. This was and remains the signature characteristic 7 of Critical Mass rides because they have no leaders. As early 8 as October 2003, the ride went over roadways of the Queensboro 9 Bridge that were for cars only, yet there was no effort by 10 defendants to stop or crack down the Critical Mass until the 11 summer of 2004. 12 Evidence will show the spark for the crackdown was the 13 Republican National Convention and the political protests that 14 came with it. Police officials began to claim, shortly before 15 the RNC, that Manhattan Critical Mass had been "hijacked" by 16 "anarchists," even though the nature and size of the ride had 17 not materially changed. The evidence will show that these 18 claims are pretextual. 19 In August 2004, police arrested hundreds of Critical 20 Mass riders who were protesting the RNC. Within months, police 21 declared Manhattan Critical Mass ride to be "illegal." 22 This chart, your Honor, illustrates that between 23 August 2004 and January 2006, police regularly arrested dozens 24 of Critical Mass participants on charges of parading without a 25 permit and disorderly conduct. These included plaintiffs SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12 95c1fiv1 Opening - Mr. Bierbauer 1 Nelson, Blythe and Shura. 2 In early 2006 police largely stopped making arrests 3 and switched to zero tolerance summonsing policy. Evidence 4 will show that police officials switched because: first, courts 5 were dismissing charges on the grounds that parade rules as 6 written at the time were unconstitutional; and second, so many 7 charges were being dismissed that they were not sufficiently 8 deterring Critical Mass participants, in the view of the 9 police. 10 Defendants will argue that their crackdown of 11 Manhattan Critical Mass is necessary to promote safety and to 12 make sure vehicular traffic flowed smoothly during the few 13 hours and months when Manhattan Critical Mass occurs. They 14 will point to alleged dangerous actions of a few Critical Mass 15 participants and to conduct, such as running red lights or 16 blocking intersections, that police themselves tolerated. 17 Defendants' concerns are exaggerated. Defendants have 18 stipulated that based on the city's own report on bicyclist 19 fatalities, there were an insignificant number, if any, 20 fatalities or serious injuries between 1996 and 2005 involving 21 individuals proceeding as a part of a group of two or more 22 bicycles. 23 Further, evidence will show that even large numbers of 24 bicyclists can move safely and lawfully in traffic. 25 Defendants' asserted concerns do not justify their crackdown on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 13 95c1fiv1 Opening - Mr. Bierbauer 1 Manhattan Critical Mass participants who take all reasonable 2 steps to exercise their First Amendment freedoms in a safe and 3 lawful manner. 4 Plaintiffs also have a retaliation claim, which 5 requires plaintiffs to prove that their participation in 6 Critical Mass rides is a protected First Amendment interest, 7 that defendants' enforcement of the laws against them was 8 motivated or substantially caused by plaintiffs' exercise of 9 their rights, and that defendants' enforcement actions chilled 10 plaintiffs from exercising their rights. 11 The evidence will show that defendants took law 12 enforcement action against the individual plaintiffs because 13 they were exercising their right to expressive association by 14 participating in Manhattan Critical Mass. Plaintiffs Nelson, 15 Blythe, Shura and Gosciak will testify they stopped or 16 curtailed their riding Manhattan Critical Mass for fear of 17 being unjustly subjected to law enforcement. 18 The chilling effect is illustrated in this chart. The 19 overall rate of arrests or summonses at Manhattan Critical Mass 20 has been very steady since the fall of 2004. The number of 21 participants has fallen very dramatically. 22 Individual plaintiffs have a state law claim under VTL 23 1231 based on the same enforcement actions. VTL 1231 provides 24 bicyclists have the same rights and responsibilities as 25 motorists, except for those that by their nature do not apply SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 14 95c1fiv1 Opening - Mr. Bierbauer 1 to bicycles. The evidence will show that defendants' zero 2 tolerance summonsing, enforcement of inapplicable laws and 3 intimidating tactics deny plaintiffs their equal rights to the 4 road. 5 Regarding the parade rules, the evidence will show 6 that defendants' parade rules also cross the line to 7 infringement of plaintiffs' constitutional rights by unduly 8 burdening protected expressive association. Evidence will show 9 that the parade rules were amended when the city was focused on 10 finding a new tool to make Critical Mass illegal. 11 Unsurprisingly, they sweeped in many other group bicycle rides 12 that in no way pose the risks that defendants claim are posed 13 by Critical Mass. 14 Because the parade rules challenge is before the Court 15 already, though not a full evidentiary record, I will discuss 16 it very briefly. It remains, however, a core claim in 17 plaintiffs' case. 18 Evidence will show that: first, the 50-person 19 definition of a parade is arbitrary as applied to bicycles and 20 ignores evidence that more than 50 can move in traffic without 21 causing obstruction or danger; second, the standard of a 22 recognizable group proceeding together is unconstitutionally 23 vague as applied; third, the requirement that each "parade" 24 have a chief officer responsible for the conduct of riders 25 burdens applicants with potential civil liability for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 15 95c1fiv1 Opening - Mr. Bierbauer 1 actions of others. 2 THE COURT: What's the basis for that statement, which 3 I've been hearing for two years? 4 MR. BIERBAUER: That a person who is designated as 5 being responsible, strictly responsible for the conduct of all 6 the riders on a particular ride as part of a permit application 7 could then be subject to a lawsuit from someone who 8 participates in the ride or someone who is -- feels himself to 9 be injured by someone who participates in the ride and that 10 that statement may then be used as evidence that the person has 11 accepted responsibility. 12 THE COURT: Do you have the slightest bit of legal 13 authority to support that, any more now than two years ago? 14 MR. BIERBAUER: We believe that the evidence will 15 show -- 16 THE COURT: The fact of the matter is that in this 17 society, if you're handed a cup of coffee that you think is too 18 hot at McDonald's, you can sue. Anybody can sue for anything. 19 MR. BIERBAUER: I think that's exactly right, your 20 Honor, and what we're saying here is that people, 21 unfortunately, by the parade rules, are forced to agree with a 22 statement which could be used against them as evidence in 23 exactly that kind of proceeding. 24 THE COURT: The city represented to me, in the 25 presence of your team -- I don't remember if you were here -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 16 95c1fiv1 Opening - Mr. Bierbauer 1 two years ago that the designation of a chief officer in a 2 permit application does not make that person responsible 3 legally for the actions of other cyclists but is simply 4 intended to be a point person with whom the police can discuss 5 the ride. 6 MR. BIERBAUER: And on the criminal side, of course, 7 the city's representation would have some importance. On the 8 civil side they have absolutely no control over what some other 9 private litigant might say, based on what's in this document. 10 THE COURT: And any private litigant could say, 11 wrongly and ill-advisedly, that because a person is wearing a 12 green T-shirt while on a bicycle, that person is civilly liable 13 for a crime committed by someone else. That could be said, 14 right? 15 MR. BIERBAUER: I suppose it could, your Honor. 16 THE COURT: Let's go on. 17 MR. BIERBAUER: Fourth, the permitting process is 18 overly time-consuming and burdensome. 19 For these reasons plaintiffs seek an injunction 20 preventing defendant from taking discriminatory law enforcement 21 action against them and other group bicyclists and from 22 enforcing the parade rules as currently written. 23 THE COURT: Okay. Thank you. 24 Mr. Muschenheim. 25 MR. MUSCHENHEIM: Good morning, your Honor. My name SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 17 95c1fiv1 Opening - Mr. Muschenheim 1 is Mark Muschenheim, and with me are my colleagues Nick 2 Ciappetta and Robin Binder, who will be helping us today, and 3 Christian Scherer, who is a law clerk, all the way to my right. 4 I will be very brief in this opening. There are -- 5 THE COURT: But before you begin, two years ago when 6 this argument about the permit application form was raised, the 7 city represented that it would change the form. Has it done 8 it? 9 MR. MUSCHENHEIM: Yes, your Honor, we did. 10 THE COURT: Okay. So is that now moot? 11 MR. MUSCHENHEIM: We believe it is. 12 THE COURT: Okay. 13 MR. MUSCHENHEIM: I will be very brief. There are two 14 distinct components of this case. The first relates to the 15 city's parade permitting law implementing rules, specifically 16 the recent amendment to the rule that added a 50-person or 17 vehicle threshold when a permit, parade permit is required. 18 The evidence will show that there is no reason to change your 19 Honor's preliminary injunction holding, which was just affirmed 20 by the Circuit, that the recent parade rule amendment was a 21 valid time, place and manner restriction. 22 Deputy Chief Thomas Graham and Lieutenant Dennis 23 Gannon of the police department, who have a lengthy history of 24 policing large-scale events, including Critical Mass, will 25 testify about the numerous variables that the police department SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 18 95c1fiv1 Opening - Mr. Muschenheim 1 must take into account when policing such events. In planning 2 to police these events, the department's ability to protect 3 public safety obviously increases as the specific knowledge of 4 these variables increase, and it is much easier obviously to 5 police an event when the department has advance knowledge of 6 the estimated number of participants in the event and the route 7 that the -- that an event will take. 8 The second component of this case relates to the 9 manner in which the police department polices the Critical Mass 10 rides that leave from Union Square on the last Friday of every 11 month. These rides have no preplanned route and have traveled 12 throughout Manhattan south of 59th Street and beyond at 13 times. During the pertinent time period no one has ever sought 14 a parade permit route for these rides. As the deputy -- as the 15 testimony of Deputy Chief Graham and Lieutenant Gannon will 16 show, it is very difficult to police large groups that take to 17 the streets and follow a route that is unknown to the 18 department. Far from being a pretext to thwart Critical Mass, 19 this is a legitimate law enforcement objective. And the 20 testimony of Deputy Inspector Dennis DeQuatro and Police 21 Officer Kenneth Wagner, together with video evidence, will show 22 that these monthly Critical Mass rides have resulted in 23 numerous chaotic situations for those policing the streets, 24 from flagrant disregard of traffic signals to riding against 25 the flow of traffic on both two-way and one-way streets. These SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 19 95c1fiv1 Opening - Mr. Muschenheim 1 monthly Critical Mass rides are unlike other one-shot events in 2 which the route is often known to the police department. Thus, 3 it will become apparent during this trial that Critical Mass 4 has not been singled out for enforcement to retaliate against 5 its viewpoint or based on any other improper motive. Instead, 6 the enforcement of applicable law against Critical Mass riders 7 have served legitimate law enforcement objectives of 8 controlling an uncontrollable ride. 9 The evidence will also show that one of the individual 10 plaintiffs have never participated in Critical Mass rides, and 11 that another who had participated had never been subjected to 12 any law enforcement. And even most of those plaintiffs who 13 were subject to law enforcement nevertheless continued to 14 participate in Critical Mass rides. More importantly, the 15 police department took no enforcement against Critical Mass 16 participants -- excuse me -- took enforcement action against 17 Critical Mass participants not because of whatever message they 18 may have been trying to impart but rather because of valid law 19 enforcement concerns. 20 Thank you. 21 THE COURT: All right. Thank you. 22 Mr. Bierbauer, your first witness. 23 MS. DINGLE: Good morning, your Honor. The plaintiffs 24 call Madeline Nelson to the stand. 25 (Witness sworn) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 20 95c1fiv1 Nelson - direct 1 THE CLERK: State your name and spell your last name. 2 THE WITNESS: Madeline Nelson, N-E-L-S-O-N. 3 THE COURT: Before we begin, just because I don't 4 think any of you have ever tried a nonjury case before me, let 5 me explain how we're going to do this. The party calling a 6 witness who, like Ms. Nelson, has given a statement will 7 authenticate the statement, get the witness to affirm the truth 8 of the assertions made in it on the stand, and then offer the 9 statement. I'll hear any objections at that point, the 10 statement will be received in whole or in part undoubtedly in 11 almost every case, and then tender the witness for 12 cross-examination. 13 Now in reading the statements in advance of trial, it 14 is clear to me that a great many of them read more like 15 lawyers' briefs in some respects than testimony. They are in 16 some cases laced through with the witness' opinions about legal 17 issues, the witness' opinions about such matters as whether the 18 police could police these rallies differently or what the 19 motives of persons other than the speaker are and things of 20 that nature. To save time, I think it is quite fair for 21 everybody to assume that I'm not going to give any weight to 22 that kind of material, the conclusions, the professed opinions 23 and so forth, because they would not properly be admitted into 24 evidence anyway. And so you can make that assumption, unless I 25 indicate otherwise as to some point. That will shortcut the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 21 95c1fiv1 Nelson - direct 1 objections, I think, but if there's anything that's 2 particularly upsetting to a party as to a statement that is 3 offered, along the lines of what I've just said, I want you to 4 draw it to my attention specifically so I can make the specific 5 ruling. 6 Okay. You can proceed. It's Ms. Dingle, is it? 7 MS. DINGLE: Yes, that's correct, your Honor. 8 MADELINE NELSON, 9 called as a witness by the Plaintiffs, 10 having been duly sworn, testified as follows: 11 DIRECT EXAMINATION 12 BY MS. DINGLE: 13 Q. Good morning, Ms. Nelson. 14 A. Good morning. 15 Q. Ms. Nelson, did you prepare a witness statement in 16 connection with this matter? 17 A. Yes, I did. 18 Q. I'd like to show you what has been marked for 19 identification as Plaintiff's Exhibit 280. Is this the witness 20 statement that you prepared? 21 A. Yes, it is. 22 Q. Please take a look at the last page of the document. Is 23 that your signature? 24 A. Yes, it is. 25 Q. Ms. Nelson, do you understand that you are now under oath? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 22 95c1fiv1 Nelson - direct 1 A. I do. 2 Q. And under oath, do you affirm that everything in this 3 witness statement is true and accurate? 4 A. Yes, I do. 5 Q. Do you adopt this statement as your testimony in this case? 6 A. Yes. 7 MS. DINGLE: Plaintiffs move to admit Exhibit 208 into 8 evidence. 9 THE COURT: Mr. Muschenheim? 10 MR. MUSCHENHEIM: Your Honor, we have a few objections 11 to a variety of statements in the witness statement. I could 12 go through those right now if you'd like or, based on what you 13 just said, I'm not sure that it's necessary. 14 THE COURT: Well, maybe it would be a useful exercise 15 for you to do it this once just so you see my thinking on the 16 point, and then we won't have to repeat it over and over again. 17 MR. MUSCHENHEIM: Okay. On page 2, the first 18 paragraph, line 4, discussing the number of Americans who have 19 been killed in motor vehicle collisions, I have no idea what 20 her basis is for that. 21 THE COURT: Okay. 22 MR. MUSCHENHEIM: It's hearsay. 23 THE COURT: That entire paragraph, save the last 24 sentence, I'm not going to give any weight because it is all 25 statements of personal opinion or matters as to which there's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 23 95c1fiv1 Nelson - direct 1 no showing that the witness has personal knowledge, and it's 2 argument is what it is, coming from this witness. 3 Okay. Next point. 4 MR. MUSCHENHEIM: Your Honor, carrying on -- 5 THE COURT: I don't mean to cut you off, Ms. Dingle. 6 I'm not. If you have a response to that, by all means. 7 MS. DINGLE: Your Honor, you know, my only statement 8 would be that much of it, the description of Ms. Nelson's 9 belief that is set forth in her testimony are intended to show 10 her purpose in participating in group bicycle rides and go to 11 her expressions both as an individual cyclist and as a 12 participant in Critical Mass. 13 THE COURT: Well, all right. To whatever limited 14 extent that's relevant and material in the case, I consider it 15 as going to her motive, but not for other purposes. 16 MS. DINGLE: Thank you, your Honor. 17 MR. MUSCHENHEIM: Your Honor, continuing the last 18 paragraph on page 2, we think the whole paragraph is opinion. 19 THE COURT: Ms. Dingle? 20 MS. DINGLE: Your Honor, I mean, again, what the 21 plaintiffs have done is basically set forth Ms. Nelson's 22 beliefs concerning the role of bicyclists as a part of traffic. 23 This is an essential element of the participants in Critical 24 Mass, their expressions, and basically we have simply provided 25 a basis for -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 24 95c1fiv1 Nelson - direct 1 THE COURT: I'm confused by what you say. What is a 2 critical element of expression? 