234 95EVFIV1 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 14, 2009 10 9:35 a.m. 10 11 Before: 11 12 HON. LEWIS A. KAPLAN, 12 13 District Judge 13 14 APPEARANCES 14 15 DEBEVOISE & PLIMPTON LLP 15 Attorneys for Plaintiffs 16 BY: ERIK C. BIERBAUER, ESQ. 16 SHANYA J. DINGLE, ESQ. 17 STEVE VACCARO, ESQ. 17 BRENDAN W. CALDON, ESQ. 18 EMILY J. MATHIEU, ESQ. 18 JOHN CURLEY, Law Clerk 19 RICHARD BREA, Technician 19 20 CITY OF NEW YORK DEPARTMENT OF LAW 20 OFFICE OF THE CORPORATION COUNSEL 21 For Defendants 21 BY: MARK W. MUSCHENHEIM, ESQ. 22 ROBIN BINDER, ESQ. 22 NICHOLAS R. CIAPPETTA, ESQ. 23 TERESITA V. MAGSINO, ESQ. 23 CHRISTIAN SCHERER, Law Clerk 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 235 95EVFIV1 1 (In open court) 2 (Trial resumed) 3 THE COURT: Good morning. OK. Let's proceed. 4 MR. BIERBAUER: Your Honor, one very quick 5 housekeeping matter. On Monday, your Honor had requested that 6 we put into evidence a copy of the current grade permit 7 application. And we have that now; it's been identified as 8 Plaintiffs' Exhibit 292. We would like to move it into 9 evidence. There is, as I understand, no objection from the 10 defendants. 11 MR. MUSCHENHEIM: That's right, your Honor. No 12 objection. 13 THE COURT: Received. 14 (Plaintiffs' Exhibit 292 received in evidence) 15 THE COURT: OK. 16 MR. VACCARO: Your Honor, plaintiffs call Chief 17 Stephen Paragallo as our next witness. 18 STEPHEN PARAGALLO, 19 called as a witness by the Plaintiffs, 20 having been duly sworn, testified as follows: 21 THE DEPUTY CLERK: Thank you. Please be seated. You 22 can please state your name and spell your last name for the 23 record. 24 THE WITNESS: Stephen Paragallo, P-A-R-A-G-A-L-L-O. 25 THE COURT: You may proceed, Mr. Vaccaro. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 236 95EVFIV1 1 DIRECT EXAMINATION 2 BY MR. VACCARO: 3 Q. Good morning, Chief Paragallo. 4 A. Good morning. 5 Q. Is it correct that you served as executive officer of the 6 Patrol Borough Manhattan South between March 2004 and June 7 2008? 8 A. Yes. 9 Q. And Former Chief Bruce Smolka was responsible for the 10 Critical Mass rides conducted in Patrol Borough Manhattan South 11 that occurred before your involvement in August 2004? 12 A. Yes. 13 Q. And Chief Smolka was the commander on the scene for the 14 Critical Mass rides in Patrol Borough Manhattan South that you 15 attended in 2004? 16 A. Yes. 17 Q. And just for the sake of terminology, can we refer to him, 18 the ranking officer on the scene at the Critical Mass rides, as 19 the incident commander for those rides? 20 A. Yes. 21 Q. Starting in 2005, you began serving as the incident 22 commander for the Manhattan Critical Mass rides? 23 A. Yes, it was in some time in 2005. 24 Q. And is it true that you were on the scene of all but one of 25 the Manhattan Critical Mass rides that occurred between August SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 237 95EVFIV1 Paragallo - direct 1 2004 and December 2006? 2 A. Correct. 3 Q. And you were also on the scene of several of the Manhattan 4 Critical Mass rides that occurred in 2007, perhaps all of them? 5 A. Yes. 6 Q. At some point in 2007, Deputy Inspector Dennis DeQuatro 7 began to function as incident commander for the Manhattan 8 Critical Mass rides? 9 A. He was an aide. There were some rides where later on, I 10 believe, if I didn't attend, he was in command. 11 Q. For the period of March 2004 through February 2007, you 12 reported directly to Chief Smolka as the commander for Patrol 13 Borough Manhattan South? 14 A. Yes. 15 Q. And from February 2007 to June 2007, you reported directly 16 to Chief James Tuller, who for that period was commander of 17 Patrol Borough Manhattan South? 18 A. Yes. 19 Q. During your period as an executive officer at Manhattan 20 South, were part of your responsibilities to chair meetings 21 with applicants for parade permits? 22 A. After Chief Smolka left, yes. 23 Q. You recall chairing meetings with applicants for numerous 24 50- to 60-person events to discuss their permit applications? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 238 95EVFIV1 Paragallo - direct 1 Q. And generally speaking, these meetings would take place 2 after the applicant had filed their application, but before it 3 was granted? 4 A. Yes. 5 Q. I'll show you a permit concerning a group ride. It's 6 actually an application, I'm sorry, for a group ride organized 7 by the Five Borough Bicycle Club; it's marked as Plaintiffs' 8 Exhibit 44. And if you could please go to the next page. And 9 Chief Paragallo, can you see the application form? 10 A. Yes. 11 Q. Do you recall participating in a meeting concerning this 12 application? 13 A. Yes. 14 MR. VACCARO: Plaintiffs would like to move 15 Plaintiffs' Exhibit 44 into evidence. 16 MR. MUSCHENHEIM: No objection, your Honor. 17 THE COURT: Received. 18 (Plaintiffs' Exhibit 44 received in evidence) 19 Q. Do you see on the application that the event organizer 20 expected 50 to 60 participants for this event? 21 A. Yes. 22 Q. And that it was proposed that the event was to use up to 23 one lane of roadway space? 24 A. Yes. 25 Q. You requested a meeting with this applicant? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 239 95EVFIV1 Paragallo - direct 1 A. Somebody from the operations unit did; I didn't personally 2 request it. 3 Q. You did personally participate in a meeting with the 4 applicant for this application? 5 A. Yes. 6 Q. Did you discuss at the meeting a portion of -- actually, 7 I'd like to skip to the next page in this exhibit, which should 8 display the route proposed by the applicant. 9 Did you discuss at the meeting with the applicant the 10 portion of the route on Fifth Avenue between 120th Street and 11 59th Street? 12 A. No. 13 Q. Did you discuss the route at all with the applicant? 14 A. Yes. 15 Q. Is it true that this event is proposed to take place in 16 both Patrol Borough Manhattan South and Manhattan North? 17 A. Yes. 18 Q. And did that mean that it was required for both patrol 19 boroughs to approve the application? 20 A. Yes. 21 Q. And do you recall that on the day before the event approval 22 from Manhattan North was still pending? 23 A. I believe so. I couldn't say specifically yes or no. 24 MR. VACCARO: Can we put up Plaintiffs' Exhibit 45 25 please? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 240 95EVFIV1 Paragallo - direct 1 Q. Do you recall -- I'm sorry. Withdrawn. 2 (Pause) 3 Q. Chief Paragallo, have you had an opportunity to review 4 Plaintiffs' Exhibit 45? 5 A. Yes. 6 Q. Do you recall receiving that as a letter from the 7 representatives of the permit applicant we were just 8 discussing? 9 A. Yes. 10 MR. VACCARO: And plaintiffs would move into evidence 11 Plaintiffs' Exhibit 45. 12 MR. MUSCHENHEIM: No objection, your Honor. 13 THE COURT: Received. 14 (Plaintiffs' Exhibit 45 received in evidence) 15 Q. Chief Paragallo, do you see in the second paragraph of the 16 letter that's been admitted as Plaintiffs' Exhibit 45 the 17 reference to the need for approval by Patrol Borough Manhattan 18 North? 19 A. Yes. 20 Q. And do you see that this letter is dated? 21 THE COURT: Let's just save a little time. I'm sure 22 he can see everything on the page. 23 Q. And according to the letter, approval was still pending 24 from Manhattan North for this event when the letter was sent? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 241 95EVFIV1 Paragallo - direct 1 Q. And the letter is dated November 13th, 2007? 2 THE COURT: Mr. Vaccaro, so far you have elicited no 3 information from the witness that's not evident to anyone who 4 read the letter. It's like an eye test at the doctor's so far. 5 If there's a question beyond the letter, let's get to it. 6 Q. Do you recall setting any special conditions on this group 7 bicycling event, Chief Paragallo? 8 A. Yes. 9 Q. And are those the special conditions that are set forth in 10 the third paragraph of the letter marked Plaintiffs' Exhibit 11 45? 12 A. Yes. 13 Q. Included amongst the special conditions are that the 14 bicyclists must adhere to all traffic laws which will be 15 strictly enforced? 16 A. Yes. 17 Q. Also one of the conditions of the requirement, that 18 bicyclists may ride up to two abreast on roadways without 19 bicycle lanes? 20 A. Yes. 21 Q. And scooter officers were assigned to this event to ensure 22 that the traffic rules would be strictly enforced in accordance 23 with the special conditions? 24 A. No. 25 Q. You're saying the scooter officers would not be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 242 95EVFIV1 Paragallo - direct 1 responsible? 2 A. No, the scooter officers were there to ensure the 3 participants' safety and the free flow of traffic. They were 4 there to police the event, not to taken enforcement action per 5 se. 6 Q. However, part of their responsibilities would be to enforce 7 the conditions on the permit if those conditions were not met? 8 A. Their primary function was to ensure a safe ride for the 9 participants of the ride, the bicyclists and the ride. 10 Q. Did their function also include enforcement of the special 11 conditions in the permit? 12 A. Their instruction -- they're police officers. They are 13 trained to taken enforcement action in any event. 14 Q. And that was part of their role in monitoring this event, 15 is that correct? 16 A. Their role we gave them -- we gave them instruction would 17 have been to -- to ensure the safe ride of these bicyclists on 18 the application. 19 Q. Among the laws to be strictly enforced would be Section 20 4-12(p)(3) of the rules of the City of New York, is that 21 correct? 22 A. We expected all applicable rules to be obeyed. That was a 23 condition that we set forth in cooperation with the applicants 24 who had no objection to the rules we set forth. 25 Q. And one of the rules that the applicants were to strictly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 243 95EVFIV1 Paragallo - direct 1 observe was that concerning bicyclists using either the left or 2 the right-hand side of certain roadways? 3 A. No, I don't remember that specifically. 4 Q. But that is, in fact, an applicable traffic rule; it would 5 be included in the requirement that there be strict observance 6 of the traffic laws, correct? 7 A. To the best of my recollection, we just told them that we'd 8 give them one lane which would be determined at the time of the 9 ride. 10 Again, due to the nature of the streets, there are 11 some lanes -- some streets -- it's more feasible to use, say, 12 the east side lane as opposed to the west side lane because 13 there's less -- there's less parked traffic, bus lanes, things 14 of that nature. So that would have been a call that would have 15 been made by the person in charge of the detail at the time of 16 the start of the ride. 17 Q. Your recollection now is that at the meeting you told the 18 bicyclists they'd be permitted to use a full lane of traffic? 19 A. We said one lane. 20 Q. Do you remember me asking you at your deposition if you 21 could recall the special conditions that were applied to this 22 permit application? 23 A. Not -- no. 24 Q. I'd like to read from a portion of your deposition. 25 A. Well, excuse me one second. When I say "a lane," I meant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 244 95EVFIV1 Paragallo - direct 1 they have to stay on one side of the street in a traffic lane, 2 not a traffic lane per se. 3 Q. So that I can clarify what you're saying, you mean they 4 needed to stay to the far left or far right of the roadway? 5 A. Yes. 6 Q. That they were not granted permission to use a traffic 7 lane? 8 A. If in the event more than 50 or 60 people came, that's a 9 call we would make. And I think -- I think, to the best of my 10 recollection, we would have told them that at the meeting is 11 that if, say, 100 bicyclists or 200 bicyclists actually showed 12 up for the ride, we would use a common sense standard and give 13 them a traffic lane. In the event 300 bicyclists came, we 14 might give them two traffic lanes. 15 But in the event only 50 bicyclists, 60 bicyclists 16 showed up at the event, we set forth an agreement with them 17 that they would use a portion of the roadway either to the 18 right or left of the traffic. 19 Q. And in the case of 50 or 60 participants, in the event they 20 would not be using an entire lane? 21 A. We -- our instruction was to stay to the right or left of 22 the roadway with 50 or 60 bicyclists. 23 Q. Can you recall my -- withdrawn. Can you recall another 24 event with 50 or 60 participants in which the condition of 25 strict compliance with all traffic laws was imposed? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 245 95EVFIV1 Paragallo - direct 1 A. I can't recall any specific incident or demonstration or 2 ride or demonstration, but those are types of conditions we did 3 set forth in other events. I can't specifically tell you which 4 one or when, but I know as a practice we used to do that to 5 some degree on certain type of events. 6 Q. Am I correct that -- well, withdrawn. Are there any 7 written guidelines or written policies of the NYPD that govern 8 the use of special conditions in granting parade permits? 9 A. I really don't know. 10 Q. I'd like to show you Plaintiffs' Exhibit 260. It's a joint 11 publication of several city agencies called the New York City 12 Cycling Map. 13 MR. VACCARO: And I'd like to scroll -- well, 14 actually, first, plaintiffs would like to move this document 15 into evidence. 16 MR. MUSCHENHEIM: 260? 17 MR. VACCARO: Yes. 18 MR. MUSCHENHEIM: No objection, your Honor. 19 THE COURT: 260 is received. 20 (Plaintiffs' Exhibit 260 received in evidence) 21 MR. VACCARO: Can we please scroll? OK. It's 22 actually the upper portion that's cut off in this photocopy. 23 BY MR. VACCARO: 24 Q. This is a portion of the map that's been blown up; it's 25 entitled "Safety Tips." And, Chief Paragallo, have you ever SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 246 95EVFIV1 Paragallo - direct 1 seen this publication before? 2 A. No. 3 Q. Were you aware that the Department of Transportation 4 provided this guidance to bicyclists in narrow lanes or slow 5 traffic it may be safer to take the whole lane? 6 A. No. 7 Q. Did you consider that guidance in applying the special 8 conditions to this permit application? 9 MR. MUSCHENHEIM: Objection, your Honor. 10 THE COURT: Sustained. 11 Q. Do you recall stating that the reason -- at your deposition 12 that the reason for the special conditions on this permit 13 application -- on this application was to avoid an impact on 14 traffic? 15 A. I might have said it. I don't recall it specifically. 16 Q. Do you believe that a group of 60 bicyclists proceeding in 17 adherence with all traffic laws that are strictly enforced 18 would have a significant impact on the flow of traffic? 19 A. Could be. 20 Q. Would that be a significant impact? 21 A. I would have -- 22 MR. MUSCHENHEIM: Objection, your Honor. 23 THE COURT: Sustained. 24 Q. I'd just like to read to you a question and answer from 25 your deposition taken in this matter on January 7th, 2009. See SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 247 95EVFIV1 Paragallo - direct 1 if it refreshes your recollection. 2 THE COURT: There's no failure of recollection. 3 Q. Do you recall at your deposition indicating that the impact 4 of a 60-person group proceeding in adherence with all 5 applicable traffic laws would not be significant? 6 A. Could you repeat the question? 7 THE COURT: Look, Mr. Vaccaro, if you want to offer 8 deposition testimony, that's fine, subject to the rules. If 9 you wanted to refresh recollection where a witness says I don't 10 remember, that's fine. What you're doing is not fine. 11 BY MR. VACCARO: 12 Q. Is it your testimony today that you are not sure whether a 13 group of 60 bicyclists proceeding in adherence with all traffic 14 laws that are strictly enforced would not -- might have a 15 significant impact on the flow of traffic? 16 MR. MUSCHENHEIM: Objection, your Honor. 17 THE COURT: Sustained as to form. 18 Q. The application that you granted provided for a group of up 19 to 60 bicyclists to proceed in adherence with all traffic laws 20 that would be strictly enforced, is that correct? 21 A. Yes. 22 Q. And do you recall at your deposition being asked whether a 23 group of that size proceeding in that manner would have a 24 significant impact on the flow of traffic? 25 MR. MUSCHENHEIM: Objection, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 248 95EVFIV1 Paragallo - direct 1 THE COURT: Sustained. We're also wasting a good deal 2 of time here, putting aside the technical points, about the 3 manner in which counsel is trying to do this. 4 I can certainly imagine circumstances in which 60 5 bicyclists proceeding in accordance with all traffic rules 6 would have absolutely no effect whatsoever on traffic. For 7 example, on upper Fifth Avenue at 2 in the morning on a Sunday, 8 chances are it would have no effect. And 60 bicyclists on a 9 Friday night around Grand Central, probably a disaster, 10 compliance with traffic laws or not. 11 So this is just kind of a little debating exercise. 12 MR. VACCARO: I'll move on, your Honor. 13 BY MR. VACCARO: 14 Q. Turning to the group bicycle rides specifically known as 15 Critical Mass. Is it your understanding that those rides 16 proceed without a fixed route? 17 A. Yes. 18 Q. And is it your belief that that was true for Critical Mass 19 rides both before the August 2004 Republican National 20 Convention and after? 21 A. Yes. 22 Q. And beginning with the Republican National Convention, NYPD 23 began a program of arrests and other law enforcement action in 24 connection with the Critical Mass rides? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 249 95EVFIV1 Paragallo - direct 1 Q. And at the Critical Mass rides where you were incident 2 commander, you gave briefing to the higher ranking officers 3 regarding the law enforcement objectives for the detail? 4 A. Yes. 5 Q. During those briefings, you also discussed the measures 6 that NYPD used to achieve those law enforcement objectives, 7 such as arrests and summonses? 8 A. Yes. 9 Q. And you also discussed at those briefings the substance of 10 the traffic laws and how they should be enforced? 11 A. That was one of the topics we discussed. 12 Q. At some point in time in these briefings, NYPD began 13 distributing a sheet to officers assigned to the Critical Mass 14 details that listed traffic violations applicable to 15 bicyclists, is that correct? 16 A. Yes. 17 Q. And you would arrange for sufficient copies of the sheet to 18 be made and brought to the Critical Mass detail so that the 19 officers could each have one? 20 A. Yes. 21 Q. Was that the only written information that the police 22 officers on the Critical Mass detail received in connection 23 with that assignment? 24 A. Yes. 25 Q. And at some point in time, do you recall certain traffic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 250 95EVFIV1 Paragallo - direct 1 rules on that sheet being crossed out? 2 A. Yes. 3 MR. VACCARO: I'd like to put up Plaintiffs' Exhibit 4 88. That was a mistake. 87, please. 5 Q. Chief Paragallo, do you recognize this as the sheet with 6 the cross-outs that I just asked you about? 7 A. Yes. 8 MR. VACCARO: Plaintiffs would like to move 9 Plaintiffs' Exhibit 87 into evidence. 10 MR. MUSCHENHEIM: No objection, your Honor. 11 THE COURT: Received. 12 (Plaintiffs' Exhibit 87 received in evidence) 13 BY MR. VACCARO: 14 Q. And the three sections that are crossed out on this page 15 concern Vehicle and Traffic Law Section 1234? 16 A. Correct. 17 Q. Do you recall consulting with the NYPD legal bureau 18 regarding these three subsections? 19 A. Yes. 20 Q. The legal bureau advised you that these sections should not 21 be used as a basis for issuing summons at Critical Mass rides? 22 A. Correct. 23 Q. And it was after you received that advice from the legal 24 bureau that these three strikeouts were put onto the sheet? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 251 95EVFIV1 Paragallo - direct 1 Q. How long prior to the striking out of these three entries 2 was the sheet used without the strikeouts at Critical Mass 3 rides? 4 A. I don't recall. 5 Q. It was Lt. Albano of the legal bureau with whom you 6 discussed the strikeouts for these three sections? 7 A. Yes. 8 Q. Did you discuss with Lt. Albano the fact that there had 9 been summonses issued under VTL 1234 at Critical Mass rides 10 prior to the strikeouts? 11 A. Yes. 12 MR. MUSCHENHEIM: Objection, your Honor. 13 THE COURT: What is the objection? 14 MR. MUSCHENHEIM: It hasn't yet been established to 15 Chief Paragallo that such summonses were issued. 16 THE COURT: Sustained. Stricken. No foundation. 17 Q. Do you know whether NYPD caused any summonses for Section 18 12 -- caused any summonses for Section 1234 issued in Critical 19 Mass rides to be voided? 20 A. No. 21 Q. Did you direct that any summonses issued to Critical Mass 22 bicyclists for violation of Section 1234 be voided? 23 A. No. 24 Q. Did you investigate whether any Critical Mass bicyclists 25 had been improperly issued summonses for violation of Section SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 252 95EVFIV1 Paragallo - direct 1 1234? 2 A. No. 3 Q. Is it possible to get a close-up on the fax line that's at 4 the top of Plaintiffs' Exhibit 87? Or is it legible to you, 5 Chief Paragallo? 6 A. OK. 7 Q. Does this indicate to you that the strikeouts on 8 Plaintiffs' Exhibit 87 were made no later than May 18th, 2007? 9 A. I can only tell you that the document says that date. 10 Q. You don't know when the strikeouts were made? 11 A. I don't recall. 12 Q. It could have been in 2008? 13 MR. MUSCHENHEIM: Objection, your Honor. 14 THE COURT: I think the answer was clear enough. And 15 your questions also assume the accuracy of the date in the fax 16 machine which may or may not be accurate. 17 MR. VACCARO: I'd like to go to Exhibit Plaintiffs' 8. 18 Q. Can you read this -- can you read the date and the 19 violation code on the summons, Chief Paragallo? 20 A. Yes. 21 Q. Does this appear to be a summons issued for VTL 1234 22 written on December 29th, 2006? 23 THE COURT: Is this in evidence? 24 MR. VACCARO: I was about to just lay a foundation, 25 your Honor. It is not in evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 253 95EVFIV1 Paragallo - direct 1 THE COURT: Well, I don't see how you can lay the 2 foundation through this witness unless he issued it. Is there 3 any objection to this, Mr. Muschenheim? 4 MR. MUSCHENHEIM: No, your Honor. 5 THE COURT: All right. Plaintiffs' 8 is received. 6 (Plaintiffs' Exhibit 8 received in evidence) 7 MR. VACCARO: Let's move ahead to Paragallo -- 8 plaintiffs -- 9 THE COURT: Before you do, do you see a date on this? 10 I see dates, but I don't see an issue date. Maybe it's there. 11 MR. VACCARO: I think I would like to move to 12 Plaintiffs' Exhibit 236. 13 THE COURT: Is that a way of saying you don't see a 14 date? 15 MR. VACCARO: I believe I may have put up the wrong 16 exhibit for my examination, your Honor. 17 THE COURT: OK. 18 MR. VACCARO: Because this one seems to be dated March 19 31st of 2006, and I had intended to ask Chief Paragallo 20 regarding a December 2006 summons. 21 THE COURT: OK. 22 MR. VACCARO: If we can go to Plaintiffs' Exhibit 236, 23 please. 24 BY MR. VACCARO: 25 Q. Chief Paragallo, is this the memorandum that you sent on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 254 95EVFIV1 Paragallo - direct 1 December 29th, 2006 to the chief of patrol? 2 A. Yes. 3 Q. And at a certain point in time did it become your custom to 4 send such memoranda to the chief of patrol forwarding summonses 5 issued in connection with Critical Mass rides? 6 A. Yes. 7 MR. VACCARO: Plaintiffs would like to move this 8 memorandum and its attachments, which are the summonses, into 9 evidence. 10 MR. MUSCHENHEIM: No objection, your Honor. 11 THE COURT: Received. 12 (Plaintiffs' Exhibit 236 received in evidence) 13 MR. VACCARO: And I'd like to please scroll in this 14 exhibit. Back, please. OK. Hit one. 15 Q. Chief Paragallo, do you see that attached to your 16 memorandum are, on this page of the exhibit, two summonses 17 issued for violation of Section 1234? 18 A. Yes. 19 Q. During this time period that you were forwarding these 20 memoranda with attached summonses to the chief of patrol, was 21 it your practice to review the summonses to determine whether 22 they were valid? 23 A. No. 24 Q. To your knowledge, was there anyone who had responsibility 25 for reviewing the summonses issued at the Critical Mass rides SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 255 95EVFIV1 Paragallo - direct 1 to determine whether they were valid? 2 A. No. 3 MR. VACCARO: I'd like to go back to the first page of 4 this exhibit. 5 THE COURT: I take it you don't mean to exclude as 6 someone responsible for seeing if they were valid, a judge in 7 an appropriate court in which the summons was returnable, 8 right? 9 THE WITNESS: No, I mean nobody at the Critical Mass 10 detail reviewed these summonses at that point. The assumption 11 was that they would go to court or hearing and be determined at 12 that point. 13 BY MR. VACCARO: 14 Q. Looking at the paragraph numbered one on the first page of 15 Plaintiffs' Exhibit 236, do you see where it states that there 16 were 16B summonses issued during a Critical Mass demonstration 17 which occurred on December 29, 2006? 18 A. Yes. 19 Q. But that doesn't actually mean that these summonses were 20 issued to individuals participating in a Critical Mass group 21 bike ride, does it? 22 A. To the best of my knowledge it does. 23 Q. It does? 24 A. Yes. 25 Q. Do you recall testifying at your deposition that this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 256 95EVFIV1 Paragallo - direct 1 language in this memoranda was improperly worded? 2 MR. MUSCHENHEIM: Objection, your Honor. 3 THE COURT: Sir, I explained two days ago how I'd like 4 you to deal with the depositions. It does not include that 5 form of examination. I'm not stopping you from doing it, I'm 6 asking you to do it the way I asked you to do it. 7 Q. Would it refresh your recollection regarding the meaning of 8 the phrase "during the Critical Mass demonstration" to hear 9 your deposition and turning the imports of those words? 10 THE COURT: Sustained. The witness has not testified 11 to a failure of recollection. 12 MR. VACCARO: I'd like to read a question and answer 13 of Mr. Paragallo's deposition testimony. 14 THE COURT: OK. Give us the page and the line. 15 MR. VACCARO: Page 351. 16 THE COURT: Line? 17 MR. VACCARO: That's page 350, line 17. (Reading) 18 "Q. But there are characterizations that the summonses were 19 issued during a Critical Mass demonstration, right? 20 "A. Yes." 21 There's an objection. 22 "Q. And you are saying that it is not to be taken as a 23 suggestion that the summonses were issued to participants in a 24 group bicycle ride? 25 "A. That wasn't the intention of indicating that number, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 257 95EVFIV1 Paragallo - direct 1 statistical number, in that paragraph. 2 "Q. And it was the indication where we see a similar phrase in 3 Paragallo-28, where it states in the first paragraph, During 4 the event, one bicyclist was arrested and 50 summonses were 5 issued? 6 "A. Yes." 7 There you believe it is the intention to say that the 8 summonses were issued to participants in a group bicycle ride? 9 Then there's an objection. 10 "A. I think it is improperly worded. The bicyclist was 11 arrested, I was there. The Critical Mass participant or 12 somebody there at the rally at the northern end of the park was 13 arrested inappropriately. I voided that arrest. The other 14 part of that is improperly worded. The intention wasn't to 15 tie, to marry, those summonses to Critical Mass participants. 16 It was statistical data to people would know the detail in 17 place that night, this type of activity. 18 MR. MUSCHENHEIM: Your Honor, just note we had 19 objections to form in that -- during the deposition. We just 20 note those objections. 21 THE COURT: Well, are you pressing them or not? 22 MR. MUSCHENHEIM: Yes, we are. 23 THE COURT: All right. Is this in the deposition 24 designations? 25 MR. MUSCHENHEIM: No, it's not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 258 95EVFIV1 Paragallo - direct 1 THE COURT: Well, then somebody will have to give me 2 the transcript. 3 MR. VACCARO: Could you please hand up a copy of the 4 Paragallo transcript? 5 (Pause) 6 MR. MUSCHENHEIM: Your Honor, we'll withdraw the 7 objection, I'm sorry. I apologize. 8 THE COURT: OK. Go ahead, sir. 9 BY MR. VACCARO: 10 Q. Chief Paragallo, I just read your deposition testimony 11 concerning the phrase "issued during the Critical Mass 12 demonstration." Is that your testimony? 13 A. Yes. Could I clarify something? 14 Q. Yes. 15 A. You specifically asked me about this document on the screen 16 which was written in December of '06. I can say with some 17 confidence, degree of confidence, that all these summonses were 18 issued in Critical Mass. 19 The question in the deposition had to do with a 20 specific ride that -- a question was raised, I think, Inspector 21 DeQuatro, who towards the end of my tenure in command of those 22 rides, started to, due to the fact that there was no rides or 23 very little activity of officers who were assigned there 24 before, started a tactic -- started a policy, excuse me, of 25 issuing summonses before the rides started, just taking general SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 259 95EVFIV1 Paragallo - direct 1 enforcement in and around not of just critical bicycle 2 participants, but quality of life, traffic violations and just 3 general bicyclists in and around Union Square or Union Square 4 Park before the ride. My answer at the deposition is in 5 regards to that question specifically about Inspector 6 DeQuatro's policy of issuing summonses before the ride. 7 This memorandum which I have in front of me was 8 previous to that. And I can say again with some degree of 9 confidence that all those summonses issued were Critical Mass 10 participants. 11 MR. VACCARO: OK. Can I see Plaintiffs' Exhibit 209 12 please? 13 Q. Chief Paragallo, does this appear to be the command log for 14 the December 29th, 2006 Critical Mass ride? 15 A. Yes. 16 MR. VACCARO: Plaintiffs would move Exhibit 209, 17 Plaintiffs' 209, into evidence. 18 MR. MUSCHENHEIM: No objection, your Honor. 19 THE COURT: Received. 20 (Plaintiffs' Exhibit 209 received in evidence) 21 Q. Chief Paragallo, does this command log indicate that the 22 Critical Mass ride began on December 29, 2006 at 7:50 p.m.? 23 THE COURT: Mr. Vaccaro, it indicates whatever it 24 indicates. If there's some handwriting you can't understand or 25 something like that that the witness is in a position to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 260 95EVFIV1 Paragallo - direct 1 interpret for you, that's one thing. He's not here to read it 2 to you. 3 MR. VACCARO: I merely want to comparison between the 4 information in this document and on one of the summonses. 5 THE COURT: I'm sorry? 6 MR. VACCARO: I merely wanted to draw a comparison 7 between information in this document and -- 8 THE COURT: Well, then there are ways to do that. 9 You've got two pieces of paper and you want to draw a 10 connection between them or show a lack of connection, it's 11 usually a matter of argument. 12 BY MR. VACCARO: 13 Q. Chief Paragallo, when do you believe the practice began of 14 issuing summonses prior to the commencement of the Critical 15 Mass rides? 16 A. As I stated before, it was towards the end of my tenure as 17 the incident commander of these rides. I couldn't specifically 18 say what date, but it was towards the end. 19 Q. Would that put it in 2007? 