3 MS. DINGLE: Part of what their expression is to talk 4 about the role of bicycling in traffic, to promote the 5 visibility of bicycling as an alternative means of 6 transportation, and -- 7 THE COURT: I take it as a given that at least some of 8 the people who ride in Critical Mass do it for, among other 9 reasons, the purpose of expressing a point of view, generally 10 in favor of bicycling as opposed to other modes of urban 11 transportation. I don't think the city disputes that, right? 12 MR. MUSCHENHEIM: I think that's right, your Honor. 13 THE COURT: Okay. So that's not an issue in this 14 case. It may be an issue with specific plaintiffs, but that's 15 a given. 16 So, you know, you've heard my ruling on this so I 17 haven't heard anything to change it. 18 Anything else? 19 MR. MUSCHENHEIM: Yes, your Honor. On page 4, line 7, 20 going down to the end of that paragraph, line 11, I think 21 that's all -- that's all hearsay. What Ms. Nelson has heard is 22 essentially all hearsay. 23 MS. DINGLE: Your Honor, I think this would go to, you 24 know, the present sense impression or excited utterances of 25 individuals in the crowd who are observing Critical Mass rides. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 25 95c1fiv1 Nelson - direct 1 They aren't -- and moreover, they aren't offered for the truth 2 of the statement asserted but simply to show the effect of the 3 Critical Mass rides on the crowd and the importance of Critical 4 Mass bicyclists in conveying their message to others. 5 THE COURT: On a purely technical basis, the fourth 6 sentence from the end of the paragraph is not, strictly 7 speaking, admissible because this witness is not competent to 8 testify about whether other people take notice of and 9 understand certain things. The rest of it seems to be stuff 10 she observed. 11 Is that a cellphone or electronic device, and whose is 12 it? 13 How did you get it in here, ma'am? Pardon me? 14 UNIDENTIFIED SPECTATOR: I gave them -- I just gave 15 them what I had. 16 THE COURT: I'm sorry? 17 UNIDENTIFIED SPECTATOR: I gave them my camera. It's 18 a -- the gentleman asked me if there was a camera -- if there 19 was a phone in the camera, and I said no, and he gave me a 20 ticket and I came in. 21 THE COURT: With your cellphone? 22 UNIDENTIFIED SPECTATOR: Yes. 23 THE COURT: Cellphones are strictly forbidden for 24 members of the public in the building. I'm going to have to 25 ask you to leave, go down to the Worth Street exit and check SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 26 95c1fiv1 Nelson - direct 1 it. You're welcome to return after you've done that. 2 MS. DINGLE: Your Honor, with respect to what you just 3 stated, my understanding is that Ms. Nelson's awareness of 4 whether passersby take notice is based on her observations of 5 their reactions to the Critical Mass ride. 6 THE COURT: Let's not beat a dead horse here. 7 MS. DINGLE: I'm happy to move on, your Honor. 8 THE COURT: If we were trying an automobile accident 9 case, you would not be permitted to put driver A on the stand 10 and say that driver B saw the car in which driver A was riding. 11 You might be able to get in that the person saw the other 12 driver look in the direction of the car, all right? But you 13 can't get into the other person's head. So let's go on. 14 Anything else, Mr. Muschenheim? 15 MR. MUSCHENHEIM: Yes, your Honor. I'll probably be 16 very quick. On page 6, paragraph beginning with line 20, I 17 think that is all speculative. Especially the last sentence. 18 MS. DINGLE: Your Honor, with regard to the first 19 sentence, beginning at line 20, it's not speculative. It's 20 actually Ms. Nelson's current state of mind with respect to 21 whether she intends to participate in future Critical Mass 22 rides. 23 THE COURT: I'll take the first sentence, but not the 24 second sentence. 25 Okay. Anything else, Mr. Muschenheim? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 27 95c1fiv1 Nelson - direct 1 MR. MUSCHENHEIM: Yes, your Honor. Page 7, paragraph 2 beginning with line 18 -- I'm sorry, the sentence on what 3 begins with line 19 of that page 7, what her -- I mean, I think 4 that's all essentially hearsay. 5 MS. DINGLE: Your Honor, this is based on Ms. Nelson's 6 personal knowledge given that she was both a legal observer of 7 multiple rides and the fact that she was a member of a 8 volunteer organization that assisted individuals who had been 9 arrested at Critical Mass. 10 MR. MUSCHENHEIM: Your Honor, it's also speculative. 11 I mean, "By that time it's deemed that many participants --" 12 MS. DINGLE: Perhaps the phrasing is -- 13 THE COURT: Well, you can attempt to develop this 14 directly with her on the stand, but that sentence I'm not going 15 to allow. You know, a lot of things, it seems to me sometimes 16 that, you know, everybody in New York is messed up in some way 17 but, you know, that's not a very reliable kind of thing. 18 Things that seem to other people are often not very reliable. 19 Anything else, Mr. Muschenheim? 20 MR. MUSCHENHEIM: Yes, your Honor. On page 9, the 21 sentence beginning on line 2 as well as the phrase that begins 22 on line 8 -- I'm sorry, on line 9, the sentence, that's also -- 23 THE COURT: Yes. Look, part of that paragraph is the 24 witness' argument here. It's not anything she knows or could 25 know. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 28 95c1fiv1 Nelson - direct 1 MS. DINGLE: Your Honor -- 2 THE COURT: Just, excuse me. And part of it is 3 obviously hearsay to whatever extent she has any knowledge. 4 Ms. Dingle? 5 MS. DINGLE: Your Honor, I would simply note that the 6 sentence beginning with line 9 is based on information that 7 Ms. Nelson learned while participating as a member of a 8 volunteer legal support organization. 9 THE COURT: Maybe so, but so what. There are things I 10 read that. The fact that I read Encyclopaedia Britannica and 11 the New York Post does not make me a competent witness to get 12 on the stand and testify to that. 13 MS. DINGLE: Perhaps not, your Honor, but in this case 14 Ms. Nelson directly assisted individuals in having the charges 15 against them dismissed. She had a personal role in that. 16 THE COURT: If you want to adduce which occasions that 17 occurred of which she has personal knowledge, if there's no 18 objection and if I think it's relevant, that's fine. But to 19 put in what purports to be sworn testimony, "I also learned 20 that most of the individuals so charged, like me, have the 21 charges against them dismissed," doesn't cut it. It doesn't 22 cut it because "I also learned" is another way of saying, by 23 the way, Judge, here comes hearsay and it's not admissible, 24 everything that comes after "I have also learned," and nobody 25 knows what "most of" means and nobody knows what she's talking SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 29 95c1fiv1 Nelson - direct 1 about. So, you know, it's out. It's not to say you couldn't 2 get it in another way, but this isn't it. 3 Okay. Anything else, Mr. Muschenheim? 4 MR. MUSCHENHEIM: Yes, your Honor. On page 10, 5 line 6, the sentence beginning there, it's pure speculation to 6 what she believes others will be doing or not doing. 7 MS. DINGLE: Your Honor, this statement is nearly 8 identical to a statement that you just admitted, which goes to 9 the state of mind of Ms. Nelson with regard to future 10 participation in Critical Mass. 11 THE COURT: Well, it's not identical in the sense that 12 it says "and others." 13 MR. MUSCHENHEIM: Right. 14 MS. DINGLE: Well, we would be amenable to striking 15 "and others." 16 THE COURT: Right. That part is out. 17 MS. DINGLE: Thank you, your Honor. 18 THE COURT: Okay. I think we've done enough to get 19 the drift. 20 MR. MUSCHENHEIM: Thank you, your Honor. 21 THE COURT: My view on this stuff, it's not a useful 22 exercise for us, either as a committee of the whole or for me 23 individually, to go through here and parse these scores of 24 pages of material to strike out all of the hearsay and all of 25 the material that constitutes inappropriate opinion and all of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 30 95c1fiv1 Nelson - direct 1 the stuff as to which the witness has failed to demonstrate 2 personal knowledge. It just isn't. But I'm telling you right 3 now, I'm not considering it at all. Where it's relevant to the 4 witness' state of mind where the witness' state of mind is 5 relevant, that's another matter. 6 Okay. 7 MS. DINGLE: Your Honor, at this time the plaintiffs 8 request a very brief supplemental direct of Ms. Nelson. This 9 would pertain to an issue that was raised in documents that 10 were produced by the defendants on May 6, 2009, two weeks after 11 the plaintiffs submitted their direct testimony in the form of 12 written statements. 13 THE COURT: Okay. Now if I haven't done it already, 14 Plaintiff's 280 is received, subject to the rulings and the 15 other comments I've made. 16 (Plaintiff's Exhibit 280 received in evidence) 17 THE COURT: And you can go ahead, Ms. Dingle. 18 MS. DINGLE: Thank you, your Honor. 19 BY MS. DINGLE: 20 Q. Ms. Nelson, in Exhibit 280, which has just been entered 21 into evidence, which is your direct testimony in this case, you 22 refer on page 9 to a volunteer legal support organization with 23 which you work, is that right? 24 A. Yes, that's right. That was FreeWheels. 25 Q. And what is the purpose of FreeWheels? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 31 95c1fiv1 Nelson - direct 1 A. Okay. FreeWheels' purpose was to help bicycle riders who 2 were arrested at Critical Mass, to get them information about 3 how to get back their bicycles that were confiscated by the 4 police, to inform them of their rights, to help them to get 5 legal support. 6 We also did jail support. We were there at the jail 7 when they were let out, helped them get home, got them some 8 food. 9 We also raised money to help people who didn't have 10 the means to have legal support to get that. 11 Q. And what was your role as a member of FreeWheels? 12 A. My role was in -- in doing all of those things. I worked 13 on the fundraising, I worked on the jail support, I worked on 14 putting together information with others for Critical Mass 15 riders. 16 Q. And what information about the legal system did FreeWheels 17 provide to Critical Mass arrestees? 18 A. On the website -- I didn't put the information on the 19 website myself, but on the website we posted the actual text of 20 the laws that would apply. We put the text of the parade law, 21 we put the text of the various infractions that people were 22 being charged with, we put up information about how to -- 23 essentially how to negotiate through, and we also put up there 24 a certain amount of legal opinion and advice that would help 25 people who were faced with these charges. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 32 95c1fiv1 Nelson - direct 1 Q. And how many Critical Mass arrestees did you personally 2 assist with their criminal cases? 3 A. Several hundred. 4 Q. And to your knowledge what was the disposition of those 5 cases? 6 A. What I know about that is most of them were -- 7 THE COURT: First tell us, how do you know whatever 8 you know? 9 THE WITNESS: Your Honor, I know it because I kept a 10 database. I was the person who kept the database of the 11 arrestees, and that included follow-up with them, and there was 12 a column in the database that was the disposition of charges, 13 and we noted in that column whether it was a dismissal and on 14 what grounds, if it was an acquittal, and so forth. 15 MR. MUSCHENHEIM: Your Honor, we object on hearsay 16 grounds to the bulk of that statement. 17 THE COURT: To that statement? 18 MR. MUSCHENHEIM: Yes. To what she -- what she was 19 saying was in the database. 20 THE COURT: Well, I understood Ms. Nelson to say that 21 she was the person who worked with the database. Did I 22 correctly understand that? 23 THE WITNESS: Yes, your Honor. 24 THE COURT: So how -- 25 MR. MUSCHENHEIM: But it's based on information that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 33 95c1fiv1 Nelson - direct 1 she received from others. 2 THE COURT: Well, you're ahead of yourself, 3 Mr. Muschenheim, because I suspect that objection might be 4 better imposed in response to the question, "What does the 5 database indicate?" Right? 6 MR. MUSCHENHEIM: Yes. 7 THE COURT: Okay. Let's go on. 8 BY MS. DINGLE: 9 Q. Ms. Nelson, what is your understanding of the disposition 10 of the charges for the arrestees that you've listed? 11 THE COURT: Are you objecting or are you just 12 exercising? 13 MR. MUSCHENHEIM: Yes. Objection, your Honor. 14 THE COURT: Okay. And the objection is? 15 MR. MUSCHENHEIM: It's based on -- it's hearsay. It's 16 based on information that she has or that people who prepared 17 the database have heard from other -- other people. I'm sorry. 18 And not from an official court record. 19 MS. DINGLE: Ms. Nelson herself prepares the database 20 and -- 21 THE COURT: Well, but she's the witness, not you. 22 MS. DINGLE: I'm sorry, your Honor? 23 THE COURT: She's the witness, not you. 24 MS. DINGLE: Yes. I was just reinforcing Ms. Nelson's 25 testimony in responding to Mr. Muschenheim's objection. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 34 95c1fiv1 Nelson - direct 1 believe that she does have personal knowledge with respect to 2 the disposition of the cases based upon her role in needing to 3 assemble this information and therefore provide advice to the 4 arrestees. 5 THE COURT: You don't have an adequate foundation. 6 Look, if there is a database and if a report generated from the 7 database were offered in evidence, there could be a hearsay 8 objection, which could be overcome by some demonstration that 9 it fell within the business records exception. But you're not 10 offering a report from the database, you're offering 11 impressionistic testimony from somebody who may or may not have 12 seen such a report and who certainly seems to have entered some 13 data into the database and seen some data that's in the 14 database. She's not competent to testify, at least -- 15 competence may be the wrong ground, but her account of what she 16 saw that's in the database is hearsay. And it's a 17 double-hearsay problem. 18 MS. DINGLE: Your Honor, we will move on. 19 BY MS. DINGLE: 20 Q. During what period of time were you affiliated with 21 FreeWheels, Ms. Nelson? 22 A. It was from the founding of FreeWheels, which was in March 23 of 2005, through 2007. 24 Q. And during that period how did FreeWheels make itself known 25 to Critical Mass riders and the general public? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 35 95c1fiv1 Nelson - direct 1 A. Well, we -- we had a website, and we also created handbills 2 that we would hand out at the Critical Mass ride before the 3 ride. 4 Q. Which other organizations, if any, were listed on the 5 FreeWheels website? 6 A. We had links to a lot of the different bicycle advocacy 7 groups, including Time's Up! and Transportation Alternatives, 8 and so forth. 9 Q. And you mentioned FreeWheels distributes handbills or 10 flyers. I'd like to show you a document that has been 11 marked -- 12 THE COURT: Excuse me, Ms. Dingle. Was that another 13 electronic device? 14 UNIDENTIFIED SPECTATOR: I'm sorry. I thought it was 15 just phones. 16 THE COURT: No. Go downstairs and check it. 17 Is there anybody else in the courtroom who has an 18 electronic device any of kind? The next one that I hear is 19 going to result in the possessor being held in contempt of 20 court. So now is your time. If you've got a device here that 21 doesn't belong here, take it out, take it down and check it. 22 So you're on notice. 23 Okay. 24 MS. DINGLE: Your Honor, I'd like to show Ms. Nelson a 25 document that has been marked for identification as Plaintiff's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 36 95c1fiv1 Nelson - direct 1 Exhibit 57. 2 BY MS. DINGLE: 3 Q. Ms. Nelson, do you recognize this document? 4 A. Yes, I do. 5 Q. What is it? 6 A. This is a kind of boilerplate, I guess you would call it. 7 It is the information about FreeWheels that would be on the 8 back of a handbill that we would distribute. 9 Q. And where was this handbill distributed? 10 A. This would be distributed, for instance, at Critical Mass 11 rides. It was distributed on the literature table at Time's 12 Up!, it was distributed at fundraising events that we had and 13 so forth. 14 Q. And was the substance of Exhibit 57 available on the 15 website? 16 A. Yes, it was. This -- the information that was about the -- 17 the goals and mission statement, if you will, of FreeWheels was 18 essentially on the home page of the -- the Bicycle Defense 19 Fund/FreeWheels website. 20 MS. DINGLE: Your Honor, at this time plaintiffs would 21 like to move Exhibit 57 into evidence. 22 MR. MUSCHENHEIM: Your Honor, we object to that on the 23 grounds of hearsay. 24 THE COURT: Hearsay? 25 MR. MUSCHENHEIM: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 37 95c1fiv1 Nelson - direct 1 THE COURT: I was confused there. 2 MR. MUSCHENHEIM: As well as relevancy. 3 THE COURT: Sustained. 4 MS. DINGLE: Your Honor, if permitted to move this 5 document into evidence, plaintiffs would offer it to show that 6 FreeWheels had a connection to Critical Mass and that knowledge 7 of that connection was available publicly to Critical Mass 8 riders as well as the NYPD. 9 THE COURT: How is that relevant? 10 MS. DINGLE: It's relevant to the issue of police 11 harassment in monitoring of FreeWheels events based on the 12 perception that FreeWheels is affiliated with Critical Mass. 13 THE COURT: FreeWheels is not a plaintiff in this 14 case. 15 MS. DINGLE: No, it is not, but it goes to the added 16 element of plaintiffs' retaliation and selective enforcement 17 claims by showing that the NYPD targeted not only Critical Mass 18 but other organizations and groups that they perceived as being 19 affiliated with Critical Mass. 20 THE COURT: Mr. Muschenheim? 21 MR. MUSCHENHEIM: Your Honor, we simply think that's 22 not relevant. They're not a party to the case. What's in this 23 document is not pertinent to the lawsuit. 