20 A. It could be, but it's closer to 2008. It could be. As I 21 said, I'm not sure of the date. 22 Q. I'd like to show you Plaintiffs' Exhibit 136. 23 (Pause) 24 THE COURT: Is there a question? 25 MR. VACCARO: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 261 95EVFIV1 Paragallo - direct 1 Q. Chief Paragallo, do you recognize this as an after action 2 report for the June 2007 Critical Mass ride? 3 A. Yes. 4 Q. Memoranda such as this were prepared regularly after each 5 Critical Mass ride? 6 A. Yes. 7 Q. And is it your understanding that the after action 8 memoranda contained accurate information recorded by NYPD at 9 the events described? 10 MR. MUSCHENHEIM: Objection, your Honor. 11 THE COURT: Sustained. 12 Q. What is the purpose of creating these after action 13 memoranda? 14 A. It's informational, just a recap of any detail or any 15 event, just to summarize what the details of the event was, any 16 unusual circumstances, and just general information for 17 purposes of information. Just basic seeing what happened at 18 the event. 19 Q. And description of what the bicyclists are doing at 20 particular times during the event that appears in the after 21 action memoranda, what's the purpose of reporting that 22 information? 23 A. I wouldn't know. I didn't author the document. I didn't 24 author the document, so I wouldn't know. 25 Q. You didn't know the purpose for which the documents were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 262 95EVFIV1 Paragallo - direct 1 authored? 2 A. No. Specific terminology or information in the report I 3 couldn't speak to because I didn't write the document. I don't 4 know what he -- why it was in there or why the person who 5 authored the document put it in. 6 Q. Was it your expectation that these documents prepared after 7 each Critical Mass ride would accurately record the 8 circumstances they described? 9 MR. MUSCHENHEIM: Objection, your Honor. 10 THE COURT: Sustained. 11 MR. VACCARO: Plaintiffs would like to move exhibit 12 Plaintiffs' 136 into evidence. 13 MR. MUSCHENHEIM: No objection. 14 THE COURT: Received. 15 (Plaintiffs' Exhibit 136 received in evidence) 16 Q. Based on the information in this report, would you agree 17 with me that summonses written before 8 p.m. at the June 27, 18 2007 Critical Mass were not issued to participants in a 19 Critical Mass group bicycle ride? 20 THE COURT: That's a matter of argument. 21 Q. I'd like to show you Plaintiffs' Exhibit 216. Do you 22 recognize this as a command log from the July 2007 Critical 23 Mass ride? 24 A. Yes. 25 MR. VACCARO: Plaintiffs would like to move SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 263 95EVFIV1 Paragallo - direct 1 Plaintiffs' Exhibit 216 into evidence. 2 MR. MUSCHENHEIM: No objection, your Honor. 3 THE COURT: Received. 4 (Plaintiffs' Exhibit 216 received in evidence) 5 Q. I'd like to show you Plaintiffs' Exhibit 138. Chief 6 Paragallo, do you recognize this as an after action report -- 7 A. Yes. 8 Q. -- for the August 2007 Critical Mass ride? 9 A. Yes, I do. 10 MR. VACCARO: Plaintiffs would like to move admission 11 of Plaintiffs' Exhibit 138. 12 MR. MUSCHENHEIM: No objection. 13 THE COURT: Received. 14 (Plaintiffs' Exhibit 138 received in evidence). 15 THE COURT: How many more of these? I imagine they 16 will all go in by stipulation. 17 MR. VACCARO: There are three more, and we can put 18 them in by stipulation if that's what your Honor would prefer. 19 THE COURT: Consult with Mr. Muschenheim, and let's do 20 it. 21 MR. MUSCHENHEIM: Your Honor, if they are all after 22 action reports, the defense has no objection. 23 THE COURT: So give us the numbers. 24 MR. VACCARO: They are not all after action reports; 25 some are command logs. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 264 95EVFIV1 Paragallo - direct 1 THE COURT: Would you just consult for a minute? If 2 these are NYPD documents, I'm sure we're not going to have a 3 problem. No reason to waste the witness's time or anybody 4 else's. 5 (Pause) 6 MR. MUSCHENHEIM: Your Honor, I have no objection. 7 THE COURT: To what exactly? 8 MR. MUSCHENHEIM: To the three documents that 9 plaintiffs have indicated they would like to move to admit in 10 evidence. 11 THE COURT: The problem being that I need to know what 12 they are. 13 MR. VACCARO: They are Plaintiffs' Exhibit 139, 219 14 and 220. 15 THE COURT: And they are? Tell me. 16 MR. VACCARO: 139 is the after action report from the 17 September 2007 Critical Mass ride; 219 is the command log from 18 the October 2007 Critical Mass ride; 220 is the command log 19 from the November 2007 Critical Mass ride. 20 THE COURT: Thank you. They are received. 21 (Plaintiffs' Exhibits 139, 219, 220 received in 22 evidence) 23 MR. VACCARO: I would just like to briefly examine the 24 witness with respect to Plaintiffs' Exhibit 220. 25 THE COURT: Go ahead. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 265 95EVFIV1 Paragallo - direct 1 MR. VACCARO: Could you please put it up? I see that 2 there's a photocopy issue with respect to this exhibit, and I 3 would ask permission to hand up to the witness a paper copy of 4 Plaintiffs' Exhibit 220. 5 THE COURT: OK. 6 MR. VACCARO: It appears that both the new and the old 7 technology have failed us, your Honor. My apologies for the 8 delay. Could we please put up Exhibit 219, which was also just 9 received into evidence? 10 BY MR. VACCARO: 11 Q. Chief Paragallo, are command logs such as the one marked 12 Plaintiffs' Exhibit 219 recorded under your supervision or were 13 they recorded under your supervision at the Critical Mass 14 rides? 15 A. If I was there. 16 Q. And what is the purpose of recording the information with 17 the time entries in the left-hand margin? 18 A. Just to give a timeline of when things occur. And if 19 there's a problem after the fact, we can go back and see what 20 was going on at specific times during the event. 21 Q. Is it your understanding that when entries are made in a 22 command log such as this that they are made contemporaneous 23 with the events occurring? 24 A. Not all times. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 266 95e1fiv2 Paragallo - direct 1 BY MR. VACCARO: 2 Q. Are there any steps taken to ensure the accuracy of the 3 time information associated with the events recorded? 4 A. No. 5 Q. Is it the policy of NYPD to record accurate time 6 information for the events that are recorded in command logs 7 such as this? 8 MR. MUSCHENHEIM: Objection, your Honor. 9 THE COURT: Yes, this is not a profitable line. 10 People look at their watches. It's the real world. 11 Q. I'd like to -- 12 THE COURT: Unless, of course, you've got evidence, 13 you have a reasonable basis for suggesting that there was some 14 deliberate fabrication going on, that's, of course, another 15 matter. 16 MR. VACCARO: I'm simply trying to establish the 17 reliability of the information contained in the records. 18 THE COURT: It's like asking the President whether the 19 FBI agents in the New York regional office keep accurate time 20 records. I mean, the answer is meaningless and the information 21 is meaningless. 22 Q. Chief Paragallo, are you aware that Section 4-12(p)(3) of 23 the Rules of the City of New York are limited in their 24 application to one-way roadways of greater than 40 feet in 25 width? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 267 95e1fiv2 Paragallo - direct 1 A. Yes. 2 Q. Was it ever brought to your attention that officers 3 assigned to Critical Mass details were issuing summonses for 4 violation of 4-12(p)(3) on road -- for activity on roadways 5 that were less than 40 feet in width? 6 A. I believe so. 7 Q. When was that brought to your attention? 8 A. I don't recall. 9 Q. Did you take any steps to prevent continued issuance of 10 summonses for violation of 4-12(p)(3) on those roadways? 11 A. Yes. 12 Q. What did you do? 13 A. Before each ride, when we had our briefing with the 14 captains and above, we specifically told them what laws 15 couldn't be applied during the ride to bicycles, bicyclists 16 with the city, and some violations -- we clarified a lot of the 17 confusion that came up at past rides. 18 MR. VACCARO: Can I see Plaintiff's Exhibit 87, 19 please. And I'd like a blowup of the bottom -- the third entry 20 from the bottom in the Bicycling NYC section. 21 Q. Chief Paragallo, do you see the entry the third from the 22 bottom that describes, "Side of roadway - Must ride on left and 23 right sides of one-way streets"? 24 A. Yes. 25 Q. Did you ever investigate whether this description of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 268 95e1fiv2 Paragallo - direct 1 4-12(p)(3) that does not refer to the 40-foot width requirement 2 was the source of the confusion regarding the issuance of the 3 summonses? 4 MR. MUSCHENHEIM: Objection, your Honor. 5 THE COURT: What's the objection? 6 MR. MUSCHENHEIM: To the form. 7 THE COURT: I'll allow it. 8 A. Could you repeat the question? 9 Q. Did you ever investigate whether the description of 10 4-12(p)(3) provided in this document was the source of the 11 confusion that led to the issuance of summonses for violation 12 of 4-12(p)(3) on roadways of less than 40 feet wide? 13 A. No, not to the best of my knowledge. 14 Q. Did you ever consult with Lieutenant Albano as to whether 15 this description of 4-12(p)(3) contained in this document, 16 Plaintiff's Exhibit 87, was adequate? 17 A. I discussed with Lieutenant Albano all the problems we were 18 having with certain -- certain sections of the VTL and traffic 19 regulations regarding the rides, so again, I can't specifically 20 tell you what details in the -- in the sections of the VTL 21 we -- were problems or where confusion was, but he clarified a 22 lot of the issues we had in our discussions. 23 Q. Did you ever modify the sheet handed out to the officers on 24 the Critical Mass detail so as to specify that 4-12(p)(3) only 25 applied on roadways of 40 feet or greater in width? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 269 95e1fiv2 Paragallo - direct 1 A. I -- I had -- didn't modify any documents. This 2 information was given verbally at our briefings. 3 Q. Do you recall being present at the May 2007 Critical Mass 4 ride? 5 A. Probably. 6 Q. Do you recall that at that ride NYPD issued summonses to 7 participants for parading without a permit? 8 A. What was the date again? 9 Q. May 2007. May 25th, 2007. 10 A. The only time I remember after -- in that time frame 11 parading without permit summonses is we had them voided. There 12 was a sergeant who overstepped his bounds and mistakenly 13 didn't -- wasn't aware of the parading without a permit 14 regulations and issued some summonses. When we found out, I 15 believe, if that's the one we're talking about, we had those 16 summonses voided. Other than that, I don't remember any other 17 parading without a permit summonses issued in that time frame. 18 MR. VACCARO: Can I have Plaintiff's Exhibit 92 on the 19 screen, please. And scroll to the second page, please. 20 Q. Chief Paragallo, is Plaintiff's Exhibit 92 the memorandum 21 that you wrote to the chief of patrol concerning summonses 22 issued at the May 2007 Critical Mass ride? 23 A. Yes. 24 MR. VACCARO: Plaintiffs would move Plaintiff's 92 25 into evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 270 95e1fiv2 Paragallo - direct 1 MR. MUSCHENHEIM: No objection. 2 THE COURT: Received. 3 (Plaintiff's Exhibit 92 received in evidence) 4 Q. Chief Paragallo, does this refresh your recollection as to 5 whether parading without a permit summonses were issued at the 6 May 2007 Critical Mass ride? 7 A. Well, it states they were issued. I don't recall it. The 8 only -- As I said, the only issuance of parading without a 9 permit that I recall after the new regulations went into 10 effect, and it could have been after the May 2007 -- I thought 11 it was in 2007, was the ones I alluded to before, but if the 12 document states they were issued, I'm assuming they were 13 issued. 14 Q. If the summonses for parading without a permit listed in 15 your memorandum had been voided, would you have made a note of 16 that in your memorandum? 17 A. Yes. 18 Q. Can you recall whether certain of the individuals receiving 19 the parading without a permit summonses were handcuffed while 20 they received their summonses? 21 A. I don't -- I have no knowledge of that. 22 Q. Am I correct that it's NYPD's practice not to handcuff 23 individuals while they're being issued a summons unless it's 24 necessary for safety? 25 A. As a general practice, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 271 95e1fiv2 Paragallo - direct 1 Q. Am I correct that for a period of time you directed an 2 investigation of the disposition of summonses issued during 3 Critical Mass events? 4 A. An investigation? Did you say investigation -- 5 Q. Yes. 6 A. -- in your question? No. 7 Q. For a period of time did you request that research be 8 conducted to determine the disposition of summonses issued by 9 officers on Critical Mass details? 10 A. We -- we received statistical information about 11 dispositions. 12 Q. In the course of the review of that disposition information 13 did you consider the specific nature of the violations 14 underlying the summonses? 15 A. No. 16 Q. You considered only whether there was a finding or a plea 17 of guilty or not guilty? 18 A. For the most part. 19 Q. Is it correct that prior to 2006 the NYPD's practice was to 20 arrest Critical Mass participants for parading without a permit 21 and disorderly conduct? 22 A. If they committed a violation, yes. 23 Q. And can you recall orders being given that any group of 24 five or more bicyclists found violating traffic laws at a 25 Critical Mass ride would be arrested? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 272 95e1fiv2 Paragallo - direct 1 A. No, I don't recall that. 2 Q. I'd like to show you Plaintiff's Exhibit 165. 3 MR. VACCARO: Can we go back one page. 4 Q. Chief Paragallo, does this appear to be a log kept in 5 connection with the April 29, 2005 Critical Mass ride? 6 THE COURT: The better question, Chief, would be 7 whether this is a log that was kept. 8 THE WITNESS: This is a log that was kept. 9 MR. VACCARO: Thank you, your Honor. And can I have 10 that fly-out now. 11 Q. We have a fly-out referring to an order, or a directive 12 concerning five bike riders together and disobeying traffic 13 regulations. Does this refresh your recollection as to whether 14 you gave orders at any Critical Mass ride that a group of five 15 or more bicyclists violating traffic laws would be arrested? 16 A. No, it doesn't recollect -- it doesn't refresh my memory. 17 Q. Can you tell from this document who gave that directive? 18 A. No. 19 Q. But it's possible that you gave it? 20 MR. MUSCHENHEIM: Objection. 21 THE COURT: The objection is sustained because the 22 question has more or something different than what is on the 23 page. Counsel seems to be equating the words "take police 24 enforcement" with the word "arrest." 25 Q. How do you interpret the phrase "take police enforcement," SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 273 95e1fiv2 Paragallo - direct 1 Chief Paragallo? 2 THE COURT: Sustained. Sustained, unless he wrote it. 3 Did you write those words, Chief? 4 THE WITNESS: No, sir. 5 Q. Chief Paragallo, I'd like to read to you a portion of your 6 deposition transcript in this matter, starting at page 261, 7 line 2. 8 "Q. So in fact at the April 2005 Critical Mass, the 9 officers who were assigned to the detail were informed that if 10 they see more than five bike riders together and disobeying 11 traffic regulations, they were to take police enforcement?" 12 And there's an objection as to the form. 13 "If you read this as being -- if you read this as that 14 being the instruction, yes." 15 "Q. Do you know whether the officers who you 16 personally briefed in connection with the Critical Mass ride 17 were given the specific instruction? 18 "A. I don't recall. 19 "Q. Is it possible that you gave them that 20 instruction? 21 "A. Yes." 22 Is that your testimony? 23 A. I don't recall if -- ever issuing a order or directive 24 limiting the enforcement action to five or more bicyclists. 25 Q. Are you saying then that it's not possible that you gave SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 274 95e1fiv2 Paragallo - direct 1 that directive? 2 MR. MUSCHENHEIM: Objection. 3 THE COURT: Sustained. 4 Q. I'd like to read to you another passage of your deposition 5 testimony, beginning on page 263, line 15. It reads as 6 follows: 7 "And the reference to police enforcement here, do you 8 take that to mean that there should be a summons written or an 9 arrest made, if feasible?" 10 And there is an objection. 11 "Answer --" 12 THE COURT: Excuse me. Is the objection pressed? 13 MR. MUSCHENHEIM: Yes, your Honor. 14 THE COURT: Sustained. 15 Q. Next question, starting at line 23: 16 "Well, we talked before about what police enforcement 17 means to you. Do you think it means something other than 18 summonsing or arresting? 19 "A. No." 20 Is that your testimony, Chief Paragallo? 21 THE COURT: The court reporter was there. Do I have 22 any reason to think the court reporter did not accurately write 23 down what was said? 24 MR. VACCARO: No, your Honor. 25 Q. Chief Paragallo, is it true that at a certain point in time SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 275 95e1fiv2 Paragallo - direct 1 during the policing of the Critical Mass ride that NYPD would 2 on occasion station officers at places other than Union Square 3 to monitor for Critical Mass bicyclists? 4 A. Yes. 5 Q. And if bicyclists left in a group from those secondary 6 locations, would they then be followed and monitored for 7 traffic violations by NYPD? 8 A. Bicyclists? 9 Q. Bicyclists. 10 A. It depended on the -- the amount of bicyclists and how they 11 rode out of the park and how they were riding. 12 Q. And on what basis would it be determined that a group of 13 bicyclists proceeding from such a secondary location would be 14 followed and monitored for traffic violations? 15 A. We had a supervisor in each one of those locations, and 16 basically it was a common sense standard. If it appeared to be 17 a group en masse leaving the park in a procession or 18 quasiparade or just in a disruptive manner, the supervisor, 19 again, using a common sense standard, would determine whether 20 enforcement action should have been taken. 21 Q. Isn't it true that groups leaving in a law-abiding manner 22 from secondary locations would also be monitored by NYPD 23 personnel? 24 A. I'd have to be at those locations. I couldn't tell you 25 specifically if it happened or, you know, whether it happened SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 276 95e1fiv2 Paragallo - direct 1 or not. 2 Q. If a group of 20 bicyclists left from a park -- Withdrawn. 3 If a group of 20 bicyclists on a Critical Mass evening 4 left from a secondary location, was it a matter of practice 5 that NYPD would monitor them? 6 MR. MUSCHENHEIM: Objection, your Honor. 7 Hypothetical. 8 THE COURT: Sustained. 9 Q. I'd like to read to you from your deposition testimony, 10 page 297, line 20. 11 "But if they left the park in a group of 20, they 12 would be surveilled," S-U-R-V-E-I-L-L-E-D, "by NYPD personnel?" 13 And then there's an objection. 14 THE COURT: Are you pressing the objection? 15 MR. MUSCHENHEIM: Yes, your Honor. 16 THE COURT: What is the objection? 17 MR. MUSCHENHEIM: There's a form problem. 18 THE COURT: Specifically? 19 MR. MUSCHENHEIM: To the word surveil. 20 THE COURT: Overruled. 21 Q. "A. Their activity would be monitored to ensure that they 22 were complying with all the vehicle and traffic regulations. 23 "Q. Because any group of bicyclists of 20 or more 24 proceeding together in Manhattan South on the last Friday of 25 the month would be presumed to be potential participants in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 277 95e1fiv2 Paragallo - direct 1 Critical Mass ride?" 2 And then there's an objection. 3 MR. MUSCHENHEIM: Yes, your Honor. 4 THE COURT: What's the objection? 5 MR. MUSCHENHEIM: To form, your Honor. 6 THE COURT: Specifically what? 7 MR. MUSCHENHEIM: To the word presumed. 8 THE COURT: What's the problem with the word presumed? 9 MR. MUSCHENHEIM: What the -- what one's understanding 10 of presumption is, you know, varies depending on who the person 11 is. It's a very vague term. 12 THE COURT: Overruled. 13 Q. "A. There was an assumption, yes." 14 And, Chief Paragallo, was there any specific minimum 15 threshold set on the size of the group of bicyclists that would 16 trigger the monitoring and enforcement activity by the NYPD 17 when such a group departed from a secondary occasion on a 18 Critical Mass night? 19 A. No. 20 Q. Chief Paragallo, did there come a point in time in early 21 2006 that the NYPD shifted the focus of its enforcement efforts 22 at Critical Mass rides from arrests of bicyclists to issuing 23 summonses for violation of the traffic rules? 24 A. There was some time. I don't know specifically, 25 specifically if it was that date. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 278 95e1fiv2 Paragallo - direct 1 Q. And do you recall that that shift in policy was motivated 2 by the dismissal of the arrests that NYPD had been making of 3 the Critical Mass bicyclists? 4 MR. MUSCHENHEIM: Objection, your Honor. 5 A. No. 6 THE COURT: What's the objection? 7 MR. MUSCHENHEIM: To the form of the question. 8 THE COURT: You've got to help me out a little bit. I 9 assume it's to the form of the question. What's the problem? 10 MR. MUSCHENHEIM: It hasn't been established yet that 11 there's been a shift in policy. Foundation problem as well. 12 THE COURT: Sustained. 13 Q. Chief Paragallo, putting aside the time at which any such 14 shift may have taken place, was there a shift in NYPD 15 enforcement policy of the Critical Mass rides from one of 16 arresting Critical Mass bicyclists to one of issuing summonses 17 for traffic violations? 18 A. During the course of the ongoing litigation with the 19 parading without -- parade permit litigation -- new statute 20 parading -- parade permit litigation, excuse me, there was a 21 self-imposed moratorium on any activity in regards to parading 22 without a permit or any -- so at that point -- and again, what 23 we found was that safety considerations far outweighed any 24 other problems with the -- that the discon and -- disorderly 25 conduct and parading without a permit violations, that we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 279 95e1fiv2 Paragallo - direct 1 focused more on the red lights, one-way streets, riding on the 2 sidewalk, so we did take -- we looked at summons activity more 3 than we did the criminal activity. 4 MR. VACCARO: Your Honor, I move to strike as 5 nonresponsive. 6 THE COURT: I thought it was quite responsive. 7 Q. And the moratorium, self-imposed, that you referred to, did 8 that moratorium continue through the end of your time of 9 responsibility for the Critical Mass rides? 10 A. No, because the new law came out during my tenure. 11 Q. And how many times after the new law regarding parading 12 without a permit became effective did NYPD enforce that law on 13 Critical Mass rides? 14 A. To the best of my knowledge it would be the one time I 15 alluded to before, we had to void some summonses. 16 Q. Wasn't the dismissal of courts of the parading without a 17 permit and disorderly conduct charges underlying the arrests 18 the motivating factor in shifting to summonsing for traffic 19 violations at the Critical Mass rides? 20 A. I don't believe so. 21 Q. Didn't you tell Borough Commander Smolka that that was one 22 of the reasons to shift from arrests for parading without a 23 permit and disorderly conduct to issuing summonses for 24 violation of the Vehicle & Traffic Law? 25 A. I don't recall that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 280 95e1fiv2 Paragallo - direct 1 Q. Are you aware of any documents memorializing the reasons 2 for the shift? 3 A. Not to the best of my knowledge. 4 THE COURT: Who made the decision? 5 THE WITNESS: It was -- it was -- it was a cooperative 6 effort. It was just talking over issues that we had during the 7 rides, and again, when we had imposed the self-imposed 8 moratorium, we looked at the -- looked at the time that -- 9 again, the safety considerations, which we all looked to a 10 certain degree, were far more pressing than blocking traffic, 11 so pedestrian -- for the bicycle safety, pedestrian safety and 12 just general safety, that we felt that the red light 13 violations, the -- again, the riding on the sidewalk, going 14 down one-way streets far outweighed the handful of disorderly 15 conduct arrests we were making. 16 THE COURT: The question was: Who made the decision? 17 THE WITNESS: As I said, it was not one individual who 18 made the decision. It was something -- it was a cooperative 19 effort. 20 THE COURT: Well, who were the people who 21 participated? 22 THE WITNESS: It was myself, Chief Smolka, again, we 23 consulted with the -- I believe Lieutenant Gannon, the chief of 24 department's office, and again, we just came up with -- with 25 this policy of zeroing in more on the safety aspects with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 281 95e1fiv2 Paragallo - direct 1 moving violations. 2 THE COURT: So it was you and Chief Smolka and you 3 consulted the chief of department's office. 4 THE WITNESS: Yes, just to let them know we were going 5 in this direction. 6 THE COURT: So the decision was with you and Chief 7 Smolka. 8 THE WITNESS: Yes. 9 THE COURT: Okay. 10 BY MR. VACCARO: 11 Q. Chief Paragallo, do you know of any reason why Chief Smolka 12 would recollect a different rationale behind the shift in 13 policy than you do? 14 THE COURT: Sustained. 15 Q. Chief Paragallo, have you herd of an organization named 16 FreeWheels? 17 A. No. 18 Q. Can you recall a group bicycle ride that took place on 19 May 18th, 2005 that NYPD called the FreeWheels Ride of 20 Silence? 21 A. You'd have to -- Not to the best of my knowledge. I 22 remember a couple of rides, but not specifically by that name. 23 MR. VACCARO: Can I have Plaintiff's Exhibit 73, 24 please. 25 Q. If you could just look up when you've read the first page, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 282 95e1fiv2 Paragallo - direct 1 I'd like to show you the second, Chief Paragallo. 2 MR. MUSCHENHEIM: Your Honor, one house -- quick 3 housekeeping matter, just having to do with this document. 4 This document has been marked Confidential, so if we could ask 5 that the screen that is illuminated to the audience be turned 6 off. 7 THE COURT: Sure. 8 MR. MUSCHENHEIM: Thank you. 9 MR. VACCARO: Can we have the second page of 10 Plaintiff's Exhibit 73. 11 Q. Chief Paragallo, having reviewed this document and seeing 12 the name there, do you recall this incident? 13 A. Not specifically. 14 Q. Is it true that NYPD's intelligence division provided 15 information to you regarding bicycling advocacy organizations 16 that you suspected of being organizers of Critical Mass rides? 17 A. Yes. 18 Q. Can you recall if FreeWheels was one of those bicycling 19 advocacy organizations? 20 A. I don't recall. 21 MR. VACCARO: If I can turn back to the first page of 22 Plaintiff's Exhibit 73, I'd like to -- plaintiffs would like to 23 move Plaintiff's Exhibit 73 into evidence. 24 MR. MUSCHENHEIM: In objection, your Honor. 25 THE COURT: Received. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 283 95e1fiv2 Paragallo - direct 1 (Plaintiff's Exhibit 73 received in evidence) 2 Q. Chief Paragallo, do you have any information concerning 3 illegal activity associated with the FreeWheels Ride of Silence 4 described on the first page of Plaintiff's Exhibit 73? 5 MR. MUSCHENHEIM: Your Honor, Chief Paragallo has 6 testified that he doesn't recall the ride, he doesn't recall 7 the organization. It's somewhat speculative, so we object. 8 THE COURT: Overruled for the moment. Please answer. 9 A. Could you repeat the question. 10 Q. Do you have any information concerning illegal activity 11 associated with the FreeWheels Ride of Silence that was the 12 subject of this operation described in the document? 13 A. I have no information 'cause I don't recall the incident. 14 MR. VACCARO: Can we go to the -- back to the second 15 page. 16 Q. Based on the listing of officers and vehicles and forces 17 assembled for this particular operation, can you estimate the 18 number of police officers that were assigned to this detail? 19 A. Anywhere from 75 to a hundred. 20 Q. Does the fact that your name is listed as incident 21 commander on this page mean that you actually were on the scene 22 during this event? 23 A. Possibly. 24 Q. Turning back to the first page, do you know whether the 25 event described in this document, the Ride of Silence, has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 284 95e1fiv2 Paragallo - direct 1 occurred more than once in Patrol Borough Manhattan South 2 during the period that you were serving in that patrol borough? 3 A. Not that I recall. 4 Q. Was Time's Up! one of the bicycling advocacy organizations 5 that were suspected by NYPD as being organizers of Critical 6 Mass? 7 A. Yes. 8 Q. I'd like to show you Exhibit Plaintiff's 264. 9 MR. MUSCHENHEIM: Your Honor, this document as well is 10 also marked Confidential, so the screen to the audience should 11 be off. 12 THE COURT: Okay. You understand if it comes into 13 evidence that it may be fair game. 14 MR. MUSCHENHEIM: I understand. I think that if, 15 during a break, we could -- I could consult with plaintiffs and 16 we could try to work out some sort of a plan to keep these type 17 of documents under some type of seal. 18 THE COURT: Do you understand that it's not entirely 19 up to you or, for that matter, ultimately, me? 20 MR. MUSCHENHEIM: I understand that as well. 21 Q. Chief Paragallo, did you serve as incident commander for 22 the group bicycle ride described in Plaintiff's Exhibit 264? 23 A. Yes. 24 Q. Did you have any role in preparing the document that's 25 marked Plaintiff's Exhibit 264? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 285 95e1fiv2 Paragallo - direct 1 A. No. 2 Q. Was it prepared under your supervision? 3 A. No. 4 Q. Was it prepared by the operations unit of Patrol Borough 5 Manhattan South? 6 A. Yes. 7 MR. VACCARO: Plaintiffs would like to move 8 Plaintiff's Exhibit 264 into evidence. 9 MR. MUSCHENHEIM: No objection. 10 THE COURT: Received. 11 (Plaintiff's Exhibit 264 received in evidence) 12 Q. Chief Paragallo, do you have any information concerning the 13 illegal activity associated with the Time's Up! bicycle ride 14 that is described in this memorandum? 15 A. No. 16 Q. Do you have any knowledge of methods used to gather 17 information regarding purported illegal activity associated 18 with this group bicycling event? 19 A. No. 20 THE COURT: We're going to take our morning break 21 here. 22 It seems to me that for the last 15 minutes we're 23 getting very far afield from the issues in this case. And I 24 would urge counsel to think further about that. 25 THE CLERK: All rise. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 286 95e1fiv2 Paragallo - direct 1 (Recess) 2 (In open court) 3 THE COURT: Okay. Let's continue. 4 How much longer with this witness, Mr. Vaccaro? 5 MR. VACCARO: Not more than 15 minutes, your Honor. I 6 have a handful of questions on the line that I was asking 7 before the break and then a final line of questions. 8 MR. BIERBAUER: Your Honor, one other housekeeping 9 matter. In order to make sure the case proceeds as efficiently 10 as possible, we've agreed with the defendants to just bring on 11 witnesses as they are available. That means that we're 12 proposing that certain witnesses in defendant's case in chief 13 may come before certain witnesses in plaintiff's case in chief. 14 THE COURT: No problem. 15 MR. BIERBAUER: Okay. 16 THE COURT: Okay. We can't do a play without Hamlet. 