24 THE COURT: I'm going to sustain the objection under 25 Rule 403. This is a case about alleged harassment of Critical SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 38 95c1fiv1 Nelson - direct 1 Mass. There is no question, it is undisputed that Critical 2 Mass has had a great deal of attention from the New York City 3 Police Department. That's the lawsuit we're trying. It's not 4 a situation in which the police are claiming, "Who us? We 5 never went near Critical Mass." This gets us into a whole 6 sideshow that I don't regard as contributing enough to the 7 resolution of the Critical Mass element of the case to justify 8 getting into a whole separate dispute about what, if anything, 9 went on between the police department and FreeWheels. 10 BY MS. DINGLE: 11 Q. Ms. Nelson, you mentioned an organization known as Time's 12 Up!. What is the purpose of Times Up!? 13 A. Time's Up! is an environmental -- environmental group that 14 supports bicycling, it supports gardening. Those are its 15 two -- its two main activities at this point. 16 Q. And how does it support those activities? 17 A. By free public events. It has a calendar of events every 18 month and through its website. Those are the two primary 19 means. 20 Q. And do those events include group bicycle rides? 21 A. Yes, they do. It includes a large number of bike rides 22 every month. 23 Q. And which, if any, group bicycle rides have you attended 24 that were organized by Time's Up!? 25 A. Quite a number of them. For instance, I attended the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 39 95c1fiv1 Nelson - direct 1 Bridges by Night ride, I've attended a traffic calming ride, a 2 ride that went to Governors Island, to see the new, new bike 3 lane facilities there, I've participated in the bike lane and 4 the bike lane clown rides, quite a few of them. Those are some 5 off the top of my head. 6 Q. And are you aware of a ride called the Still We Ride event? 7 A. The Still We Ride ride was a ride in August of 2005 that 8 was on Time's Up!'s calendar, and I did participate in that 9 ride. 10 Q. And where did the ride depart from? 11 A. That ride departed from Union Square North at 7:00. 12 Q. And how many riders showed up for Still We Ride? 13 A. I recall about 30 to 40 riders. It could have been as high 14 as 50, but I don't think so. 15 Q. What structure, if any, did the ride have? 16 A. This was a structured ride. This was a ride with a leader, 17 it had a person performing sweep, it had a route. It also had 18 information -- it was essentially a tour, and the idea of this 19 was to inform participants in the ride about places where the 20 police had taken particularly egregious action against 21 bicyclists where they had -- where mass arrests had happened, 22 where following of bicycles on bicycle-only pathways had taken 23 place by the police, so it was basically a tour to explain some 24 of these things. It was also the kickoff of a documentary film 25 called Still We Ride that was about Critical Mass. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 40 95c1fiv1 Nelson - direct 1 Q. When you arrived at Union Square for the Still We Ride 2 event, what was the police presence that you observed? 3 A. I saw a very heavy police presence. I saw -- my 4 recollection was of more than 20 scooters. I learned during 5 preparation that there were in fact nearly 80 police officers 6 in evidence for this ride. 7 THE COURT: I'm sorry. During preparation for what? 8 THE WITNESS: In preparation for this trial, your 9 Honor. 10 THE COURT: And how did you learn through preparation 11 how many police were at this event four years ago? 12 THE WITNESS: This was a document, your Honor, that 13 was produced by the city. It was the police's own record of 14 the number of officers that was assigned to that ride. 15 THE COURT: Everything after "more than 20 scooters" 16 is stricken. It's not within this witness' knowledge. It's 17 hearsay. 18 BY MS. DINGLE: 19 Q. What was the ratio of police officers to bicyclists that 20 you personally observed? 21 A. I observed about an officer to every one or two people. 22 Q. What happened after the bicyclists departed from Union 23 Square Park? 24 A. Okay. Well, after we departed -- I mean, first of all, the 25 ride leader did make contact with the supervisor and explained SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 41 95c1fiv1 Nelson - direct 1 that we did have a route and that she was leading the ride and 2 identified herself as the contact. 3 Q. Ms. Nelson, let me stop you for a second. When you say the 4 supervisor, who were you referring to? 5 A. The NYPD supervisor who was there. 6 Okay. We left Union Square, we proceeded with the 7 tour. We had made a couple of stops. What stands out in my 8 memory is, we were on a northbound avenue on the west side, 9 either Sixth Avenue or Eighth Avenue, and we needed to proceed 10 to the west, and we needed to get onto the West Side -- the 11 West Side Bikeway. Some of the riders had been able to cross 12 the avenue with traffic and some of the riders -- some of the 13 riders were on the left side of the road, in a single lane, 14 proceeding in a single lane, and some of the riders were 15 proceeding in a single lane on the right side of the road. The 16 scooter police at that point surrounded the people who were 17 still on the right-hand side of the road, blocked them from 18 moving forward. It was, you know, a very tense situation. It 19 was very intimidating. I believed that the police were going 20 to start arresting people who were still on the right-hand side 21 of the road -- 22 MR. MUSCHENHEIM: Objection, your Honor. 23 A. -- in the lane. 24 THE COURT: I'm just going to take it for what it's 25 worth. You know, I understand the objection, it's well taken, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 42 95c1fiv1 Nelson - direct 1 but let's just move on. 2 Q. Can you describe the impact of the police presence on your 3 state of mind. 4 A. Well, it was -- it was frightening, it was -- it was very 5 frightening and intimidating to the ride, and to me, 6 personally. 7 Q. And in the course of the Still We Ride event, what actions, 8 if any, did you witness by the participants that appeared to 9 you to be illegal? 10 A. None whatsoever. 11 Q. What was the behavior of the Still We Ride participants 12 with respect to the traffic rules? 13 A. We were following all of the traffic rules. We were -- we 14 were stopping at the red lights, we were crossing with hand 15 signals, we were following all traffic rules. 16 Q. How many riders, if any, were arrested at Still We Ride? 17 A. None. 18 Q. And how many riders, if any, received summonses at Still We 19 Ride? 20 A. None. 21 MS. DINGLE: Your witness. 22 THE COURT: I'm sorry. You passed the witness? 23 MS. DINGLE: Yes, your Honor. 24 THE COURT: Okay. And counsel, your name is? 25 MR. CIAPPETTA: Nicholas Ciappetta, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 43 95c1fiv1 Nelson - cross 1 THE COURT: I'm sorry? 2 MR. CIAPPETTA: Nicholas Ciappetta. 3 THE COURT: Thank you. You may proceed. 4 MR. CIAPPETTA: Your Honor, just initially, we have 5 courtesy copies of defendants' deposition testimony which we 6 may be referring to. We have a copy for the witness and your 7 Honor if you would like one. 8 THE COURT: All right. And let me just make clear the 9 way I'd like depositions handled. I know that it is customary 10 to show the witness the testimony, to say, do you remember you 11 gave a deposition, were you asked this question, did you give 12 this answer, was it such-and-such a date. We're not going to 13 do any of that. There was a stenographer there, we know what 14 the questions and answers were. If you want to read some 15 testimony as a predicate to a question, say you're going to 16 read from the deposition, page so-and-so, line so-and-so, page 17 so-and-so, line so-and-so, give the opposing counsel a chance 18 to get the deposition out. If there's no objection, you just 19 read it and then ask your question, such as, was your testimony 20 on that occasion true or when you referred to thus and such in 21 that testimony, what did you mean, or whatever it happens to 22 be. 23 Okay. Let's go forward. 24 CROSS-EXAMINATION 25 BY MR. CIAPPETTA: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 44 95c1fiv1 Nelson - cross 1 Q. Good morning, Ms. Nelson. 2 A. Good morning. 3 Q. Ms. Nelson, isn't it true that Critical Mass does not have 4 any leaders? 5 A. Yes, that's true, that the people who are at the front of 6 the ride are leading for the time that they're at the front of 7 the ride. 8 Q. And Critical Mass does not have any organizers, correct? 9 A. Yes, that's correct. 10 Q. And the absence of leaders or organizers is an important 11 factor in your decision to participate, correct? 12 A. Yes, it is. 13 Q. Isn't it also true that Critical Mass does not have a 14 predetermined route? 15 A. That's true. 16 Q. And you also claim that the lack of a fixed route is an 17 important factor to participate in Critical Mass as well, 18 correct? 19 A. Correct. 20 Q. In fact, you have stated that you would not participate in 21 Critical Mass if it was required to have a fixed route, 22 correct? 23 A. It would not be a Critical Mass ride if it had a fixed 24 route. It would be a parade. 25 Q. Is that a yes then, Ms. Nelson? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 45 95c1fiv1 Nelson - cross 1 A. If I rode in it, it would no longer be -- it would no 2 longer be Critical Mass. 3 THE COURT: Ms. Nelson, please answer his question -- 4 THE WITNESS: Sorry, your Honor. 5 THE COURT: -- without editorializing. 6 THE WITNESS: Yes. 7 Q. I'm sorry. Is that yes? 8 A. Yes, that is. 9 Q. Okay. Ms. Nelson, I believe you testified on direct that 10 you heard of the Bike Lane Liberation Clown Rides? 11 A. Excuse me? 12 Q. You've heard of the Bike Lane Liberation Clown Rides, 13 correct? 14 A. Yes. 15 Q. And in fact, you're an organizer of these rides, correct? 16 A. Yes. 17 Q. You've also led some Bike Lane Liberation Clown Rides? 18 A. I was part of leading them, yes. 19 Q. And am I correct that these rides have a predetermined 20 route? 21 A. Yes. 22 Q. You also rode in a ride called Future Sea Level Ride in 23 April 2007, is that accurate? 24 A. Yes, yes. 25 Q. And that ride had a leader, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 46 95c1fiv1 Nelson - cross 1 A. Yes. 2 Q. There was a predetermined route for that ride? 3 A. Yes. 4 Q. In May 2007, Ms. Nelson, you participated in a ride called 5 Save Harlem Ride, is that accurate? 6 A. It was the Save Harlem Gardens Ride. 7 Q. Okay. The Save Harlem Gardens Ride, correct? 8 A. Yes. 9 Q. And that ride has leaders, correct? 10 A. Yes. 11 Q. And I believe you testified on direct that you participated 12 in a ride known as the Bridges by Night ride, is that correct? 13 A. Yes. 14 Q. And do you recall that that ride was in May 2007? 15 A. Yes. 16 Q. There was a predetermined route for that ride, correct? 17 A. Yes. 18 Q. And a leader for that ride? 19 A. Yes. 20 Q. Do you also recall participating in a ride called the 21 Central Park Traffic Calming Ride in May 2007? 22 A. Yes. 23 Q. And there was a predetermined route for that ride, correct? 24 A. Yes. 25 Q. There was also a leader for that ride, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 47 95c1fiv1 Nelson - cross 1 A. Yes. 2 Q. And to move on to another ride that I believe you mentioned 3 in your direct, the Governors Island ride in 2007, are you 4 familiar with that ride? 5 A. Yes. 6 Q. You participated in that ride? 7 A. Yes. 8 Q. And there was a predetermined route for that ride, correct? 9 A. Yes. 10 Q. And there was also a leader for that ride, correct? 11 A. Yes. 12 Q. Ms. Nelson, moving on, you first participated in Manhattan 13 Critical Mass in October 2004, is that accurate? 14 A. Yes, it is. 15 Q. And you participated in Manhattan Critical Mass rides 16 involving hundreds of bicyclists in 2004 and 2005, correct? 17 A. I did. 18 Q. And at some point you witnessed the Manhattan Critical Mass 19 ride was more than 1,000 participants, correct? 20 A. If the October 2004 had more than 1,000, then yes. 21 Q. You believe that's the ride that had more than 1,000, is 22 that correct? 23 A. I believe so. 24 Q. Ms. Nelson, you first participated in Brooklyn Critical 25 Mass in June 2005, is that accurate? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 48 95c1fiv1 Nelson - cross 1 A. I don't have the dates in front of me. 2 Q. Ms. Nelson, I'd like to show you what defendants have 3 identified as Exhibit XXX. Ms. Nelson, I'm going to read you 4 your interrogatory response. And for the record, this is 5 Plaintiffs' Responses and Objections to Defendants' Second Set 6 of Interrogatories and Second Request for Documents. 7 THE COURT: Interrogatory what number? 8 Q. And interrogatory number 1 stated, "For each group bike 9 ride please identify each individual plaintiff that 10 participated in said group bike ride." And under plaintiff 11 Madeline Nelson it states, "Plaintiff Madeline Nelson recalled 12 participating in the following rides: Critical Mass Brooklyn 13 on June 10th, 2005." Was that accurate, Ms. Nelson? 14 A. Sure. I had my calendar in front of me so I was able at 15 that time to say, sure. 16 Q. Okay. And you never participated in a Brooklyn Critical 17 Mass ride that involved more than 1,000 participants, is that 18 accurate? 19 A. That's accurate. 20 Q. You never participated in a Brooklyn Critical Mass ride 21 involving hundreds of participants, correct? 22 A. Yes. 23 Q. Ms. Nelson, you are familiar with the term "corking," is 24 that correct? 25 A. I'm familiar with the term. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 49 95c1fiv1 Nelson - cross 1 Q. Can you just briefly describe to me what that term means to 2 you. 3 A. My understanding of that is when a member of the NYPD -- or 4 I believe it's an NYPD jargon meaning that that person would -- 5 that that police officer would temporarily hold traffic while a 6 group goes through. 7 (Continued on next page) 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 50 95C5FIV2 Nelson - cross 1 BY MR. CIAPPETTA: 2 Q. You've seen bicyclist do that as well, correct? 3 A. I have. 4 Q. And you have observed bicyclists doing that in Manhattan 5 Critical Mass rides, correct? 6 A. I have. 7 Q. And have you witnessed participants in Manhattan Critical 8 Mass stop or fail to yield for red lights, correct? 9 A. Yes, I have. 10 Q. Ms. Nelson, you participated in the Manhattan Critical Mass 11 ride on February 25th, 2005; am I correct? 12 A. Yes. 13 Q. And you were arrested at that ride? 14 A. I was. 15 Q. And you're aware that no parade permit was issued by the 16 NYPD for that ride, correct? 17 A. Yes. 18 Q. Ms. Nelson, you viewed your participation in Critical Mass 19 as an act of civil disobedience, correct? 20 A. No, that's not accurate. 21 Q. Ms. Nelson, I'm going to read to you a portion of an e-mail 22 that you sent. This is identified as Defendant's BBB. 23 MS. DINGLE: Objection, your Honor. 24 THE COURT: What is the objection? 25 MS. DINGLE: This e-mail that counsel is referring to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 51 95C5FIV2 Nelson - cross 1 is not relevant to the case and it is extremely prejudicial and 2 should be excluded under Rule 403. If anything, we would ask 3 the Court for at least a, you know, an instruction that 4 counsel's examination regarding this e-mail be limited in scope 5 to Ms. Nelson's statements regarding her participation and 6 arrest at Critical Mass. 7 THE COURT: Well, let's go back to the beginning. 8 Mr. Ciappetta, you can't read from a document that's 9 not in evidence. 10 MR. CIAPPETTA: That's correct. 11 THE COURT: So. 12 MR. CIAPPETTA: Your Honor, the purpose was to show an 13 inconsistency in the witness' testimony. 14 THE COURT: Well, you've got to lay a proper 15 foundation. 16 MR. CIAPPETTA: Correct. 17 THE COURT: Yes, I know. But, I appreciate the 18 confirmation. 19 MR. CIAPPETTA: Your Honor, we would like to offer 20 this document into evidence. 21 THE COURT: Well, I take it there is going to be an -- 22 is there any authenticity objection? Is it stipulated that the 23 witness wrote this document? 24 MS. DINGLE: Your Honor, we do not object to the 25 authenticity of the document. We object to the content of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 52 95C5FIV2 Nelson - cross 1 document being largely irrelevant and prejudicial. At least 2 portions of the document. 3 THE COURT: Well, let me read it. 4 Mr. Ciappetta, where is the inconsistency? Am I 5 missing it here? 6 MR. CIAPPETTA: Your Honor, on the document, I think 7 it was the sixth line down, how she described the -- 8 THE COURT: Yes, I see. Manhattan Critical Mass. Is 9 it offered for any other purpose? 10 MR. CIAPPETTA: No, your Honor. 11 THE COURT: Ms. Nelson, did you write an e-mail 12 shortly after the arrest you just testified in which you 13 described you and others who were arrested on that occasion as 14 civilly disobedient clowns? 15 THE WITNESS: Yes, I did, your Honor. 16 THE COURT: Was that an honest description that you 17 wrote at that time? 18 THE WITNESS: Your Honor, if you could read that and 19 see that I'm making essentially a theatrical illusion there. I 20 was saying that people played certain roles. The police played 21 vigilantes. I wasn't saying that the police were vigilantes 22 any more than I was saying that we were committing civil 23 disobedience. This was a theatrical illusion. 24 THE COURT: So, the bottom line is you said it wasn't 25 dishonest when you said it but it was a literary device or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 53 95C5FIV2 Nelson - cross 1 something like that. 2 Is that about it? 3 THE WITNESS: That's right, your Honor. 4 THE COURT: Fair enough. Let's move on. 5 BY MR. CIAPPETTA: 6 Q. Ms. Nelson, you failed, yourself, to stop at red lights in 7 Manhattan Critical Mass rides, correct? 8 A. I'm sure that's the case on a few occasions. 9 Q. Ms. Nelson, in addition to being arrested at Manhattan 10 Critical Mass rides you have been arrested on other occasions 11 as well, correct? 12 MS. DINGLE: Objection. I'm not sure what 13 Mr. Ciappetta is referring to but if there is a -- 14 THE COURT: Sustained. 15 MS. DINGLE: Thank you. 16 THE COURT: If you've got something that's relevant to 17 this case, let's hear it. 18 BY MR. CIAPPETTA: 19 Q. Ms. Nelson, you participated in Manhattan Critical Mass 20 rides after your February 2005 arrest, correct? 21 A. Yes, I did. 22 Q. You participated in the June 2005 Manhattan Critical Mass 23 ride, correct? 24 A. Yes, I did. 25 Q. And on that ride you rode over the Queensboro Bridge with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 54 95C5FIV2 Nelson - cross 1 other Manhattan Critical Mass participants, correct? 2 A. I did. 3 Q. And you rode over the restricted access portion of that 4 bridge, correct? 5 A. I didn't know it was restricted access but yes, I did. 6 Q. And you know bicycles are not allowed to ride over that 7 portion of the Queensboro Bridge, correct? 8 A. I wasn't familiar with that bridge at all at the time but 9 that's correct. 10 Q. Ms. Nelson, you were arrested for a second time in 11 Manhattan Critical Mass on December 30th, 2005; is that 12 accurate? 13 A. Yes. 14 Q. In fact, you participated in many Manhattan Critical Mass 15 rides between February 2005 and December 2005, correct? 16 A. I did. 17 Q. You participated in eight Manhattan Critical Mass rides, 18 correct? 19 A. I would have to see the list in front of me to count them, 20 but sounds about right. 21 Q. And, for the December 30th, 2005 Manhattan Critical Mass no 22 parade permit was issued by the NYPD. You're aware of that? 23 A. I'm aware of that. 24 Q. And, at the time of your arrest you observed hundreds of 25 bicyclists in the roadway, is that correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 55 95C5FIV2 Nelson - cross 1 A. Excuse me? On -- on that occasion? 2 Q. Yes. 3 A. I don't recall that I saw hundreds of bicyclists. 4 Q. Ms. Nelson, I'm going to read you a portion of your 5 deposition testimony with regard to that ride, and this is on 6 page 112 starting with line 2: 7 "Q You stated that you were arrested a second occasion. Can 8 you briefly describe the circumstances and date of that arrest? 9 "A Yes. That was in December of 2005. 10 "Q Was there a Manhattan Critical Mass event -- was that a 11 Critical Mass event? 12 "A Correct. 13 "Q Do you know the name of the arresting officer? 14 "A That was Officer Spreen. 15 "Q I'm sorry? 16 "A Spreen. S-P-R-E-E-N. 17 "Q Can you briefly describe the circumstances leading to that 18 arrest? 19 "A Yeah. On that occasion I had volunteered to be an observer 20 and was wearing an arm band which identified me as such. I was 21 riding substantially behind and to the side of the group. I 22 remembered very clearly what was going on because I was 23 observer. Bicyclists were taking up one lane of the road. The 24 ride turned onto -- 25 "Q In relation to where the bicyclists were can you state SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 56 95C5FIV2 Nelson - cross 1 precisely where you were? 2 "A I was very near the back of the group. I was very near the 3 back. 4 "Q How many bicyclists were there at that point? 5 "A Hundreds. Hundreds." 6 Does that refresh your recollection? 7 A. Yes, it does. Thank you. 8 Q. You're welcome. 9 Ms. Nelson, you participated in the November 2006 10 Manhattan Critical Mass ride, correct? 11 A. Yes, I did. 12 Q. And, in fact, you participated in multiple Manhattan 13 Critical Mass rides between December 30th, 2005 and November 14 2006; correct? 15 A. Yes, I did. 16 Q. You participated, in fact, in a total of seven Manhattan 17 Critical Mass rides; correct? 18 A. I don't have the number in front of me but that's probably 19 right. 20 Q. And at that ride we are speaking about you were issued a 21 summons for an improper taillight, correct? 22 A. That's right, I was. 23 Q. And isn't it correct that your bicycle did not have a 24 taillight at the time that summons was issued? 25 A. Yes, but I had a taillight mounted on my helmet. This was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 57 95C5FIV2 Nelson - cross 1 a taillight where the manufacturer has an alternate mounting 2 for either on the helmet or on the bicycle in that as a rider 3 in winter time, your coat is likely to drape over where the 4 taillight is. SUVs and trucks see the helmet light much more 5 clearly than when it is mounted on the cycle. And I did, in 6 fact, offer to move that light then onto the bicycle and, 7 nonetheless, I was summonsed for not having it mounted on the 8 bike when it was in fact on my helmet and flashing. 9 Q. Ms. Nelson, you are aware that the parade rules were 10 amended in February 2007, correct? 11 A. Yes. 12 Q. And you claim you did not ride in Manhattan Critical Mass 13 in 2007 due to these amendments, correct? 14 A. That's correct. 15 Q. And that's because you believe that doing so would 16 jeopardize your status in this litigation, correct? 17 A. Yes, that's correct. 18 Q. But isn't it true, Ms. Nelson, that you read in the 19 Manhattan Critical Mass ride in May 2008; correct? 20 A. That's correct. And the reason for that was that it became 21 clear over the course of time that the City was not at all 22 enforcing its -- the parade rule. Not at all and -- 23 Q. Your Honor, the question was just a yes or no. We move to 24 strike the non-responsive portions. 25 THE COURT: Everything after "that's correct" is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 58 95C5FIV2 Nelson - cross 1 stricken. But, let me follow up on something that I didn't 2 quite understand. 3 You said that after the parade regulations were 4 amended you didn't ride to whatever extent you didn't ride 5 because you believed that riding would jeopardize your status 6 in the litigation. 7 Can you explain what you meant by that? 8 THE WITNESS: Yes, your Honor. 9 I believed that if I were summonsed for parading 10 without a permit that that would exclude me from bringing these 11 issues in front of you the way I'm able to do today. 12 THE COURT: On what basis? 13 THE WITNESS: That I would be considered to be in 14 violation to not be respecting what the City was doing -- 15 trying to do with this parade rule, your Honor. 16 THE COURT: So, the reason you didn't ride to whatever 17 extent you didn't ride after the law was amended was not 18 because you were afraid to do so, it was because you had a 19 litigation purpose in mind that you didn't want to undermine. 20 Is that accurate? 21 THE WITNESS: Yes, it is, your Honor. 22 THE COURT: Okay. Thank you. 23 BY MR. CIAPPETTA: 24 Q. Ms. Nelson, did you participate in the Brooklyn Critical 25 Mass rides on multiple occasions, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 59 95C5FIV2 Nelson - cross 1 A. Yes. 2 Q. And there was a police presence at the Brooklyn Critical 3 Mass rides that you participated in, correct? 4 A. Yes. 5 Q. And it is true that an Officer, an NYPD Officer at Brooklyn 6 Critical Mass generally asked the group for an idea where 7 they're going, correct? 8 A. Yes, that happens. 9 Q. And, generally, someone will provide the general idea if 10 they know that direction; is that accurate? 11 A. A general direction of which way the group is starting to 12 ride. For instance, going out on Eastern Parkway or, you know, 13 or heading south or something like that, yeah. 14 Q. Ms. Nelson, thank you. 15 A couple final questions for you Ms. Nelson. 16 I believe you mentioned on your direct that you 17 participated in a Still We Ride, is that correct? 18 A. Yes. 19 Q. And was there an organizer to that ride? 20 A. Yes, there was. That was a Times Up ride. 21 Q. Times Up did not apply for a NYPD parade permit for that 22 ride, is that accurate? 23 A. That's accurate. 24 MR. CIAPPETTA: Your Honor, I have no further 25 questions of this witness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 60 95C5FIV2 Nelson - cross 1 THE COURT: Thank you. 2 Ms. Dingle, anything else? 3 MS. DINGLE: Yes, your Honor, a brief redirect. 4 THE COURT: Yes. 5 REDIRECT EXAMINATION 6 BY MS. DINGLE: 7 Q. Ms. Nelson, you testified that general information about 8 the direction of the ride is given at the start of Brooklyn 9 Critical Mass. How much information would you say is conveyed 10 to officers at Brooklyn Critical Mass about the route? 11 A. It really is just -- 12 MR. MUSCHENHEIM: Objection, your Honor. 13 THE COURT: Yes. Rephrase the question. 14 MR. MUSCHENHEIM: Hearsay. 15 THE COURT: It is pretty vague. Let's get to personal 16 knowledge here. 17 BY MS. DINGLE: 18 Q. Ms. Nelson, what information do you have about the details 19 of the route that are provided to officers at Brooklyn Critical 20 Mass? 21 THE COURT: No. 22 On those occasions when you have personally observed 23 information being given to the police about the route in 24 Brooklyn Critical Mass rides what did you hear with your own 25 ears being given to the police? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 61 95C5FIV2 Nelson - redirect 1 That's the question. 2 THE WITNESS: May I answer that question, your Honor? 3 THE COURT: Sure. 4 THE WITNESS: Well, what I heard was, well, I think 5 we're starting out on Eastern Parkway; or we're going to go 6 southward today. Or something like that. It is really just 7 which direction the group is heading out of Grand Army Plaza. 8 THE COURT: Thank you. 9 BY MS. DINGLE: 10 Q. How, if at all, has the behavior of Critical Mass 11 participants changed with respect to corking since you first 12 rode in 2004? 13 A. I haven't seen corking done -- well, I haven't ridden in a 14 Manhattan Critical Mass since last May, but in the rides that I 15 did ride in I haven't seen corking since sometime in early to 16 mid-2006. 17 Q. What was your understanding of whether it was illegal to 18 ride over the Queensboro Bridge during the June 2005 Critical 19 Mass ride? 20 A. It was unclear. I had never ridden over that bridge 21 before. I knew that portions of the bridge were available to 22 bicycles. That's what I knew at that time; that apparently 23 there is not a dedicated all-the-time bicycle lane on that 24 bridge. 25 Q. What are your intentions with regard to riding over the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 62 95C5FIV2 Nelson - redirect 1 Queensboro Bridge in the future? 2 A. I -- 3 MR. MUSCHENHEIM: Objection, your Honor. 4 THE COURT: Sustained. 5 Q. Ms. Nelson, you testified that you did not participate in 6 Critical Mass during 2007 due to legal concerns. Did there 7 come a time when you resumed your participation in Critical 8 Mass? 9 A. Yes, I did ride one more time in May of 2008. 10 Q. And why did you decide to resume your participation? 11 A. Well, because it was clear that New York City was not in 12 fact enforcing the parade rule at all, that no summonses to my 13 knowledge were ever given for parading without a permit. 14 Q. And, what happened when you participated in that ride? 15 A. I was summonsed under, is it 401P3? It is the rule that 16 says that you may ride to either the right or the left of the 17 roadway. 18 Q. Have you participated in Critical Mass since receiving a 19 summons under that section? 20 A. No, I have not. 21 Q. And why have you chosen not to participate in Critical Mass 22 since May 2008? 23 A. Well, I have given up. I have given up at this point. 24 Q. What do you mean by you've given up? 25 A. At that point if I were going to be summonsed on a small SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 63 95C5FIV2 Nelson - redirect 1 ride for essentially a rule that the judge who ruled on that 2 ticket said that that rule did not apply, that was the 3 ruling -- 4 MR. MUSCHENHEIM: Objection, your Honor. 5 THE COURT: What's the objection? 6 MR. MUSCHENHEIM: Your Honor, she's testifying about 7 what the judge said at the hearing. 8 THE COURT: Well, I'm not going to take it for the 9 truth of what's stated. I will take it as it goes to the 10 question of why she doesn't ride anymore. 11 MS. DINGLE: No further questions, your Honor. 12 THE COURT: Okay. 13 Any further cross? 14 MR. CIAPPETTA: No, your Honor. 15 THE COURT: Thank you, Ms. Nelson. You are excused. 16 THE WITNESS: Thank you. 17 (Witness excused) 18 THE COURT: Seems like a good time to break for lunch. 19 Let's start again at 10 minutes to 2:00. 20 (Luncheon recess) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 64 95C5FIV2 1 A F T E R N O O N S E S S I O N 2 1:50 p.m. 3 THE COURT: Your next witness, Mr. Bierbauer. 4 MR. BIERBAUER: My colleague Emily Mathieu will be 5 examining Mr. Hugh McGlincy. 6 THE COURT: Sorry. I didn't get the name. I got 7 Ms. Mathieu's name. 8 MR. BIERBAUER: Mr. Hugh McGlincy. 9 HUGH MCGLINCY, 10 called as a witness by the Plaintiffs, 11 having duly affirmed, testified as follows: 12 THE WITNESS: My name is Hugh McGlincy. That's 13 M-C-G-L-L-I-N-C-Y. 14 THE COURT: You may proceed, Ms. Mathieu. You may 15 proceed, counselor. 16 DIRECT EXAMINATION 17 BY MS. MATHIEU: 18 Q. Mr. McGlincy you prepared a witness statement in connection 19 with this matter, didn't you? 20 A. I did. 21 Q. I would like to show you what's been marked for 22 identification as Plaintiff's Exhibit 281. Is this the witness 23 statement you prepared? 24 A. I will put my glasses on. It is. 25 Q. And is that your signature on the last page of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 65 95C5FIV2 McGlincy - direct 1 statement? 2 A. It is. 3 Q. Mr. McGlincy, you understand you are now under oath? 4 A. I do. 5 Q. And, under oath do you state that everything in this 6 witness statement is true and accurate? 7 A. I do, with one correction. 8 Q. And what is that? 9 A. I believe this statement indicates that I last rode in the 10 Brooklyn Critical Mass in autumn of 2008 and since that time I 11 rode this past Friday. I guess that was the 8th of May. 12 Q. And with that correction, do you adopt that statement as 13 your testimony in this case? 14 A. I do. 15 MS. MATHIEU: Plaintiffs move to admit this document 16 into evidence as Plaintiff's Exhibit 281. 17 MR. MUSCHENHEIM: Your Honor, as before, we have a 18 number of concerns about the document. We could go through 19 them if you would like, or based on what you have previously 20 said we don't need to do that. 21 THE COURT: We don't need to do it. I'm going to 22 receive it on the same basis and understanding that I received 23 previously. I'm not going to -- your objections are preserved. 24 MR. MUSCHENHEIM: Thank you, your Honor. 25 MS. MATHIEU: Your Honor, plaintiffs wish to conduct a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 66 95C5FIV2 McGlincy - direct 1 brief supplemental direct examination of Mr. McGlincy. 2 THE COURT: Why? 3 MS. MATHIEU: This is in connection with three 4 documents that defendants produced on April 22nd. 5 THE COURT: About what? 6 MS. MATHIEU: The three documents show that NYPD 7 assigned disproportionate numbers of personnel to monitor 8 certain group rides that they believe were associated with 9 Critical Mass even though there was no illegal activity 10 associated with these rides. 11 THE COURT: So what does this witness know about it? 12 MS. MATHIEU: He participated in these rides. 13 THE COURT: So what? 14 MS. MATHIEU: He's able to talk about what he observed 15 of the police presence on the rides and what he knows of the 16 alleged connection between the rides and Critical Mass. 17 THE COURT: So anything he's going to say he could 18 have had in the witness statement, right? 19 MS. MATHIEU: Well, the relevance of these rides 20 was -- 21 THE COURT: I'm sorry? 22 MS. MATHIEU: The police presence at these rides and 23 the specifics of that presence was not necessarily known to us 24 before we got the documents on April 22nd. 25 THE COURT: There is a logical disconnect here, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 67 95C5FIV2 McGlincy - direct 1 Ms. Mathieu. If he is going to testify on the basis of 2 personal knowledge, then it is knowledge that he has by virtue 3 of having been there when the rides occurred independent of the 4 documents; right? 5 MS. MATHIEU: That's right. 6 THE COURT: And therefore it could have been in the 7 witness statement, right? 8 MS. MATHIEU: It could have been in the witness 9 statement but we did not appreciate the significance of this 10 particular knowledge until after receiving the documents. 11 THE COURT: Well, very briefly. 12 BY MS. MATHIEU: 13 Q. Okay. Thank you. 14 Mr. McGlincy you participated in Critical Mass bike 15 rides? 16 A. I have and do. 17 Q. And, have you seen a significant police presence at 18 Critical Mass rides? 19 MR. MUSCHENHEIM: Objection, your Honor. 20 THE COURT: Sustained. 21 Q. Have you seen a police presence at Critical Mass rides? 22 A. I have. 23 Q. Have you participated in any group bike rides other than 24 Critical Mass? 25 A. I have. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 68 95C5FIV2 McGlincy - direct 1 Q. Have you been on any bike rides other than Critical Mass 2 when you see police presence? 3 A. I have. 4 Q. And what rides of that nature do you recall? 5 A. I recall a ride, I think the title was midnight riders 6 which I participated in and there were a lot of police present. 7 Q. Any others? 8 A. There was a Ride of Silence to commemorate cyclists 9 killed -- or to remember, rather, cyclists killed by vehicles. 10 There have been memorial rides that we do every January for the 11 cyclists that are killed the previous year. And, I believe 12 there was also a ride to end all wars or the war that was going 13 on -- or one of the two wars that was going on and there were 14 police presence there as well. 15 Q. Do you recall seeing any arrests or summonses at any of 16 these rides? 17 A. I do not. 18 Q. And in reference to the Midnight Riders' ride, what do you 19 recall of the nature of the police presence at that ride? 20 A. There seemed to be a lot of police, or at least an equal if 21 not greater number of police than cyclists. 22 Q. Are you familiar with the organization Times Up? 23 A. I am. 24 Q. And how are you familiar with Times Up? 25 A. I'm a member and I participate in a lot of their group bike SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 69 95C5FIV2 McGlincy - direct 1 rides and some of their other events. 2 Q. Do you know whether Times Up played any role in promoting 3 the Midnight Riders' ride? 4 A. I believe the ride was listed on the website and we also 5 have a printed calendar and it was on the printed calendar too. 6 Q. Do you know whether the Midnight Riders' ride had a 7 purpose? 8 A. Well, it was to have fun. I think people were encouraged 9 to dress up in self-made home made super hero costumes of one 10 sort or another. 11 Q. Was an additional purpose of the Midnight Riders' ride to 12 commemorate certain bicycle events that took place just prior 13 to the Republican National Convention? 