17 (Pause) 18 BY MR. VACCARO: 19 Q. Chief Paragallo, I'd like to show you a document that's 20 been marked Defendant's Exhibit EEE. Just show you the front 21 page. And if you look up when you're done, I'll show you the 22 second page as well. I have a small number of questions. 23 A. (Witness complies.) 24 MR. VACCARO: Could we go to the second page, please. 25 Q. Chief Paragallo, did you personally attend the detail, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 287 95e1fiv2 Paragallo - direct 1 event described in document Defendant's EEE? 2 A. Yes. 3 MR. MUSCHENHEIM: Your Honor, the document isn't yet 4 in evidence. 5 THE COURT: Well, I understand that, but so far 6 there's not been any material reference. Go ahead. 7 MR. VACCARO: He anticipated my next move. I would 8 like to move Defendant's Exhibit EEE into evidence. 9 MR. MUSCHENHEIM: No objection, your Honor. This 10 document is also marked Confidential. 11 THE COURT: Received. 12 (Defendant's Exhibit EEE received in evidence) 13 MR. VACCARO: I'd like to go to page Bates stamp NYC 14 030756. 15 Q. Chief Paragallo, are you familiar with the group bicycling 16 event that's described at the bottom of that page? 17 A. I don't understand the question. 18 Q. Well, withdrawn. Did you observe the group bicycling event 19 that is described at the bottom of that page? 20 A. I don't believe so. 21 Q. Do you have any information as to why the group bicycling 22 event described at the bottom of that page is described as a 23 "Critical Mass" bicycle ride/demonstration? 24 THE COURT: Sustained. Really. It may be okay to ask 25 a literature professor why, in his opinion, Shakespeare used a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 288 95e1fiv2 Paragallo - direct 1 certain phrase to describe something, but it's not evidence in 2 a court. We could go take a public opinion poll. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 289 95EVFIV3 Paragallo - direct 1 Q. Do you know if the Critical Mass bicycle ride was conducted 2 in connection with the event described in Defendant Exhibit 3 EEE? 4 A. I don't recall. 5 Q. Do you recall that on occasion during the Critical Mass 6 details officers would be assigned to monitor the office of the 7 organization Time's Up!? 8 A. Yes. 9 Q. And on one occasion that officers were assigned to monitor 10 that location for the duration of the Critical Mass event? 11 A. Possibly. 12 THE COURT: That's not too helpful. Yes or no? 13 A. I don't recall specifically what time frame. 14 Q. I'd like to read a portion of your deposition transcript, 15 beginning on page 311, line 5. (Reading) 16 "Q. Turning to page ending 768, the last page of this exhibit, 17 you see there that there are four police officers who were 18 assigned to 49 East Houston? 19 "A. Yes. 20 "Q. And was it your understanding that 49 East Houston was the 21 Time's Up! offices? 22 "A. Yes. 23 "Q. And it indicates that the tour assigned is 1500 by 2355? 24 "A. Yes. 25 "Q. Is there anything on the sheet to suggest that these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 290 95EVFIV3 Paragallo - direct 1 officers were not parked outside the Time's Up! offices from 2 early in the evening on this date until the end of their tour?" 3 And then there's an objection as to form. 4 MR. MUSCHENHEIM: We are not pressing that objection. 5 "A. They would have been reported to the detail until about 5 6 o'clock, so they would have been turned out until about 6 7 o'clock." 8 Last question and answer. 9 "Q. So they may have been monitoring 49 East Houston Street 10 from 6 o'clock until the end of their tour? 11 "A. Yes." 12 THE COURT: That was offered for what purpose? 13 MR. VACCARO: I'm sorry, but I did not hear you. 14 THE COURT: And that was for what purpose? 15 MR. VACCARO: The purpose was to provide evidence that 16 NYPD has a practice of monitoring the headquarters of 17 organizations suspected to be organizers of the Critical Mass 18 ride on the evenings of the Critical Mass ride. 19 THE COURT: And what you have actually accomplished is 20 that you have testimony in which this witness at a deposition 21 read a document that is not in evidence into the record; and, 22 thus, if your purpose was what you say it is, you haven't come 23 close, assuming for the sake of argument that it were relevant, 24 which I doubt. 25 So could we please move this along with some notion of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 291 95EVFIV3 Paragallo - direct 1 what's relevant in this case and some attention to the rules of 2 evidence? 3 MR. VACCARO: Yes, your Honor. I have a final line of 4 questions with that guidance in mind. 5 BY MR. VACCARO: 6 Q. Chief Paragallo, is it true that you believe a 50-person 7 Critical Mass ride that proceeded in a law-abiding manner could 8 proceed peacefully without incident or disrupting traffic? 9 A. I'd have to see -- I'd have to be at the scene at the time. 10 I mean it's very speculative to say that the time of day, the 11 condition, the street conditions, I can't say yes or no. 12 Q. Do you recall -- withdrawn. Do you believe that a 13 300-person Critical Mass ride that proceeded in one lane 14 obeying all applicable traffic rules could proceed without 15 creating any traffic disruption or safety issue? 16 MR. MUSCHENHEIM: Your Honor, objection. 17 THE COURT: Sustained. 18 Q. I'd like to read a portion of your deposition testimony, 19 Chief Paragallo, beginning at page 252, line 7. (Reading) 20 "Q. Do you believe that if Critical Mass obeyed all applicable 21 traffic regulations, that it could be conducted peacefully and 22 without incident as a general matter?" 23 And then there's an objection. 24 THE COURT: And is the objection pressed? 25 MR. MUSCHENHEIM: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 292 95EVFIV3 Paragallo - direct 1 THE COURT: Sustained. I take it as a given that 2 anything in life is possible, including bicyclists conducting 3 themselves appropriately and, depending on conditions, doing so 4 in a manner that doesn't obstruct traffic or involve the 5 commission of offenses and violations. There's no need for 6 proof that that's a theoretical possibility and, in fact, 7 occurs on occasions. 8 MR. VACCARO: I'd like to show Chief Paragallo 9 Plaintiffs' Exhibit 116. And I'd like to move Plaintiffs' 10 Exhibit 116 into evidence. 11 MR. MUSCHENHEIM: No objection, your Honor. 12 THE COURT: Received. 13 (Plaintiffs' Exhibit 116 received in evidence) 14 BY MR. VACCARO: 15 Q. Chief Paragallo, this incident report describes a Critical 16 Mass ride of approximately 300 individuals that proceeded 17 without incident, correct? 18 A. Yes. 19 Q. Are you aware that NYPD is able to manage Brooklyn Critical 20 Mass rides of up to 100 participants without requiring them to 21 file parade permits? 22 A. Repeat the question. 23 Q. Are you aware that NYPD is able to manage Brooklyn Critical 24 Mass rides of up to 100 participants without requiring parade 25 permits? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 293 95EVFIV3 Paragallo - direct 1 MR. MUSCHENHEIM: Objection, your Honor. 2 THE COURT: Sustained as to form. 3 Q. Are you aware that there are Critical Mass rides conducted 4 in Brooklyn, Chief Paragallo? 5 A. Yes. 6 Q. Are you aware of the size of those events? 7 A. No. 8 Q. Are you aware of NYPD's policy for managing the Brooklyn 9 Critical Mass rides? 10 THE COURT: If there is one. 11 A. No. 12 MR. VACCARO: I have nothing further for this witness. 13 THE COURT: Thank you. 14 MR. BIERBAUER: Plaintiffs will call Gideon Oliver. 15 THE COURT: It's customary to permit 16 cross-examination. Mr. Muschenheim. 17 MR. MUSCHENHEIM: Your Honor, I will be very brief. 18 CROSS-EXAMINATION 19 BY MR. MUSCHENHEIM: 20 Q. Chief Paragallo, you testified about monitoring bicycle 21 groups that you observed, that the police department observed, 22 at locations other than Union Square Park, do you recall that? 23 A. Yes. 24 Q. And why were those bicycle groups being monitored at those 25 other locations? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 294 95EVFIV3 Paragallo - cross 1 A. There was a policy -- the participants in the rides had a 2 policy that we experienced where they would form at different 3 locations other than Union Square Park and regroup at a 4 different location, a group en masse, and start the ride from a 5 different location. 6 Q. And Chief Paragallo, you also testified about certain dates 7 when the police department monitored the Time's Up! 8 headquarters? 9 A. Yes. 10 Q. And why were officers assigned to that location? 11 A. There was an after-party early on with these rides. They 12 would do their Critical Mass ride, and then everybody would go 13 back to the Time's Up! headquarters at 49 East Houston Street 14 for an after-party. And we've had some -- we had some problem, 15 experienced some problems at these parties with large groups. 16 Bicycles on the street, disrupted traffic on East Houston 17 Street. So we were just monitoring the location to see if 18 there was an after-party. 19 Q. Thank you. Nothing further. 20 THE COURT: Any redirect on that? 21 MR. VACCARO: No, your Honor. 22 THE COURT: All right. I have a question or two. 23 Would I be correct, Chief, in concluding that the police 24 department over the past few years has assigned a pretty 25 significant number of officers to the Manhattan Critical Mass SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 295 95EVFIV3 Paragallo - cross 1 rides? 2 THE WITNESS: Yes, your Honor. 3 THE COURT: Why? 4 THE WITNESS: Basically twofold. To ensure the safety 5 of both the participants and the general public; and to ensure 6 that -- the free flow of traffic in and around the Borough of 7 Manhattan South. 8 THE COURT: Has the police department -- well, let me 9 ask a slightly different question first. Were you the person 10 who during any of the relevant period of time was responsible 11 for allocating those resources to Critical Mass as opposed to 12 some other police function? 13 THE WITNESS: To some degree, your Honor. I would 14 make a recommendation. At some point either that 15 recommendation would be fulfilled or it would be cut back or 16 increased. 17 THE COURT: And to whom did you make your 18 recommendations? 19 THE WITNESS: The operations unit at One Police Plaza 20 under the direction of the chief of the department. 21 THE COURT: And in making those recommendations that 22 you made, did you ever recommend the assignment of resources to 23 policing Critical Mass in whole or in part on the basis of any 24 political or policy view that you understood that group to be 25 espousing? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 296 95EVFIV3 Paragallo - cross 1 THE WITNESS: No, your Honor. 2 THE COURT: Did you ever do so in whole or in part to 3 retaliate against that group or any of its members for 4 expressing any views or advocating any positions? 5 THE WITNESS: No, sir. 6 THE COURT: All right. If counsel want to inquire 7 further in light of my questions, you are welcome to do so. 8 MR. MUSCHENHEIM: No, your Honor. 9 THE COURT: Mr. Vaccaro? 10 MR. VACCARO: I have one question. 11 REDIRECT EXAMINATION 12 BY MR. VACCARO: 13 Q. Chief Paragallo, did you ever allocate police resources to 14 monitoring groups of bicyclists who were presumed to be 15 participants in Critical Mass rides that were found at 16 locations other than Union Square Park? 17 MR. MUSCHENHEIM: Objection, your Honor. 18 THE COURT: What's the objection? 19 MR. MUSCHENHEIM: It's as to form. 20 THE COURT: Well, I know that's a good fallback 21 position, but what's wrong with the form of the question? 22 MR. MUSCHENHEIM: Again, the word "presumption." I 23 don't really exactly understand what the question is. 24 THE COURT: All right. Look, I'm going to sustain it 25 on another ground. That subject was covered before I asked any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 297 95EVFIV3 Paragallo - redirect 1 questions. This is not responsive to what I asked. And if 2 there's any further examination relevant to what I asked, go 3 ahead. But if there isn't, we are done with everything that 4 came before. 5 MR. VACCARO: We're done, your Honor. 6 THE COURT: OK. Thank you. You are excused, Chief. 7 THE WITNESS: Thank you. 8 (Witness excused) 9 THE COURT: Next witness. 10 MR. BIERBAUER: Plaintiffs are calling Gideon Oliver. 11 GIDEON OLIVER, 12 called as a witness by the Plaintiffs, 13 having been duly sworn, testified as follows: 14 THE DEPUTY CLERK: Please be seated. Spell your first 15 and last name for the record. 16 THE WITNESS: Sure. G-I-D-E-O-N is my first name; 17 Oliver, O-L-I-V-E-R is my last name. 18 THE COURT: Proceed. 19 DIRECT EXAMINATION 20 BY MR. BIERBAUER: 21 Q. I'd like to show the witness what's been premarked for 22 identification as Plaintiffs' Exhibit 283. 23 Mr. Oliver, do you recognize this document? 24 A. I recognize the first page of this document. 25 Q. Let's page through the document. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 298 95EVFIV3 Oliver - direct 1 A. Yes, I do recognize this document. 2 Q. What is it? 3 A. It's a copy of a declaration that I signed or a affidavit 4 that I signed. 5 Q. A witness statement that you signed? 6 A. A witness statement that I signed, thank you. 7 Q. Do you adopt the content of this document as your direct 8 testimony in this case? 9 A. I do with the exception of the words "criminal mass" on the 10 last line of the first page, which should be "Critical Mass." 11 Q. Appears to be a typo? 12 A. Yes. 13 MR. BIERBAUER: I'd like to move Exhibit 283 into 14 evidence. 15 MR. MUSCHENHEIM: Your Honor, subject to the normal 16 objections. 17 THE COURT: It's received subject to the same 18 reservations made previously. The City's rights are fully 19 protected. 20 (Plaintiffs' Exhibit 283 received in evidence) 21 MR. BIERBAUER: Your Honor, I have three questions for 22 the witness. 23 BY MR. BIERBAUER: 24 Q. Mr. Oliver, have you represented Madeline Nelson? 25 A. Yes, I have. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 299 95EVFIV3 Oliver - direct 1 Q. What were the circumstances in which you represented her? 2 A. Ms. Nelson was arrested on the last Friday of February in 3 2005. And I represented her in connection with criminal 4 proceedings that arose from that arrest. 5 Q. What were the circumstances of her arrest? 6 A. I believe she was arrested in connection with the Critical 7 Mass ride. 8 Q. For what charges? 9 A. She was charged with parading without a permit and 10 disorderly conduct. 11 Q. What was the disposition of the charges? 12 A. The case ultimately was dismissed on speedy trial grounds. 13 MR. BIERBAUER: Your witness. 14 CROSS-EXAMINATION 15 BY MR. MUSCHENHEIM: 16 Q. Mr. Oliver, you've represented a number of individuals 17 whose charges were dismissed on speedy trial grounds, is that 18 correct? 19 A. That is correct. 20 Q. And you represented a number of individuals who had been 21 arrested in Critical Mass events whose charges were dismissed 22 on -- they were ACD'd? 23 A. Yes. 24 Q. An "ACD" is adjourned in contemplation of dismissal? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 300 95EVFIV3 Oliver - cross 1 Q. And a speedy trial dismissal is not on the merits, is that 2 correct? 3 A. I think that's -- I guess that's a technical question, but 4 no, I don't think that's a dismissal on the merits. 5 Q. OK. And a speedy trial -- I'm sorry, a speedy trial 6 dismissal is not on the merits either, is that correct? 7 A. Yeah. 8 MR. BIERBAUER: Objection. Asked and answered. 9 MR. MUSCHENHEIM: I'm sorry. 10 THE COURT: That's OK. It's also a question of law. 11 Everybody has got it right so far. 12 BY MR. MUSCHENHEIM: 13 Q. An adjournment in contemplation of dismissal is -- 14 THE COURT: Not on the merits either. Let's go. 15 MR. MUSCHENHEIM: OK. 16 Q. And you represented Madeline Nelson, as you just testified, 17 in connection with one of her arrests, is that correct? 18 A. Yes. 19 Q. And as you've just testified, her case was dismissed on 20 speedy trial grounds, is that right? 21 A. Yes. 22 MR. MUSCHENHEIM: Nothing further, your Honor. 23 THE COURT: Thank you. You are excused, Mr. Oliver. 24 THE WITNESS: Thank you, your Honor. 25 (Witness excused) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 301 95EVFIV3 Oliver - cross 1 THE COURT: Next. 2 MR. MUSCHENHEIM: Your Honor, we're going to call Lt. 3 Sam Centamore out of order at this moment. He's a witness in 4 our case-in-chief, and he has to -- he's only available until 1 5 o'clock. 6 THE COURT: OK. 7 SAM CENTAMORE, 8 called as a witness by the Defendant, 9 having been duly sworn, testified as follows: 10 THE DEPUTY CLERK: State your name, spell your last 11 name for the record. 12 THE WITNESS: Lt. Sam Centamore, C-E-N-T-A-M-O-R-E. 13 DIRECT EXAMINATION 14 BY MR. MUSCHENHEIM: 15 Q. Good morning, Lt. Centamore. Did you prepare a witness 16 statement in connection with this matter? 17 A. Yes, I did. 18 Q. And I'd like to show you what has been marked Defendant's 19 Exhibit BBBB, four B's. 20 MR. MUSCHENHEIM: And, your Honor, if we could hand 21 these up; they weren't included in your binder originally. 22 THE COURT: This is a different one than I have? 23 MR. MUSCHENHEIM: Just as an exhibit, if we're marking 24 it as an exhibit. But you have it already as -- yes. 25 Q. Lt. Centamore, just paging through this very quickly, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 302 95EVFIV3 Centamore - direct 1 this a copy of the document that you signed? 2 A. Yes, it is. 3 Q. And please -- and the last page, is that your signature? 4 A. Yes. 5 Q. And Lt. Centamore, do you understand that you are under 6 oath? 7 A. Yes. 8 Q. And under oath do you affirm that everything in this 9 witness statement is true and accurate? 10 A. Yes. 11 Q. And do you adopt this statement as your testimony in this 12 case? 13 A. Yes. 14 MR. MUSCHENHEIM: Defendants move to admit Exhibit 15 BBBB into evidence. 16 MR. BIERBAUER: No objections, your Honor, subject to 17 the same understanding that has existed with previous witness 18 statements in the case. 19 THE COURT: All right. Received. 20 (Defendant's Exhibit BBBB received in evidence) 21 MR. MUSCHENHEIM: We have no additional questions. 22 THE COURT: Counsel, your name is? 23 MR. CALDON: Brendan Caldon. 24 THE COURT: You may proceed. 25 CROSS-EXAMINATION SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 303 95EVFIV3 Centamore - cross 1 BY MR. CALDON: 2 Q. Good morning, Lt. Centamore. 3 A. Good morning. 4 Q. I only have a few questions. You are the executive officer 5 of the investigation review section of the office of the chief 6 of department of the NYPD, correct? 7 A. Correct. 8 Q. You have worked for the investigation review section for 22 9 years, correct? 10 A. Correct. 11 THE COURT: Let's not repeat what's in his statement, 12 OK? 13 MR. CALDON: Sorry, your Honor. 14 Q. As part of your responsibilities in that position, you 15 supervise the parade permit processing section, correct? 16 A. Right. 17 Q. And in that role you have gained familiarity with the 18 permitting process, correct? 19 A. Yes. 20 Q. I'd like to show you what is marked for identification as 21 Plaintiffs' Exhibit 292. Do you recognize this document? 22 A. Yes. 23 Q. Do you recognize this page as a copy of the NYPD -- 24 actually, this is a four-page document, I'm sorry. Turn to 25 page 3 please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 304 95EVFIV3 Centamore - cross 1 THE COURT: I think, in fact, what you're interested 2 in, Mr. Caldon, is only the first page, the rest being 3 miscellaneous stuff printed off a web site, isn't that right? 4 MR. CALDON: No, I'm actually interested in the third 5 page, your Honor, the web site page. 6 THE COURT: All right. So the document is four pages 7 long, and the first page is this parade permit form. And 8 what's the rest of it? 9 MR. CALDON: The parade permit form -- 10 THE COURT: Lieutenant -- 11 MR. CALDON: I'm sorry. 12 THE COURT: Lieutenant, do you recognize the rest of 13 it? 14 THE WITNESS: I've only seen two pages. The first 15 page was the application for the parade permit; that I 16 recognize. 17 THE COURT: OK. Let's take it from there. 18 THE WITNESS: The second page that you're showing me 19 now I don't recognize. 20 MR. BIERBAUER: Your Honor, I believe that page is in 21 there by error. 22 THE COURT: OK. 23 MR. BIERBAUER: And that's the page that has the 24 listing of New York City provisions. 25 THE WITNESS: And this page from the internet I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 305 95EVFIV3 Centamore - cross 1 recognize. 2 THE COURT: Referring to the third page. OK. 3 THE WITNESS: And I assume that's the second page of 4 the internet page, so I recognize that also. 5 THE COURT: Referring to the fourth page. 6 THE WITNESS: Correct. 7 THE COURT: OK. 8 BY MR. CALDON: 9 Q. Referring to the third page, you recognize this as the NYPD 10 parade permit web site page, correct? 11 A. This is the web page, correct. 12 Q. You have testified that parade permits are processed in 13 accordance with NYPD Administrative Procedure No. 321-14, 14 correct? 15 A. Correct. 16 Q. And these are the official guidelines for processing parade 17 permits, correct? 18 A. Yes. 19 Q. Now, it is your understanding that the NYPD Administrative 20 Guide Procedure No. 321-14 directs that applications for 21 parades of less than 1,000, not including Fifth Avenue, be 22 filed at the local precinct level where the parade will begin, 23 correct? 24 A. That's correct. 25 Q. Now, do you see those instructions provided on the NYPD SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 306 95EVFIV3 Centamore - cross 1 parade permit web site? 2 A. The web site is not as detailed as the administrative 3 guide. 4 Q. I'm sorry, I didn't -- 5 A. The web site is not as detailed as the administrative 6 guide. 7 Q. Could you strike that? Do you see those instructions on 8 the page please? Yes or no. 9 A. No. 10 Q. Now, but you do see that the web site directs parade 11 applicants to the Office of the Chief of Department 12 Investigation Review Section, correct? 13 A. Correct. 14 Q. And now, the NYPD administrative guide, that's an internal 15 NYPD document, correct? 16 A. Correct. 17 Q. Available only on the NYPD internet, correct? 18 A. Correct. 19 Q. Now, it is your understanding that if the chief of 20 department's office receives a smaller group's application, it 21 will facilitate that process by forwarding that application to 22 the proper precinct, correct? 23 A. Correct. 24 Q. I'd like to show you what is marked for identification as 25 Plaintiffs' Exhibit 47. Do you recognize this document? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 307 95EVFIV3 Centamore - cross 1 A. Yes. 2 Q. Do you recognize this to be the internal NYPD document 3 called the Administrative Guide Procedure No. 321-14? 4 A. Yes. 5 Q. Now, the forwarding procedure that you described, that is 6 not contained in the official guidelines as set forth in the 7 Administrative Guide Procedure No. 321-14, correct? 8 A. Clarify that. I don't understand the question. 9 Q. You described a procedure in with the chief of department's 10 office -- 11 THE COURT: Mr. Caldon, would you please explain to me 12 what the utility is of having this man read first a page of one 13 document, then the page of another document, and saying, Well, 14 what's on this document isn't on that one; what's on this one 15 isn't on the third one? We don't need a witness for that, do 16 we? What we need is a person capable of reading the English 17 language, isn't that true? 18 MR. CALDON: Well, your Honor, in Lt. Centamore's 19 testimony, he says that his department will facilitate smaller 20 rides by taking the parade permit that's been submitted to his 21 office and sending it to the precinct's office. 22 THE COURT: Right. 23 MR. CALDON: Now, the official -- the web page that is 24 available to the public only directs people to his office. And 25 we have testimony from Ed DeFreitas that the process is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 308 95EVFIV3 Centamore - cross 1 extremely cumbersome because he had no idea where to go, and 2 this problem exists today. 3 THE COURT: I'm aware of that. If you get in your 4 office a piece of interoffice mail that is misdelivered to you, 5 it's, in fact, addressed to someone else, do you think that 6 there's a manual somewhere at Debevoise that says, If you get a 7 piece of mail that's delivered to you by mistake, you shall 8 forward it to the person to whom it was actually addressed? 9 And do you think you're capable, regardless of whether 10 there is such a manual and regardless of whether it says that, 11 of on your own saying, Gee, maybe I ought to send this envelope 12 to the person to whom it's addressed? Do you think you could 13 work through that? 14 MR. CALDON: Well, I think if there were past 15 incidents when the paper was not directed to the proper 16 location, that a policy should be put in place. 17 THE COURT: Well, maybe so, but you tell me what 18 amendment of the Constitution says so and then maybe we have a 19 case. Look -- 20 MR. CALDON: I'll move on. 21 THE COURT: -- the whole point here is -- and I don't 22 quarrel with you about the administrative desirability of their 23 handling it better. Obviously. But you have a witness here, 24 and you're taking his time, my time, my whole staff's time to 25 listen to him read from one page, read from another page; stuff SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 309 95EVFIV3 Centamore - cross 1 that you could say, Judge, if you look at the first page and 2 the second page, something is messed up here. It's just not a 3 productive use of trial time. That is my point. It has 4 nothing to do with the merits, nothing to do with whether it 5 wouldn't be better for the department to do this more 6 efficiently. Let's just do this efficiently. 7 MR. CALDON: OK. I'm sorry, your Honor. I try. 8 BY MR. CALDON: 9 Q. Moving on. Lt. Centamore, I'd like to show you page 1 of 10 what has been identified as Plaintiffs' Exhibit 292. You are 11 familiar with this document, correct? 12 A. Yes. 13 Q. And you understand this to be the NYPD parade permit, 14 correct? 15 A. An application for parade permit, yes. 16 Q. Now, you see the box entitled "Name of Grand Marshal or 17 Chief Officer of Parade or Race," correct? 18 A. I know it's on there. I can't see it clearly here, but I 19 know it's on there, yes. 20 Q. Can we flag that out? This section must be completed 21 before an applicant can get a grade permit request approved, 22 correct? 23 A. Correct. 24 Q. And that was the policy and practice of the NYPD back in 25 2007, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 310 95EVFIV3 Centamore - cross 1 A. Correct. 2 Q. And it is the policy and practice of the NYPD today, 3 correct? 4 A. Correct. 5 MR. CALDON: That is all. 6 THE COURT: OK. 7 MR. MUSCHENHEIM: Nothing further, your Honor. 8 THE COURT: Sorry, any questions? 9 MR. MUSCHENHEIM: No, your Honor. 10 THE COURT: OK. You are excused, Lt. Centamore. 11 THE WITNESS: Thank you, your Honor. 12 (Witness excused) 13 THE COURT: Next. 14 MR. VACCARO: Your Honor, plaintiffs will call Lt. 15 Dennis Gannon. There is some confusion, because both 16 plaintiffs and defendants are calling Lt. Gannon in their 17 cases-in-chief, but we will put him on and -- 18 MR. MUSCHENHEIM: Plaintiffs are not calling Lt. 19 Gannon. 20 MR. BIERBAUER: Lt. Gannon is a defense witness, your 21 Honor, to clarify the matter. Defendants will be calling him 22 and we will then cross-examine. 23 MR. MUSCHENHEIM: We're not calling him now. 24 THE COURT: I'm sorry? 25 MR. MUSCHENHEIM: We're not calling Lt. Gannon right SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 311 95EVFIV3 1 now. 2 MR. VACCARO: I'm afraid it's a big "never mind," your 3 Honor. Lt. Gannon is not going. 4 THE COURT: So the plaintiff is done or are you 5 calling another witness? 6 MR. BIERBAUER: In that case, plaintiffs will call 7 Sgt. Layne. 8 THE COURT: Where is the witness? 9 MR. MUSCHENHEIM: Your Honor, we've sent someone to 10 get him. 11 MARK LAYNE, 12 called as a witness by the Plaintiffs, 13 having been duly sworn, testified as follows: 14 THE DEPUTY CLERK: Please be seated. State your name, 15 spell your last name for the record. 16 THE WITNESS: Mark Layne. Last name, L-A-Y-N-E. 17 THE COURT: You may proceed, Ms. Mathieu. 18 DIRECT EXAMINATION 19 BY MS. MATHIEU: 20 Q. Good afternoon, Sgt. Layne. 21 A. Good afternoon. 22 Q. You are a sergeant in the NYPD, right? 23 A. Yes, I am. 24 Q. And your precinct is the 78th precinct, and your Grand Army 25 Plaza is in Brooklyn? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 312 95EVFIV3 Layne - direct 1 A. Yes, it is. 2 Q. Have you been assigned to Brooklyn Critical Mass detail in 3 the past? 4 A. Yes, I have. 5 Q. Do you recall the first time that you were assigned to 6 Brooklyn Critical Mass detail? 7 A. Not exactly. 8 Q. Do you recall what year it was? 9 A. I think it was 2004. 10 Q. And when was the most recent Brooklyn Critical Mass ride 11 you were assigned to? 12 A. Sometime this year, maybe about two months ago. 13 Q. And between your first ride in 2004 and the ride you most 14 recently attended, you've attended most of the Critical Mass 15 rides that have occurred in Brooklyn? 16 A. A good majority of them. 17 Q. You've been assigned to more than 30 Brooklyn Critical Mass 18 rides altogether? 19 A. I say yes. 20 Q. You're assigned to attend Brooklyn Critical Mass on a 21 scooter, correct? 22 A. Yes. 23 Q. And on the rides you are assigned to, you're the scooter 24 supervisor for the detail? 25 A. Yes, I am. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 313 95EVFIV3 Layne - direct 1 Q. And for the Brooklyn Critical Mass rides you've attended, 2 you were there for the beginning, duration, and end of the 3 ride? 4 A. Yes. 5 Q. Brooklyn Critical Mass occurs on the second Friday of every 6 month, right? 7 A. Yes. 8 Q. And the Brooklyn Critical Mass ride you're assigned to 9 departs from Grand Army Plaza? 10 A. Yes. 11 Q. It departs at about 7:30 p.m.? 12 A. Around that time. 13 Q. Is it your experience that when Brooklyn Critical Mass 14 departs from Grand Army Plaza, the NYPD detail rides along with 15 the cyclists? 16 A. Yes, we leave at the same time. 17 Q. Including scooter officers? 18 A. I didn't hear the question. 19 Q. Including the scooter officers? 20 A. Yes. 21 Q. Some of the scooter officers follow behind the cyclists? 22 A. I wouldn't say behind. Alongside of them. 23 Q. And in your experience, a detail supervisor of a higher 24 rank than you also is assigned to the detail? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 314 95EVFIV3 Layne - direct 1 Q. Is that supervisor's rank captain or above? 2 A. Yes. 3 Q. Do you sometimes ride near the front of the group of 4 cyclists? 5 A. Yes, I do. 6 Q. But it's been your observation that a cyclist rather than a 7 police officer usually rides at the very front of the group? 8 A. Repeat that please. 9 Q. Sure. Has it been your observation that a cyclist rather 10 than a police officer usually rides at the very front of the 11 group? 12 A. Yes. 13 Q. So it's been your observation that a cyclist rather than a 14 police officer leads the cyclists along the route? 15 MR. MUSCHENHEIM: Objection, your Honor. 16 THE COURT: Sustained. 17 A. I say yes. 18 THE COURT: Sustained. That means you don't answer. 19 Q. Has Brooklyn Critical Mass followed the same route every 20 month you've been assigned to the ride? 21 A. No. 22 Q. The route varies from month to month? 23 A. I say yes. 24 Q. Is the route for Brooklyn Critical Mass set by the cyclists 25 participating in the ride? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 315 95EVFIV3 Layne - direct 1 A. That -- I don't know. I can't answer that question. 2 Q. Is the route set by anyone from NYPD? 3 A. No. 4 Q. Have you ever been told what the route will be before the 5 ride begins? 