14 MR. MUSCHENHEIM: Objection, your Honor. 15 THE COURT: Sustained. That is leading. 16 Q. Did anyone ever tell you that one purpose of the Midnight 17 Riders' ride was to commemorate events in connection with the 18 Republican National Convention? 19 MR. MUSCHENHEIM: Objection, your Honor. 20 THE COURT: Sustained. 21 Q. You mentioned a ride to end all wars? 22 A. Yes. 23 Q. What do you recall of the nature of the police presence at 24 that ride? 25 A. I remember I was riding -- the ride had different starting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 70 95C5FIV2 McGlincy - direct 1 points and I was starting at the starting point in Queens by 2 the court house, and I guess when I met the two other cyclists 3 who were starting there we encountered a squad car and two 4 officers on motor scooters. 5 Q. And, what was the total number of cyclists at that point 6 participating in the ride? 7 A. There were three of us. 8 Q. And the total number of police that you recall? 9 A. I think there were two officers in the squad car and there 10 were two on the motor bikes who followed us. 11 Q. Do you know whether Times Up played any role in promoting 12 the ride to end all wars? 13 A. I believe we had that on the website and the calendar. 14 Q. You also mentioned the memorial ride? 15 A. Yes. 16 Q. What do you recall of the police presence at that ride? 17 A. I recall there were officers who were following alongside 18 the ride as it proceeded throughout the city. 19 THE COURT: Ms. Mathieu, please explain to me how this 20 line of examination relates to the documents you claim were 21 recently produced. 22 MS. MATHIEU: These questions relate to what 23 Mr. McGlincy remembers about the exact nature of the police 24 presence at the ride which is mentioned in the documents I 25 referred to earlier. And it also relates to the -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 71 95C5FIV2 McGlincy - direct 1 MEMBER OF PUBLIC: This is a corrupt system you've got 2 here. 3 THE COURT: We will take a brief recess. 4 (Recess) 5 THE COURT: Please, be seated. 6 Before we resume, I will note that on the transcript 7 just before I indicated a recess the reporter recorded "ANSWER: 8 This is a corrupt system you've got here," as if it were a 9 statement made by the witness. It was not. 10 What occurred is that someone burst through the rear 11 doors of the courtroom with some security in pursuit and it was 12 the fellow who ran into the courtroom who made that statement. 13 Let's continue. You were trying to explain to me how 14 this all relates to the documents. 15 MS. MATHIEU: Mr. McGlincy is able to provide 16 information about the experience of the cyclists on these rides 17 where NYPD assigned a detailed police rides. 18 THE COURT: Well, so far I haven't heard anything of 19 the sort. So far what I have heard is he was there and he saw 20 policemen. Wow. 21 MS. MATHIEU: He was also -- I hope testifying -- 22 about his perception as to the proportionate nature of the 23 police presence to the number of cyclists. 24 THE COURT: Get to it and get to it quickly. We are 25 not spending seven weeks trying this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 72 95C5FIV2 McGlincy - direct 1 MS. MATHIEU: I think I just had a couple more 2 questions. Is that all right? 3 THE COURT: Okay. 4 BY MS. MATHIEU: 5 Q. Mr. McGlincy, you also mentioned the ride of silence? 6 A. Yes. 7 Q. What do you recall of the nature of the police presence at 8 that ride? 9 A. Well, given that there were, it was a ride in silence to 10 commemorate fallen cyclists, it seemed that to me there were a 11 lot of police engaged in unnecessary actions alongside the ride 12 and behind the ride. 13 THE COURT: The answer is stricken. 14 How many cyclists did you observe? 15 THE WITNESS: I would say approximately 20. 16 THE COURT: How many policemen did you observe? 17 THE WITNESS: Your Honor, I would say perhaps 20 to 18 30. 19 THE COURT: Thank you. 20 Go on. 21 MS. MATHIEU: We would like to now look at one video 22 that's in evidence as Plaintiff's Exhibit 204. 23 THE COURT: Is this because you want to ask the 24 witness a question about it? 25 MS. MATHIEU: That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 73 95C5FIV2 McGlincy - direct 1 THE COURT: How long is it? 2 MS. MATHIEU: I think it is about 30 seconds but in 3 just a moment I can confirm that. 36 seconds. 4 THE COURT: Are you offering 204? 5 MS. MATHIEU: Yes. 6 THE COURT: Is there objection? 7 MR. MUSCHENHEIM: No, your Honor. 8 THE COURT: 204 is received. 9 (Plaintiff's Exhibit 204 received in evidence) 10 THE COURT: Go ahead. 11 (Video played) 12 MS. MATHIEU: For the record, the parties have 13 stipulated to a version of this video that was taken on July 14 11, 2008 in connection with the Brooklyn Critical Mass ride. 15 THE COURT: I'm sorry? 16 MS. MATHIEU: July 2008. 17 THE COURT: I got the date. 18 MS. MATHIEU: In connection with the Brooklyn Critical 19 Mass ride. 20 THE COURT: Thank you. 21 So stipulated, Mr. Muschenheim? 22 MR. MUSCHENHEIM: Yes, your Honor. 23 THE COURT: All right. 24 BY MS. MATHIEU: 25 Q. Mr. McGlincy, were you on this ride? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 74 95C5FIV2 McGlincy - direct 1 A. I was. 2 Q. And, in the video, do you observe this ride proceeding down 3 Flatbush Avenue? 4 A. I believe it was Flatbush, yes. 5 Q. Do you recall proceeding down Flatbush Avenue on that ride? 6 A. I do. 7 Q. Is this the only occasion in your experience that Brooklyn 8 Critical Mass has proceeded down Flatbush Avenue? 9 A. No. 10 Q. How many other times would you say that you've ridden down 11 Flatbush Avenue as part of Brooklyn Critical Mass? 12 A. It's difficult to recollect the exact number of times. 13 Some months we do go down Flatbush and other months we don't. 14 Certainly several -- several times frequently we've gone over, 15 down Flatbush. 16 Q. And what do you recall of traffic conditions on Flatbush 17 Avenue when bicycles were proceeding down it? 18 A. Flatbush is a busy avenue and it is usually very busy at 19 that time. 20 Q. Were there both motorcyclists and motorists proceeding on 21 the road together? 22 A. On Flatbush? 23 Q. Yes. 24 A. Yes. 25 Q. In the video did you see cyclists in one or two lanes of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 75 95C5FIV2 McGlincy - direct 1 traffic? 2 A. I did. 3 Q. Did you see motorists proceeding in the same direction on 4 the same road? 5 THE COURT: Ms. Mathieu, I really don't mean to be 6 difficult but if it is in the video it is in the video, and 7 that would be true regardless of whether Mr. McGlincy saw it or 8 sees it in the video. Once the video is in the only question 9 is do I see it in the video. Okay? 10 MS. MATHIEU: I understand. 11 THE COURT: So let's not take time on unnecessary 12 things. It is kind of like asking somebody what the 23rd Psalm 13 says. You know? It is either in there or it is not. 14 MS. MATHIEU: Your Honor, we're happy to move on. 15 THE COURT: Good. 16 MS. MATHIEU: And your witness. 17 THE COURT: Thank you. 18 Let's go, Mr. Muschenheim. Tempus fugit. 19 MR. MUSCHENHEIM: Thank you, your Honor. 20 CROSS EXAMINATION 21 BY MR. MUSCHENHEIM: 22 Q. Mr. McGlincy, you have been participating in Manhattan 23 Critical Mass since 2003, is that correct? 24 A. That is correct. 25 Q. And you have been participating in Brooklyn Critical Mass SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 76 95C5FIV2 McGlincy - cross 1 since 2004, is that correct? 2 A. That is correct. 3 Q. And you claim that at this time these rides are similar and 4 that they occur at about the same time in the evening and are 5 similar in terms of size, is that correct? 6 A. Yes. 7 Q. But they weren't similar in size until recently, is that 8 correct? 9 A. What do you mean recently, sir? 10 Q. In the last year or two? 11 A. I would say that's correct. 12 Q. In fact, isn't it true that Manhattan Critical Mass' rides 13 were much larger than Brooklyn Critical Mass rides two or three 14 years ago? 15 A. I believe it was longer than that. 16 Q. But -- 17 A. Early. 18 Q. At points it was, they were much larger? 19 A. That is correct. 20 Q. Okay. And Mr. McGlincy you, in your direct testimony, you 21 testified about a 1234 summons, is that correct? 22 A. That's correct. 23 Q. That you received? 24 Your Honor, I would like to identify this document if 25 we could transfer to the -- it is Plaintiff's Exhibit 8 -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 77 95C5FIV2 McGlincy - cross 1 THE COURT: It has a zoom control. 2 Q. Mr. McGlincy, is that an accurate copy of the 1234 summons 3 that you received? 4 A. I think so. 5 MR. MUSCHENHEIM: Your Honor, we would like to move 6 this into evidence as Plaintiff's Exhibit 8. 7 THE COURT: Any objection? 8 MS. MATHIEU: No, your Honor. 9 THE COURT: Received. 10 (Defendant's Exhibit 8, Bates 002563, received in 11 evidence) 12 MR. MUSCHENHEIM: Your Honor, if I could note that 13 this is one of numerous documents that was in Plaintiff's 14 Exhibit -- 15 THE COURT: It is one of many? 16 MR. MUSCHENHEIM: Many documents within their 17 Plaintiff's Exhibit 8. 18 THE COURT: So you're just offering this one. 19 MR. MUSCHENHEIM: Yes, your Honor; just this document 20 which is NYC 002563. 21 THE COURT: I'm sorry. Just give me the number again, 22 please. 23 MR. MUSCHENHEIM: I'm sorry. It is NYC 002563 is the 24 Bates Number of this document which is -- I can move it up -- 25 this document which is one of several documents in Plaintiff's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 78 95C5FIV2 McGlincy - cross 1 Exhibit 8. 2 THE COURT: So, the only portion of Plaintiff's 8 for 3 identification that's received is the portion bearing Bates 4 Number 002563. 5 Proceed, please. 6 BY MR. MUSCHENHEIM: 7 Q. And, Mr. McGlincy, this summons was issued at 22nd Street 8 and Sixth Avenue, is that correct? 9 A. I think so. It might have been 21st or 22nd. 10 Q. And so, were you traveling on Sixth Avenue at that point? 11 A. I was. 12 Q. And you see and it is pretty faint but if you look at the 13 description of the criminal court offense it says failure to 14 keep left. Is that correct? 15 A. I can't make that out on the monitor that I have but I 16 believe that may have been the summons, yes. 17 Q. And, doesn't another provision of law require bikes to stay 18 to the far right or left on avenues that are greater than 40 19 feet? 20 A. I think when practical. 21 Q. And now you have also testified about some other rides that 22 you have participated in, is that right? 23 A. Yes. 24 Q. And most of those rides occurred before February of 2007, 25 is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 79 95C5FIV2 McGlincy - cross 1 A. I think so, yes. 2 Q. The Ride to End All Wars, that occurred in March of 2007; 3 is that right? 4 A. I'm not certain. 5 Q. That had thousands of participants, did it not? 6 A. Can you repeat which ride we are talking about? 7 Q. The Ride to End All Wars. Do you converge at a specific 8 location? 9 A. I'm sorry. Which question or -- 10 Q. I'm sorry. Withdrawn. 11 There was a Ride to End All Wars, is that correct? 12 A. Yes. 13 Q. And it had multiple starting points? 14 A. It did. 15 Q. And, did the riders at these multiple starting points 16 converge on one location? 17 A. Yes. 18 Q. And at that one location how many participants were there? 19 A. I'm not certain. 20 Q. Hundreds? 21 A. Fewer. 22 Q. Less than a hundred? 23 A. I'm not certain. 24 Q. Okay. And you have also participated in Brooklyn Critical 25 Mass, is that correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 80 95C5FIV2 McGlincy - cross 1 A. Yes. 2 Q. And, isn't it correct that during December of 2004 you 3 worked with the police department and determined the route for 4 one part of that ride? 5 A. I'm sorry. Can you repeat that question? 6 Q. Sure. 7 Isn't it correct that during the December 2004 ride 8 you worked with the police department to determine the route 9 for one part of that ride -- sorry, a member of the police 10 department to determine the route for one part of that ride? 11 A. No, I don't believe that is correct. 12 Q. Did you sign a declaration in this case previously a few 13 years ago, approximately? 14 A. I believe so. 15 Q. Okay. 16 Your Honor, what I would like to submit to the 17 witness, Defendant's Exhibit KKK -- I would like to offer the 18 witness -- show the witness Defendant's Exhibit KKK. 19 THE COURT: You are showing it to the witness. That's 20 where we are right now. 21 Q. Mr. McGlincy, is that a copy of your -- is that the copy of 22 the first page of the declaration that you signed in this case 23 two years ago? 24 A. It looks to be so, yes. 25 Q. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 81 95C5FIV2 McGlincy - cross 1 MR. MUSCHENHEIM: Your Honor, I would like to offer 2 this into evidence. 3 THE COURT: For what purpose? 4 MR. MUSCHENHEIM: As a prior inconsistent statement. 5 THE COURT: The whole thing? 6 MR. MUSCHENHEIM: Paragraphs 20, which is on page 4. 7 THE COURT: Any objection? 8 MS. MATHIEU: Just paragraph 20? 9 THE COURT: Yes. 10 MS. MATHIEU: No. 11 THE COURT: All right, paragraph 20 is received of 12 Defendant's Exhibit KKK. 13 (Defendant's Exhibit KKK, paragraph 20, received in 14 evidence) 15 BY MR. MUSCHENHEIM: 16 Q. And in paragraph 20 it states: Rather sheepishly and with 17 some embarrassment and not sure what to expect, I asked the 18 officers in the sedan how we might get to Fort Greene Park. 19 The commander suggested that the best route would be to turn on 20 Myrtle Avenue and they held up traffic so that we could do so. 21 That's a correct statement of what is in paragraph 20 22 of your declaration? 23 A. It is. 24 Q. And isn't it true that you and others did the same thing 25 during -- excuse me. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 82 95C5FIV2 McGlincy - cross 1 Isn't it true that you and others worked with officers 2 of the police department during the August 2005 ride in 3 Brooklyn? 4 A. I don't have a specific recollection of that ride and that 5 month. You would have to put it in some context for me. 6 Q. Okay. I will show you paragraphs 29 through 31 of Exhibit 7 KKK and I would, after everyone has had a chance to look at it, 8 I would like to offer it into evidence. 9 THE COURT: What's the question? 10 MR. MUSCHENHEIM: We move to offer that, those 11 paragraphs, paragraphs 29, 30 and 31 of Defendant's KKK, into 12 evidence. 13 THE COURT: Any objection? 14 MS. MATHIEU: No, your Honor. 15 THE COURT: Received, paragraphs 29 to 31. 16 (Defendant's Exhibit KKK, paragraphs 29-31, received 17 in evidence) 18 BY MR. MUSCHENHEIM: 19 Q. Mr. McGlincy isn't it true that -- I'm sorry. 20 Paragraphs 29, 30 and 31, those are accurate 21 statements of what were contained in your declaration from 22 approximately two years ago? 23 A. They are. 24 Q. Okay. 25 THE COURT: And was the declaration true is the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 83 95C5FIV2 McGlincy - cross 1 question I think counsel is trying to ask. 2 MR. MUSCHENHEIM: Was the declaration correct, your 3 Honor? 4 Excuse me. 5 THE COURT: Beats me. 6 THE WITNESS: Yes. 7 BY MR. MUSCHENHEIM: 8 Q. I will just very quickly read them, paragraph 29: At this 9 point -- 10 THE COURT: Please. I have read them already. 11 Q. Okay. Thank you. 12 And then one final thing. Isn't it true, 13 Mr. McGlincy, that you have seen Brooklyn Critical Mass 14 participants work with the police department to determine the 15 route for a part of some rides on numerous occasions? 16 MS. MATHIEU: Objection. 17 THE COURT: Ground? 18 MS. MATHIEU: Vague, numerous. 19 THE COURT: Sustained. 20 Rephrase. 21 MR. MUSCHENHEIM: Your Honor, if we could move on, 22 paragraph 35 of KKK, this is exactly what he said. 23 THE COURT: I don't know why we are fussing around 24 with this. 25 Mr. McGlincy? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 84 95C5FIV2 McGlincy - cross 1 THE WITNESS: Sir. 2 THE COURT: Is it accurate that you have seen police 3 officers facilitate Brooklyn Critical Mass rides on numerous 4 occasions? 5 THE WITNESS: It is, your Honor. 6 THE COURT: Thank you. 7 MR. MUSCHENHEIM: Nothing further, your Honor. 8 THE COURT: Thank you. 9 Anything else, Ms. Mathieu? 10 MS. MATHIEU: Briefly, your Honor, we do have a couple 11 questions. 12 THE COURT: Go ahead. 13 REDIRECT EXAMINATION 14 BY MS. MATHIEU: 15 Q. Mr. McGlincy, you just testified to two occasions on which 16 there was some discussion between cyclists and between police 17 officers at Brooklyn Critical Mass about the route you were 18 trying to take, is that right? 19 A. I did. 20 Q. Did you personally ever tell the police, anyone at NYPD 21 what route the Brooklyn Critical Mass would take? 22 A. No. 23 Q. Did you ever hear anyone else on the ride tell the police 24 the route the ride would take from Grand Army Plaza to its 25 destination? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 85 95C5FIV2 McGlincy - redirect 1 A. No. I believe on one or two occasions someone might have 2 shared the destination but not the route. 3 THE COURT: Is this a matter of belief in the sense 4 that people believe in a supreme being or is there some factual 5 basis for this belief? 6 That's to you. 7 THE WITNESS: Well, at the Brooklyn Mass, your Honor, 8 it is usually -- I'm usually with a small group of cyclists and 9 the police, as I said in my statement, we have a cordial 10 relationship and they will come in and speak to me, I will 11 speak to them. This past Friday we exchanged a similar -- they 12 asked -- the commander officer asked me what the route was and 13 then we talked about the rain. So, that's the knowledge, 14 that's the basis for my forming the answer that that 15 information is not shared regarding a route. 16 THE COURT: Well, have you heard people, riders tell 17 the police what the destination was in Brooklyn? 18 THE WITNESS: I think on one occasion when we were 19 going to a little league field for a ceremony regarding a 20 young, I believe 13-year-old cyclist who had been killed, had 21 been a member of his little league team, I believe that 22 information was shared with the police that we were going to 23 that baseball field for that event but we were not sharing the 24 route. 25 THE COURT: And where were you physically when that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 86 95C5FIV2 McGlincy - redirect 1 information was shared on that occasion? 2 THE WITNESS: I believe I was standing at Grand Army 3 Plaza. 4 THE COURT: And that's the starting point for the 5 ride? 6 THE WITNESS: It is. 7 THE COURT: And had the ride begun at the point when 8 that information was shared? 9 THE WITNESS: I believe it was prior to beginning. 10 THE COURT: And who was it who shared the information 11 as to the destination? 12 THE WITNESS: I'm not certain. I believe it was a 13 woman who was active in the rides for memorial for cyclists who 14 were killed. 15 THE COURT: And, was this a woman who at the time she 16 shared the information was riding out in front of the back of 17 bike riders? 18 THE WITNESS: I'm not certain if I remember, your 19 Honor. 20 THE COURT: So, at least this woman knew before the 21 ride set out what the destination was going to be, is that 22 correct? 23 THE WITNESS: Yes. 24 THE COURT: Okay. You may proceed. 25 BY MS. MATHIEU: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 87 95C5FIV2 McGlincy - redirect 1 Q. Mr. McGlincy, just to ask you a question about what you 2 just said, when you say that that information was shared prior 3 to the beginning of the ride, do you mean prior to the arrival 4 of the cyclist at Grand Army Plaza? 5 A. No. I mean before the cyclists pulled out on their 6 bicycles. 7 MS. MATHIEU: I would like to move to have admitted 8 into evidence paragraphs 32 through 35 of the declaration which 9 has been identified as Defendant's Exhibit KKK. 10 THE COURT: Any objection? 11 MR. MUSCHENHEIM: One moment, your Honor. 12 Your Honor, I think paragraph 34 is hearsay, but 13 otherwise no objection. 14 THE COURT: They're received. 15 (Defendant's Exhibit KKK, paragraphs 32-35, received 16 in evidence) 17 BY MS. MATHIEU: 18 Q. Mr. McGlincy, can you see paragraphs 32 through 35 there? 19 A. I can. 20 Q. Can you just review them and let me know when you are 21 finished, please? 22 A. Yes. 23 Q. In paragraph 35 you make a statement about facilitation of 24 the Brooklyn Critical Mass ride by police officers, right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 88 95C5FIV2 McGlincy - redirect 1 Q. Can you just explain what the facilitation is that you were 2 describing in paragraph 35 consisted of? 3 A. I'm sorry. Say the last part again, please? 4 Q. Can you explain what the facilitation that you reference in 5 paragraph 35 consists of? 6 A. Usually that involves riding alongside and going to the 7 intersection, stopping the traffic, allowing the cyclist to 8 stay together and go through the intersections. If we are 9 turning, they'll go ahead and stop the traffic so we can make a 10 turn. If there is a car double-parked with the driver 11 sometimes they will move it out of the way so the ride can go 12 through quickly. 13 Q. Does the facilitation refer to there, does that refer at 14 all to police officers leading the cyclists along the route? 15 A. No. 16 MS. MATHIEU: No further questions. 17 THE COURT: Thank you. 18 Mr. Muschenheim? 19 MR. MUSCHENHEIM: No, your Honor. 20 THE COURT: Thank you, Mr. McGlincy. You are excused. 21 THE WITNESS: Thank you. 22 (Witness excused) 23 (Continued next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 89 95c1fiv3 DeFreitas - direct 1 MR. BIERBAUER: Plaintiffs will call Ed DeFreitas. 2 (Witness sworn) 3 THE CLERK: Please be seated. Please state your name 4 and spell your last name for the record. 5 THE WITNESS: Edward DeFreitas, capital D-E capital 6 F-R-E-I-T-A-S. 7 THE COURT: You may proceed. 8 And counsel, your name is what? Counsel, your name? 9 MR. CALDON: Sorry. Brendan Caldon. 10 THE COURT: Okay. Go ahead. 11 EDWARD DEFREITAS, 12 called as a witness by the Plaintiffs, 13 having been duly sworn, testified as follows: 14 DIRECT EXAMINATION 15 BY MR. CALDON: 16 Q. Mr. DeFreitas, you prepared a witness statement in 17 connection with this case? 18 A. Yes. 19 Q. I'd like to show you what has been marked for 20 identification as Plaintiff's Exhibit 278. 21 MR. CURLEY: Pardon me, your Honor. We had switched 22 over. 23 Q. Is this a witness statement that you prepared? 24 A. Yes, it is. 25 Q. Mr. DeFreitas, do you understand that you are under oath? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 90 95c1fiv3 DeFreitas - direct 1 A. Yes, I do. 2 Q. You swore to tell the truth? 3 A. Yes. 4 Q. Under oath, do you state that everything in this witness 5 statement is true and accurate? 6 A. Yes. 7 Q. Do you adopt this statement as your testimony in this case? 8 A. Yes. 9 MR. CALDON: Plaintiffs move to admit this document 10 into evidence as Plaintiff's Exhibit 278. 11 MR. MUSCHENHEIM: Your Honor, the same objections. We 12 have a variety of concerns, but just note our objection. I'm 13 happy to go through them. 14 THE COURT: Your objections are reserved. It's 15 received on the same basis. 16 (Plaintiff's Exhibit 278 received in evidence) 17 THE COURT: If there's anything of a glaring piece of 18 importance, you're welcome to bring it to my attention. But if 19 it's more of the same... 20 MR. MUSCHENHEIM: It's more of the same. 21 THE COURT: Okay. 22 MR. CALDON: Your witness. 23 THE COURT: Okay. Anything else for this witness? 24 Thank you. Cross-examination? 25 CROSS-EXAMINATION SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 91 95c1fiv3 DeFreitas - cross 1 BY MR. CIAPPETTA: 2 Q. Good afternoon, Mr. DeFreitas. 3 A. Good afternoon. 4 Q. Just a few questions for you. Could you please state when 5 you became a ride leader for 5BBC, please. 6 A. You mean -- well, wait a second. Let me just try to 7 remember. I believe it was around -- someplace in the early 8 '90s; '93, '95. I don't recall exactly. It's been quite 9 awhile though. 10 Q. And is it correct that leaders for the Five Borough Bicycle 11 Club prepare cue sheets, correct? 12 A. Generally speaking, yes. 13 Q. Can you please explain what a cue sheet is. 14 A. It is a -- it's an indicator of where you start, where you 15 proceed to, and every time that you do something that is either 16 like a turn or if there is something like a stop, or if there 17 is a significant -- if you're going a distance, they'll tell 18 you that you will be passing a certain landmark, even if it's 19 passing a McDonald's or something, and of course the end of the 20 ride and then how to, you know -- the point of the ride and 21 then coming back most of the time. 22 Q. And you almost always prepare cue sheets for rides that you 23 lead, correct? 24 A. Yes. 25 Q. And these are prepared prior to the start of a ride, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 92 95c1fiv3 DeFreitas - cross 1 correct? 2 A. Yes. 3 Q. 5BBC expects its riders to prepare cue sheets, correct? 4 A. I'm sorry. 5BBC expects us what -- expects who? 5 Q. Let me rephrase. The Five Borough Bicycle Club expects its 6 riders to prepare cue sheets, correct? 7 A. No. You said riders. 8 Q. I'm sorry. Five Borough Bicycle Club expects ride leaders 9 to prepare cue sheets, correct? 10 A. Yes. 11 Q. And 5BBC -- and the Five Borough Bicycle Club day rides are 12 planned in advance, correct? 13 A. Yes. 14 Q. Since you became a leader for the Five Borough Bicycle Club 15 you have led five rides with 50 or more participants, correct? 16 A. Yes. 17 Q. Mr. DeFreitas, you're aware that the New York City parade 18 rules -- Withdrawn. 19 Mr. DeFreitas, you're aware that the NYPD parade rules 20 were amended in February 2007? 21 A. Yes. 22 Q. You haven't led a ride with 50 or more participants since 23 those rules became amended, correct? 24 A. That's correct. 25 Q. Mr. DeFreitas, at one point you claimed to be fearful that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 93 95c1fiv3 DeFreitas - cross 1 the amended parade rules would effectively end the Five Borough 2 Bicycle Club's day rides, correct? 3 A. Yeah. 4 Q. And the amended parade rules have not in fact ended the 5 Five Borough Bicycle Club's day rides, correct? 6 A. That's correct. 7 Q. The amended parade rules did not cause you to cancel a 8 group bicycle ride that you were supposed to lead, correct? 9 A. Not to cancel it, no. 10 Q. And the amended parade rules did not cause you to postpone 11 a group bicycle ride that you were supposed to lead, correct? 12 A. That's correct. 13 Q. Mr. DeFreitas, you applied for a parade permit from the 14 NYPD in February of 2007 for a ride known as the Pancake Ride, 15 am I correct? 16 A. Yes. 17 Q. And you received approval to conduct that ride from the 18 First Precinct, correct? 19 A. Specifically -- I assume so, because I got nothing more 20 than an oral statement from the fellow who accepted my 21 application, and that was it. There was nothing to say that I 22 actually got anything from it. 23 Q. But you were not specifically dis -- Withdrawn. 24 A. And indeed, when I went to start the ride, there was no 25 police presence there at all to be able to tell me that, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 94 95c1fiv3 DeFreitas - cross 1 know, that in fact that I had a permit, that somebody was 2 expecting me to follow certain rules. 3 MR. CIAPPETTA: Your Honor, I move to strike that last 4 part of the witness' testimony as not responsive. 5 THE COURT: Granted. 6 Q. Mr. DeFreitas, the Pancake Ride started in the First 7 Precinct, correct? 8 A. Yes. 9 Q. So you now know that the proper location at which to submit 10 a parade permit application is the precinct in which the ride 11 starts, correct? 12 A. Yes. 13 MR. CIAPPETTA: Thank you, Mr. DeFreitas. 14 Your Honor, no further questions for the witness. 15 THE COURT: Thank you. Counsel, any redirect? 16 REDIRECT EXAMINATION 17 BY MR. CALDON: 18 Q. Just a few questions, Mr. DeFreitas. You testified that 19 you hadn't applied for a permit since February 2007. But since 20 that time have you been impacted as a 5BBC ride leader by the 21 parade permit requirements? 22 A. Oh, yes. 23 Q. In what way? 24 A. Well, I wanted to make sure that I didn't come up to the 25 point where I would need a permit, and indeed there was such SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 95 95c1fiv3 DeFreitas - redirect 1 fluidity going on that I just wanted to stay away from that 2 park completely. 3 Q. Has it caused you to change your behavior in any way? 4 A. Yes. 5 Q. How so? 6 A. I guess the term that I'd like to use is sometimes if I 7 particularly feel that a ride is good, I'll -- the word I use 8 is juice it, which means I'll push the ride in various ways, 9 I'll push to get it advertised in some of the local newspapers, 10 like Time Out and stuff, and also make sure that I throw things 11 on the -- on the -- not the website, the -- what do we call it, 12 our bulletin board, and the things for other leaders; in other 13 words, generally push the idea and to try to say what a great 14 ride it is and show all the advantages of it. I refrain from 15 that. 16 Q. Have you been disenfranchised from advertising your rides? 17 A. That's correct. 18 MR. MUSCHENHEIM: Objection, your Honor. 19 THE COURT: Sustained. 20 Q. Mr. DeFreitas, are you aware of a chief officer requirement 21 on a parade permit? 22 A. Yes. 23 Q. Have you ever been a chief officer? 24 A. Apparently at one time. 25 Q. When was that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 96 95c1fiv3 DeFreitas - redirect 1 A. The one time that I -- that I -- that I applied for the 2 permit. 3 Q. And when was the last time you reviewed the parade permit? 4 A. Yesterday. 5 Q. And does it still contain a section requiring a chief 6 officer? 7 A. Yes. 8 Q. Are you still concerned about this requirement? 9 A. Very much so. 10 Q. Why is that? 11 A. Well, it's -- 12 THE COURT: Just a minute. If there is a document 13 that has such a requirement, let's see the document instead of 14 having this witness' testimony about the document. It's called 15 the best evidence rule. 16 MR. CALDON: Your Honor, the document is not an 17 exhibit. 18 THE COURT: Well, maybe it ought to be, huh? 19 MR. CALDON: I will be happy to -- 20 THE COURT: I mean, I'm looking at the form on the 21 police department website right now, and if that's what the 22 witness is saying he looked at, I don't see what he's talking 23 about on it. So this is not just a frivolous point. 24 MR. CALDON: I believe the chief officer requirement 25 is still on the current permit. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 97 95c1fiv3 DeFreitas - redirect 1 THE COURT: Well, let's see the document, okay? 2 That's why we have the best evidence rule. 3 MR. CALDON: We do not have the document with us. 4 THE COURT: Well, the witness' testimony about what's 5 on the current form is stricken. There is no showing that he 6 has personal knowledge, and even if there were, it violates the 7 best evidence rule. 8 MR. CALDON: Can we submit the document at a later 9 point? 10 THE COURT: You can certainly try. 11 MR. CALDON: All right. Thank you, your Honor. 12 I have no further questions. 13 THE COURT: Thank you. 14 Mr. Muschenheim? Or counsel, anything else? 15 MR. CIAPPETTA: No, your Honor. 16 THE COURT: All right. Thank you, Mr. DeFreitas. 17 You're excused. 18 (Witness excused) 19 THE COURT: Next? 20 MR. BIERBAUER: Plaintiffs will call Ed Ravin. 21 MR. MUSCHENHEIM: Your Honor? 22 THE COURT: Yes. 23 MR. MUSCHENHEIM: We -- Two nights ago we reviewed the 24 plaintiffs' list of witnesses, and we were given a list of 10 25 or 15 people. Ed Ravin was the last person. Mr. Ravin was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 98 95c1fiv3 Ravin - direct 1 deposed last Friday. The person who took that deposition who's 2 going to do the cross-examination had a deposition this morning 3 in another case. We would request 15 or 20 minutes to -- I 4 mean, we would prefer to not do it at all today. 5 THE COURT: All right. Do you have another witness 6 ready? 7 MR. BIERBAUER: No, we do not. Things have moved 8 rather quickly today, and we were very clear when we gave 9 our -- 10 THE COURT: You ain't seen nothing yet. 11 MR. BIERBAUER: I appreciate that, your Honor. We 12 made it very clear when we gave our witness list to defendants 13 that we would be guided by the pace of the Court and that we 14 would try to do things in a certain order, but obviously if the 15 Court is moving along quickly, we don't want to waste the 16 Court's time. And Mr. Ravin was able to be here today, and 17 therefore, we'd like to call him now. I'm certainly happy to 18 give them 20 minutes in recess if your Honor feels that's 19 appropriate. 20 THE COURT: Well, let's at least do the direct and 21 then we'll see where we are, but, you know, my general practice 22 is, you run out of witnesses on a given day, your case is over, 23 and that holds for both sides. You have the people here. I 24 set aside trial days, I expect to work full days. 25 MR. BIERBAUER: And we are trying very hard to do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 99 95c1fiv3 Ravin - direct 1 that, your Honor, and that's why we have Mr. Ravin now rather 2 than at the end of the case. 3 THE COURT: Well, let's get the direct now and let's 4 see where we are. 5 MR. BIERBAUER: May I go get Mr. Ravin? 6 THE COURT: Yes. 7 (Pause) 8 THE CLERK: Mr. Ravin, you can come on up to the 9 front. 10 Come on over here to the witness stand, please. 11 Please remain standing. 12 (Witness affirmed) 13 THE CLERK: Thank you. Please be seated. Please 14 state your full name and spell your last name for the record. 15 THE WITNESS: My name is Edward Ravin. R-A-V as in 16 Victor, I-N as in Nancy. 17 THE COURT: All right. Mr. Vaccaro, you may proceed. 18 MR. VACCARO: Thank you, your Honor. 19 EDWARD RAVIN, 20 called as a witness by the Plaintiffs, 21 having been duly sworn, testified as follows: 22 DIRECT EXAMINATION 23 BY MR. VACCARO: 24 Q. Mr. Ravin, did you prepare written direct testimony in this 25 matter? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 100 95c1fiv3 Ravin - direct 1 A. Yes, I did. 2 Q. And if you can look at the screen, does that appear to be 3 the cover page of your written direct testimony in this matter? 4 A. Yes, it does. 5 Q. And scrolling to the last page -- 6 A. Oh. 7 Q. -- is that your signature that appears on page 20 of your 8 written direct testimony? 9 A. Yes, it is. 10 Q. And you affirmed that Exhibit Plaintiff's 279 contains your 11 true and accurate testimony in this matter? 12 A. This item on the screen is Plaintiff's Exhibit 279? 13 Q. Yes. 14 A. Yes, this is -- at least the first and last page certainly, 15 yes, is my -- my testimony. 16 Q. And do you adopt Plaintiff's Exhibit 279, your written 17 direct testimony, as your testimony in this matter? 18 A. Yes. 19 MR. VACCARO: Your witness. 20 THE COURT: Do you want to offer the statement? 21 MR. VACCARO: Pardon? 22 THE COURT: Do you want to offer his testimony? 23 MR. VACCARO: Oh, I do, your Honor. Plaintiffs would 24 like to offer Exhibit Plaintiff's 279 marked for identification 25 for admission into evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 101 95c1fiv3 Ravin - direct 1 MR. MUSCHENHEIM: Your Honor, the usual objections 2 that defendants had. 3 THE COURT: Received on the same basis. 4 (Plaintiff's Exhibit 279 received in evidence) 5 THE COURT: Okay. Your proposal, Mr. Muschenheim, is 6 what, that we go over until tomorrow with this witness? 7 MR. MUSCHENHEIM: Yes, your Honor. 8 THE COURT: When was the deposition taken? 9 MR. MUSCHENHEIM: On Friday. 10 THE COURT: And the person who took the deposition was 11 whom? 12 MR. MUSCHENHEIM: Teresita Magsino. 13 THE COURT: Under the circumstances I'm really not 14 going to force you to go ahead today with this witness. 15 MR. VACCARO: Your Honor, we do have a different 16 witness, Luke Son, one of the plaintiffs in this matter. If it 17 would be -- if it behooves the Court and the defendants, we 18 would present him instead. 19 THE COURT: All right. So the cross-examination of 20 Mr. Ravin will go over till tomorrow and we'll move on out of 21 order to Mr. Son. 22 MR. VACCARO: Thank you, your Honor. 23 THE COURT: Okay. So you can step down now. We'll 24 see you back tomorrow morning. 25 (Witness excused) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 102 95c1fiv3 Son - direct 1 THE CLERK: Mr. Son, if you'd please take the stand. 