6 A. Not so much the route, but direction of where they may be 7 going. 8 Q. Did you say the direction where they may be going? 9 A. Yes. 10 Q. You were never told in order all the streets that the 11 cyclists would travel on during Brooklyn Critical Mass, 12 correct? 13 A. By the cyclists you're saying? 14 Q. Yes. 15 A. Not turn-by-turn; I was never given a route turn-by-turn. 16 Q. On some occasions you've asked cyclists for information 17 about the route they will take and they have not given you that 18 information, is that right? 19 A. Yes. 20 Q. That happened frequently, correct? 21 MR. MUSCHENHEIM: Objection, your Honor. 22 THE COURT: Sustained as to form. 23 Q. Has it been your observation that Brooklyn Critical Mass, 24 the route is determined by the cyclist as the ride progresses? 25 THE COURT: Sustained. Not capable of being SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 316 95EVFIV3 Layne - direct 1 determined by observation. 2 Q. Do you have an understanding of how the cyclists 3 participating in the ride know when to make a turn? 4 MR. MUSCHENHEIM: Objection, your Honor. 5 THE COURT: Sustained. 6 Q. Have you observed cyclists who are participating in the 7 ride signal to each other when a turn would be made? 8 A. I would say yes. 9 Q. And how have they signaled that to each other? 10 A. By yelling or by a hand signal sometimes. 11 Q. And after that signal is made, the rest of the cyclists 12 follow the person who made the signal? 13 A. Yes, for the most part. 14 Q. And the police officers who are assigned to the ride also 15 follow the cyclists? 16 A. Yes. 17 Q. So in order for you to determine the detailed route that 18 Brooklyn Critical Mass is going to take, you observe the 19 cyclists as the ride progresses? 20 MR. MUSCHENHEIM: Objection, your Honor. 21 THE COURT: What's the objection? 22 MR. MUSCHENHEIM: He's being asked -- he's being asked 23 to -- what's the relevant -- it hasn't been established that 24 the officer, that Officer Wagner -- excuse me, Sgt. Layne needs 25 to determine the route that they are going. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 317 95EVFIV3 Layne - direct 1 THE COURT: Overruled. 2 A. Can you repeat the question please? 3 Q. Sure. In order for you to determine the route the Brooklyn 4 Critical Mass is going to take, you observe the cyclists as the 5 ride progresses, right? 6 A. Well, I would say whenever they turn or whichever direction 7 they are going, that's where I go also. 8 Q. In your experience, Brooklyn Critical Mass doesn't finish 9 in the same location every month, right? 10 A. No, it doesn't. 11 Q. And have you attended Brooklyn Critical Mass rides where 12 you didn't know the location where the ride would finish? 13 A. That's correct. 14 Q. You sometimes ask the cyclists if the ride was finished, 15 haven't you? 16 A. Yes, I have. 17 Q. Have you seen the detail supervisor dismiss the Brooklyn 18 Critical Mass detail when the cyclists tell NYPD that the ride 19 is finished? 20 A. Normally, when I do do the ride, I normally ask them if 21 they are finished. 22 Q. And after you are told by the cyclists that the ride is 23 finished, at that point is the NYPD detail dismissed? 24 A. Not all the time. 25 Q. And on the occasion when it's not dismissed, what does the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 318 95EVFIV3 Layne - direct 1 NYPD detail do after the ride is finished? 2 A. We may go back to the location where we started from. 3 Q. Do you stop following the cyclists in Brooklyn Critical 4 Mass? 5 A. I don't really understand what you're saying. 6 Q. After the point when the cyclists say the ride is finished, 7 if the detail is not dismissed, do the officers assigned to the 8 detail continue to ride along with the cyclists? 9 A. At a point in time if they tell me that they are stopping, 10 it's because they may have for the most part dismounted from 11 this bikes, they may enter into a location or park or wherever 12 it may be. So it's not that they are riding anymore; they stop 13 riding. 14 Q. It's been your observation that the same cyclist does not 15 stay at the front of the group throughout an entire ride, 16 correct? 17 A. Yes, for the most part. 18 Q. So you've seen the participants change position within the 19 group as the ride progresses? 20 A. Yes. 21 Q. In your experience, there is no leader who remains at the 22 front throughout the ride? 23 A. No. 24 Q. Does that mean no, there is no leader? 25 A. I don't know who the leader is. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 319 95EVFIV3 Layne - direct 1 Q. You're aware of a second Brooklyn Critical Mass ride that 2 occurs in the -- at the same time as the ride departing from 3 Grand Army Plaza, but departs from another location in 4 Brooklyn, correct? 5 A. I know of another group that I see sometimes. 6 Q. Another group of cyclists? 7 A. Yes. 8 Q. Have you sometimes seen that second group join up with the 9 Grand Army Plaza group after it leaves Grand Army Plaza? 10 A. Yes. 11 Q. Do you know of any NYPD detail being assigned to that 12 second group? 13 A. No, not that I know of. 14 Q. You've never seen anyone from NYPD accompanying that second 15 group when it joins up with the Grand Army Plaza group? 16 A. No. 17 Q. Are you aware of anyone who participates in that second 18 group ride informing the NYPD of what route they'll be taking? 19 A. Not that I know of, no. 20 Q. At Brooklyn Critical Mass, you've seen a cyclist block a 21 lane of traffic entering an intersection so that other cyclists 22 can continue through the intersection without traffic crossing 23 into the bike ride, correct? 24 A. I've seen it before. 25 Q. And you've also seen Brooklyn Critical Mass participants SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 320 95EVFIV3 Layne - direct 1 crossing through an intersection when they had a red light? 2 A. Yes, I have. 3 Q. At times you've seen Brooklyn Critical Mass participants 4 cross through an intersection where they had a red light 5 without disrupting traffic, right? 6 MR. MUSCHENHEIM: Objection, your Honor. 7 THE COURT: I'll allow him to answer, but it is 8 just -- you know, if you cross a red light and there's no 9 traffic the other way, there's nothing to distract -- to 10 disrupt. So, you know, it's question, it's an answer, it's two 11 more bucks for the court reporter and, we're no farther down 12 the road than before we started. 13 Answer the question. 14 A. Well, if there's no traffic coming, I would say they're 15 disrupting the intersection. 16 Q. I'm sorry, you would say -- 17 A. If there's no traffic coming, I would say that they are 18 being disruptive to the intersection. 19 Q. I'm not sure I'm hearing you. Did you say if there's no 20 traffic coming the cyclists -- 21 THE COURT: He said if there's no traffic coming, he 22 wouldn't say they are disrupting the intersection. 23 MS. MATHIEU: OK. Thank you. 24 THE COURT: Which I always find a good excuse if a cop 25 stops me for going through a red light. Very persuasive as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 321 95EVFIV3 Layne - direct 1 rule. 2 BY MS. MATHIEU: 3 Q. Blocking cross traffic at intersections and riding through 4 red lights are behaviors you've seen many times at Brooklyn 5 Critical Mass, isn't that right? 6 A. I've seen it before. 7 Q. Would you say you've seen it many times? 8 THE COURT: How many is many, Ms. Mathieu? 9 Q. Have you seen it on most of the rides you've participated 10 in? 11 A. I seen it -- yeah. On some. I can't give you an exact 12 number. I don't remember off the top of my head. 13 Q. Without giving me an exact number, would you say it's taken 14 place at most of the rides you've observed? 15 A. A good majority of them. 16 Q. On other occasions have you seen Brooklyn Critical Mass 17 participants riding outside of the bike lane on streets where 18 there is a bike lane? 19 A. Yes, I have. 20 Q. And on other occasions have you seen cyclists participating 21 in Brooklyn Critical Mass taking up all the traffic lanes on a 22 roadway? 23 A. Say not really taking up all the lanes. All depends on the 24 situation. 25 Q. At times, for example, have you seen the cyclists SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 322 95EVFIV3 Layne - direct 1 proceeding down a road with two traffic lanes and the cyclists 2 riding in both of those lanes at once? 3 A. If the cyclists are turning from maybe a one-way street 4 into a street that has one and one lane, like two lanes like 5 you said, maybe once they make that initial turn that may be 6 the case. But as they proceed, you know, on the street, 7 they're normally asked or told to stay to the right, they 8 normally do. 9 MS. MATHIEU: I'd like to show the witness a video 10 that's been marked for identification as Plaintiffs' Exhibit 11 203. 12 THE COURT: How long is it? 13 MS. MATHIEU: I believe it's less than a minute. 14 THE COURT: All right. 15 MS. MATHIEU: This ride has been identified in a 16 stipulated description as having taken place on the video on 17 July 11th, 2008. 18 Q. Do you recall if you were assigned to that ride, Sgt. 19 Layne? 20 A. I could have been. 21 THE COURT: Is the video in evidence? 22 MS. MATHIEU: Not yet. I just wanted to try to 23 establish that Sgt. Layne was at the ride before we showed the 24 video. 25 Q. Do you recall being asked about the July 2008 Brooklyn SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 323 95EVFIV3 Layne - direct 1 Critical Mass ride at your deposition? 2 A. I could have been. 3 THE COURT: Ms. Mathieu, please, on Monday or Tuesday, 4 whenever we started, I said I don't want those questions. 5 There was a court reporter there. There's a transcript of it. 6 If he was asked those questions, it's in there. If he wasn't, 7 it's not there. And whether he remembers it or not today 8 doesn't matter to anything. So get to it. 9 MS. MATHIEU: OK. 10 Q. I'm going to read a portion of the transcript from page 11 210, starting at line 5. 12 Sgt. Layne, do you recall if you attended the July 13 2008 Brooklyn Critical Mass ride? 14 "A. I may have. 15 "Q. Did you recognize any of the individuals in that video 16 clip? 17 "A. Yes, me. 18 "Q. Is that you there on the scooter? 19 "A. That is me." 20 MS. MATHIEU: So turning now to Plaintiffs' Exhibit 21 203, we'd like to move to have this admitted into evidence. 22 THE COURT: Any objection? 23 MR. MUSCHENHEIM: No objection, your Honor. 24 THE COURT: 203 is received. 25 (Plaintiffs' Exhibit 203 received in evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 324 95EVFIV3 Layne - direct 1 MS. MATHIEU: Can we play the video? 2 (Video played) 3 Q. Sgt. Layne, weren't those Brooklyn Critical Mass 4 participants taking up all the traffic lanes of the roadway? 5 A. I can't really tell. 6 Q. Did you see in the beginning of the video that there were 7 two traffic lanes on the roadway? 8 THE COURT: Ms. Mathieu, we all watched the same 9 video. Does it matter what he answers? If it's in the video, 10 we can all see it. If it's not, he can't see it either. 11 MS. MATHIEU: I'm happy to move on. 12 Q. Sgt. Layne, you aren't aware of any arrests or summonses 13 being issued at a Brooklyn Critical Mass ride, are you? 14 A. No, not that I'm aware of. 15 Q. But on occasion when you've witnessed a violation of law, 16 you've given the cyclists committing the violation a warning, 17 right? 18 A. I guess by me asking them not to do it again, if you 19 consider that a warning, yes. 20 Q. You've seen police officers assigned to Brooklyn Critical 21 Mass detail block cross-traffic from passing through 22 intersections to allow the Critical Mass ride to move through 23 the intersection together, isn't that right? 24 A. Yes, I have done that also. 25 Q. And you've personally blocked traffic in this matter during SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 325 95EVFIV3 Layne - direct 1 Brooklyn Critical Mass? 2 A. Yes, I have. 3 Q. On more than one occasion? 4 A. Yes, on more than one occasion. 5 Q. Sgt. Layne, don't you agree that in terms of disruption to 6 traffic flow, there's no difference between a police officer 7 blocking an intersection in that manner and a cyclist blocking 8 the intersection in the same way? 9 A. I disagree. 10 Q. I'm sorry? 11 A. I said I disagree. 12 Q. I'd like to read you a portion of your deposition testimony 13 starting on page 211, line 19. (Reading) 14 "Q. In terms of a disruption that is caused - I'm sorry, it 15 says, In terms of the disruptive that is caused, what is the 16 difference between a cyclist blocking the intersection and a 17 police officer blocking the intersection? 18 "A. One example you can say, there is a uniformed presence 19 right there. I am a police officer and somewhat in control of 20 the situation, in comparison to maybe a person wearing a pair 21 of shorts, T-shirt and a hat just blocking the intersection for 22 whatever reason they may be. They may see this as something 23 totally different, I don't know. 24 "Q. OK. But in terms of disruption to traffic flow, is there 25 any difference at all? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 326 95EVFIV3 Layne - direct 1 "A. I guess maybe not for the most part." 2 Q. You've accompanied Brooklyn Critical Mass rides that 3 traveled on Flatbush Avenue, correct? 4 A. Yes, I have. 5 Q. And Flatbush is part of the 70th precinct, right? 6 A. They are part of Flatbush Avenue. 7 Q. OK. In your experience, Flatbush Avenue is one of the most 8 congested roads in Brooklyn in terms of motor vehicle traffic? 9 A. It can be. 10 Q. You've seen Brooklyn Critical Mass proceed down congested 11 roadways without disrupting traffic, right? 12 A. Yes. 13 Q. And you've seen Brooklyn Critical Mass proceed down 14 congested roadways without posing a safety hazard? 15 A. Yes. 16 Q. You don't recall ever being told by a participant in the 17 Brooklyn Critical Mass ride that the ride would avoid congested 18 areas, do you? 19 A. Not to my recollection, no. 20 Q. Have you ever seen an accident take place during a Brooklyn 21 Critical Mass ride? 22 A. No, I haven't. 23 Q. And you've never seen a cyclist injured during Brooklyn 24 Critical Mass? 25 A. Not being struck by a car. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 327 95EVFIV3 Layne - direct 1 Q. In your experience, the Brooklyn Critical Mass ride has 2 never caused a disruption to city streets, right? 3 A. I say no. 4 Q. And do you agree that your relationship with the cyclists 5 who participate in Brooklyn Critical Mass has been, for the 6 most part, cordial and cooperative? 7 A. Yes, for the most part. 8 Q. No one at NYPD has ever told you that Brooklyn Critical 9 Mass rides need a parade permit, have they? 10 A. No. 11 Q. And you've never heard anyone at NYPD say that Brooklyn 12 Critical Mass rides need a parade permit? 13 A. No, I haven't. 14 Q. The parties in this case have stipulated that in 2007 the 15 average number of participants in Manhattan Critical Mass was 16 89; and that in 2008 the average number in Manhattan Critical 17 Mass was 31. Would you say that the Brooklyn Critical Mass 18 rides have a similar number of participants? 19 THE COURT: Sustained. How many people ride in 20 Brooklyn Critical Mass, in your experience? 21 THE WITNESS: This is for me? 22 THE COURT: Yeah, for you. 23 THE WITNESS: Oh. It may vary. It depends on the 24 particular time, the day, the month. It could be 30, 40. 25 Sometimes if the two groups link up, maybe a little bit more. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 328 95EVFIV3 Layne - direct 1 Q. Sometimes more than 50? 2 A. I could say -- it's hard to give a number, because there's 3 people coming and going as the ride is progressing, so... 4 Q. The first time you heard of Critical Mass was during the 5 Republican National Convention, right? 6 A. I would say yes, I did. 7 Q. And that was from other people within the NYPD? 8 A. Yes. 9 Q. They were discussing the Critical Mass ride that takes 10 place in Manhattan? 11 A. I don't think they were actually describing or riding. I 12 think it was just from them being at the RNC. 13 Q. Did they mention the Brooklyn Critical Mass ride at that 14 time? 15 A. Are you speaking about during the RNC? 16 Q. At that time when you first heard about Critical Mass 17 during the RNC. 18 A. During the RNC, I never heard of Brooklyn Critical Mass. 19 Q. You are assigned to Manhattan Critical Mass detail on one 20 occasion, right? 21 A. Yes, I was. 22 Q. And while you were there at the detail, were you given a 23 list of cycling violations that you would write summonses for, 24 is that right? 25 A. Yeah, I was given a list of violations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 329 95EVFIV3 Layne - direct 1 Q. And that was given to you during formation at Manhattan 2 Critical Mass detail? 3 A. Yes, it was. 4 Q. It was given to you by an officer of higher rank? 5 A. Yes, it was. 6 Q. And turning your attention now back to the Brooklyn 7 Critical Mass ride. Prior to the ride, departing from Grand 8 Army Plaza, you and other officers assigned to the detail are 9 briefed by a higher ranking officer, right? 10 A. Yes. 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 330 95e1fiv4 Layne - direct 1 BY MS. MATHIEU: 2 Q. During that briefing at Brooklyn Critical Mass, you'd never 3 been given any information about bicycling laws or regulations 4 bicyclists are required to follow? 5 A. No. 6 Q. And you've never been provided with any written information 7 in connection with Brooklyn Critical Mass details? 8 A. No, not as far as I can remember, no. 9 Q. In your experience, about how many police officers are 10 assigned to Brooklyn Critical Mass details? 11 A. From the initial ride I did to the present, it's -- it's 12 different now. Present date, the last one I did, I'll say 13 maybe roughly about 16, including myself. 14 MS. MATHIEU: I'd now like to bring up what's been 15 marked for identification as Plaintiff's Exhibit 97. 16 THE COURT: Let me just get this straight. In 17 Brooklyn Critical Mass, the NYPD details include more officers 18 than riders, is that right? 19 THE WITNESS: At some occasions, maybe, but it all 20 depends. Like there have been times when there weren't any 21 riders at all, the ride never took place, so... 22 THE COURT: Well, how frequently have you been on 23 Brooklyn Critical Mass details in which there were more riders 24 than police? 25 THE WITNESS: Couple of times where the ride actually SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 331 95e1fiv4 Layne - direct 1 didn't take place at all, it never went off because, number 2 one, maybe there weren't any -- any riders there or maybe just 3 one or two. 4 THE COURT: So if there are one or two riders, how 5 many police were there? 6 THE WITNESS: Well, the detail is always the same 7 'cause we don't know how many riders are gonna be there until 8 we actually go to the location. 9 THE COURT: So the detail is typically 60? 10 THE WITNESS: 16. 11 THE COURT: 16? 12 THE WITNESS: Yeah, one, six. 13 THE COURT: I misheard you. 14 Okay. Go ahead. 15 MS. MATHIEU: I think I misspoke when I said the 16 number earlier of the exhibit we were going to look at. I'd 17 like to look at what's been marked for identification as 18 Plaintiff's Exhibit 91. 19 BY MS. MATHIEU: 20 Q. Sergeant Layne, is this a detail request memorandum for 21 Brooklyn Critical Mass ride that February 6th, 2007 is the 22 date? 23 A. What did you call it? 24 Q. A detail request memorandum. 25 A. I guess, if that's what you call it. I never produced one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 332 95e1fiv4 Layne - direct 1 of these before, so... 2 MR. MUSCHENHEIM: Your Honor, I'm sorry. This 3 document is also marked Confidential, so if we could turn off 4 the screen to the audience. 5 THE COURT: All right. 6 MR. MUSCHENHEIM: Thank you. 7 Q. Would you agree that this document -- you can page through 8 it if you like -- describes the detail -- 9 THE COURT: It's not in evidence. So until it's in 10 evidence, we're not going to have any testimony about it. 11 MS. MATHIEU: Sure. Well, plaintiffs would like to 12 move the document into evidence. 13 THE COURT: Any objection? 14 MR. MUSCHENHEIM: No objection, your Honor. 15 THE COURT: Received. 16 (Plaintiff's Exhibit 91 received in evidence) 17 THE COURT: Have you ever seen it before, Sergeant? 18 THE WITNESS: Yes, I saw this before. 19 THE COURT: Okay. 20 Q. Does this document describe the detail that is requested 21 for several Brooklyn -- or for February 6th, 2007 Brooklyn 22 Critical Mass ride? 23 THE COURT: Sustained. The document speaks for 24 itself. 25 MS. MATHIEU: I'd like to turn to the second page of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 333 95e1fiv4 Layne - direct 1 the document and in particular paragraph A. Can we zoom in on 2 that paragraph. Thank you. 3 Q. Could you just read this paragraph and let me know when 4 you're done. 5 THE COURT: To yourself. 6 A. (Witness complies.) I'm finished. 7 Q. So according to this paragraph, an officer assigned to 8 Brooklyn Critical Mass has no discretion to decline to give a 9 summons or to give a warning instead of a summons when they 10 observe violations, right? 11 MR. MUSCHENHEIM: Objection. 12 THE COURT: Objection sustained. The document says 13 whatever it says, and the witness is not here to read it to 14 you. 15 Q. Is the policy described in this document the policy that 16 you have applied when you've been assigned to Brooklyn Critical 17 Mass details? 18 A. I've never issued a summons or made an arrest for any 19 traffic violations for the times I did Brooklyn Critical Mass. 20 Q. And that was true even when you observed traffic 21 violations, right? 22 A. Yes. 23 Q. Has anyone ever told you to carry out the policy that's 24 described in this document? 25 A. No. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 334 95e1fiv4 Layne - direct 1 Q. Do you have any idea, or do you have any knowledge as to 2 why the policy appears in this document? 3 MR. MUSCHENHEIM: Objection, your Honor. 4 THE COURT: Sustained. 5 MS. MATHIEU: You can put that down -- take the 6 document off. 7 Q. Sergeant Layne, are you aware that cyclists in New York 8 City are required to have certain equipment on their bicycles? 9 A. I wouldn't say I'm fully versed in, you know, bicycle 10 equipment and things of that nature, so I assume they are. 11 Q. Have you ever issued a summons to a cyclist at any time for 12 a violation of any equipment requirement? 13 A. No, I haven't. 14 Q. Have you ever warned a cyclist about not having the proper 15 equipment on their bicycle? 16 A. No, I haven't. 17 MS. MATHIEU: Okay. No further questions for the 18 witness. 19 THE COURT: Thank you. Counsel. 20 MR. CIAPPETTA: Good morning, your Honor. 21 THE COURT: Good morning. 22 MR. CIAPPETTA: Your Honor, as you're aware, Sergeant 23 Layne had been called in our case in chief as well, so for 24 expediency purposes, we're going to introduce the witness 25 statement and then we'll have a couple brief questions for him. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 335 95e1fiv4 Layne - cross 1 CROSS-EXAMINATION 2 BY MR. CIAPPETTA: 3 Q. Sergeant Layne, did you prepare a written statement in 4 connection with this case? 5 A. Yes, I have. 6 Q. Sergeant Layne, I'd like to show you what has been marked 7 for identification as Defendant's Exhibit EEEE. And I'll show 8 you the first page of that document. 9 MR. CIAPPETTA: I think we need to go to the document 10 machine. 11 I'm sorry. I think we need to switch to the document 12 machine. 13 Q. Sergeant Layne, is this the first page of your witness 14 statement that you signed in connection with this case? 15 A. Yes, it is. 16 Q. Sergeant Layne, is that your signature? 17 A. Yes, it is. 18 Q. Sergeant Layne, do you understand that you're under oath? 19 A. Yes, I do. 20 Q. And do you affirm everything in this witness statement as 21 true and accurate? 22 A. Yes. 23 Q. And do you adopt this statement as your testimony in this 24 case? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 336 95e1fiv4 Layne - cross 1 MR. CIAPPETTA: Your Honor, the defendants move to 2 introduce as an exhibit EEE into evidence. 3 MS. MATHIEU: We do have the same -- 4 MR. CIAPPETTA: Another E, four Es. 5 MS. MATHIEU: Subject to the same type of objections 6 as we stated before. 7 THE COURT: Yes. Received on the same basis. 8 (Defendant's Exhibit EEEE received in evidence) 9 Q. Couple brief questions to you, Sergeant Layne. Has a 10 bicyclist in Manhattan Critical Mass ever told you a 11 destination for the ride? 12 A. In Manhattan? 13 Q. I'm sorry. In Brooklyn Critical Mass. 14 A. Yes, they have. 15 Q. Can you describe to me the occasions on which that 16 occurred. 17 A. It was actually like two occasions I remember. One was 18 actually -- there was a charity softball or baseball game that 19 they were attending, and that afternoon in particular, they 20 actually told us that they were gonna be going to this 21 particular location to see this event. 22 And there was another time when there was a child that 23 was struck in Bushwick, Brooklyn, and the family was having a 24 memorial or something for him, and they told us that afternoon 25 that they were going over to that location also. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 337 95e1fiv4 Layne - cross 1 Q. And Sergeant Layne, has a bicyclist at Brooklyn Critical 2 Mass ever told you when the rides are finished? 3 A. Yes, when I asked. 4 Q. And Sergeant Layne, did you ever speak with any of the 5 bicyclists at Brooklyn Critical Mass? 6 A. Yes, I do. 7 Q. Do you know any of those bicyclists by name? 8 A. One or two. 9 Q. Can you provide that name. 10 A. One gentleman I speak to, his name is Yu. There's another 11 lady that I speak to when I see her once in a while; her name 12 is I think Madeline or "Mad-a-leen," she said her name is. 13 Q. And the first that you've identified as Yu, does that 14 person typically ride at the front of the ride? 15 A. Sometimes. Not all the time. 16 MR. CIAPPETTA: Thank you, Sergeant Layne. No further 17 questions. 18 THE COURT: All right. Thank you. 19 REDIRECT EXAMINATION 20 BY MS. MATHIEU: 21 Q. Sergeant Layne, I wanted to ask you about one of the 22 statements in your direct testimony where you said, 23 "Occasionally, either prior to the start or during the ride 24 itself, participants have told me the destination that they 25 were traveling to or identified specific streets the ride will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 338 95e1fiv4 Layne - redirect 1 travel on." Isn't it the case that often participants have not 2 told you the destination they were traveling to? 3 MR. MUSCHENHEIM: Objection, your Honor, to the term 4 "often." 5 THE COURT: Sustained. Obviously "occasionally" means 6 considerably less than the majority of the occasions. 7 Q. And your direct testimony also states that the majority of 8 Brooklyn Critical Mass rides had less than 50 participants, 9 right? 10 A. Yes. 11 Q. It also said that you don't recall any Brooklyn Critical 12 Mass ride that exceeded 100 participants? 13 A. Not that I can remember. 14 Q. Doesn't that mean that some of the rides had more than 50? 15 A. Could be, yes. 16 THE COURT: Do you remember any having more than 50? 17 THE WITNESS: I would say yes. 18 MS. MATHIEU: We have no further questions. 19 THE COURT: Thank you. 20 Okay. Sergeant Layne, you're excused. Thank you. 21 THE WITNESS: Thank you. 22 (Witness excused) 23 THE COURT: Next. 24 MR. BIERBAUER: Your Honor, may I confer with counsel? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 339 95e1fiv4 Gannon - direct 1 (Counsel conferring) 2 MR. BIERBAUER: Your Honor, after conferring with 3 defense counsel, they're prepared to call Lieutenant Gannon, 4 who is in their case in chief. We have approximately 20 to 30 5 minutes planned of cross-examination with Lieutenant Gannon. 6 THE COURT: Okay. 7 THE CLERK: Sir, if you'd please take the stand. 8 Please remain standing and raise your right hand. 9 (Witness sworn) 10 THE CLERK: Thank you. Please be seated. 11 Please state your name and spell your last name for 12 the record. 13 THE WITNESS: Lieutenant Dennis Gannon, G-A-N-N-O-N. 14 THE COURT: Proceed, counsel. 15 DENNIS GANNON, 16 called as a witness by the Defendants, 17 having been duly sworn, testified as follows: 18 DIRECT EXAMINATION 19 BY MR. MUSCHENHEIM: 20 Q. Good afternoon, Lieutenant Gannon. 21 A. Good afternoon. 22 Q. I'm showing you what has been marked Defendant's Exhibit 23 AAAA. Is that the first page of your direct testimony that you 24 prepared in this case? 25 A. Yes, it is. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 340 95e1fiv4 Gannon - direct 1 Q. And we're going to flip through it very quickly. Page 2. 2 3, 4, 5. And on the fifth page, is that your signature, 3 Lieutenant Gannon? 4 A. Yes, it is. 5 Q. Lieutenant Gannon, you understand that you are under oath? 6 A. I do. 7 Q. And under oath, you affirm that everything in this witness 8 statement is true and accurate? 9 A. Yes. 10 Q. Do you adopt this statement as your testimony in this case? 11 A. I do. 12 MR. MUSCHENHEIM: Defendants move to have Exhibit AAAA 13 into evidence. 14 MR. VACCARO: Your Honor, we would raise the same 15 general objections that have been raised but amplify very 16 briefly in two particular respects. 17 We believe that in the second paragraph on the first 18 page of Lieutenant Gannon's testimony, the last clause of that 19 paragraph, that we would object to that on the grounds of 20 hearsay. 21 On the -- page 4 of Lieutenant Gannon's testimony, the 22 carryover paragraph, the last sentence of that paragraph, we 23 think there's a hearsay or competency problem there. 24 THE COURT: I didn't get the second part. 25 MR. VACCARO: This is page 4, carryover paragraph up SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 341 95e1fiv4 Gannon - direct 1 at the top, the last sentence of that paragraph beginning, "It 2 is my understanding." 3 MR. MUSCHENHEIM: Your Honor, I can just address the 4 objection on the first page. We are not -- That last phrase, 5 we are not submitting that for the truth of the matter asserted 6 but rather for Lieutenant Gannon, the police department's 7 awareness of the statements of these incidents. 8 THE COURT: You're offering it as information that 9 they had, true or false, upon which they acted. 10 MR. MUSCHENHEIM: Correct. 11 THE COURT: So the hearsay objection is overruled. 12 It's not offered for hearsay purpose. 13 What about the second point? 14 MR. MUSCHENHEIM: I think that, again, this is a -- a 15 situation where Lieutenant Gannon -- Withdrawn. We admit -- 16 we'll submit the document subject to the objections of the 17 plaintiff. 18 THE COURT: So that objection is sustained. 19 All right. Received subject to that ruling. 20 (Defendant's Exhibit AAAA received in evidence). 21 THE COURT: Okay. Mr. Vaccaro? 22 CROSS-EXAMINATION 23 BY MR. VACCARO: 24 Q. Good afternoon, Lieutenant Gannon. 25 A. Good afternoon. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 342 95e1fiv4 Gannon - cross 1 Q. In your direct testimony you state that between 2005 and 2 2008 you have attended numerous Critical Mass rides in 3 Manhattan, is that correct? 4 A. That's correct. 5 Q. Can you provide an estimate of the actual number of 6 Critical Mass rides you attended during that period. 7 A. I would say the majority of them. I don't have a number, 8 but I attend -- I attend most of them. 9 Q. How many did you attend in 2008? 10 A. Off the top of my head, I don't know what the number would 11 be, but I attend pretty much every -- every last Friday of the 12 month. 13 Q. Can you recall or estimate how many rides you participated 14 in -- attended in any of the years 2005 through 2008? 15 A. I would -- I would just say the majority of them. I don't 16 have an actual count. I do miss one or two on occasion, but 17 for the most part I attend. 18 MR. VACCARO: I'd like to show the witness Plaintiff's 19 Exhibit 145. 20 Plaintiffs would move Exhibit Plaintiff's 145 into 21 evidence. 22 MR. MUSCHENHEIM: No objection, your Honor. 23 THE COURT: 145 is received. 24 (Plaintiff's Exhibit 145 received in evidence) 25 Q. Lieutenant Gannon, have you seen Plaintiff's Exhibit 145 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 343 95e1fiv4 Gannon - cross 1 before? 2 A. I don't know. It looks like a standard unusual occurrence 3 report, but I don't know if I've seen it before or not. 4 Q. Have you ever, in your role at the office of the chief of 5 department received an unusual occurrence report in connection 6 with a Critical Mass ride? 7 A. Not that I recall. 8 Q. Do you recall attending the March 29, 2008 Manhattan 9 Critical Mass ride? 10 A. I don't recall specifically, but I'm listed as a -- in 11 paragraph 3, I'm listed as being present. 12 Q. And does that indicate that you were in fact present? 13 THE COURT: Well, if it's genuine and authentic and 14 accurate, sure. The question is whether the witness knows 15 whether he was there. 16 Does it refresh your recollection, Lieutenant Gannon, 17 as to whether you were there on that occasion? 18 THE WITNESS: No, it does not, your Honor. 19 Q. Do you know whether your presence at Manhattan Critical 20 Mass rides is noted by other officers assigned to those rides 21 for recordkeeping purposes? 22 A. That's hard to say whether people notice me or not, but 23 I -- I'm usually there at the beginning of the event. 24 Q. Do you know the date of the most recent Manhattan Critical 25 Mass ride in 2008 that you attended? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 344 95e1fiv4 Gannon - cross 1 A. I don't. 2 Q. I'm going to ask you about the parade permitting process. 3 You testified that between 2002 and 2004 you worked in the 4 operations unit of Patrol Borough Manhattan South? 5 A. That's correct. 6 Q. And at that time you were involved in the processing and 7 reviewing of parade permit applications and issuing parade 8 permits? 9 A. Correct. 10 Q. And you haven't been involved in that process since 2004? 11 A. That's correct. 12 Q. At the time you were involved there was a notarization 13 requirement for permit applications? 14 A. That I don't know. 15 Q. Do you recall from your period when you were responsible 16 for permit applications in Manhattan South that if a procession 17 crossed multiple precincts, typically approval for the permit 18 would be required from the patrol borough? 19 A. I believe that's correct. 20 Q. And do you also recall that to the extent an event 21 proceeded through multiple patrol boroughs that each patrol 22 borough had to approve the application? 23 A. I'm not sure about that. 24 Q. You would participate in in-person meetings at the borough 25 command with parade permit applicants? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 345 95e1fiv4 Gannon - cross 1 A. I would, yes. 2 Q. And did you, in that role, propose special conditions on 3 any parade permits that had been sought from Patrol Borough 4 Manhattan South? 5 A. Not sure I understand that question. 6 Q. Are you aware that any of the permits in which you were 7 involved had special conditions on the manner in which the 8 participants in the event would be permitted to proceed in the 9 roadway? 10 A. What do you mean by special conditions? If you give me an 11 example of what you're talking about, maybe I could... 12 Q. Can you recall any permit in which the condition was 13 established that participants in the event had to proceed in 14 strict adherence to all traffic rules? 15 A. Oh, we would -- we would put -- we would set guidelines; 16 for example, how many lanes you would use in a particular 17 event, when the event would maybe step off, when it would 18 conclude. We'd sit down and talk to the organizer about their 19 event and then set parameters as to how it would proceed. 20 Q. Can you recall any event in which you were involved in 21 which the condition that the event proceed in strict adherence 22 to all traffic rules was established? 23 A. Trying to think of an event that would -- that would 24 qualify for that. I'm not sure -- I don't recall any event 25 that would be restricted like that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 346 95e1fiv4 Gannon - cross 1 Q. Are there any written guidelines or procedures of which you 2 were aware during the time you were involved in the parade 3 permit application process that governed your setting of those 4 types of conditions for events? 5 A. As far as -- as far as what? As far as how many lanes to 6 use and things like that? 7 Q. Yes. Written guidelines or procedures that would tell you 8 how to establish those sorts of conditions for permitted 9 events. 10 A. 2002, 2004. I don't recall if there were written 11 guidelines or not on that. 12 Q. Do you know if there are any such written guidelines today 13 in the department? 14 A. There is a patrol guide procedure about special events in 15 handling it, but I don't think it's related to the number of 16 lanes or the -- or -- the stuff that we need to do, to talk 17 with organizers is -- was the logistics portion of how an event 18 would proceed and things like that, so I'm not sure I'm 19 answering the question directly 'cause I'm not sure whether 20 we're talking about the same thing. 21 Q. I want to know if there's a written document that you have 22 turned to or know you can turn to that would establish the 23 parameters -- 24 THE COURT: I think you've amply covered this. 25 Q. You state in your testimony that after a permit is issued, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 347 95e1fiv4 Gannon - cross 1 the NYPD assigns officers to assist with the event? 2 A. That's correct. 3 Q. Is that always the case? 4 A. For the most part, they sit down with us and we would 5 assign, depending on the size and scope of the event and the -- 6 the details that we -- we previously talked about, the 7 parameters or what's going to take place, we would assign 8 personnel based on the -- based on the logistics that we talked 9 about of the event. 10 Q. Are there any events for which parade permits have been 11 granted of which you're aware in which no officers visited the 12 event at any time? 13 A. Not ones that I would be -- that I was -- 2002, 2004, not 14 that I would -- We sat down with people. If there was a large 15 enough event, we would assign people to it. 16 Q. Since 2004, I believe you testified that you have ongoing 17 responsibilities with respect to permitting events in your role 18 as the chief of department. 19 A. That's in my testimony? I don't believe so. 20 It is? 21 Q. No, no. 22 A. Okay. 23 Q. I'm wrong. 24 A. Okay. 25 Q. So you have not been involved in either the permitting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 348 95e1fiv4 Gannon - cross 1 process or working with groups on the ground, so to speak, who 2 have permits since you left Patrol Borough Manhattan South? 3 A. That's correct. 4 Q. Are you familiar with an event called the Montauk Century? 5 A. No. 6 Q. Are you familiar with an event called the Transportation 7 Alternatives New York City Century? 8 A. I'm familiar with Transportation Alternatives as a group 9 but not -- not that particular event, no. 10 Q. Can you think of any reason why NYPD would not assign 11 officers to a permitted event that involved 300 bicyclists 12 leaving from Penn Station and going through New York City up to 13 Nassau County? 14 MR. MUSCHENHEIM: Objection, your Honor. 15 THE COURT: Sustained. 16 Q. You stated in your direct testimony that it is certainly 17 reasonable to expect that a significant percentage of groups of 18 50 people will have an impact on pedestrian and/or vehicular 19 traffic, is that correct? 20 A. That's correct. 21 Q. Are you actually calculating a percentage in order to make 22 that statement by taking one number and dividing it into 23 another? 24 A. Well, I -- I believe my testimony, I talk about a larger 25 number. Initially, 150 people was the example I used, and 50 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 349 95e1fiv4 Gannon - cross 1 people, a third of that, would be, you know -- 150, down to 50. 2 But the number in my testimony describes a large enough number 3 that would impact pedestrian -- certainly could impact 4 pedestrian and vehicular traffic. 5 Q. My question is: When you say it's reasonable to expect 6 that a significant percentage of 50-person groups would have a 7 certain impact, are you attempting to determine what the total 8 number of 50-person processions there are and then to compare 9 that to the number of 50-person groups that will have the 10 impact you described? 11 A. No, the example was -- the example was to kind of 12 illustrate that even a group of 50 could still have an impact. 13 It wasn't a -- it was less of a mathematical calculation than 14 a -- than my experience in covering either Critical Mass events 15 or my prior experience in Patrol Borough Manhattan South 16 operations. 17 Q. So when you say it's reasonable to expect that a 18 significant percentage of 50-person groups will have an impact 19 on traffic, that could be 10 percent of the 50-person groups 20 could have that impact? 21 A. I'm not following you, counselor. 22 Q. Are you able to provide an actual numeric percentage of the 23 number of 50-person groups that will have the impact on traffic 24 that you described in your direct testimony for such groups? 25 A. Well, if you had -- if you had several 50-person groups who SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 350 95e1fiv4 Gannon - cross 1 decide on a -- on a given day to -- to hold their own event, it 2 would impact -- it would impact pedestrian and vehicular 3 traffic in Manhattan, especially Manhattan South. I don't know 4 if that -- Does that answer your question? 5 Q. Lieutenant Gannon, I'm not getting at the difference 6 between 50 and 150. I'm trying to get at the fact that you say 7 a significant percentage of groups of the size of 50 will have 8 an impact on pedestrian and/or vehicular traffic. It could be 9 less than 50, with a police escort or a designated group. And 10 my question to you is: How great a percentage is a significant 11 percentage, if you know? If you don't know, that's fine. 12 A. I'm going to fall back to I don't know, because I'm not 13 getting what you're trying to -- what you're trying to ask. 14 I'm trying to be responsive, but I'm not really understanding 15 the question. 16 Q. I'll move on. You've asserted that when a group of 17 bicyclists travels together, there's no natural spaces between 18 the bicyclists and they become a moving column on the roadway, 19 is that correct? 20 A. Correct. 21 Q. Is that always true? 22 A. Tends to be true. 23 Q. In fact, groups of 50 bicyclists can proceed with large 24 spaces between them if they want to, right? 25 A. They could. My experience has been that they don't, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 351 95e1fiv4 Gannon - cross 1 they could. 2 Q. And has your experience included group bicycle rides other 3 than Critical Mass? 4 A. Predominantly, predominantly Critical Mass is what my 5 experience is based on in situations like that. My testimony 6 is based on Critical Mass. 7 Q. Is it based at all on any other group bicycle ride? 8 A. No, my testimony was based on my experience with Critical 9 Mass, being that I -- I view the event once a month, the last 10 Friday of every month. 11 Q. If you had a group of 50 cyclists proceeding along the same 12 route and they were not all in visual contact with each other 13 because they were so spread out, would that eliminate the 14 moving column problem that you've described in your testimony? 15 MR. MUSCHENHEIM: Objection, hypothetical. 16 THE COURT: Sustained. 17 Q. Are you aware that group bicyclists have methods of 18 proceeding together along the same route with large gaps 19 between them and still being able to maintain -- to stay 20 together? 21 A. Again, my experience is that they tend to stay together. 22 Could they not stay together? They certainly could, but my 23 experience from making observations at these events is that 24 they -- they want to travel in a group. 25 Q. And that experience is based exclusively on your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 352 95e1fiv4 Gannon - cross 1 observations at Manhattan Critical Mass rides? 2 A. Yes. 3 Q. You also asserted that groups of bicyclists, even when 4 riding two abreast, tend to stay together and disregard traffic 5 regulations in order to do so. Is that your testimony? 6 A. Yes. 7 Q. And that's based exclusively on observing Manhattan 8 Critical Mass rides? 9 A. That's based on my experience and observations at Critical 10 Mass rides, correct. 11 MR. VACCARO: I would like to show Lieutenant Gannon a 12 video clip that is one minute and ask him some questions about 13 it. Plaintiff's Exhibit 183. 14 THE COURT: I believe that's in evidence. 15 MR. VACCARO: Yes, it is, your Honor. 16 THE COURT: How much more do you have for this 17 witness? 18 MR. VACCARO: Ten minutes? Perhaps less? 19 THE COURT: All right. 20 (Video displayed) 21 MR. VACCARO: That's enough. 22 BY MR. VACCARO: 23 Q. Lieutenant Gannon, does the manner in which the bicyclists 24 proceeded in Exhibit Plaintiff's 183 illustrate what you were 25 describing in your testimony about a moving column of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 353 95e1fiv4 Gannon - cross 1 bicyclists? 2 A. In a manner, yes, it does. There was no natural spacing 3 there. They occupied two lanes of traffic, and you can see 4 that they're moving all together in a -- in the same direction, 5 basically. 6 Q. And did you notice that it took the entire group less than 7 half a minute to pass any stationary point on the roadway? 8 A. Well, the clip was only about 30 seconds, so yes, I did 9 notice that. 10 Q. Aren't delays of that length commonplace in city traffic? 11 A. I guess it would depend on the time of day. This is 1:19 12 in the afternoon. I don't know. I don't know. I never 13 studied traffic patterns that closely. 14 Q. Would you agree with me that the lane in which the 15 bicyclists were traveling in the video clip, those bicyclists 16 have the right of way in that lane over other traffic that's 17 seeking to merge or turn across their paths? 18 THE COURT: That's a legal question. Next. 19 Q. Isn't it common for motorists to have to wait as much as 20 half a minute in order to merge across a lane of traffic to 21 make a turn? 22 A. I don't know. 23 Q. You asserted in your testimony that there's a heightened 24 risk of collision when motorists must maneuver around a moving 25 column of 50 bicyclists. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 354 95e1fiv4 Gannon - cross 1 A. Correct. 2 Q. Don't motor vehicles maneuver around slower-moving vehicles 3 all the time? 4 A. Well, the example I was giving was -- could even use as an 5 example here, probably, if a car was trying to merge across 6 there, he would have to slow down and get to the rear of the 7 group where there was no natural spacing. If there's -- if 8 that was just vehicles, cars traveling in this direction, 9 there's natural spacing in between, so he could -- the car 10 could merge itself across. When there's -- In this group there 11 were two or three abreast traveling. All the bicycles are 12 staged at different angles. There's no -- not angles, 13 different -- how would I describe that, different rates of 14 speed, so there's no natural spacing. So if a car tried to 15 merge, he wouldn't be able to or wouldn't feel safe enough to. 16 He'd have to drop back, wait for the group to pass him, which 17 in fact slows down traffic behind him, and then merge to either 18 the right or left, depending on where the bicyclists -- in this 19 case, the bicyclists were on the right-hand side. 20 THE COURT: So let me see if I understand your point. 21 Just for the sake of the record, the video is stopped at the 22 moment and the time indicator is 1:19:05 p.m. This is a road 23 seven lanes wide. The right-most lane has two parked cars 24 obstructing that lane. The second lane from the right has a 25 white van double-parked obstructing that lane. The cyclists in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 355 95e1fiv4 Gannon - cross 1 the earlier part of the video came up the second lane from the 2 right, that is, behind the parked van, and swung out into the 3 third lane of traffic to get around the van, and then they 4 proceeded through the intersection in the second and third 5 lanes, so that while the column of bicycles was moving through, 6 the three right-most lanes of traffic were entirely blocked to 7 motor vehicles. 8 A motorist trying or wishing to turn right at this 9 intersection would have had to do one of two things, since the 10 cars were all moving faster than the bikes: The motorist 11 either had to realize that this bike column was going to be an 12 issue with respect to making a right turn, stopped in the 13 fourth lane of traffic or maybe a lane further to the left to 14 let the bicycle column go by it, and then get behind the 15 bicycle column so that it could approach the intersection and 16 get a clear path to make a right turn; or, it could have, 17 either deliberately or, because it didn't realize the full 18 scope of the situation, gone right up to the crosswalk in the 19 fourth lane, finding itself then unable to make the right turn 20 because the column of bicycles was to its right, and then once 21 the bicycles were through, have to make a right turn out of the 22 fourth lane across two other lanes, one of which would have 23 been freed up, that is, the third lane, by the passage of the 24 bicycles, the second of which, the second from the right might 25 or might not have been freed up, depending on whether the truck SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 356 95e1fiv4 Gannon - cross 1 moved. And so do I understand that's basically your point? 2 THE WITNESS: Yes, your Honor. 3 THE COURT: Go ahead, sir. 4 BY MR. VACCARO: 5 Q. And it's your belief that the maneuver that the judge just 6 described or paraphrased is one that creates a risk of motor 7 vehicle or other collisions that are significantly greater than 8 the risk posed by merging across motor vehicle traffic that is 9 proceeding straight when a car wishes to turn right? 10 A. Yes. 11 Q. And what do you base that on? 12 A. The fact that when you -- when you're dropping back in 13 traffic to merge to the right, the natural -- you're fighting 14 the natural flow of traffic. In this case, I'm not sure if 15 this is northbound, but towards the top of the screen, you're 16 going against the natural flow of traffic. Traffic is flowing 17 and you're slowing down or definitely impacting the -- you're 18 going almost counter flow -- or not going backwards, but you're 19 fighting the flow of traffic so you're slowing down to merge 20 right. You're interfering with the natural flow of traffic 21 that would, in my belief, heighten the sense of -- of vehicular 22 accidents. 23 Q. But isn't it true that a motor vehicle has to slow down and 24 yield to the traffic in a lane into which it wishes to turn 25 across or merge across? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 357 95e1fiv4 Gannon - cross 1 A. Again, it would depend on the type of day, but -- that's 2 not necessarily true, no. 3 Q. If there's no traffic, there's no need to slow down because 4 one can just make the turn? 5 A. Well, if you were in the right-hand lane, you could make a 6 right-hand turn. If there's nothing in your way, you can make 7 the turn. 8 Q. But if there is traffic, whether it's bicycle traffic or 9 motor vehicle traffic, the person who wishes to merge across or 10 enter into that lane has to yield to the oncoming traffic that 11 is already in the lane. 12 A. Right. But you asked me if -- you asked me if part of my 13 moving column commentary in my statement, that there's nothing 14 difference between a car and these bicycles, and there is. 15 There's no natural spacing. So while you would maybe have to 16 slow down to merge, with the bicycles, it's much more 17 difficult. 18 Q. And you believe there are natural spaces between motor 19 vehicles in traffic that there are not between bicycles? 20 A. Yes. 21 Q. There is -- 22 THE COURT: Anything else, Mr. Vaccaro? 23 MR. VACCARO: I think that's it. 24 THE COURT: Anything else, Mr. Muschenheim? 25 MR. MUSCHENHEIM: Very briefly, your Honor. Just SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 358 95e1fiv4 Gannon - cross 1 one -- You were just asked that -- the clip that was just being 2 shown to the witness was dated March 18th, 2007. That's a 3 Sunday, according to Defendant's Exhibit EEE. We just ask that 4 the Court take judicial notice of that. And then I -- 5 THE COURT: I will unless plaintiffs bring to my 6 attention contrary information. 7 MR. VACCARO: I will so stipulate. 8 MR. MUSCHENHEIM: Thank you. 9 THE COURT: I knew we'd begin to get to some 10 reasonable point in this case. Maybe peace will break out. 11 REDIRECT EXAMINATION 12 BY MR. MUSCHENHEIM: 13 Q. Lieutenant Gannon, could you describe the size of the 14 parade permits that you typically handle at Patrol Borough 15 Manhattan South, the number of participants? 16 A. Well, we -- I like to say we handled all events, big and 17 small. There are -- we do the major -- oh, I shouldn't say we 18 do. That was my former assignment. When I was there, we did 19 a -- we did the major parades, St. Patrick's Day, Puerto Rican 20 Day Parade, Gay Pride Parade, all down to smaller groups of 21 just a few hundred, so it's -- it ran the gamut of the size of 22 events. 23 MR. MUSCHENHEIM: Okay. Nothing further, your Honor. 24 THE COURT: All right. You're excused. Thank you. 25 THE WITNESS: Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 359 95e1fiv4 1 (Witness excused) 2 THE COURT: What's on the agenda for the rest of the 3 day? 4 MR. MUSCHENHEIM: Your Honor -- 5 THE COURT: We are going to break for lunch now, but I 6 want to know what's coming. 7 MR. MUSCHENHEIM: We have -- and plaintiffs will be 8 calling Chief Tuller and also calling Police Officer Wagner as 9 part of -- he's also one of our witnesses. And we then have 10 two more witness -- I'm sorry, excuse me, plaintiff will also 11 be calling Inspector DeQuatro, and then we have one other 12 witness that we'll be calling that's in our case in chief, 13 Chief Graham. 14 THE COURT: All right. The plaintiffs have, is it two 15 more witnesses, Wagner and Tuller? 16 MR. MUSCHENHEIM: And DeQuatro. 17 THE COURT: And DeQuatro. 18 MR. MUSCHENHEIM: Yes. 19 THE COURT: And the plaintiffs are done, and then you 20 have -- 21 MR. MUSCHENHEIM: We just have one, with some overlap. 22 We just have one. 23 THE COURT: Okay. Ten minutes past 2. 24 MR. MUSCHENHEIM: Thank you. 25 THE CLERK: All rise. 25 (Luncheon recess) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 360 95EVFIV5 1 A F T E R N O O N S E S S I O N 2 2:10 P.M. 3 MR. BIERBAUER: A couple of more housekeeping matters, 4 your Honor. 5 Conferred with defense counsel during the break, and 6 there are a couple of things we wanted to bring up. 7 One is that the parties have cut their exhibit lists 8 substantially, each of them; and we would like to move those 9 exhibits that are not objected to at this point into evidence. 10 THE COURT: Let's deal with this when we're done with 11 the testimony. 12 MR. BIERBAUER: I'm sorry, your Honor? 13 THE COURT: We'll deal with this when we are done with 14 the testimony. 15 MR. BIERBAUER: All right. 16 THE COURT: OK. Next. 17 MR. BIERBAUER: The other issue I think can be dealt 18 with after the testimony, too, your Honor. 19 THE COURT: OK. Is there to be a witness? 20 MS. DINGLE: Your Honor, we call Chief Tuller to the 21 stand. 22 JAMES TULLER, 23 called as a witness by the Plaintiffs, 24 having been duly sworn, testified as follows: 25 THE DEPUTY CLERK: Please be seated. If you please SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 361 95EVFIV5 1 state your name and spell your last name for the record. 2 THE WITNESS: James Tuller. 3 DIRECT EXAMINATION 4 BY MS. DINGLE: 5 Q. Good afternoon, Chief Tuller. 6 A. Good afternoon. 7 Q. My name is Shanya Dingle. Chief Tuller, your an assistant 8 chief with the NYPD, correct? 9 A. That's correct. 10 Q. And you have also served as borough commander of Patrol 11 Borough Manhattan South since February 2007, right? 12 A. That's correct. 13 Q. Patrol Borough Manhattan South includes all of Manhattan 14 South of 59th Street? 15 A. Correct. 16 Q. And so you oversee law enforcement for Manhattan Critical 17 Mass rides, is that correct? 18 A. Yes. 19 Q. And Chief Paragallo reported to you regarding Manhattan 20 Critical Mass rides, is that correct? 21 A. That's correct. 22 Q. And Chief Engel also reported to you regarding Critical 23 Mass rides? 24 A. Yes. 25 Q. You are aware that there's a law applicable in New York SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 362 95EVFIV5 Tuller - direct 1 City regarding the issuance of permits in connection with 2 parades? 3 A. Yes. 4 Q. And you are aware that under that law a group of 50 5 proceeding in a roadway is required to obtain a permit, 6 correct? 7 A. Yes. 8 Q. When a police officer comes upon an unpermitted group of 50 9 proceeding in the roadway, the police officer has discretion to 10 not allow the group to continue with their event, right? 11 A. Correct. 12 Q. And, generally, when an unpermitted group of 50 is 13 proceeding in a roadway, a police officer also has discretion 14 to allow the group to continue with their event? 15 A. Correct. 16 Q. Alternatively, a police officer has discretion to enforce 17 the parade regulations and arrest or summons members of the 18 group? 19 A. Yes. 20 Q. So there are three options available to an officer who 21 encounters an unpermitted parade? 22 A. Yes. 23 Q. At Manhattan Critical Mass officers only have discretion to 24 arrest or summons members of the group, is that right? 25 A. The officers, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 363 95EVFIV5 Tuller - direct 1 Q. So they have only that one option available to them? 2 THE COURT: That was two options, by my count. 3 MS. DINGLE: Your Honor, by "option" I mean the option 4 of taking law enforcement action, including arrest and 5 summonses. 6 THE COURT: All I can go by is what you said. 7 MS. DINGLE: Forgive me, your Honor. 8 Q. The officers at Manhattan Critical Mass have the option of 9 either arresting or summonsing, is that accurate? 10 A. That's the police officers, yes. 11 Q. Currently, officers are instructed to enforce the traffic 12 regulations against Critical Mass participants? 13 A. I'm sorry? 14 Q. Is it correct that at this time officers are instructed to 15 enforce the traffic regulations rather than the parade permit 16 regulations against Critical Mass participants? 17 A. Yes. 18 Q. That has been the case since you have been commanding 19 officer, Patrol Borough Manhattan South, correct? 20 A. Yes. 21 Q. And during your tenure as commander of Patrol Borough 22 Manhattan South, when groups of cyclists have left Union Square 23 Park on the last Friday of the month, NYPD officers follow 24 them, is that right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 364 95EVFIV5 Tuller - direct 1 Q. And the officers were directed to follow the groups by 2 their superiors, correct? 3 A. By their what? I'm sorry. 4 Q. Their superior officers? 5 A. Yes. 6 Q. As far as you know, there is no minimum size of the group 7 that will be followed by the NYPD in this manner, correct? 8 A. Discretionary, yes. 9 Q. And you believe it is appropriate for NYPD officers to 10 follow a group of as few as two cyclists who depart from Union 11 Square on the last Friday of the month? 12 MR. MUSCHENHEIM: Objection, your Honor. 13 THE COURT: Ground. 14 MR. MUSCHENHEIM: On the form of the question. 15 THE COURT: What's wrong with the form of the 16 question? 17 MR. MUSCHENHEIM: I withdraw that. Withdraw that 18 charge. 19 THE COURT: Overruled. Please answer. 20 A. Can you ask me the question again? 21 Q. Sure. You believe it is appropriate for NYPD officers to 22 follow a group of as few as two cyclists who depart from Union 23 Square on the last Friday of the month? 24 A. It may be. 25 Q. And that is the case even if the riders are in compliance SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 365 95EVFIV5 Tuller - direct 1 with the applicable laws, correct? 2 A. It may be. 3 Q. The reason for following a small group of cyclists that 4 departs from Union Square on the last Friday evening of the 5 month is to determine whether they re-gather with cyclists of 6 another location, is that right? 7 A. If they regroup, yes. 8 Q. If they regroup, that is the reason why you instruct 9 officers to follow those small groups of cyclists? 10 A. That's a concern. 11 Q. In fact, isn't the sole purpose of assigning officers to 12 follow small groups of cyclists from Union Square on Critical 13 Mass nights to determine whether they will re-gather with other 14 cyclists at another location? 15 A. That's a primary concern. 16 Q. And officers following those small groups may take law 17 enforcement action against them, correct? 18 A. Yes. 19 Q. And the officer's determination of whether the small group 20 plans to re-gather is a factor in whether he or she may take 21 law enforcement action? 22 A. I don't understand the question. 23 Q. Well, when an officer observes a small group of cyclists 24 departing from Union Square on the last Friday of the month, 25 part of how that officer determines whether or not to take law SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 366 95EVFIV5 Tuller - direct 1 enforcement action is based on whether he believes that the 2 cyclists plan to re-gather with other Critical Mass 3 participants, is that correct? 4 MR. MUSCHENHEIM: Your Honor -- 5 THE COURT: Sustained. 6 MR. MUSCHENHEIM: -- objection. 7 Q. Is an officer's determination of whether the small group 8 plans to re-gather with other cyclists a factor in whether he 9 or she may take law enforcement action against them? 10 THE COURT: Sustained. Look, Chief Tuller knows 11 presumably what orders he's given or have been given, if he 12 knows them of his own knowledge. What he does not know is 13 what's going on in the head of all 37,000 members of the New 14 York City Police Department. 15 Q. Chief Tuller, are officers instructed to consider whether 16 re-gathering of groups -- I'm sorry. Are officers instructed 17 to take into account whether a small group plans to re-gather 18 with other cyclists in determining whether or not to take law 19 enforcement action on the last Friday of the month near Union 20 Square Park? 21 A. No. 22 Q. And isn't it the case that if an officer determines that a 23 small group is not planning to re-gather with additional 24 riders, then he or she has discretion not to take law 25 enforcement action? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 367 95EVFIV5 Tuller - direct 1 MR. MUSCHENHEIM: Objection. 2 THE COURT: Sustained. 3 Q. Chief Tuller, you've testified that officers policing 4 Critical Mass are instructed to take law enforcement action 5 against Critical Mass participants, is that correct? 6 A. I already testified, is that what you're asking me? 7 Q. Yes. I'm asking you whether you testified that the only 8 option available to officers who police Critical Mass when they 9 encounter unpermitted groups of riders is to arrest or summons 10 them? 11 A. They may do that. 12 Q. Do they have the option of not arresting or summonsing 13 Critical Mass participants whom they observe engaging in 14 traffic violations? 15 A. Perhaps. 