2 Just watch your step. 3 Please remain standing and raise your right hand. 4 (Witness sworn) 5 THE CLERK: Thank you. Please be seated. If you can 6 please state your name and spell your first and last name for 7 the record. 8 THE WITNESS: It's Luke Son, L-U-K-E, S-O-N. 9 THE CLERK: Thank you. 10 THE COURT: You may proceed, counsel. 11 LUKE SON, 12 called as a witness by the Plaintiffs, 13 having been duly sworn, testified as follows: 14 DIRECT EXAMINATION 15 BY MS. DINGLE: 16 Q. Good afternoon, Mr. Son. 17 A. Good afternoon. 18 Q. Mr. Son, you prepared a witness statement in connection 19 with this case? 20 A. I have. 21 Q. I'd like to show you what has been marked for 22 identification as Plaintiff's Exhibit 284. Do you recognize 23 this document? 24 A. I do. 25 Q. Is this the witness statement that you prepared? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 103 95c1fiv3 Son - direct 1 A. Yes, it is. 2 Q. Please take a look at the last page of the document. Is 3 that your signature? 4 A. Yes, it is. 5 Q. Mr. Son, do you understand that you are now under oath? 6 A. Yes. 7 Q. Under oath, do you affirm that everything in this witness 8 statement is true and accurate? 9 A. I do. 10 Q. Do you adopt this statement as your testimony in this case? 11 A. I do. 12 MS. DINGLE: Plaintiffs move to admit Plaintiff's 284 13 into evidence. 14 THE COURT: Any objection? 15 MR. MUSCHENHEIM: Yes, your Honor, the normal 16 objections. 17 THE COURT: All right. It's received on the same 18 basis as the others. 19 (Plaintiff's Exhibit 284 received in evidence) 20 MS. DINGLE: Your Honor, I'd like to turn Mr. Son over 21 to defendants for cross-examination. 22 THE COURT: Thank you. 23 You may proceed, Mr. Ciappetta. 24 MR. CIAPPETTA: Thank you, your Honor. 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 104 95c1fiv3 Son - cross 1 CROSS-EXAMINATION 2 BY MR. CIAPPETTA: 3 Q. Good afternoon, Mr. Son. 4 A. Good afternoon. 5 Q. Mr. Son, you started participating in Manhattan Critical 6 Mass in 2005, correct? 7 A. That's correct. 8 Q. You were not arrested at Manhattan Critical Mass in 2005, 9 correct? 10 A. That's correct. 11 Q. And you were not issued a summons at Manhattan Critical 12 Mass in 2005, correct? 13 A. Not in 2005, correct. 14 Q. You participated in Manhattan Critical Mass rides involving 15 hundreds of bicyclists, correct? 16 A. I have, yes. 17 Q. And Mr. Son, you're familiar with the term corking, 18 correct? 19 A. I am. 20 Q. Can you please describe what corking is. 21 A. Corking is when people involved in a ride, whether cyclists 22 or the NYPD, will move into an intersection and allow the flow 23 of traffic through a red light. 24 Q. And prior to February of 2006 you observed bicyclists -- 25 THE COURT: Excuse me. And that's done by physically SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 105 95c1fiv3 Son - cross 1 positioning themselves so that the traffic that has the green 2 light is physically obstructed from proceeding through the 3 intersection with the light, correct? 4 THE WITNESS: That is correct. 5 THE COURT: Go ahead. Thank you. 6 Q. And Mr. Son, you observed corking occurring at Manhattan 7 Critical Mass prior to February of 2006 by bicyclists, correct? 8 A. Yes, in 2005. 9 Q. Mr. Son, it's also accurate that you witnessed the 10 Manhattan Critical Mass ride with approximately 1200 11 participants in the summer of 2006, is that accurate? 12 A. In the summer of 2006? 13 Q. Yes. 14 A. I can't say for certainty if that was the number. 15 MR. CIAPPETTA: Your Honor, at this time I would like 16 to show the witness Defendant's Exhibit NNN, the declaration of 17 Luke Son. 18 THE COURT: Okay. 19 MR. CIAPPETTA: And we're going to move this 20 evidence -- move this exhibit into evidence at this time. 21 THE COURT: Is there any objection to NNN? 22 MS. DINGLE: No objection, your Honor. 23 THE COURT: All right. NNN is received. 24 (Defendant's Exhibit NNN received in evidence) 25 Q. Mr. Son, do you recognize the first page of the document SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 106 95c1fiv3 Son - cross 1 that I have just displayed to you? 2 A. I believe so. 3 Q. And this is a declaration that you signed in connection 4 with the preliminary injunction in this matter, is that 5 accurate? 6 A. Yes. 7 Q. Mr. Son, I'm going to show you paragraph 16 of this 8 document. I'll read it to you. 9 THE COURT: That's not necessary. 10 Q. Okay. Mr. Son, can you please read that for a moment. 11 A. "I have never ridden --" Aloud? 12 THE COURT: No, no. I don't have to have you read it 13 to me any more than I have to have the lawyer read it to me. 14 Let's all assume literacy on the part of all concerned in this 15 trial. 16 A. (Witness complies.) 17 Q. Have you had an opportunity to read that paragraph? 18 A. Yes, I have. 19 Q. And does this refresh your recollection as to whether or 20 not you witnessed the Manhattan Critical Mass ride with 21 approximately 1200 participants in the summer of 2006? 22 A. Could you repeat the question? I'm sorry. 23 Q. Mr. Son, does this refresh your recollection as to whether 24 you witnessed a Manhattan Critical Mass ride with approximately 25 1200 participants -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 107 95c1fiv3 Son - cross 1 A. Yes. 2 Q. -- in the summer of 2006? 3 A. I believe so. 4 Q. And how does it refresh your recollection? 5 A. I know I have seen rides of that size. I wasn't sure of 6 the exact date, but if it was in 2006, I'm sure I -- I have 7 seen that. 8 Q. So now based on reviewing paragraph 16, does it refresh 9 your recollection that you did witness a Critical Mass ride of 10 approximately 1200 in the summer of 2006? 11 THE COURT: The dead horse's carcass is lying beaten 12 to a bloody pulp. Let's stop beating. Let's move on. 13 Q. Okay. Mr. Son, you were not arrested at Manhattan Critical 14 Mass in 2006, correct? 15 A. I was not, that's correct. 16 Q. You were issued one summons at a Manhattan Critical Mass 17 ride in 2006, correct? 18 A. That's correct. 19 Q. You continued to ride in Manhattan Critical Mass rides even 20 after the issuance of this summons, correct? 21 A. On occasion I did. 22 Q. That's a yes then? 23 A. Yes. Not with regularity, but I did participate in some 24 Critical Mass rides after that summons was issued. 25 Q. And Mr. Son, it's fair to say then that the issuance of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 108 95c1fiv3 Son - cross 1 this summons by the NYPD did not dissuade you from 2 participating, correct? 3 A. Oh, it certainly did. I didn't participate with as much 4 regularity because of the threat of being harassed or issued 5 another summons. 6 Q. Well, I'd like to show you paragraph 25 of your 7 declaration. If you can read that please and then look up when 8 you've had the opportunity to complete that. 9 THE COURT: To yourself. 10 A. (Witness complies.) 11 Q. Mr. Son, do you see that second sentence that states that 12 you were -- "I am not dissuaded by ticketing," correct? 13 A. Correct. 14 Q. Does that change the testimony that you've just given? 15 A. Well, it's followed by, "However, I may reconsider if 16 police arrests of cyclists become more frequent," and they have 17 been and I was subsequently dissuaded. But I did in turn, 18 like, go to participate in some. 19 Q. In fact, Mr. Son, you considered it your duty to ride in 20 Critical Mass, correct? 21 THE COURT: Enough already. I read it. 22 Q. Mr. Son, you were not arrested during subsequent Manhattan 23 Critical Mass rides, correct? 24 A. Yes, that's correct. 25 Q. You were not issued a summons during those subsequent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 109 95c1fiv3 Son - cross 1 rides, correct? 2 A. I was not. 3 Q. You've also participated in Brooklyn Critical Mass rides? 4 A. With less regularity, but yes, I have. 5 Q. You agree that Brooklyn Critical Mass rides typically 6 attract 30 to 60 riders? 7 A. Or more. I don't frequent them as often so I'm not sure 8 what typical numbers are. 9 Q. Mr. Son, I'll show you paragraph 15 of your declaration 10 then. 11 THE COURT: Mr. Ciappetta, what's the point? It's in 12 evidence, right? You've got under oath a statement by the 13 witness that Brooklyn typically attracts 30 to 60 riders. What 14 do you want, a confession? This isn't Perry Mason. 15 MR. CIAPPETTA: I understand, your Honor. We'll move 16 on. 17 Q. Mr. Son, you never observed bicyclists corking 18 intersections at Brooklyn Critical Mass, correct? 19 A. Bicyclists, no, I have not. 20 MR. CIAPPETTA: Thank you, your Honor. No further 21 questions. 22 THE COURT: Okay. Thank you. 23 Anything else? Are you done with the witness? 24 MR. CIAPPETTA: Yes, your Honor. I'm sorry. 25 THE COURT: I meant the plaintiffs. Plaintiffs done? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 110 95c1fiv3 Son - cross 1 MS. DINGLE: No redirect, your Honor. 2 THE COURT: Thank you. Thank you, Mr. Son. You're 3 excused. 4 (Witness excused) 5 MR. BIERBAUER: Your Honor, with apologies, we would 6 like to do some supplemental direct of Mr. Ravin because he's 7 here in the courthouse now and it's perhaps more convenient to 8 do it now. 9 THE COURT: What's the excuse for supplementing 10 direct, after you've put in his witness statement and passed 11 the witness on the stand on direct? 12 MR. BIERBAUER: Because on April 29th, he was handed 13 a 1234 summons while participating in Manhattan Critical Mass. 14 THE COURT: And this is something that only came to 15 your attention in the last ten minutes? 16 MR. BIERBAUER: No. I think there was a slight 17 miscommunication about turning over the witness, your Honor. 18 THE COURT: What miscommunication was that? 19 MR. BIERBAUER: I don't think we intended to turn him 20 over before doing the supplemental direct. 21 THE COURT: City have any objection? 22 MR. MUSCHENHEIM: No, your Honor. 23 THE COURT: Okay. Bring him back. 24 MR. BIERBAUER: Thank you. 25 THE CLERK: Mr. Ravin, if you'd please resume the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 111 95c1fiv3 Ravin - direct 1 stand. Let me remind you that you're still under oath. 2 EDWARD RAVIN, resumed. 3 DIRECT EXAMINATION CONTINUED 4 BY MR. VACCARO: 5 Q. Mr. Ravin, did you receive any summonses while bicycling 6 during the period of time after you submitted your written 7 direct testimony in this matter? 8 A. Yes, I did. 9 MR. MUSCHENHEIM: Your Honor, our understanding is 10 that on the day that Mr. Ravin obtained -- received -- 11 MR. VACCARO: Is this an objection or... 12 MR. MUSCHENHEIM: Yes, it's an objection. 13 THE COURT: Don't interrupt, please, Mr. Vaccaro, and 14 don't ever address opposing counsel. Address me if you're 15 going to say anything. 16 Mr. Muschenheim? 17 MR. MUSCHENHEIM: Your Honor, we have a problem with 18 Mr. Vaccaro questioning Mr. Ravin because when Mr. Ravin 19 received this summons on the last Friday of April, Mr. Vaccaro 20 was present at that time as well and was a witness to that 21 event, so it's inappropriate to have Mr. Vaccaro questioning 22 the witness. 23 THE COURT: And the basis for this objection is what? 24 MR. MUSCHENHEIM: In essence -- in essence, 25 Mr. Vaccaro is a witness to the events as well and could, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 112 95c1fiv3 Ravin - direct 1 through the testimony, through his questioning, could be 2 vouching for the witness and things like that. 3 THE COURT: Mr. Vaccaro? 4 MR. VACCARO: The supplemental direct will be two 5 questions. There will be no vouching by myself for Mr. Ravin 6 or by Mr. Ravin for me. 7 THE COURT: Well, I'll hear the testimony subject to 8 the motion. Okay. 9 BY MR. VACCARO: 10 Q. I'm not sure if we received a response to my first 11 question, so I'll reiterate it. 12 THE COURT: You did. He answered yes, he got a 13 summons. 14 Q. Mr. Ravin, can you briefly describe the nature and 15 circumstances of the summons that you received. 16 A. I was cycling south on Seventh Avenue at 48th Street in 17 the right-hand lane. There was a police car ahead of me 18 blocking the right-hand lane. I moved to the left to avoid it, 19 and I decided I would -- I wanted to get off my bike there, so 20 I moved to the left again and pulled over to the sidewalk. I 21 walked down the sidewalk, and at the corner of I think 47th 22 Street, I was stopped by a police officer and eventually issued 23 a summons for violating Section 1234(a) of the New York State 24 Vehicle & Traffic Code. The text in the summons was failure to 25 keep right or in bicycle lane. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 113 95c1fiv3 Ravin - direct 1 Q. And was there a Critical Mass ride that occurred that 2 evening? 3 A. Yes, there was. I was -- I had been riding the Critical 4 Mass ride, and they had passed ahead of me at the time that I 5 approached 48th Street. 6 THE COURT: Where's the summons, Mr. Vaccaro? Where's 7 the summons? 8 MR. VACCARO: By stipulation of the parties, documents 9 created after August 31st, 2008 have not been produced in 10 this case, but we would happily provide the summons as soon as 11 possible to your Honor. 12 THE COURT: Well, I'm sure not taking the witness' 13 testimony as to what the summons says, in the absence of the 14 summons. 15 MR. VACCARO: We will have a copy of the summons as 16 quickly as possible no later than tomorrow morning first thing. 17 THE COURT: Okay. Anything else? 18 MR. VACCARO: I have nothing further. 19 THE COURT: Thank you. 20 All right. You're excused subject to being back here 21 tomorrow morning. 22 THE WITNESS: Thank you. 23 (Witness excused) 24 THE COURT: Anything else you have this afternoon? 25 MR. BIERBAUER: We would, your Honor, ask to publish a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 114 95c1fiv3 1 video to the Court which indicates -- which depicts some 2 tactics that police have used in policing Critical Mass. The 3 video that we would like to use is one that was published on 4 the New York Times website. It's a relatively short video that 5 compiles a number of clips, several of which are in evidence as 6 separate exhibits -- or not in evidence but are on plaintiffs' 7 exhibit list as separate exhibits. However -- 8 THE COURT: Ma'am, please sit down. 9 Go ahead. 10 MR. BIERBAUER: However, the Times video we think most 11 succinctly puts it together in a way which is most efficient 12 for the Court to understand. 13 THE COURT: Mr. Muschenheim? 14 MR. MUSCHENHEIM: Your Honor, our concern about the 15 Times video is that it has all sorts of commentary by one of 16 the New York Times reporters. The individual clips themselves, 17 we have agreed that they can come in. 18 THE COURT: And are the individual clips all elsewhere 19 in the masses of video you've both blessed me with? 20 MR. BIERBAUER: They are, your Honor. With one 21 exception I believe every component of it was authenticated by 22 a witness of ours and was agreed to be authentic by the 23 defendants. The Times video is shorter. It's easy to follow. 24 It's not -- it's just more efficient to do it that way. As far 25 as the voiceover of the Times reporter goes, it -- clearly, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 115 95c1fiv3 1 Court is not going to be swayed by a voiceover from a nonparty 2 on a video. 3 THE COURT: Inasmuch as my wife used to be a reporter 4 for the New York Times, you'd better be careful what you say 5 there. 6 MR. BIERBAUER: I don't believe, your Honor, that she 7 was involved in this particular piece. 8 THE COURT: I'm quite certain. 9 MR. BIERBAUER: And so we would just say play the 10 Times video. I don't think that it should be an issue, but... 11 THE COURT: And so I take it that if what the city 12 wants to do is to cull out of the hours of videotapes a long 13 clip that has nothing on it except Critical Mass riders 14 violating every traffic law known to man, just streaming them 15 all together and excluding all of the lawful behavior, you have 16 no objection to that. 17 MR. BIERBAUER: I think we would object to that, your 18 Honor. 19 THE COURT: I thought so. 20 MR. BIERBAUER: But I think that there has not been 21 any objection to the underlying video clips which could be 22 shown and -- 23 THE COURT: Look, I'll look at the underlying video 24 clips to the extent I haven't done it already. I really don't 25 think that, you know, we're vying here for the Academy Award SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 116 95c1fiv3 1 for best video editing of plaintiffs' evidence. So we're going 2 to do away with the New York Times compendium. 3 MR. BIERBAUER: May we play the underlying video clips 4 then, your Honor? 5 THE COURT: Well, subject to this, I'm going to look 6 at them, to the extent I haven't looked at them already, and 7 you know I've looked at some of them already, because how else 8 would I have known that one of them includes a woman singing 9 the Bill of Rights in Union Square Park. But I don't think 10 it's a useful use of anybody's time for 50 people to sit in 11 this courtroom watching me watch the videos. That's really not 12 a productive use of time. 13 MR. BIERBAUER: Very well, your Honor. The video, 14 just to confirm, is number 20 -- Plaintiff's Exhibit -- We will 15 get you the precise number of the video that includes the clips 16 rather than the New York Times video. 17 THE COURT: Okay. That's fine. I have no problem 18 with that. 19 Go ahead. Anything else? 20 MR. BIERBAUER: With that, your Honor, we had expected 21 Mr. Ravin to take a significant amount of time on cross, and as 22 a result, we don't have any other witnesses who are prepared to 23 go today. We have two experts who are going to go tomorrow 24 whose schedule was rather difficult to arrange and so it would 25 not have been possible to bring them in this afternoon. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 117 95c1fiv3 1 THE COURT: And that's Dr. Beveridge and -- 2 MR. BIERBAUER: Dr. Pucher. 3 THE COURT: All right. We're going to take a brief 4 recess. I have at least one question in my mind, and then 5 we're going to see -- that I want to address to counsel. This 6 being a nonjury case, they don't all have to wait until the 7 end. And then we'll see if there's anything else useful we can 8 accomplish with that time this afternoon. So I'll see you in 9 ten minutes. 