16 Q. I'd like to read to you a portion of your deposition 17 testimony in this matter. I'd like to direct you to page 60, 18 line 4. (Reading) 19 "Q. Is there the option available to the officers assigned to 20 the Critical Mass detail of declining to enforce the rules 21 regarding permit requirements? 22 "A. There is discretion in that. 23 "Q. Do you know whether the officers assigned to Critical Mass 24 details have ever exercised the discretion in that regard? 25 "A. Well, they make either an arrest or a summons pertaining SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 368 95EVFIV5 Tuller - direct 1 to the actions in the event. 2 "Q. And those are the only two options available to them if 3 they observe a violation of the rules requiring a parade 4 permit? 5 "A. That's the discretion that we have. 6 "Q. Either a summons or an arrest? 7 "A. Right. 8 "Q. Is there discretion to give a warning rather than to issue 9 a summons or make an arrest? 10 "A. Is there discretion in that? Yes. 11 "Q. But do you know whether officers assigned to Critical Mass 12 details are permitted to merely warn for violation of the 13 parade rules rather than to summons or arrest violators of the 14 parade rules? 15 "A. What do you mean by officers? 16 "Q. Any member of service. 17 "A. The officers are instructed to either summons or arrest. 18 They are instructed to either summons or arrest." 19 One of the objectives of the Critical Mass detail is 20 to prevent cyclists from riding in large groups on the last 21 Friday of the month within Manhattan South, is that correct? 22 A. To proceed illegally, yes. 23 Q. So when you say "illegally," are you referring to the fact 24 that the group may be larger than 50? 25 A. I'm referring to the traffic regulations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 369 95EVFIV5 Tuller - direct 1 Q. So presumably a large group abiding by all traffic 2 regulations would be permitted to proceed, is that correct? 3 MR. MUSCHENHEIM: Objection, your Honor. 4 THE COURT: Sustained. 5 Q. Is it not the case that one of the objectives of the 6 Critical Mass detail is to prevent cyclists from riding in 7 large groups on the last Friday of the month within Manhattan 8 South? 9 MR. MUSCHENHEIM: Objection, your Honor. 10 THE COURT: Overruled. 11 A. To ride illegally. 12 Q. Chief Tuller, I'd like to read from your deposition 13 transcript. I'll refer you to page 185, line 2. 14 "Q. And what was your understanding of the objectives of NYPD 15 for the Critical Mass details when you started as commander of 16 Manhattan South? 17 "A. To make sure that if there was any violations of the law, 18 that especially if they create a hazard or a safety condition, 19 to make sure that we enforce the law. 20 "Q. Was there an additional objective in terms of attempting 21 to prevent cyclists from riding in large groups on the last 22 Friday of the month within Manhattan South? 23 "A. To prevent them by enforcing the law." 24 Oh, I'm sorry, there was an objection by 25 Mr. Muschenheim to the question. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 370 95EVFIV5 Tuller - direct 1 MR. MUSCHENHEIM: We don't press that objection. 2 Q. (Reading) 3 "A. To prevent them by enforcing the law. 4 "Q. Did those objectives change at any time during the course 5 of your time as commander of Manhattan South? 6 "A. No." 7 THE COURT: Listening to this use of the deposition, 8 and it's a whole new concept to me, impeachment by a prior 9 consistent statement. I don't get it. 10 MS. DINGLE: Your Honor, I don't believe the statement 11 that Chief Tuller made prior to the reading was consistent. 12 THE COURT: The finder of fact thinks it is. 13 MS. DINGLE: Forgive me, your Honor. 14 BY MS. DINGLE: 15 Q. Chief Tuller, you are not aware of any other public 16 gathering in Manhattan South where NYPD has a policy of 17 following participants as they leave in small groups to monitor 18 them for traffic violations? 19 A. I'm not aware, no. 20 THE COURT: Are there any other comparable public 21 gatherings in Manhattan South as to you? 22 THE WITNESS: I'm sorry, to me? 23 THE COURT: To you. 24 THE WITNESS: No, not like Critical Mass. 25 THE COURT: Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 371 95EVFIV5 Tuller - direct 1 BY MS. DINGLE: 2 Q. It is your view that a bicyclist is not permitted to 3 proceed in the center of a traffic lane, correct? 4 A. Yes. 5 Q. And you believe that when proceeding on a roadway that has 6 parked cars, a bicyclist must travel within three feet of the 7 parked cars? 8 A. Approximately. 9 Q. In fact, according to you, a bicyclist may not legally 10 proceed more than three feet away from the parked cars, is that 11 right? 12 A. That's correct. 13 Q. You have held that belief for years, isn't that right? 14 A. I'm not exactly sure how long. 15 Q. And you cannot articulate any basis for holding that 16 belief, can you? 17 A. No. 18 Q. You have reviewed memos issued after Critical Mass rides 19 that describe what occurred amongst -- what occurred at the 20 rides, is that correct? 21 A. Yes. 22 Q. And these memos are sometimes referred to as from-to's? 23 A. Correct. 24 Q. I'd like to show you a document that has been premarked for 25 identification as Plaintiffs' Exhibit 96. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 372 95EVFIV5 Tuller - direct 1 MS. DINGLE: Your Honor, we would ask to move 2 Plaintiffs' Exhibit 96 into evidence at this time. 3 MR. MUSCHENHEIM: No objection, your Honor. 4 THE COURT: I can't hear you. 5 MR. MUSCHENHEIM: Me? 6 THE COURT: I couldn't hear you. 7 MR. MUSCHENHEIM: No objection. 8 THE COURT: I couldn't hear Ms. Dingle. 9 MS. DINGLE: Oh, sorry. Plaintiffs ask to move 10 Plaintiffs' Exhibit 96 into evidence at this time. 11 THE COURT: Received. 12 (Plaintiffs' Exhibit 96 received in evidence) 13 BY MS. DINGLE: 14 Q. Chief Tuller, would you agree that Plaintiffs' 96 is a memo 15 concerning Critical Mass in the from-to format that you just 16 described? 17 A. I don't know if I just described it, but it is a from-to. 18 MS. DINGLE: And if you could scroll through the 19 document. Can we return to the first page of the document? 20 Q. This from-to attaches summonses issued by a Critical Mass 21 detail, correct? 22 A. Yes. 23 Q. And Plaintiffs' 96, including its attachments, is an 24 example of the kind of document -- I'm sorry. Withdrawn. 25 Your understanding is that Manhattan Critical Mass SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 373 95EVFIV5 Tuller - direct 1 rides block traffic, correct? 2 A. Yes. 3 Q. And Plaintiffs' Exhibit 96, including its attachments, is 4 an example of the kind of document on which you base your 5 conclusion that Critical Mass cyclists tend to block traffic, 6 is that right? 7 A. In part. 8 Q. You're familiar with the term "detail request"? 9 A. Yes. 10 Q. And detail requests summarize the size of a police detail 11 at an event, is that right? 12 A. Yes. 13 Q. And such requests are regularly drafted in connection with 14 Critical Mass rides, is that correct? 15 A. Yes. 16 Q. And you have, in fact, authorized such requests for 17 Critical Mass rides? 18 A. Yes. 19 Q. The number of summonses or arrests that occur at a Critical 20 Mass event is not a factor in your decision on how many 21 officers to assign to a subsequent Critical Mass event, is that 22 right? 23 A. No. 24 THE COURT: It's not right or it's -- your answer is 25 confusing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 374 95EVFIV5 Tuller - direct 1 MS. DINGLE: Should I re -- 2 THE COURT: I'm talking to the chief. 3 THE WITNESS: I believe she asked me if it was a 4 consideration, the number of summonses issued. 5 THE COURT: Well, what she actually did, which is the 6 confusing part, is ask you whether it was not a factor. So 7 when you said no, there's a double negative which implies that 8 it was a factor. So I'm trying to figure out whether it's a 9 factor or not. 10 THE WITNESS: It is not. 11 THE COURT: Thank you. Go ahead, Ms. Dingle. 12 BY MS. DINGLE: 13 Q. Did it ever come to your attention that no summonses were 14 issued at the -- withdrawn. 15 You're aware that in July 2008 an NYPD officer named 16 Patrick Pogan allegedly deliberately knocked over a bicyclist 17 who was participating in Manhattan Critical Mass? 18 A. Yes. 19 Q. After the Pogan incident, did NYPD communicate to its 20 officers that traffic stops on cyclists should not be made 21 using physical force? 22 MR. MUSCHENHEIM: Objection, your Honor. 23 THE COURT: Sustained. 24 Q. After the Pogan incident did you communicate to officers 25 assigned to events within Patrol Borough Manhattan South any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 375 95EVFIV5 Tuller - direct 1 information concerning the manner in which traffic stops should 2 be made on cyclists? 3 MR. MUSCHENHEIM: Same objection, your Honor. 4 THE COURT: Sorry? 5 MR. MUSCHENHEIM: Objection. 6 THE COURT: What's the relevance of it? 7 MS. DINGLE: Your Honor, the relevance of it is that 8 physical force being used against the Critical Mass bicyclist 9 unnecessarily indicates animus towards them, which is an 10 element of our retaliation and selective enforcement claims. 11 THE COURT: You got one incident, right? With how 12 many thousands of riders and policemen over how many years? 13 And the cop was fired, right? 14 MS. DINGLE: Your Honor, it would be our position that 15 there have been additional incidents; but, in any case, the 16 concern is that the NYPD did nothing to remedy future incidents 17 after it was brought to their attention that such -- 18 THE COURT: Did Critical Mass go over the Queens 19 Borough Bridge years ago? 20 MS. DINGLE: It did. 21 THE COURT: Illegally, right? 22 MS. DINGLE: Yes. Correct. 23 THE COURT: Should we ban categorically Critical Mass 24 from ever riding a bicycle anywhere ever again because it did 25 that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 376 95EVFIV5 Tuller - direct 1 MS. DINGLE: No, we should issue a corrective 2 statement. 3 THE COURT: Get over this. 4 BY MS. DINGLE: 5 Q. Two last questions, Chief Tuller. If an NYPD officer comes 6 upon a cyclist in Union Square Park on the last Friday of the 7 month engaging in traffic violations, does he or she have the 8 discretion to allow the cyclist to proceed without taking law 9 enforcement action? 10 MR. MUSCHENHEIM: Objection, your Honor. It's a 11 hypothetical. 12 THE COURT: Certainly in that form it is. Sustained. 13 Q. Chief Tuller, in the past have officers been instructed 14 that if they encounter Critical Mass bicyclists on the last 15 Friday of the month departing from Union Square Park engaging 16 in traffic violations, that they are not permitted to allow 17 them to proceed without taking law enforcement action? 18 MR. MUSCHENHEIM: Your Honor, objection. That's been 19 asked and answered. 20 THE COURT: Overruled. Please answer. 21 A. Are they instructed to enforce the law? Yes. 22 Q. My question was do they have the discretion not to enforce 23 the law? 24 A. They always have discretion. 25 Q. Your testimony is that officers have discretion not to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 377 95EVFIV5 Tuller - direct 1 arrest or summons Critical Mass bicyclists engaged in traffic 2 violations? 3 A. Primarily at Critical Mass they are enforcing the law. 4 THE COURT: What is it exactly you're saying? Are you 5 saying is that the order is to enforce the law, but you 6 recognize that on occasions officers aren't going to do it and 7 you're not going to discipline them for it? Is that the 8 substance of it or is it something else? 9 THE WITNESS: No, that's primarily it. 10 THE COURT: OK. 11 MS. DINGLE: Nothing further, your Honor. 12 THE COURT: OK. Thank you. Mr. Muschenheim? 13 MR. MUSCHENHEIM: Very briefly, your Honor. 14 CROSS-EXAMINATION 15 BY MR. MUSCHENHEIM: 16 Q. Chief Tuller, what are the police department's objectives 17 in policing Critical Mass in Manhattan? 18 THE COURT: I've been waiting for that question for 19 four days. 20 A. Primarily to ensure the safety of everyone at the location, 21 and primarily to ensure that the traffic regulations are 22 obeyed. 23 Q. And Chief Tuller, why are -- you previously testified that 24 the number of summonses that are issued on a particular 25 Critical Mass event had really no bearing on how many officers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 378 95EVFIV5 Tuller - cross 1 are assigned to the subsequent Critical Mass event. Could you 2 explain why that is? 3 A. I don't think that the number of summonses dictates what 4 the event or how it should be policed. I think there's a lot 5 of other factors, and that's not one of them that I use. 6 Q. And what are the factors that you use? 7 A. Well, the factors are in this case we don't know what the 8 participants of the ride are doing. They don't come to us in a 9 meeting where we could plan for the event. So that's primarily 10 the reason that we're there, because we just don't know what is 11 going to occur. 12 Q. And what do you mean by you don't know what the 13 participants are going to -- can you be more precise in that? 14 A. We don't know exactly what's going to occur; we don't know 15 exactly -- we don't know where they are going, we don't know 16 what they are going to do. We don't know their intentions at 17 all. 18 Q. Do you know the number of participants that are 19 anticipated? 20 A. No. We take an estimate on that. 21 MR. MUSCHENHEIM: Nothing further, your Honor. 22 THE COURT: Thank you. 23 MS. DINGLE: Nothing further. 24 THE COURT: Well, I have a couple questions for you, 25 chief. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 379 95EVFIV5 Tuller - cross 1 THE WITNESS: Yes. 2 THE COURT: Have the substance of any public 3 statements made by anybody associated with Critical Mass or any 4 other cycling group or any views expressed by them played any 5 role whatsoever in your determinations with regard to the 6 manner in which the New York City Police Department polices 7 these events? 8 THE WITNESS: No. 9 THE COURT: So far as you're aware, by virtue of 10 participation in conversations with others in the police 11 department, has anyone ever indicated that the views espoused 12 by any of the people associated with these rides had anything 13 to do with any action that anybody at the New York City Police 14 Department ever took? 15 THE WITNESS: Not that I could recall, no. 16 THE COURT: Would you regard it as feasible, 17 appropriate and prudent to police these rides with a smaller 18 law enforcement presence if you knew the intended route and the 19 estimated turnout by the group? 20 THE WITNESS: That would be a strong factor, yes. 21 THE COURT: Any counsel want to inquire further with 22 respect to my questions? 23 MR. MUSCHENHEIM: No, your Honor. 24 THE COURT: Ms. Dingle? 25 MS. DINGLE: No, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 380 95EVFIV5 Tuller - cross 1 THE COURT: OK. Thank you, Chief. You are excused. 2 THE WITNESS: Thank you. 3 (Witness excused) 4 THE COURT: Mr. Bierbauer. 5 MR. BIERBAUER: I call Inspector DeQuatro. 6 DENNIS DE QUATRO, 7 called as a witness by the Plaintiffs, 8 having been duly sworn, testified as follows: 9 THE DEPUTY CLERK: Please be seated. Please state 10 your name and spell your last name for the record. 11 THE WITNESS: Deputy Inspector Dennis DeQuatro. 12 D-E-Q-U-A-T-R-O. 13 THE COURT: Proceed. 14 DIRECT EXAMINATION 15 BY MR. BIERBAUER: 16 Q. Good afternoon, Inspector DeQuatro. My name is Erik 17 Bierbauer. 18 A. Good afternoon, sir. 19 Q. Inspector DeQuatro, you're a deputy inspector in the New 20 York City Police Department? 21 A. That's correct, sir. 22 Q. That means you supervise personnel at the rank captain and 23 below, is that correct? 24 A. Yes, sir. 25 Q. During the period of approximately March 2005 to December SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 381 95EVFIV5 DeQuatro - direct 1 2008, you were assigned to Manhattan Critical Mass detail? 2 A. Yes, sir. In the month of March I was assigned as the rank 3 of captain. 4 Q. When did you obtain the rank of deputy inspector? 5 A. April of 2005. 6 Q. For part of that time you were the aide to Chief Paragallo 7 for Critical Mass details? 8 A. Yes, sir. That's correct. 9 Q. That was from approximately January 2006 to December 2008? 10 A. Approximately, sir, yes. 11 Q. Sometimes Chief Paragallo would leave you in charge of 12 commanding the detail? 13 A. On some occasions, yes, sir. 14 Q. That was when Chief Paragallo was not available to command 15 the detail himself? 16 A. If he had other duties and responsibilities necessary for 17 him to carry out, yes, sir. 18 Q. About how many times was that, roughly speaking? 19 A. Approximately four, maybe five. 20 Q. In that role, you briefed subordinates assigned to the 21 Critical Mass detail before they began their duties on that 22 detail on any given night? 23 A. Yes, sir. 24 Q. You were briefing captains? 25 A. Generally speaking, I would brief captains, lieutenants, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 382 95EVFIV5 DeQuatro - direct 1 and sergeants. 2 Q. Was this an in-person briefing? 3 A. Yes, sir. 4 Q. Did people lower -- what was the lowest level person who 5 attended the briefing that you deliver? 6 A. Generally speaking, the lowest would be a sergeant, 7 although not to say that on occasion there was not a police 8 officer present. 9 Q. And for those who attended the briefing, did you expect 10 them to then go and brief other members of the detail who had 11 not been attending the meeting on what you had told the detail 12 to carry out? 13 A. Yes, sir. 14 Q. In fact, these details were designed for you to tell the 15 detail how to conduct the policing for that evening, is that 16 correct? 17 A. Yes, sir. 18 Q. While briefing your subordinates on the Critical Mass 19 detail, you have told them that a zero tolerance policy for 20 traffic violations was in effect, correct? 21 A. On occasions, yes, sir. 22 Q. On those occasions when you did not explicitly use the 23 phrase "zero tolerance" when briefing your subordinates, was it 24 your understanding that, nonetheless, such a policy was in 25 place for that night's Critical Mass detail? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 383 95EVFIV5 DeQuatro - direct 1 A. Yes, sir. 2 Q. Zero tolerance meant that police officers did not have 3 discretion not to issue a summons if they saw a traffic 4 violation by a bicyclist involved in the Critical Mass event, 5 is that correct? 6 A. Not exactly, sir, no. 7 Q. So zero tolerance did not mean zero tolerance? 8 A. No, sir. The instructions that the officers were given was 9 that when we they observed a traffic violation, they were to 10 issue the summons regardless of who committed the violation. 11 Q. You're aware of a law that requires bicyclists have lights 12 on their bikes beginning 30 minutes after sundown? 13 A. Yes, sir, I am. 14 Q. Was the time of sundown announced to officers who were 15 assigned to the Critical Mass detail? 16 A. I would inform the supervisors during my briefing of the 17 time of sundown. 18 Q. This was to enable the police to enforce the law requiring 19 light against Critical Mass participants? 20 A. This enabled them to know the time of sundown so that they 21 knew when the law was going to be applicable. 22 Q. Now, in your current role, you are the commanding officer 23 of the 9th precinct, is that right? 24 A. That is correct, sir. 25 Q. And do you assign officers to police different parts of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 384 95EVFIV5 DeQuatro - direct 1 9th precinct as part of your duties? 2 A. Yes, sir. 3 Q. Does that include policing traffic issues within the 9th 4 precinct? 5 A. Yes, sir. 6 Q. Have you in your current role ever announced the time of 7 sundown for the purpose of enforcing bicycle equipment 8 violations? 9 A. To my personnel at the 9th precinct? I apologize, I'm not 10 sure if I'm projecting. 11 THE COURT: You're doing fine. 12 THE WITNESS: I'm doing fine. Thank you. 13 A. I apologize, sir. No, the personnel in the 9th precinct, I 14 have not. 15 Q. To your knowledge, is the time of sundown normally 16 announced on the police radio other than during the Critical 17 Mass detail? 18 A. Not that I'm aware of, no, sir. 19 Q. It was announced on the police radio at times during the 20 Critical Mass detail, is that correct? 21 A. Yes, sir. 22 Q. Other than involving the Critical Mass detail, have you 23 ever directed police officers under your supervision to issue 24 summonses to cyclists for not having lights on their bicycle? 25 A. I have directed officers to issue summonses to bicyclists; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 385 95EVFIV5 DeQuatro - direct 1 however, I do not recall specifically mentioning headlights. 2 Q. Now, you've observed a number of Critical Mass events 3 yourself, is that correct? 4 A. Yes, sir, that's correct. 5 Q. About how many would you say you've observed? 6 A. Approximately 25. 7 Q. You observed them in 2005? 8 A. Yes, sir. 9 Q. 2006? 10 A. Yes, sir. 11 Q. 2007? 12 A. Yes, sir. 13 Q. 2008? 14 A. Yes, sir. 15 Q. Based on your observation, did the number of riders in 16 Critical Mass decrease over the time that you were involved in 17 supervising the Critical Mass detail? 18 A. Yes, sir. The number of riders that participated at Union 19 Square Park decreased. 20 Q. In the early stages of your involvement, they were 21 sometimes numbering more than 200, is that right? 22 A. On occasion, yes, sir. 23 Q. Toward the end of your involvement in the winter months 24 they were down to an average of about 20, is that correct? 25 A. During some of the winter months, yes, they were as few as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 386 95EVFIV5 DeQuatro - direct 1 20. 2 Q. And in the summer months maybe 50? 3 A. Fifty to 100, sir. 4 Q. Getting back to the zero tolerance briefly. Was the zero 5 tolerance policy something that you created or was it given to 6 you by somebody else? 7 A. I don't recall ever having been informed to implement such 8 a policy. 9 Q. It was your idea? 10 A. Yes, sir. 11 Q. In 2005, cyclists were arrested at Critical Mass rides, 12 correct? 13 A. To the best of my recollection, yes, on at least one 14 occasion I recall. 15 Q. Sometimes they were charged with parading without a permit? 16 A. Yes, sir, that's correct. 17 Q. Sometimes disorderly conduct? 18 A. Yes, sir, that's correct. 19 Q. Sometimes obstructing government administration? 20 A. To my recollection, yes, sir, that's correct. 21 Q. At some point did you become aware of a shift in tactics of 22 the NYPD toward Manhattan Critical Mass such that the NYPD 23 largely stopped arresting participants and started issuing 24 summonses for traffic violations instead? 25 A. Yes, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 387 95EVFIV5 DeQuatro - direct 1 Q. When was that? 2 A. Approximately spring of 2006, to the best of my 3 recollection. 4 Q. You communicated that shift in tactics to your subordinates 5 at the pre-ride briefing? 6 A. Yes, sir. 7 MR. BIERBAUER: I'd like to show the witness, I 8 believe it is already in evidence, Plaintiffs' 87. 9 A. Is that this item here on the screen, sir? 10 Q. Yes, that's right. You've seen this document before? 11 A. Yes, sir, I have. 12 Q. Were copies of this document distributed to police officers 13 at the briefing prior to Critical Mass detail? 14 A. Yes, sir. 15 Q. Who distributed them? 16 A. These items were in the possession of the supervisors who 17 would then, in turn, distribute them to police officers. 18 Q. And by "supervisors" you mean what level of the police? 19 A. It would generally trickle down. The sergeants would be 20 the ones who would usually hand it to the police officers. 21 Q. The document was provided to officers assigned to the 22 detail because many of them were otherwise unfamiliar with 23 violations that applied to bicyclists? 24 A. Potentially, sir, due to the fact that many of them came 25 from other parts of the New York City area and they did not, as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 388 95EVFIV5 DeQuatro - direct 1 a matter of routine, enforce certain vehicle violations. 2 Q. And the purpose of distributing the document was to give 3 the officers assigned to the Critical Mass detail a guide to 4 offenses where summonses could be issued? 5 A. Yes, sir. 6 Q. Now, we talked earlier about the shift in tactics in 2006 7 from arrests to summonses, correct? 8 A. Yes, sir. 9 Q. Now, although the police shifted their tactics in 2006, it 10 wasn't because the conduct of the cyclists had changed, was it? 11 A. No, sir, not to my knowledge. 12 Q. To your knowledge, the reason for the shift was legal 13 issues associated with parading without a permit, is that 14 right? 15 THE REPORTER: Say that again, please. 16 Q. To your knowledge, the reason for the shift in tactics was 17 legal issues associated with the parading-without-a-permit 18 charge, is that correct? 19 A. It was my understanding under the advice of the NYPD's 20 legal bureau that we no longer enforce that law because of the 21 litigation that was pending. 22 Q. You heard at some point that more than half of the Critical 23 Mass cyclists who'd been arrested through 2005 had their 24 charges dismissed or acquitted after trial? 25 A. I was aware that there were charges that were dismissed; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 389 95EVFIV5 DeQuatro - direct 1 however, the percentage that you're referring to, sir, only 2 came to my attention through the attorney for the plaintiff 3 that deposed me several months ago. 4 Q. You knew it was a number more than a handful that had been 5 dismissed or led to acquittals? 6 A. Yes, sir. 7 Q. Now, you believed that prior to the shift in tactics, when 8 participants were being arrested, the arrest had little, if 9 any, bite, is that correct? 10 A. I felt that they had little impact, yes, sir. 11 Q. And by "impact" you meant that it didn't deter people from 12 coming out, participating in Critical Mass? 13 A. No, sir, it didn't deter them from violating the law. 14 Q. You felt that traffic summonses were more apt to deter them 15 from violating the law? 16 A. I equate the enforcement of traffic summonses to the 17 bicycle as similar to that of a speeding summons, sir. 18 If an individual is issued a summons for speeding, 19 they are less likely the next time around to speed. If they 20 are issued a second summons or third summons, each time their 21 likelihood to commit that violation, in theory, should be 22 reduced. 23 Q. The conduct that was being deterred was the conduct that 24 was barred by the particular prohibition that they were being 25 summoned for? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 390 95EVFIV5 DeQuatro - direct 1 A. I'm sorry, sir, could you repeat that question? 2 Q. You say you wanted to deter traffic violations, correct? 3 A. Yes. 4 Q. And summonses were a way of deterring traffic violations? 5 A. Way of deterring the violation of the law, yes, sir. 6 Q. And the violation that people were deterred from committing 7 was the violation for which they were summoned, is that 8 correct? 9 A. Yes, sir. 10 Q. Were they also deterred from parading without permit? 11 A. No, sir. We are not enforcing that law. 12 MR. BIERBAUER: I'd like to show the witness 13 Plaintiffs' Exhibit 137. It's marked for identification. 14 THE COURT: You're going to have to blow it up if you 15 want anybody to read it. 16 MR. BIERBAUER: Can we blow that up a little bit? 17 THE WITNESS: Thank you, your Honor. I thought I was 18 the only one. 19 MR. BIERBAUER: I couldn't read it either. Can we 20 leaf over -- can we scroll through the document so that he can 21 read it and then also show him the second page at his speed? 22 THE COURT: Well, it's illegible again. 23 (Pause) 24 BY MR. BIERBAUER: 25 Q. Do you see there in paragraph 6 your name? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 391 95EVFIV5 DeQuatro - direct 1 A. Yes, sir, I do. 2 Q. Do you recognize this document? 3 A. It appears to be an unusual occurrence recap of one of the 4 Critical Mass rides. 5 Q. This is a memo that describes the July 27th, 2007 Critical 6 Mass detail, is that right? 7 A. I forget what the date was on the first page, sir. 8 MR. BIERBAUER: Can we see it again? 9 A. Yes, sir, that's correct. 10 Q. And you were present at that Critical Mass detail? 11 A. Yes, sir, according to that paperwork. 12 MR. BIERBAUER: I'd like to move Plaintiffs' Exhibit 13 137 into evidence. 14 MR. MUSCHENHEIM: No objection, your Honor. 15 THE COURT: Received. 16 (Plaintiffs' Exhibit 137 received in evidence) 17 Q. When was the last time you saw the cyclists gathered in 18 Union Square on the last Friday of the month leave the park in 19 a group of 50 or more? 20 A. Approximately the spring of 2007. 21 Q. In fact, the cyclists who gather at Union Square on the 22 last Friday don't always leave Union Square together in one 23 group, is that correct? 24 A. That's correct, sir. As of late, they have been leaving in 25 smaller groups. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 392 95EVFIV5 DeQuatro - direct 1 Q. They leave in small groups, five? 2 A. Sometimes as little as five, yes, sir. 3 Q. Ten? 4 A. Sometimes. 5 Q. There are also sometimes when the Critical Mass 6 participants didn't ride out of the park at all, correct? 7 A. Yes, sir, that is correct. 8 Q. You have assigned members of the NYPD scooter task force to 9 follow small groups of cyclists after they leave Union Square? 10 A. Yes, sir, I have. 11 Q. And in addition to following cyclists leaving from Union 12 Square, you've assigned people to -- assigned officers, that 13 is, to employ a scout system, is that correct? 14 A. Yes, sir, that is correct. 15 Q. Can you explain the scout system please? 16 A. Absolutely, sir. After one of the Critical Mass rides, one 17 of my colleagues, Captain Cunningham, had called me via the 18 cell phone to inform me that when the ride failed to 19 materialize from Union Square Park and he was returning to his 20 assigned command, he stumbled upon a group of approximately 100 21 to 200 bicyclists that were traveling, I believe, southbound on 22 Second Avenue in the 40s. 23 The group was occupying the roadway, kicking cars, 24 yelling and screaming as they were traveling down the roadway. 25 The captain requested if I had any resources that I could SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 393 95EVFIV5 DeQuatro - direct 1 assist him with; at that point I did not. I tried to muster up 2 some resources. By the time I was able to, the group had 3 dispersed, because the captain was by himself. 4 As a result of that, I had a conversation with my 5 colleagues, and we decided that what had happened was the group 6 had trickled out of the park. They then, we speculated, 7 reformed in some other location or communicated in some 8 capacity in order to reconvene their ride and assemble at a 9 different location. 10 Q. This is what you heard from others? 11 A. I'm sorry, sir? 12 Q. This is something you heard from others? 13 THE COURT: Well, this is something he said he decided 14 or they decided. 15 THE WITNESS: Yes, sir. That's correct. 16 A. As a result of that, we divided the Borough of Manhattan up 17 based upon the number of captains that we had. Each captain 18 was assigned a given number of avenues. They would then, if 19 the ride failed to materialize, as it was for several months in 20 a row, we deployed police officers to travel these avenues in 21 order to see if the demonstration reformed in another location. 22 If they did, they were instructed to monitor them as we would 23 any other demonstration or any other detail that the New York 24 City Police Department polices. 25 Q. On the occasion that you mentioned where you heard from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 394 95EVFIV5 DeQuatro - direct 1 others and Captain Cunningham that this had occurred, you 2 didn't see it yourself, correct? 