10 THE CLERK: All rise. 11 (Recess) 12 (In open court) 13 THE COURT: Okay. The first question I wanted to put 14 to you folks is to understand why it is that the plaintiffs 15 think Section 1234 of the Vehicle & Traffic Law doesn't bind 16 the City of New York. What's the basis for that? 17 MR. BIERBAUER: Your Honor, it does not apply by 18 operation of a piece of the city charter, which is stipulated 19 to in the pretrial order. It is paragraph 34. It's -- Rules 20 and Regulations of the City of New York Title 34 Section 21 4-02(e) states that VTL 1234 does not apply in New York City 22 and it did not at any time relevant to the litigation. 23 THE COURT: Okay. Thank you. 24 All right. Now the city made some reference to some 25 statute or rule or something that has a more or less comparable SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 118 95c1fiv3 1 effect that is applicable in New York. Am I right? 2 MR. MUSCHENHEIM: Yes, your Honor. 3 THE COURT: And what is that? 4 MR. MUSCHENHEIM: And that is Department of 5 Transportation Regulation 4-12(p)(3). 6 THE COURT: And that's from the NYCRR or the Rules of 7 the City of New York? 8 MR. MUSCHENHEIM: It's in the Rules of the City of New 9 York and it's Title 34, I believe, if not -- yeah, I believe 10 it's Title 34. 11 THE COURT: Do the plaintiffs agree that that's to 12 similar effect? 13 MR. BIERBAUER: Not quite, your Honor. I mean, there 14 are pieces of 1234 that do not appear in 4-12(p)(3). 1234, for 15 example, provides that bicyclists must ride no more than two 16 abreast, which is not, so far as I know, part of 4-12(p)(3). 17 Also, the issue with 4-12(p)(3) is that it applies by 18 its terms only on one-way roadways that are at least 40 feet in 19 width, and that's also stipulated in paragraph 35 of the 20 pretrial order. And paragraphs 36 through 38 discuss summonses 21 that were issued in connection with Critical Mass on roadways 22 that were not one way and at least 40 feet in width. 23 There's also another issue with 4-12(p)(3), which is 24 that it's permissive in language. It says that cyclists may 25 ride to the left or to the right. It does not say shall ride SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 119 95c1fiv3 1 to the left or to the right. As near as practicable to the 2 left and the right is what it says. 3 THE COURT: So what do you think you can make out of 4 that? 5 MR. BIERBAUER: Well, I think the question is, when 6 you have a statute which is a violation, traffic violation, to 7 what extent is it proper for police to say that "may" means 8 that it means "shall." But setting that aside, the fact that 9 the statute does not apply to a number of different roadways -- 10 THE COURT: Well, that point I got. But in the 11 absence of the statute, they may ride to the left or the right, 12 correct? 13 MR. BIERBAUER: In the absence of 4-12(p)(3). 14 THE COURT: Yes. 15 MR. BIERBAUER: Well, in the absence of 4-12(p)(3), 16 presumably they could -- 17 THE COURT: They could ride anywhere they want, right? 18 MR. BIERBAUER: Well, subject to other traffic laws. 19 What 4-12(p)(3) says is that they may ride to the right or to 20 the left as near as practicable. It doesn't say that they 21 can't ride in the center. And there would be certain things, 22 certain other traffic laws that might apply if a bicyclist were 23 riding in the center of the road, but 4-12(p)(3) isn't 24 necessarily the one that prevents them from doing that. 25 MR. MUSCHENHEIM: Your Honor, 4-12(p)(3), the way SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 120 95c1fiv3 1 that -- it means that you have to ride on either the right-hand 2 side or the left-hand side. It does not mean that you can ride 3 in the middle of Sixth Avenue, in the middle lane of Sixth 4 Avenue. The main -- 5 THE COURT: So your interpretation of it is that it 6 means that they can ride on the left or the right but nowhere 7 else. 8 MR. MUSCHENHEIM: Correct, your Honor. 9 THE COURT: Their choice as to left or right. 10 MR. MUSCHENHEIM: That's right, your Honor, because 11 otherwise, if they basically ride -- there would be no purpose 12 of the statute, because as they've pointed out, you can already 13 ride on the right or the left or the center traffic lane if you 14 wanted, without the statute. 15 THE COURT: All right. Okay. So this sounds like 16 much ado about nothing, frankly. Even putting aside the 17 question of whether there's any private right that flows from 18 the New York -- 19 MR. BIERBAUER: Well, your Honor, I would differ that 20 it doesn't mean anything or that the statute is completely 21 unnecessary, if it's interpreted the way that we would say that 22 it could be interpreted. It says that they shall ride as near 23 as practicable to the left and to the right, and that gives 24 them a certain right to ride in a particular place. As far as 25 practicable to the left or to the right, they'd need not ride SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 121 95c1fiv3 1 in the center but have that right, the lines on the side, as 2 well as other parts of the road. 3 THE COURT: All right. I guess I hear you. 4 MR. BIERBAUER: One problem with the enforcement of 5 the statute as well is that it's been applied to people who are 6 in the lane farther than 3 feet away from a row of parked cars, 7 which in bicyclist's parlance is the dooring zone, and that 8 means that if somebody is parked and they open up their 9 driver's side door and there's a bicyclist coming and they 10 don't see them, the bicyclist runs right into the door. And 11 Department of Transportation and people who will -- people who 12 know bicycling at the Department of Transportation will say 13 you've got to ride out farther than that, and yet there have 14 been summonses issued to people who have been riding just 15 outside of that dooring zone, or for riding outside of that 16 dooring zone. 17 THE COURT: Well, I understand your point. I do. But 18 the last I heard, the Department of Transportation did not have 19 the authority to amend the Vehicle & Traffic Law or the Rules 20 of the City of New York or anything else. 21 MR. BIERBAUER: Certainly not, but bicyclists rely on 22 what they hear from the Department of Transportation as to 23 where it is that they can ride on the road and where they can 24 safely ride on the road. 25 I would also want to make the point that we're not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 122 95c1fiv3 1 claiming a private right of action under 4-12(p)(3). We're 2 saying that zero tolerance enforcement of certain statutes, 3 traffic violations, as well as the enforcement of rules that 4 don't apply, are a basis for the selective enforcement and 5 retaliation claims. 6 THE COURT: Well, as I say, I understand your 7 argument. 8 Now I take it that plaintiffs are of the view, because 9 I keep reading about it, under Vehicle & Traffic Law 1231, your 10 position is that bicyclists have all the rights and are subject 11 to all of the duties that are applicable to a driver of a motor 12 vehicle, right? 13 MR. BIERBAUER: Correct, your Honor. Oh, except for 14 those that do not apply by their nature to bicycles. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 123 95C5FIV4 1 THE COURT: Right. 2 And so, I take it your position would therefore be 3 that Section 1181A of the Vehicle and Traffic Law applies to 4 bicyclists and, thus, bicyclists are prohibited from driving at 5 such a slow speed as to impede the normal and reasonable 6 movement of traffic; right? 7 MR. BIERBAUER: I believe we actually have some 8 testimony from police on that. 9 THE COURT: I'm talking about a legal issue on which 10 testimony from police is, in my experience, not always the most 11 authoritative. You should hear some of their interpretations 12 of the form. 13 MR. BIERBAUER: I believe as a matter of legal 14 argument that the police interpretation that I saw at least in 15 this case was fairly accurate which is that bicycles have their 16 own speed to travel and what might be too slow for a car would 17 not be considered too slow for a bicycle because it has a 18 different top speed. 19 THE COURT: So your view is that if the police choose 20 to amend the statute they're free to do it? 21 MR. BIERBAUER: It may fit into that group of statutes 22 which by their nature do not apply because a bicyclist simply 23 does not have the same ability to travel as quickly as a car 24 and yet they still have a right to ride on the road. 25 THE COURT: And your position is that you are subject SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 124 95C5FIV4 1 to all the rights and all the obligations of those two motor 2 vehicles except the ones you don't like. 3 I have it perfectly. 4 MR. BIERBAUER: No, I don't believe so, your Honor. 5 That's just a fact that bicycles don't travel as fast as cars. 6 THE COURT: I understand. Neither do snails. 7 All right. Are there any other matters that can be 8 disposed of this afternoon? Not to say that those have been 9 disposed of but at least it illuminated my thinking a little 10 bit. Anything that we can use the time for that would short 11 circuit or save some time down the road? 12 MR. BIERBAUER: A couple of housekeeping matters: The 13 exhibit that we referred to, the video clips as Exhibit 200, 14 Plaintiff's Exhibit 200. 15 THE COURT: And 200 is a compendium, is that what it 16 is? 17 MR. BIERBAUER: Correct. 18 THE COURT: Does the City have an objection to 200 or 19 not? 20 MR. MUSCHENHEIM: No, your Honor. 21 THE COURT: All right. 200 is received. I understand 22 it to be a composite of excerpts from other videos selected by 23 plaintiffs and their counsel. 24 MR. MUSCHENHEIM: Sorry, your Honor. That is not the 25 New York Times. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 125 95C5FIV4 1 THE COURT: Right. It is not supposed to be the New 2 York Times. 3 MR. MUSCHENHEIM: That's fine, your Honor. 4 (Plaintiff's Exhibit 200 received in evidence) 5 THE COURT: Anything else? 6 MR. BIERBAUER: One very minor housekeeping matter. 7 We were told we could only have one computer at 8 counsel table and the court reporters have very generously 9 allowed us to use these. We would like to bring in a second 10 lap top to have both Live Note and Trial Director run. 11 THE COURT: Submit an order providing for a second 12 computer. Does the City need -- 13 MR. MUSCHENHEIM: Yes, your Honor. 14 THE COURT: So do one order between you, submit it, 15 indicate who is responsible for it, and obviously we are having 16 a problem in this trial with electronics in the courtroom that 17 shouldn't be happening. I'm not blaming counsel, but we 18 apparently had quite a scene here before which is related to 19 efforts to smuggle equipment in. Okay. 20 All right. Anything further? 21 MR. MUSCHENHEIM: Your Honor? 22 THE COURT: Yes. 23 MR. MUSCHENHEIM: I'm sorry. 24 There are several witnesses that the plaintiffs have 25 identified as adverse witnesses that are also witnesses on our SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 126 95C5FIV4 1 direct and we are just wondering how you would like to proceed 2 with those. I mean, we would prefer to not call them twice. 3 THE COURT: You are not going to call them twice. If 4 the plaintiffs want them they can call them on their case, but 5 then you are to put in whatever are you going to put in through 6 them on the plaintiff's case. We are not going to do it the 7 other way. 8 MR. MUSCHENHEIM: Thank you, your Honor. 9 THE COURT: Mr. Bierbauer, do you still plan on 10 calling this avalanche of people or have you pruned your list 11 any? 12 MR. BIERBAUER: I believe that we have two experts, 13 Dr. Beveridge and Dr. Kooker, Gideon Oliver, Josh Gosciak who 14 is a plaintiff. 15 THE COURT: I'm sorry. That name is what? 16 MR. BIERBAUER: Gosciak. G-O-S-C-I-A-K. 17 THE COURT: Thank you. 18 MR. BIERBAUER: And then we have adverse witnesses, 19 Inspector Dequatro, Mr. Tuller, Mr. Layne, Mr. Wagner and 20 Mr. Paragallo. 21 THE COURT: You are too fast. The others are? 22 MR. BIERBAUER: Tuller, Layne, Wagner, Paragallo, 23 Albano. 24 THE COURT: Tuller, Layne, Wagner, Albano and -- 25 MR. BIERBAUER: Paragallo and Inspector Dequatro. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 127 95C5FIV4 1 THE COURT: So, am I correct then that inferring that 2 you are not calling Arthur, Jackson, Blythe, Shura, Clancy, 3 Desser, DiPaola, Hamilton, Josselyn, Neubauer, Press, Ryan and 4 Teichberg. 5 MR. BIERBAUER: The majority of those witnesses were 6 strictly for authentication purposes of video, and since the 7 video has been agreed to be authentic, there is no need to call 8 them. Others were put in as stipulated deposition testimony by 9 the parties. 10 THE COURT: Okay. 11 MR. BIERBAUER: None of them will be testifying live. 12 THE COURT: So then we are likely to finish with the 13 plaintiff's testimony tomorrow, right? 14 MR. BIERBAUER: I believe with the adverse witnesses 15 it would be difficult to finish tomorrow. 16 THE COURT: Defense then is going to be ready to go 17 though whenever you are finished so let's take a look at their 18 witness list. 19 MR. BIERBAUER: I'm sorry, your Honor, for 20 clarification? 21 THE COURT: Yes. 22 MR. BIERBAUER: Tomorrow is a half day session? 23 THE COURT: Yes. Let's take a look at that. That's 24 right. 25 Although it needn't be. We can work part of tomorrow SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 128 95C5FIV4 1 afternoon, I just have to hear an appeal at 2:15 in the Court 2 of Appeals, just one case, so I can probably be back by 3:15 3 and go for another -- 4 MR. MUSCHENHEIM: Your Honor, we've been operating on 5 the assumption that we were going to be calling our witnesses 6 on Thursday. 7 THE COURT: Well you better be ready to go with some 8 of them tomorrow. You need to talk to counsel. 9 MR. MUSCHENHEIM: Your Honor, we were working on the 10 assumption that the adverse witnesses were going to be called 11 Thursday. 12 THE COURT: I did hear that. 13 MR. MUSCHENHEIM: Right. 14 THE COURT: Right. I mean go to work. You are going 15 to have to have somebody here once they run out of other 16 witnesses. 17 I think I would just assume continue tomorrow 18 afternoon, at least for a while. Now, if that's a big hardship 19 for somebody I will certainly defer on that because I did tell 20 you it was morning only. 21 Is that a problem? 22 MR. MUSCHENHEIM: Your Honor, we were told that the 23 adverse witness -- the defendant's adverse witnesses were going 24 to be -- excuse me. The plaintiff's adverse witnesses were 25 going to be called on Thursday and Friday. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 129 95C5FIV4 1 THE COURT: Is that right? 2 MR. BIERBAUER: We said, again, based on what we 3 thought the trial schedule could be but that it all depended on 4 when the Court worked its way through the witnesses. 5 THE COURT: But we are not sitting on Friday and never 6 were. Friday is my motion and conference day so you are going 7 to have to do some juggling. 8 MR. MUSCHENHEIM: Your Honor, we don't -- we've been 9 telling our witnesses Thursday. We don't know if they're 10 available tomorrow. We will work very hard to get them. 11 THE COURT: Did you want to have a conference with 12 your colleague who is trying very hard to get your attention? 13 MR. MUSCHENHEIM: Yes, if I may just for a moment. 14 (Counsel conferring) 15 MR. MUSCHENHEIM: Your Honor, these are high-level 16 commanding officers, of Patrol Bureau Manhattan South, 17 commanding officers for precincts. We have been telling them 18 Thursday and Friday. These are witnesses that are being called 19 by the plaintiffs. They told us when they wanted these people 20 available. We've been lining them up for those days. I just 21 think it is going to be -- 22 THE COURT: Look, we will go until about 1:00 23 tomorrow, maybe a little later. You certainly were told we 24 weren't going to sit tomorrow afternoon so I will adhere to 25 that. I will give you a full day Thursday. I can't help you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 130 95C5FIV4 1 about Friday. 2 Andy that calendar is still firm for Friday, right, 3 what I'm seeing on my screen? (Pause) 4 Friday is a dark day. We start again 11:00 on Monday 5 and I have Tuesday and Wednesday for you if we need it but I 6 don't think it likely we are going to need it. 7 MR. MUSCHENHEIM: I don't think so, your Honor. 8 THE COURT: Okay. 9 MR. BIERBAUER: One witness of ours is available on 10 Thursday morning but not tomorrow so that would be one 11 non-adverse witness that we would be putting on Thursday 12 morning. 13 THE COURT: Who is that? 14 MR. BIERBAUER: Gideon Oliver. It would be very 15 short. 16 THE COURT: All right. In the meantime, please review 17 your Exhibit lists because they're too long. And so, I will 18 see you in the morning unless there is something else. 19 Okay. Thank you. 20 (Adjourned to 9:30 a.m., Wednesday, May 13th, 2009) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 131 1 INDEX OF EXAMINATION 2 Examination of: Page 3 MADELINE NELSON 4 Direct By Ms. Dingle . . . . . . . . . . . . 21 5 Cross By Mr. Ciappetta . . . . . . . . . . . 43 6 Redirect By Ms. Dingle . . . . . . . . . . . 60 7 HUGH MCGLINCY 8 Direct By Ms. Mathieu . . . . . . . . . . . 64 9 Cross By Mr. Muschenheim . . . . . . . . . . 75 10 Redirect By Ms. Mathieu . . . . . . . . . . 84 11 EDWARD DEFREITAS 12 Direct By Mr. Caldon . . . . . . . . . . . . 89 13 Cross By Mr. Ciappetta . . . . . . . . . . . 91 14 Redirect By Mr. Caldon . . . . . . . . . . . 94 15 EDWARD RAVIN 16 Direct By Mr. Vaccaro . . . . . . . . . . . 99 17 LUKE SON 18 Direct By Ms. Dingle . . . . . . . . . . . . 102 19 Cross By Mr. Ciappetta . . . . . . . . . . . 104 20 EDWARD RAVIN 21 Direct By Mr. Vaccaro . . . . . . . . . . . 111 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 132 1 PLAINTIFF EXHIBITS 2 Exhibit No. Received 3 200 . . . . . . . . . . . . . . . . . . . 125 4 204 . . . . . . . . . . . . . . . . . . . 73 5 278 . . . . . . . . . . . . . . . . . . . 90 6 279 . . . . . . . . . . . . . . . . . . . 101 7 280 . . . . . . . . . . . . . . . . . . . 30 8 284 . . . . . . . . . . . . . . . . . . . 103 9 DEFENDANT EXHIBITS 10 Exhibit No. Received 11 8, Bates 002563, . . . . . . . . . . . . 77 12 KKK, paragraph 20, . . . . . . . . . . . 81 13 KKK, paragraphs 29-31, . . . . . . . . . 82 14 KKK, paragraphs 32-35, . . . . . . . . . 87 15 NNN . . . . . . . . . . . . . . . . . . . 105 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300