3 A. No, sir, I did not. I was returning to my command as he 4 was returning to his. 5 Q. In fact, you've never seen this happen yourself, have you? 6 A. I've never seen what, sir? 7 Q. You've never seen the bicyclists group together later at 8 night in groups of 100? 9 A. No, sir, that's not true. After that incident, when we 10 deployed that scout system program I did. 11 THE COURT: Once or more than once? 12 THE WITNESS: About two occasions, sir. 13 A. Not quite -- I believe you said during the course of your 14 question, sir, of approximately 100. I mistaken on the number. 15 However, I did personally witness them regroup and continue 16 their ride. 17 Q. Now, the scout system, did you direct individual officers 18 to go out and identify groups of cyclists who might be 19 affiliated with the Critical Mass ride? 20 A. No, sir. 21 Q. Were the officers given direction to look out for 22 particular sorts of bicyclists? 23 A. The supervisors who participated in the detail, many of 24 them were the same supervisors month after month. They had 25 grown some familiarity with the participants in the ride. They SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 395 95EVFIV5 DeQuatro - direct 1 were instructed when they deployed their scouts that if they 2 saw a group that they suspected to be Critical Mass 3 demonstrators, and they would then monitor them and we would 4 deploy resources, if necessary. 5 Q. A cyclist who was wearing a Time's Up! T-shirt or hat was 6 more likely to be followed by scooter officers than another 7 cyclist not wearing such apparel, is that correct? 8 A. If it was a Friday night in the vicinity of Union Square 9 Park after 7 p.m., probably, sir, yes. 10 Q. You expected the officers -- that the officers who reported 11 to you would follow cyclists who they believe were part of 12 Critical Mass, correct? 13 A. Yes, sir. 14 Q. And not to follow cyclists they didn't believe are part of 15 Critical Mass? 16 A. It was their role and their function to monitor the 17 demonstration, not to engage in general patrol. 18 Q. You communicated -- during the course of your supervision 19 of the Critical Mass detail, did you communicate with officers 20 subordinate to you via police radio? 21 A. Yes, sir, many times. 22 MR. BIERBAUER: I'd like to play a short audio. It's 23 approximately one minute. It's Plaintiffs' 197. 24 THE COURT: Is it in evidence? 25 MR. BIERBAUER: It is not in evidence at this time. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 396 95EVFIV5 DeQuatro - direct 1 think that once we play it, it will be authenticated by the 2 witness and it will be admissible. 3 THE COURT: Any objection? 4 MR. MUSCHENHEIM: No, your Honor. 5 THE COURT: All right. Go ahead. 6 (Audio played) 7 Q. Do you recognize the voices on that audiotape? 8 A. Yes, sir. 9 Q. Whose voices are they? 10 A. Myself, Lt. Turco -- Luis Turco, excuse me, Sgt. George -- 11 excuse me, Lt. George Groner, and Capt. John Duffy. 12 MR. BIERBAUER: I'd like to move Plaintiffs' 197 into 13 evidence. 14 MR. MUSCHENHEIM: No objection, your Honor. 15 THE COURT: Received. 16 (Plaintiffs' Exhibit 197 received in evidence) 17 Q. Now, on the audiotape, that was Lt. Turco telling you that 18 the small group that he was observing don't look like Critical 19 Mass guys? 20 A. Yes, sir. 21 Q. When he told you that, you inferred that he was not going 22 to continue to monitor that particular group of cyclists? 23 A. Lt. Turco had been performing Critical Mass detail for 24 quite some time, sir. I trusted his judgment and his 25 decision-making process. When he said that to me, it was no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 397 95EVFIV5 DeQuatro - direct 1 longer an issue that I required any additional follow-up. 2 MR. BIERBAUER: I'd like to show the witness -- 3 withdrawn. 4 Q. To your knowledge, under the scout system that you 5 established, the NYPD has monitored small groups of Critical 6 Mass participants even when they are obeying all traffic laws, 7 correct? 8 A. Yes, sir. 9 Q. And they are to apply the zero tolerance policy as they 10 follow those cyclists? 11 A. If they are not disobeying the laws, there would be no law 12 to enforce. 13 Q. Is it your understanding that there's a zero tolerance 14 policy in place by the NYPD for bicycling generally in New York 15 City? 16 A. No, sir. I think that would be unrealistic, given the 17 assignments and duties that officers must carry out day in and 18 day out. If they adopted a zero tolerance policy without 19 discretion, they would not be able to get from point A to point 20 B without having to stop numerous times, impeding our ability 21 to service the community. 22 Q. Is it your understanding that there's a zero tolerance 23 policy for other group bicycle rides? 24 A. I'm frankly, sir, not aware of any other group bicycle 25 rides that appear as frequently as that of Critical Mass. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 398 95EVFIV5 DeQuatro - direct 1 Q. You've observed some Critical Mass rides where no 2 violations of law have been committed by the riders while you 3 were watching them, isn't that correct? 4 A. Yes, sir. 5 Q. You've observed rides of over 100 people, Critical Mass 6 rides of over 100 people, where you haven't witnessed any 7 violations of the traffic laws by the participants, correct? 8 A. Yes, sir, that's correct. 9 Q. It's your view that Critical Mass participants are not 10 inherently more likely to commit violations of the law than 11 other bicyclists around the city, isn't that correct? 12 A. That's correct, sir. I think they are just as equally 13 potential to commit violations of the law as any other 14 bicyclist or motorist, for that matter. 15 MR. BIERBAUER: Pass the witness. 16 THE COURT: Mr. Muschenheim. 17 MR. MUSCHENHEIM: I just have a very few questions. 18 CROSS-EXAMINATION 19 BY MR. MUSCHENHEIM: 20 Q. What are the objection -- excuse me. Deputy Inspector 21 DeQuatro, what are the objectives of policing Critical Mass? 22 A. The objective is to ensure that the pedestrians and 23 motorists are safe, as well as the right of the bicyclists, to 24 utilize the roadway as they are riding their bikes; and ensure 25 that the right to demonstrate and the right to free speech is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 399 95EVFIV5 DeQuatro - cross 1 protected by the New York City Police Department for those 2 individuals; as well as balancing that with the needs of the 3 community, both residential and commercial. 4 MR. MUSCHENHEIM: Nothing further, your Honor. 5 MR. BIERBAUER: Your Honor, may I confer briefly with 6 defense counsel? 7 THE COURT: Sure. 8 (Pause) 9 MR. MUSCHENHEIM: Your Honor, Inspector DeQuatro is 10 also a witness in the case-in-chief on our end; so I'd like to 11 submit his witness statement at this point. 12 THE COURT: OK. 13 DIRECT EXAMINATION 14 BY MR. MUSCHENHEIM: 15 Q. Inspector DeQuatro -- if you could have it up on the 16 monitor. I'm showing you what has been marked Defendant's 17 Exhibit FFFF. And do you see the first page of that document? 18 A. Yes, sir, I do. 19 Q. And I'm just going to go quickly to the last page, which is 20 page No. 6. Is that your signature? 21 A. Yes, sir, that is my signature. 22 Q. And is this the witness statement that you prepared? 23 A. It is the witness statement that I reviewed and signed, 24 sir, yes. 25 Q. OK. And Inspector DeQuatro, do you understand that you are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 400 95EVFIV5 DeQuatro - direct 1 under oath at this moment? 2 A. Yes, sir, I do. 3 Q. OK. And under oath do you affirm that everything in this 4 witness statement is true and accurate? 5 A. No, sir. While reviewing it for preparation for today, I 6 observed a typographical error in the location on the April 7 2009 ride in which the direction of the bicyclist traveling 8 westbound. 9 Q. And is that on page 5? 10 A. Yes, sir, the bottom of page 5. 11 Q. And is that the second-to-last sentence, the second-to-last 12 line of that page? 13 A. Yes, sir. It begins with, The westbound group proceeded 14 south on Broadway to Washington Square Park. 15 Q. And could you explain what you observed the westbound group 16 doing on that night? 17 A. The group that exited the park by traveling westbound 18 proceeded to Union Square West; traveled southbound on Union 19 Square West to West 14th Street, at which point in time they 20 traveled westbound on West 14th Street until they got to Fifth 21 Avenue, at which point in time they then went southbound on 22 Fifth Avenue to Washington Square Park. I apologize. 23 Q. OK. And with that correction, do you adopt this statement 24 as your testimony in this case? 25 A. Yes, sir, I do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 401 95EVFIV5 DeQuatro - direct 1 MR. MUSCHENHEIM: Defendants move to have Exhibit FFFF 2 admitted into evidence. 3 MR. BIERBAUER: No objection, subject to the usual 4 understanding, your Honor. 5 THE COURT: Received on that basis. 6 (Defendant's Exhibit FFFF received in evidence) 7 MR. MUSCHENHEIM: Nothing further. 8 THE COURT: Inspector, have any views or opinions 9 expressed by Critical Mass or those associated with it in your 10 mind ever played any role in any decision or action taken by 11 the New York City Police Department? 12 THE WITNESS: Absolutely not, sir. I don't involve 13 myself in their political point of views or their perspectives. 14 I just do my job when I am assigned to it. 15 THE COURT: Why zero tolerance for Critical Mass and 16 not others? 17 THE WITNESS: The officers that are assigned to 18 Critical Mass, sir, that is their -- essentially their sole 19 responsibility for the day. 20 I feel as a manager and as a leader if I am not 21 effectively utilizing the resources that are put before me, 22 then I am not doing my job. My job is to ensure that the 23 officers are there vigorously enforcing the law against all 24 people who violate the law in front of them. 25 Frankly, I think it's embarrassing when a police SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 402 95EVFIV5 DeQuatro - direct 1 officer is standing in public view and somebody is deliberately 2 violating law in front of them and they do nothing about it 3 when they are not handling some other assignment. 4 THE COURT: So do I understand you correctly as 5 suggesting that as far as you're concerned, you would have any 6 other cop seeing any other bicyclist or motorist, for that 7 matter, anywhere in the city who commits a traffic violation 8 issue a ticket, but that regard that as impractical because 9 those other officers are assigned to other duties that might be 10 more important? 11 THE WITNESS: That's correct, sir. 12 THE COURT: Anybody want to inquire further in light 13 of those questions? 14 MR. MUSCHENHEIM: No, your Honor. 15 MR. BIERBAUER: No, your Honor. 16 THE COURT: OK. You are excused, Inspector. 17 THE WITNESS: Thank you, Sir. 18 THE COURT: We'll take about ten minutes here. 19 (Recess) 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 403 95e1fiv6 Wagner - direct 1 (In open court) 2 THE COURT: Okay. Let's go. 3 MR. MUSCHENHEIM: Your Honor, we're -- 4 THE COURT: Are you done with the plaintiffs' case? 5 MR. VACCARO: No, your Honor. There are additional 6 witnesses. Officer Wagner. 7 MR. MUSCHENHEIM: We are in the process of retrieving 8 him. 9 MR. VACCARO: Officer Wagner will be the last witness 10 called in plaintiffs' case in chief. 11 THE CLERK: Sir, if you'd please take the stand. 12 If you'd please remain standing and raise your right 13 hand. 14 (Witness sworn) 15 THE CLERK: Thank you. Please be seated. And if you 16 can please state your name and spell your last name for the 17 record. 18 THE WITNESS: Kenneth Wagner, W-A-G-N-E-R. 19 THE COURT: You may proceed, counsel. 20 KENNETH WAGNER, 21 called as a witness by the Plaintiffs, 22 having been duly sworn, testified as follows: 23 DIRECT EXAMINATION 24 BY MR. VACCARO: 25 Q. Good afternoon, Officer Wagner. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 404 95e1fiv6 Wagner - direct 1 A. Good morning -- afternoon. 2 Q. You're currently a police officer in the New York City 3 Police Department? 4 A. Yes, I am. 5 Q. And you served on the First Precinct's scooter task force 6 from 2003 through 2008? 7 A. Yes. 8 Q. And in connection with that assignment you had occasion to 9 work on a number of Critical Mass details? 10 A. Yes, I did. 11 Q. Can you estimate the approximate number? 12 A. At least 20. 13 Q. And the first time you were assigned to monitor Critical 14 Mass was in October 2003? 15 A. I believe so, yes. 16 Q. And you also monitored Critical Mass in November and 17 December 2003? 18 A. I believe so. Without checking my memo books, I couldn't 19 be a hundred percent sure. 20 Q. You also recall being assigned to a Critical Mass detail on 21 January 2004? 22 A. Yes. 23 Q. And did you also serve on Critical Mass details in June, 24 July and August of 2004? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 405 95e1fiv6 Wagner - direct 1 Q. Is it true that you estimated there were over 2,000 2 cyclists in the January 2004 Critical Mass ride? 3 A. Yes, I believe so. 4 Q. And there were two to six NYPD scooter officers assigned to 5 that ride? 6 A. Yes. 7 Q. And the role of the scooter task force was simply to 8 monitor the ride and report to the borough, the borough 9 command? 10 A. In part, yes. 11 Q. You had an additional objective of following the ride to 12 ensure that the bicyclists were kept safe? 13 A. Yes. 14 Q. And as part of that assignment, you were instructed you 15 were not to take law enforcement action with respect to any 16 traffic violations that you observed? 17 A. Not specifically, no, that would be incorrect. 18 Q. Was it your -- the practice of you on your January 2004 19 Critical Mass assignment not to take law enforcement action 20 with respect to traffic violations you observed? 21 A. I'm sorry. Could you repeat that? 22 Q. Did you refrain from taking law enforcement action with 23 respect to traffic, any traffic violations you observed on the 24 January 2004 Critical Mass detail? 25 A. Yes, in regards to minor traffic violations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 406 95e1fiv6 Wagner - direct 1 Q. Was it your understanding at the time that you were to 2 engage in law enforcement action only if circumstances 3 absolutely dictated that police enforcement action be taken? 4 A. Yes. 5 Q. And on that January 2004 Critical Mass ride the bicyclists 6 proceeded in some instances using all available lanes of 7 traffic? 8 A. Yes. 9 Q. And in some instances the scooter officers on that 10 January 2004 ride would block traffic at the intersection to 11 allow the bicyclists to proceed through a red light and keep 12 their group together? 13 A. Yes. 14 Q. And in some occasions bicyclists themselves would be 15 blocking traffic at the intersection to allow the ride to go 16 through, in the same manner as the police officers? 17 A. Yes. 18 Q. And you personally in some cases on that ride would relieve 19 bicyclists of their corking position? 20 A. Yes, that's correct. 21 Q. And do you recall any summonses or arrests in connection 22 with bicyclists engaging in that blocking activity? 23 A. Not on that ride, no. 24 Q. And when you were corking intersections for the bicyclists, 25 would you use hand or other signals to indicate to them that it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 407 95e1fiv6 Wagner - direct 1 was permissible for them to proceed through the red light? 2 A. Yes. 3 Q. Did you see similar activity by the officers on the 4 Critical Mass rides that you observed prior to January 2004? 5 A. Yes, that would be consistent. 6 Q. And did you see similar activity by law enforcement -- by 7 the police on the June and July 2004 Critical Mass rides? 8 A. In general, yes. 9 Q. The officers on those June and July 2004 Critical Mass 10 rides would relieve the bicyclists of their corking positions? 11 A. As I recall, yes. 12 Q. Do you recall any summonses or arrests in connection with 13 the June or July 2004 Critical Mass rides? 14 A. No. 15 Q. In any of the rides that you observed prior to August 2004, 16 did you observe something that you came to know as a bicycle 17 lift, L-I-F-T? 18 A. Yes. 19 Q. And can you describe the bicycle lifts that you saw prior 20 to August 2004? 21 A. Yes. At some point the group of cyclists would stop, 22 dismount from their bicycles and then raise them, wheels to the 23 sky, and holding the bicycles directly over their heads, at 24 which point they would all then cheer. 25 Q. And what would the NYPD officers assigned to these Critical SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 408 95e1fiv6 Wagner - direct 1 Mass rides prior to August 2004 do while the bicyclists engaged 2 in the bicyclists? 3 A. We observed. 4 Q. Did you also block traffic so that the bicyclists could 5 engage in the bike lifts? 6 A. I wouldn't say we blocked traffic directly. We would stop 7 our scooters as generally we would be behind the pack of 8 cyclists; therefore, by default, we would be blocking traffic. 9 Q. Were there any arrests or summonses of which you were aware 10 on Critical Mass rides details you served on prior to August 11 2004 in connection with this bike lift activity? 12 A. Not that I'm aware of. 13 Q. Can you recall the size of the June 2004 Critical Mass 14 ride? 15 A. Perhaps maybe a thousand, a little bit over that. 16 Q. And can you recall the size of the July 2004 Critical Mass 17 ride? 18 A. As I recall, it would be similar size, a little bit more 19 than a thousand. 20 MR. VACCARO: I would like to read from Officer 21 Wagner's deposition transcript at page 105, line 3. May I 22 please have the overhead camera turned off. Thank you. 23 "Q. Do you recall the approximate size of the 24 July 30th, 2004 Critical Mass ride? 25 "A. As I recall, it was rather -- a rather large one, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 409 95e1fiv6 Wagner - direct 1 approximately 4,000." 2 Q. Do you recall, Officer Wagner, how many officers were 3 assigned to the scooter detail handling the July 2004 Critical 4 Mass ride? 5 A. To my recollection, approximately five paid officers and a 6 supervisor. 7 Q. Were you aware of NYPD's technical assistance and response 8 unit, or TARU, being assigned to this particular Critical Mass 9 ride to make videotapes of the bicyclists? 10 A. I'm unaware of any TARU activity. 11 Q. Were you aware that personnel from NYPD's disorder control 12 unit were assigned to the July 2004 Critical Mass ride? 13 A. No. 14 Q. Were you aware that night that there were two NYPD 15 helicopters that followed the ride as it progressed through the 16 city? 17 A. Possible. I don't recall if there were helicopters. 18 Q. And would you -- were you aware that transportation bureau 19 commander and three-star NYPD Chief Michael Scagnelli was also 20 monitoring the ride that night? 21 A. No. 22 Q. Do you recall seeing unmarked police vehicles such as SUVs 23 and sedans monitoring the ride that night? 24 A. Not that I saw. 25 Q. Did the bicyclists in the July 30th, 2004 Critical Mass SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 410 95e1fiv6 Wagner - direct 1 behave in the same manner as the bicyclists in the previous 2 Critical Mass rides you had monitored? 3 A. Not in July 2004. 4 Q. What was different in July 2004? 5 A. In July 2004, the Critical Mass ride deviated from its 6 normal pattern of staying on local side streets and avenues and 7 instead rode down the West Side Highway, then passing through 8 the Battery Park underpass, they entered the elevated portion 9 of the FDR Drive, proceeded northwards and then exited at East 10 Houston Street, where they performed the bike lift. 11 Q. Do you recall whether any NYPD officers attempted to stop 12 the bicyclists from entering West Street? 13 A. We did not have sufficient numbers to even attempt to stop 14 the mass from riding the West Side Highway. 15 Q. Do you know whether the -- Withdrawn. 16 Were there any attempts made to stop the bicyclists 17 from entering the Battery Park underpass? 18 A. No, there were not. 19 Q. Do you know whether your scooter unit received information 20 from aviation units that the bicyclists were entering the FDR 21 Drive? 22 A. Not that I recall from any radio transmissions. We were 23 positioned at the back of the pack, and we were basically 24 trying to keep them from being hit from behind by vehicle 25 traffic. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 411 95e1fiv6 Wagner - direct 1 Q. After the July 2004 Critical Mass ride is it correct that 2 Sergeant Gullotta of the scooter task force sent an unusual 3 occurrence report to Patrol Borough Manhattan South? 4 A. I believe so, yes. 5 Q. You were also on duty for the August 27th, 2004 Critical 6 Mass? 7 A. Yes, I was. 8 Q. Did you receive a briefing prior to serving that tour? 9 A. Yeah. 10 Q. And just to step back for a moment, had you received 11 briefings in connection with the prior Critical Mass tours that 12 you had been assigned to? 13 A. Yes. 14 Q. And typically you would receive discussion regarding your 15 specific tasks and duties and objectives for the evening when 16 you received these briefings prior to the Critical Mass detail? 17 A. Yes. 18 Q. The briefing prior to the August 27th, 2004 ride, were 19 you -- what were you instructed in terms of the law enforcement 20 objectives for that detail? 21 A. We were instructed that we would be enforcing the city -- 22 the city laws, rules and regulations regarding bicyclists for 23 that ride. 24 Q. Specifically, were you told that you'd be imposing a zero 25 tolerance law enforcement policy with respect to the kind of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 412 95e1fiv6 Wagner - direct 1 activity that Critical Mass had been routinely engaging in on 2 all of the prior rides that you had been on? 3 A. Yes. That was part of a larger briefing involving the 4 Republican Convention. 5 Q. And under the zero tolerance law enforcement policy, you 6 were to arrest bicyclists who were blocking traffic? 7 THE COURT: Are you asking him what he was told or 8 what he thinks the policy may have been? 9 Q. Were you told that you should arrest bicyclists if you saw 10 them blocking traffic on the evening of August 27th, 2004? 11 A. Not precisely. 12 Q. What did you understand your instructions to be -- 13 THE COURT: Sustained. What was said? 14 THE WITNESS: Is that to me? 15 THE COURT: No. Question. 16 Q. What were you told regarding your law enforcement 17 responsibilities with respect to bicyclists blocking traffic 18 that evening? 19 A. We were told that the arrests would be made if the 20 supervisor in charge at the scene deemed it necessary. 21 Q. At some point that evening did you begin to ride alongside 22 a group of Critical Mass bicyclists? 23 A. Yes. 24 Q. At some point you were riding alongside a group of 25 approximately 1500 to 2,000 bicyclists? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 413 95e1fiv6 Wagner - direct 1 A. Yes. 2 Q. The bicyclists took up all of the available lanes in the 3 roadway as you and the other scooter officers rode alongside 4 them? 5 A. Yes, alongside and beyond. 6 Q. Did you -- Withdrawn. 7 As you rode alongside and behind the cyclists, did you 8 observe them going through red lights? 9 A. Yes. 10 Q. At any time that evening prior to the containment of those 11 bicyclists by the NYPD, did you see or hear the bicyclists 12 being advised that there was a zero tolerance law enforcement 13 policy in effect? 14 MR. MUSCHENHEIM: Objection, foundation. 15 THE COURT: Well, it's not a matter of foundation. 16 Overruled. 17 A. Not that I could hear personally. 18 Q. Eventually the zero tolerance policy was actually applied 19 to the bicyclists at the August 2004 Critical Mass? 20 A. Yes. 21 Q. This was done by enclosing the bicyclists within a city 22 block with NYPD vans at one end and the scooter task force 23 officers at the other end? 24 A. Yes. 25 Q. The number of cyclists on the block was approximately 250 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 414 95e1fiv6 Wagner - direct 1 to 300? 2 A. Yes, I believe so. 3 Q. And then officers from another NYPD unit came to arrest the 4 bicyclists? 5 A. Yes. 6 Q. And at any time up until the point where the other officers 7 came to arrest the bicyclists did you witness any warning being 8 issued to the bicyclists? 9 A. Again, I can't confirm or deny that a warning was issued. 10 My position was at the very rear of the formation. I could not 11 hear if the supervisor in front had given any warnings to the 12 cyclists. 13 Q. Prior to the August 2004 Critical Mass ride had you been 14 told that the participants in the -- Withdrawn. 15 Was the zero tolerance law enforcement policy 16 described to you in your briefing for the August 2004 Critical 17 Mass detail continued in subsequent Critical Mass details on 18 which you served? 19 A. Yes, on some. 20 MR. VACCARO: I'd like to show a video that is 1 21 minute and 10 seconds. It's Plaintiff's Exhibit 190. 22 THE COURT: It's in evidence? 23 MR. VACCARO: It is not, your Honor, but we would move 24 it in evidence before we play it. 25 THE COURT: Is there an objection? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 415 95e1fiv6 Wagner - direct 1 MR. MUSCHENHEIM: No, your Honor. 2 THE COURT: Received. 3 (Plaintiff's Exhibit 190 received in evidence) 4 MR. VACCARO: I'll just point out that this video has 5 a poor audio quality. We had obtained a certified transcript 6 of the comments made on the video that appear in text at the 7 bottom of the screen as an aid. 8 THE COURT: You concede the accuracy of the 9 transcript? 10 MR. MUSCHENHEIM: Your Honor, we just received the 11 transcript this afternoon. It's a certified transcript, so if 12 we could just reserve our objections on that and -- 13 THE COURT: Well, 190 comes in without the transcript 14 for now. 15 Now as far as playing it is concerned, is the witness 16 in it? Is this something that the witness supposedly 17 witnessed? 18 MR. VACCARO: The witness is in it, your Honor. 19 THE COURT: All right. 20 MR. VACCARO: But I'm told that I've got the wrong 21 number and it is actually Exhibit 271. 22 THE COURT: All right. 190 is not in, 271 is in, 23 without the transcript. 24 (Plaintiff's Exhibit 271 received in evidence) 25 (Video displayed) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 416 95e1fiv6 Wagner - direct 1 THE COURT: That's it? 2 MR. VACCARO: No. I'm afraid we're having technical 3 difficulties. I hope they'll be sorted out in a moment. 4 MS. DINGLE: If I may interject, your Honor, the 5 version of the video without the transcript is actually 6 Plaintiff's Exhibit 189 rather than 271. 7 THE COURT: Let's just deal with one. I'm just going 8 to ignore the transcript. If you can play 271, play it; if 9 not, let's move on. 10 (Video displayed) 11 MR. VACCARO: Could you please pause it for just one 12 moment. 13 BY MR. VACCARO: 14 Q. Officer Wagner, do you see yourself in the videotape? 15 A. Yes. 16 MR. VACCARO: Okay. Could you please continue. 17 (Display continued) 18 Q. Officer Wagner, did you state in that occasion taped by the 19 video -- captured on the videotape that NYPD -- that Critical 20 Mass -- Withdrawn. 21 Officer Wagner, in the scene depicted in the videotape 22 did you state that Critical Mass came to NYPD's attention in 23 connection with the Republican National Convention in 2004? 24 A. Yes. 25 Q. And that Critical Mass had had NYPD's attention ever since? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 417 95e1fiv6 Wagner - direct 1 A. Yes. 2 Q. What was the basis for those comments? 3 A. The basis for that comment would be the change in 4 enforcement policy towards Critical Mass from escorting the 5 ride to enforcing the traffic regulations more stringently 6 regarding the ride. 7 THE COURT: So was it a conclusion you drew for 8 yourself? 9 THE WITNESS: Partly, and I was also briefed later on 10 on subsequent rides to that -- in that regard. 11 THE COURT: Briefed by whom and to what effect? 12 THE WITNESS: By my supervisor, Lieutenant Turco, and 13 that the city considered it a hazardous condition for large 14 groups of bicyclists to ride around the city at random without 15 a permit or a set route and that it would be addressed from the 16 law enforcement standpoint from enforcing the parading without 17 a permit law and subsequently after that by writing traffic 18 violations. 19 THE COURT: Did he say anything to you about the 20 Republican National Convention? 21 THE WITNESS: Yes. That briefing was during the time 22 of the Republican National Convention as well. 23 THE COURT: I asked whether he said anything about it, 24 not when it was. 25 THE WITNESS: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 418 95e1fiv6 Wagner - direct 1 THE COURT: What did he say? 2 THE WITNESS: Lieutenant Turco informed us or told me 3 personally during the briefing that since we had found out as a 4 department that Critical Mass riders intended to create a 5 shutdown of some kind to prevent delegates from getting to the 6 convention, that we would be enforcing their ride, as well as 7 other protests. 8 THE COURT: Okay. Go ahead. 9 BY MR. VACCARO: 10 Q. Subsequent to that did you receive in any briefings an 11 explanation that the Republican National Convention was related 12 to the NYPD's enforcement efforts against Critical Mass on an 13 ongoing basis? 14 A. I don't understand. In regards to what? 15 Q. Subsequent to August 2004 you continued to serve on 16 Critical Mass details, is that correct? 17 A. Yes. 18 Q. And in connection with those details there were briefings? 19 A. Yes. 20 Q. And during those briefings do you recall any references 21 made to the events of the Republican Convention as a factor in 22 the manner in which NYPD would conduct law enforcement against 23 Critical Mass going forward? 24 A. Yes, only in regards that the Republican Convention as a 25 calendar date would be the start of the enforcement period of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 419 95e1fiv6 Wagner - direct 1 the Critical Mass rides. 2 Q. And you also stated in the videotape that NYPD would 3 continue to show up as long as Critical Mass meets? 4 A. Yes, that's correct. 5 Q. Is that based on statements made to you by your superior 6 officers? 7 A. Yes, but that was not limited to just Critical Mass. 8 Q. Isn't that what you were talking about in the video? 9 A. Well, yes. They were asking specifically about Critical 10 Mass so my response was in regards to Critical Mass. If the 11 department becomes aware of any demonstration or any gathering 12 of people that could potentially draw hundreds, perhaps 13 thousands of people and the department is aware of it, they 14 will respond to police presence to see what's going on. 15 Q. In the context of the video you were explaining the 16 application of that policy to Critical Mass? 17 A. Correct. That was the topic of conversation. 18 Q. Do you recall at a point in time that the -- that -- 19 actually, this is the last question I have for you, which is: 20 If you can recall, did you observe the participants in the 21 August 2004 Critical Mass ride behaving in a way significantly 22 different than they had behaved on prior rides to which you had 23 been assigned? 24 A. No. 25 Q. In subsequent Critical Mass rides you were instructed to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 420 95e1fiv6 Wagner - direct 1 arrest Manhattan Critical Mass participants for parading 2 without a permit? 3 A. Yes. 4 Q. There came a point in time when the Critical Mass details 5 were instructed to shift their emphasis from arresting Critical 6 Mass participants to summonsing them for traffic violations? 7 A. Yes. 8 Q. And was it at about that time that you first received the 9 sheet listings of violations that is given out to Critical Mass 10 detail officers? 11 A. Yes. 12 Q. I'd like to show you Plaintiff's Exhibit 88. 13 MR. VACCARO: I'd like to move Plaintiff's Exhibit 88 14 into evidence. 15 MR. MUSCHENHEIM: No objection, your Honor. 16 THE COURT: Received. 17 (Plaintiff's Exhibit 88 received in evidence) 18 Q. Do you recognize the document we're showing you labeled 19 Plaintiff's Exhibit 88, Officer Wagner? 20 A. Yes, I do. 21 Q. Do you know what its origin is? 22 A. Yes, I do. 23 Q. What is its origin? 24 A. This is basically a cheat sheet created by Officer James 25 Musa, who used to be assigned to the scooter task force. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 421 95e1fiv6 Wagner - direct 1 Q. And it is a cheat sheet listing text that can be written 2 into the narrative box on a summons in connection with 3 violations of different traffic rules, is that a fair summary 4 of it? 5 A. The text is more a summation of the actual law section, but 6 it could be applied and put in the narrative of a summons. 7 MR. VACCARO: Can we please scroll to the page that 8 includes bicycle violations. 9 Q. Do you recall this page from the larger document called the 10 Hack Attack being distributed to officers at Critical Mass 11 details? 12 A. Yes, but this was largely a scooter task force exclusive 13 document. 14 Q. And would you agree with -- Well, at the time you first saw 15 this document, were you aware that section VTL -- I'm sorry, 16 that Section 1234 of the Vehicle & Traffic Law did not apply in 17 New York City? 18 A. No, I was not aware of that at the time. 19 Q. Do you have personal knowledge that officers who were 20 handed this sheet in connection with Critical Mass issued 21 summonses for violation of VTL 1234? 22 A. I have no information about that. 23 Q. I'd like to read from your deposition transcript, starting 24 at page 278. And I'll actually begin at line 23. Or -- yeah. 25 "Q. Do you recall at any point learning that it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 422 95e1fiv6 Wagner - direct 1 not against the law to ride more than two abreast in New York 2 City?" Question. 3 Then there's an objection as to form. 4 "A. Yes. 5 "When did you learn that?" I'm sorry. 6 "Q. When did you learn that? 7 "A. Several months after we began summonsing, the 8 summonsing portion of enforcement of Critical Mass. 9 "Q. And how did you learn that? 10 "A. I obtained a copy of the New York City traffic 11 rules and found that notation within the traffic rules. 12 "Q. Did you undertake that investigation on your 13 own?" 14 And then there's an objection as to form. 15 "A. No. 16 "Q. What prompted you to look in the Vehicle & 17 Traffic Law to determine the applicability of Section 1234 in 18 New York City? 19 "A. After I don't know how many rides where we used 20 that as the violation, somebody said that that does not apply 21 within the confines of New York City, but nobody had a -- 22 traffic rules on hand, so I went and got one myself and then 23 verified it." 24 Officer Wagner, during the period of time in which the 25 Critical Mass detail was focused on summonsing for traffic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 423 95e1fiv6 Wagner - direct 1 violations, you recall there also being a practice of following 2 small groups of bicyclists in the Union Square vicinity? 3 A. Yes. 4 Q. And did you specifically receive orders to follow small 5 groups of bicyclists in connection with Critical Mass details? 6 A. Yes, I did. 7 Q. And what were your instructions with respect to your duties 8 when you were following these small groups of bicyclists? 9 A. We were to follow the small group of cyclists until they 10 had reached their ultimate destination, and if that turned out 11 to be another area where they were re-forming a larger group to 12 reconstitute the mass and commence the ride from a different 13 location, we were to report that back to our supervisors. 14 Q. And was it also your instructions that you were to monitor 15 for violations of the traffic rules and to take law enforcement 16 action if the bicyclists you were monitoring committed such 17 violations? 18 A. Only if necessary. 19 Q. Were you given any instructions with respect to violations 20 committed by other bicyclists that you were not following? 21 A. Not specifically, no. 22 MR. VACCARO: I'd like to play another short video 23 clip in which Officer Wagner appears. It's I believe 271. 24 THE COURT: I thought the last one was 271. 25 MR. VACCARO: That was the last one. 190. My SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 424 95e1fiv6 Wagner - direct 1 apologies. 2 THE COURT: Any objection to 190? 3 MR. MUSCHENHEIM: No, your Honor. 4 MR. VACCARO: Plaintiffs would offer it into evidence. 5 THE COURT: Received. 6 (Plaintiff's Exhibit 190 received in evidence) 7 (Video displayed) 8 THE COURT: Counsel, I can save you the time. Unless 9 there's a particular question for the witness, I've seen this. 10 BY MR. VACCARO: 11 Q. Were you instructed by your superior officers when assigned 12 to follow small groups of bicyclists to disregard the traffic 13 violations of other bicyclists in favor of continuing to 14 monitor the bicyclists to which you were assigned? 15 A. Yes. We were to follow the cyclists to their ultimate 16 destination. 17 Q. And isn't it true that on some occasions you followed 18 cyclists all of the way to their homes? 19 A. Yes, I believe so. 20 Q. And in the course of following cyclists that you had been 21 directed to follow by your superior officers, did you issue 22 traffic -- did you issue summonses for any traffic violations 23 you observed? 24 A. Not that I recall. 25 THE COURT: How much longer with this witness, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 425 95e1fiv6 Wagner - cross 1 Mr. Vaccaro? 2 MR. VACCARO: I'm sorry. What? 3 THE COURT: How much longer? 4 MR. VACCARO: Only a brief while. 5 Actually, I have nothing -- I'm going to hand over the 6 witness at this point. 7 THE COURT: Thank you. Counsel? 8 MR. CIAPPETTA: Your Honor, as with a couple other 9 witnesses, Officer Wagner is also part of defendants' case in 10 chief. 11 THE COURT: All right. 12 CROSS-EXAMINATION 13 BY MR. CIAPPETTA: 14 Q. Officer Wagner, did you prepare a witness statement in 15 connection with this matter? 16 A. Yes, I did. 17 Q. Officer Wagner, I'd like to show you what has been marked 18 for identification as Defendant's D -- Exhibit DDDD. 19 MR. CIAPPETTA: Could we switch to the exhibit 20 monitor. 21 Q. Officer Wagner, is this the first page of the witness 22 statement that you prepared in this case? 23 A. Yes, it is. 24 Q. I'd like you to look at the page that's displayed. Is that 25 your signature on the document? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 426 95e1fiv6 Wagner - cross 1 A. Yes, it is. 2 Q. Officer Wagner, do you understand that you're under oath 3 right now? 4 A. Yes, I do. 5 Q. And under oath, do you affirm that everything in this 6 witness statement is true and accurate? 7 A. Yes. 8 Q. Do you adopt this statement as your testimony in this case? 9 A. Yes, I do. 10 MR. CIAPPETTA: Your Honor, the defendants move to 11 admit Exhibit DDDD into evidence. 12 MR. VACCARO: Your Honor, subject to the reservations 13 and general objections that the parties have been expressing in 14 these circumstances -- 15 THE COURT: Received. 16 (Defendant's Exhibit DDDD received in evidence) 17 Q. Officer Wagner, just a couple questions for you. Was 18 Lieutenant Turco your supervisor during Critical Mass rides 19 beginning in August 2004? 20 A. Yes. 21 Q. Did Lieutenant Turco ever brief you that VTL Section 1234 22 did not apply in New York City? 23 A. Eventually, yes, that happened. 24 Q. Officer Wagner, did you ever hear warnings made at Union 25 Square Park prior to a Critical Mass ride? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 427 95e1fiv6 Wagner - cross 1 A. Yes. 2 Q. What forms did these warnings take? 3 A. They came in the form of a speaker truck on several 4 occasions, on other occasions there would be a senior 5 supervisor with a bullhorn or a public affairs officer 6 broadcasting on a bullhorn the warnings and admonitions 7 regarding the ride to come. 8 Q. And what were the warnings specifically? 9 A. That it was required that the bicyclists adhere to the 10 vehicle and traffic rules where applicable or the New York City 11 traffic rules as applicable. 12 Q. Officer Wagner, you testified earlier that bicyclists 13 proceeded over the FDR Drive on July 2004. Do you know how 14 many bicyclists approximately rode over the FDR? 15 A. At least a thousand. 16 Q. And you personally observed that, correct? 17 A. Yes. 18 Q. What was your reaction when the bicyclists rode over the 19 FDR Drive? 20 THE COURT: Sustained. 21 Q. Officer Wagner, did you have any reaction when the 22 bicyclists rode over the FDR Drive? 23 THE COURT: Sustained. How does his reaction matter 24 in this case? If you're asking what he did or something like 25 that, ask it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 428 95e1fiv6 1 MR. CIAPPETTA: Your Honor, we have no further 2 questions. 3 THE COURT: Thank you. Anything else from the 4 plaintiffs? 5 MR. VACCARO: The plaintiffs rest. 6 THE COURT: Okay. Officer, you're excused. 7 (Witness excused) 8 THE COURT: Defendants? 9 MR. MUSCHENHEIM: Your Honor, at this time I would 10 like to make a motion for a directed verdict under Federal Rule 11 of Civil Procedure 52(c). I could briefly go through our 12 grounds. 13 THE COURT: Briefly. 14 MR. MUSCHENHEIM: Your Honor, plaintiffs have failed 15 to establish any of their claims. The limited evidence 16 submitted does not warrant disturbing your Honor's prior 17 ruling. Parade rules are valid time, place and manner 18 restrictions. 19 The right to travel claims, parade rules are merely an 20 effect on those wishing to travel, and 49 others. Freedom of 21 association, again, the parade rules do not place a significant 22 interference with the associational right to those assembling. 23 In terms of the free speech, the narrow tailoring, the 24 government has substantial interest in promoting public safety, 25 and this goal would certainly be more difficult to achieve SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 429 95e1fiv6 1 without enforcing the parade threshold. 2 Plaintiffs have also not shown that the defendants 3 selectively enforced or retaliated against Critical Mass, 4 against the individual plaintiffs who participated in Critical 5 Mass at points. 6 In terms of selective enforcement, they need to 7 establish uneven treatment among similarly situated groups. 8 There are no similarly situated groups. It's essentially like 9 comparing apples to oranges. The other groups that there's 10 been testimony about and there's been evidence about, these are 11 either one-shot deals where -- and often the police department 12 knows or learns where these bicycle routes -- bicycle groups 13 are going or what their route is, such as with Brooklyn 14 Critical Mass, or had known, or they're much smaller situations 15 on much -- on streets that are far less trafficked, far less 16 busy than the area around Union Square Park. 17 In addition, even if they were able to establish 18 unequal treatment, plaintiffs did not show that the policies at 19 Critical Mass is based on any improper motive; it's based on a 20 legitimate law enforcement concern. 21 In terms of retaliation, plaintiffs have not been 22 objectively chilled. Professor Jackson never -- 23 THE COURT: Suppose for the sake of argument I were to 24 conclude as a matter of fact that this zero tolerance policy 25 we've been hearing about was adopted for the purpose of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 430 95e1fiv6 1 suppressing Critical Mass unless and until it complied with the 2 parade regulations. Does that change the analysis? 3 MR. MUSCHENHEIM: I don't think so. As to 4 retaliation, I don't think there's been any evidence or very -- 5 there's been no significant evidence that any of the -- these 6 individual plaintiffs have been chilled. Kenneth Jackson -- 7 THE COURT: Suppose there were. Let's pass over that. 8 Suppose they had a chilled plaintiff, an ice cold plaintiff. 9 MR. MUSCHENHEIM: Understood. There are still -- the 10 zero tolerance policy, it is a legitimate law enforcement -- 11 police department legitimately could adopt such a rule in 12 situations such as Critical Mass where there are at times 13 hundreds of bicyclists going -- gathering at Union Square Park 14 and the police department has absolutely no idea where they're 15 going, as, apparently, do the bicyclists. In such a situation 16 where there have to be excessive police resources dedicated to 17 that, the policing of that event, it would be -- it is 18 appropriate to adopt the zero tolerance policy. 19 THE COURT: Another way of putting it would be, would 20 it not, that while it may be retaliatory, it's not retaliation 21 on the basis of protected activity by the group, indeed, it is 22 retaliation on the basis of the unlawful activity of parading 23 without a permit over and over again? 24 MR. MUSCHENHEIM: Exactly. 25 THE COURT: And in your view, I take it that would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 431 95e1fiv6 1 not a constitutional violation; am I right? 2 MR. MUSCHENHEIM: That's right, your Honor. 3 THE COURT: Do you have any authority for that? 4 MR. MUSCHENHEIM: The retaliation has to be based 5 on -- on a protected class or a constitutionally protected 6 right, and the police department was taking these enforcement 7 activities not because -- not because Critical Mass was doing 8 whatever they were doing or had various signs on their 9 bicycles, they were doing this because of the -- of the traffic 10 violations and the chaos that was being caused by this ride. 11 THE COURT: All right. Thank you. 12 MR. MUSCHENHEIM: Finally, on the plaintiffs' claims 13 for a -- under VTL 1231, that does not survive as a matter of 14 law. Under Blessing, there is no private right of action under 15 1231. The general public was the intended beneficiary of 1231. 16 The legislative history of VTL 1231 indicates that 1231 was 17 enacted in the interest of greater safety for New York 18 highways, it was enacted for the safety of the general public 19 and not just a particular group, and therefore, under Blessing, 20 that claim also fails. 21 THE COURT: Well, even assuming that there were a 22 private right of action under 1231, have they established a 23 violation? 24 MR. MUSCHENHEIM: No, they have not. 25 THE COURT: Okay. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 432 95e1fiv6 1 Briefly, from the plaintiffs. 2 MR. BIERBAUER: Your Honor, we were not aware that 3 they were bringing the motion for directed verdict. May we 4 have a very brief recess, to prepare a response? 5 THE COURT: If we go on with the defense case, are we 6 going to finish today? 7 MR. MUSCHENHEIM: Your Honor, we are submitting one 8 additional witness through the direct -- his direct testimony. 9 We have nothing more to add beyond that, so... 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 433 95EVFIV7 1 THE COURT: Let's do that and get the record closed. 2 Then we'll deal with the motion later. 3 THOMAS GRAHAM, 4 called as a witness by the Defendant, 5 having been duly sworn, testified as follows: 6 THE DEPUTY CLERK: Please be seated. Please state 7 your name and spell your last name for the record. 8 THE WITNESS: My name is Thomas Graham, G-R-A-H-A-M. 9 DIRECT EXAMINATION 10 BY MR. MUSCHENHEIM: 11 Q. Good afternoon, Chief Graham. Did you prepare a witness 12 statement in connection with this matter? 13 A. Yes, I did. 14 Q. I'd like to show you what's been marked as Defendant's 15 Exhibit CCCC. I'm showing you the first page and the last page 16 of that document. Is that the statement that you prepared? 17 A. Yes. Mine is the other pages, 2, 3, and 4. 18 Q. Would you like to see? 19 A. No, that's fine. That's fine. 20 Q. Is that your signature on page 5? 21 A. Yes, sir. 22 Q. Chief Graham, you understand that you are under oath? 23 A. Yes, sir. 24 Q. And under oath do you affirm that everything in this 25 witness statement is true and accurate? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 434 95EVFIV7 Graham - direct 1 A. Yes, sir. 2 Q. Do you adopt this statement as your testimony in this case? 3 A. Yes, sir. 4 MR. MUSCHENHEIM: Defendants move to admit Exhibit 5 CCCC into evidence. 6 MS. DINGLE: The usual objections and, in particular, 7 lengthy argument on pages 4 and 5, your Honor. 8 THE COURT: Received. 9 (Defendant's Exhibit CCCC received in evidence) 10 MR. MUSCHENHEIM: Nothing further, your Honor. 11 THE COURT: Cross? 12 CROSS-EXAMINATION 13 BY MS. DINGLE: 14 Q. Good afternoon, Chief Graham. 15 A. Good afternoon. 16 Q. You are currently the commanding officer of the disorder 17 control unit? 18 A. Yes, ma'am. 19 Q. And you have held that position since 1995? 20 A. Yes, ma'am. 21 Q. In fact, you have worked at the disorder control unit since 22 the unit was created in 1993, correct? 23 A. Yes. 24 Q. And you have expertise in disorder control and crowd 25 management? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 435 95EVFIV7 Graham - cross 1 A. Yes. 2 Q. You were aware years prior to the Republican National 3 Convention that Critical Mass rides took place in Manhattan, 4 correct? 5 A. Say that again please. 6 Q. You were aware years prior to the Republican National 7 Convention that Critical Mass rides took place in Manhattan, 8 correct? 9 A. Yes. 10 Q. And during the years prior to the Republican National 11 Convention, Critical Mass was handled by a small detail of 12 officers, correct? 13 A. Yes, ma'am. 14 Q. Are you aware that in 2003 and early 2004, Critical Mass 15 rides numbered in the hundreds and thousands? 16 A. I was not aware. 17 Q. And prior to July 2004, you were never informed that there 18 were never disorder control or crowd management problems with 19 Critical Mass, correct? 20 A. Yes, ma'am. 21 Q. In fact, you first began working on the issues presented by 22 Manhattan Critical Mass rides in late July or early August 23 2004, is that right? 24 A. Yes, ma'am. 25 Q. You oversee ten officers within the disorder control unit? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 436 95EVFIV7 Graham - cross 1 A. Actually, it's 11. 2 Q. Eleven officers? 3 A. Yes, ma'am. 4 Q. And one of those officers is Lt. Schwa? 5 A. Yes, ma'am. 6 Q. I'd like to show you what has been marked as Plaintiffs' 74 7 for identification. 8 MS. DINGLE: We'd like to move this document into 9 evidence at this time. Oh, I'm sorry, can we switch over from 10 the -- if you could just scroll through the pages. 11 (Pause) 12 MS. DINGLE: You can return to the first page. I 13 repeat, plaintiffs move this document into evidence. 14 MR. MUSCHENHEIM: No objection, your Honor. 15 THE COURT: Received. 16 (Plaintiffs' Exhibit 74 received in evidence) 17 BY MS. DINGLE: 18 Q. On the first page of the log there is an entry for July 19 30th, 2004. Can you read that to yourself, Chief Graham? 20 A. It's responded to by -- 21 Q. No, you can just read it to yourself; you don't have to 22 read it aloud. 23 A. OK. Yes. 24 Q. Does that entry indicate that Lt. Schwa of the disorder 25 control unit attended the July 2004 Manhattan Critical Mass SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 437 95EVFIV7 Graham - cross 1 ride? 2 A. Yes. 3 Q. Chief Graham, I'd now like to show you a document that has 4 been entered into evidence as Exhibit 165. 5 MS. DINGLE: If you could just scroll through the 6 document. 7 Q. Chief Graham, Exhibit 165 is a disorder control unit detail 8 command log for April 29, 2005, is that right? 9 A. I don't know. It looks like it is. I can't tell without 10 the text. 11 Q. I'm sorry, you can't tell without -- 12 A. Without the text on the page. It's hard for me to 13 understand what's there. 14 Q. Would you like to have it blown up? Chief Graham, looking 15 at page 3 of the document, are you able to ascertain whether 16 this is, in fact, a disorder control unit command log? 17 A. Yes, it is. 18 Q. And you were the commander of the disorder control unit on 19 April 29, 2005? 20 A. Yes, ma'am. 21 Q. I'd like to direct you to the entry at the top of this 22 page. 23 A. Yes, ma'am. 24 Q. Please read that to yourself. 25 A. Both teams have been informed -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 438 95EVFIV7 Graham - cross 1 Q. You don't have to read it aloud. 2 A. You asked me to read it, so -- I'm sorry, go ahead. 3 Q. You can just take the time to read it. 4 A. That's OK. Go ahead. Yes. 5 Q. And the entry indicated here would have been made by a 6 member of the DCU -- by a member of the disorder control unit 7 staff, is that right? 8 A. Yes. 9 Q. And that would be someone under your command? 10 A. Yes. 11 Q. And based upon your reading of this entry, does both teams 12 refer to the cobra detail that responded to the April 2005 13 Critical Mass ride? 14 THE COURT: You're asking for his opinion, right? 15 MS. DINGLE: I'm asking as commander of the ride and 16 the supervisor of whoever wrote this entry. 17 THE COURT: You are asking him to speculate as to what 18 was in the mind of the author, that's what you're asking him to 19 do. 20 MS. DINGLE: I withdraw the question, your Honor. 21 THE COURT: He might have met the Mets and the 22 Yankees, for all we know. Unlikely, but the key point being my 23 guess is as good as his. 24 MS. DINGLE: Thank you, your Honor. 25 BY MS. DINGLE: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 439 95EVFIV7 Graham - cross 1 Q. So the individual who would have conveyed this instruction 2 would have been a member of the DCU staff, is that correct? 3 A. Yes. 4 Q. Finally, you have not attended a Manhattan Critical Mass 5 ride since 2006, is that right? 6 A. You have to speak up. I have bad hearing. 7 Q. Sure. The last time that you attended a Manhattan Critical 8 Mass ride was in 2006? 9 A. About then. 10 MS. DINGLE: No further questions. 11 THE COURT: OK. Thank you. 12 MR. MUSCHENHEIM: Nothing further, your Honor. 13 THE COURT: OK. Thank you. You are excused, sir. 14 THE WITNESS: Thank you. 15 (Witness excused) 16 THE COURT: Defense rest? 17 MR. MUSCHENHEIM: Yes, your Honor. 18 THE COURT: What about the documents, folks? I assume 19 neither one of you intended to rest without your thousands of 20 pages of material in. 21 MR. BIERBAUER: Yes, your Honor. We had discussed 22 that with defense counsel earlier. We each made a substantial 23 effort to cut down the number of documents. We would like to 24 move in the remaining documents on our lists which we have 25 handed up. I think we should create a unified list so that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 440 95EVFIV7 1 it's all in one place. And the addition of, I believe, nine 2 additional exhibits that are on either list defendants would 3 like to add because they were on plaintiffs' list, but 4 plaintiffs took them off of our list. 5 THE COURT: If I were to pick up this list right 6 now -- and this question applies to each of you -- and told you 7 to start telling me number by number what it is you anticipate 8 that each exhibit proves, would you be able to tell me? 9 MR. BIERBAUER: With regard to a number of the 10 exhibits, they are exhibits that go with deposition testimony 11 that the parties had stipulated to put into the record by 12 designation. So in looking at the deposition testimony, it may 13 be difficult to understand what's being discussed if the 14 exhibit isn't in the record. 15 THE COURT: Nobody has put in any depositions yet 16 either, I don't think. Unless it was in some stip I so ordered 17 earlier. 18 MR. BIERBAUER: We did have a stip about putting in 19 deposition testimony. 20 THE COURT: If I signed it, I signed it. 21 MR. BIERBAUER: It was, among other things, deposition 22 testimony from Commissioner Kelly and Deputy Commissioner Paul 23 Brown, as well as three of the plaintiffs. 24 THE COURT: All right. Let's mark as Court Exhibits A 25 and B the plaintiffs' revised exhibit list dated May 14th and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 441 95EVFIV7 1 the defendant's revised exhibit list respectively. If you feel 2 that everybody has agreed that that stuff comes in, it comes in 3 for whatever it's worth. 4 MR. MUSCHENHEIM: Your Honor, just as Mr. Bierbauer 5 just mentioned, there were nine documents on the plaintiffs' 6 list that they removed. 7 THE COURT: One thing at a time. Can we just deal 8 with these two lists? 9 MR. MUSCHENHEIM: I'm sorry. 10 THE COURT: You all agreed that that stuff should come 11 in? 12 MR. BIERBAUER: Yes, your Honor. 13 MR. MUSCHENHEIM: Yes. 14 THE COURT: Subject to all the caveats indicated 15 earlier, they are all received. And that's my reference to 16 Court Exhibits A and B. 17 Now, what's the other problem? 18 MR. MUSCHENHEIM: The other item is there were nine 19 exhibits on the plaintiffs' list that they have since removed. 20 Those were documents that had they not been on plaintiffs' 21 list, we would have put them on our list. So we'd ask that 22 those documents also be considered for the record. I could 23 just read off those numbers real quickly. 24 THE COURT: Yes. 25 MR. MUSCHENHEIM: Plaintiffs' Exhibit 2, 3, 7, 30, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 442 95EVFIV7 1 166, 167, 232, 267 and 268. 2 THE COURT: Any objections? 3 MR. BIERBAUER: No. 4 THE COURT: Received. 5 (Plaintiffs' Exhibits 2, 3, 7, 30, 166, 167, 232, 267 6 and 268 received in evidence) 7 THE COURT: OK. That's it, right? We're done? 8 MR. MUSCHENHEIM: We're done. 9 THE COURT: No more evidence. 10 All right. I know we were not going to be involved in 11 trial tomorrow, but if you want to argue and counsel are 12 available tomorrow, I can give you a little time tomorrow 13 morning. Are you available? 14 MR. MUSCHENHEIM: Your Honor, defendants are 15 available. We had spoken with the plaintiffs, and we had 16 contemplated submitting post-trial briefs. And we had worked 17 out a proposed schedule, as well as proposed page limits. 18 THE COURT: Well, I'll have some ideas on both myself. 19 So you don't want to argue? 20 MR. BIERBAUER: We did see it as in lieu of oral 21 argument, your Honor. 22 THE COURT: Well, I'm ready to rule on parts of this 23 now and save everybody the trouble of post-trial briefs on a 24 fair amount. So I'm giving the opportunity to be heard orally 25 briefly before I do that. If you don't want it, you don't want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 443 95EVFIV7 1 it. 2 MR. BIERBAUER: If that's the opportunity we have, 3 we'll take it, your Honor. 4 THE COURT: All right. I do not anticipate ruling on 5 the retaliation selective enforcement stuff without looking at 6 post-trial submissions. But I am anticipating ruling on the 7 VTL 1231 argument and the parade rule argument, because as far 8 as I can see it, I've already upheld the constitutionality of 9 the parade rules; the Court of Appeals affirmed me; and I sure 10 haven't heard anything in this trial that suggests that either 11 I or the Court of Appeals was wrong. 12 So unless I hear something I'm not anticipating 13 hearing, that's history. But I'll be certainly willing to 14 listen and, who knows, maybe there's something in these 15 avalanches of exhibits that will change my mind. 16 So let's do that at 10:30 tomorrow, and we'll deal 17 with that. 18 And then in terms of post-trial briefing, I anticipate 19 a very tight schedule and short page limits, because I don't 20 think there's a heck of a lot left to deal with. So I was 21 thinking maybe a week from Friday for the plaintiffs, two weeks 22 from Friday for the defendant, and then a reply brief by 23 Wednesday of the following week. And 25 pages on the principal 24 briefs, and 12 on the reply. 25 Anybody have a problem? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 444 95EVFIV7 1 MR. BIERBAUER: No, your Honor. 2 MR. MUSCHENHEIM: No, your Honor. 3 THE COURT: And I think the key question is the one I 4 raised when Mr. Muschenheim spoke before. Suppose for the sake 5 of argument that the motive -- or a motive of the police 6 department's policy, at least the policy that's been talked 7 about here, assuming that to be the case, was to effectively 8 force Critical Mass to comply with the parade rules or to stop 9 parading. Would that present any constitutional problem? 10 OK. See you tomorrow, 10:30. 11 MR. MUSCHENHEIM: Just to clarify, your Honor, 12 tomorrow's argument will be based on the VTL 1231 parade rules? 13 THE COURT: Yeah. 14 MR. MUSCHENHEIM: Thank you. 15 (Adjourned to May 15, 2009 at 10:30 a.m.) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 445 1 INDEX OF EXAMINATION 2 Examination of: Page 3 STEPHEN PARAGALLO 4 Direct By Mr. Vaccaro . . . . . . . . . . . 236 5 Cross By Mr. Muschenheim . . . . . . . . . . 293 6 Redirect By Mr. Vaccaro . . . . . . . . . . 296 7 GIDEON OLIVER 8 Direct By Mr. Bierbauer . . . . . . . . . . 297 9 Cross By Mr. Muschenheim . . . . . . . . . . 299 10 SAM CENTAMORE 11 Direct By Mr. Muschenheim . . . . . . . . . 301 12 Cross By Mr. Caldon . . . . . . . . . . . . 303 13 MARK LAYNE 14 Direct By Ms. Mathieu . . . . . . . . . . . 311 15 Cross By Mr. Ciappetta . . . . . . . . . . . 335 16 Redirect By Ms. Mathieu . . . . . . . . . . 337 17 DENNIS GANNON 18 Direct By Mr. Muschenheim . . . . . . . . . 339 19 Cross By Mr. Vaccaro . . . . . . . . . . . . 341 20 Redirect By Mr. Muschenheim . . . . . . . . 358 21 JAMES TULLER 22 Direct By Ms. Dingle . . . . . . . . . . . . 361 23 Cross By Mr. Muschenheim . . . . . . . . . . 377 24 DENNIS DE QUATRO 25 Direct By Mr. Bierbauer . . . . . . . . . . 380 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 446 1 Cross By Mr. Muschenheim . . . . . . . . . . 398 2 Direct By Mr. Muschenheim . . . . . . . . . 399 3 KENNETH WAGNER 4 Direct By Mr. Vaccaro . . . . . . . . . . . 403 5 Cross By Mr. Ciappetta . . . . . . . . . . . 425 6 THOMAS GRAHAM 7 Direct By Mr. Muschenheim . . . . . . . . . 433 8 Cross By Ms. Dingle . . . . . . . . . . . . 434 9 PLAINTIFF EXHIBITS 10 Exhibit No. Received 11 139, 219, 220 . . . . . . . . . . . . . . 264 12 2, 3, 7, 30, 166, 167, 232, 267 and 268 . 442 13 8 . . . . . . . . . . . . . . . . . . . . 253 14 44 . . . . . . . . . . . . . . . . . . . 238 15 45 . . . . . . . . . . . . . . . . . . . 240 16 73 . . . . . . . . . . . . . . . . . . . 283 17 74 . . . . . . . . . . . . . . . . . . . 436 18 87 . . . . . . . . . . . . . . . . . . . 250 19 88 . . . . . . . . . . . . . . . . . . . 420 20 91 . . . . . . . . . . . . . . . . . . . 332 21 92 . . . . . . . . . . . . . . . . . . . 270 22 96 . . . . . . . . . . . . . . . . . . . 372 23 116 . . . . . . . . . . . . . . . . . . . 292 24 136 . . . . . . . . . . . . . . . . . . . 262 25 137 . . . . . . . . . . . . . . . . . . . 391 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 447 1 138 . . . . . . . . . . . . . . . . . . . 263 2 145 . . . . . . . . . . . . . . . . . . . 342 3 190 . . . . . . . . . . . . . . . . . . . 415 4 190 . . . . . . . . . . . . . . . . . . . 424 5 197 . . . . . . . . . . . . . . . . . . . 396 6 203 . . . . . . . . . . . . . . . . . . . 323 7 209 . . . . . . . . . . . . . . . . . . . 259 8 216 . . . . . . . . . . . . . . . . . . . 263 9 236 . . . . . . . . . . . . . . . . . . . 254 10 260 . . . . . . . . . . . . . . . . . . . 245 11 264 . . . . . . . . . . . . . . . . . . . 285 12 271 . . . . . . . . . . . . . . . . . . . 415 13 283 . . . . . . . . . . . . . . . . . . . 298 14 292 . . . . . . . . . . . . . . . . . . . 235 15 DEFENDANT EXHIBITS 16 Exhibit No. Received 17 AAAA . . . . . . . . . . . . . . . . . . 341 18 BBBB . . . . . . . . . . . . . . . . . . 302 19 CCCC . . . . . . . . . . . . . . . . . . 434 20 DDDD . . . . . . . . . . . . . . . . . . 426 21 EEE . . . . . . . . . . . . . . . . . . . 287 22 EEEE . . . . . . . . . . . . . . . . . . 336 23 FFFF . . . . . . . . . . . . . . . . . . 401 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300