Five Borough Bicycle Club v. City of New York

• Decision Date: 17 April 2007
• Docket Number: No. 07 Civ. 2448(LAK).,07 Civ. 2448(LAK).
• Citation: 483 F.Supp.2d 351
• Parties: FIVE BOROUGH BICYCLE CLUB, et al., Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

483 F.Supp.2d 351

FIVE BOROUGH BICYCLE CLUB, et al., Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.

No. 07 Civ. 2448(LAK).

United States District Court, S.D. New York.

April 17, 2007.

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Jeremy Feigelson, Steve Vaccaro, Debevoise & Plimpton LLP, New York, NY, for Plaintiffs.

Gabriel Taussig, Robin Binder, Sheryl Neufield, Michelle Goldberg-Cahn, Assistant Corporation Counsel, Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants.

OPINION

KAPLAN, District Judge.

Life in this great city involves infinite conflicts between the desires of some to act and express themselves whenever, wherever, and however they wish and the desires of others for freedom from such behavior. The inescapable fact is that one person's freedom can be another person's burden or annoyance, often even where each is acting in entire good faith. The difficult task of municipal government is to strike appropriate balances that promote the general welfare and reconcile, so far as possible, the competing interests.

This case presents just such a conflict. Plaintiffs, advocates of large group bicycle rides through New York City (the "City"), claim that they should be free to ride in large groups wherever, whenever, and however they wish, free from municipal regulation. The City seeks to regulate these events by requiring permits that would enable the New York City Police Department (the "NYPD") to know where and when the groups will ride in order to facilitate the flow of traffic and protect the safety of all concerned. Plaintiffs contend that this infringes upon their constitutional rights to travel, expressive association, and free speech. They move here for a preliminary injunction prohibiting enforcement of the permitting scheme.

Having considered the evidence, the Court is not persuaded that plaintiffs — despite their good faith and earnestness — have met the high standard that must be satisfied before legitimate, content-neutral governmental actions that only incidentally affect the exercise of constitutional rights may be enjoined prior to trial.

Facts

I. Group Bicycle Rides

By some estimates, 120,000 individuals ride bicycles through the streets of New York City every day.¹ Dozens of clubs and associations exist through which these cyclists can participate in the nearly 1,000 group bicycle rides that take place each year and that range in size from just a few to more than a thousand cyclists.²

A. Reasons for Riding in Groups

Cyclists organize and participate in group rides for a variety of reasons, such as meeting and conversing with other cyclists or taking advantage of the enhanced safety that riding in numbers provides³ Some group rides are meant also to be educational. For example, plaintiff Five Borough Bicycle Club ("5BBC") organizes approximately 250 group bicycle rides each year, about five of which include 50 or more cyclists,⁴ intended to promote "a greater understanding of the world and its people," as well as leadership, cooperation, and self reliance "through out-of-doors, educational and recreational travel."⁵ For another, plaintiff Kenneth T. Jackson, a distinguished New York City historian and Columbia University professor, conducts an annual bicycle tour of the City for students and others, which has grown in size in recent years to include about 250 participants,⁶ for the purpose of teaching participants about New York City culture and history.⁷

At least one group bicycle ride has a political message. So called "Critical Mass" rides take place in a number of cities across the country, including New York, on either the second or the last Friday of each month,⁸ and can include over a thousand participants.⁹ Cyclists such as plaintiffs Sharon Blythe, Josh Gosciak, Elizabeth Shura, Madeline Nelson, and Luke Son¹⁰ participate in Critical Mass not only to meet other cyclists, but also to advocate for bicycling as a safe and clean alternative to driving cars.¹¹ Cyclists claim also to enjoy Critical Mass because of the ride's spontaneity and lack of a fixed route.¹² Cyclists toward the front of the ride [are said to] make ad hoc decisions as to which direction to take based on which route they think will be safe or interesting, and often splinter groups will result because there is no requirement or process for reaching a consensus on a single route."¹³

B. Potential Hazards

Although group ride participants argue that traveling in groups is safer for cyclists than traveling alone,¹⁴ group bicycle rides endanger and inconvenience other users of public roadways. According to Lieutenant Caneco, a New York City police officer who has witnessed several Critical Mass rides¹⁵ and whose evidence the Court credits, groups of approximately 50 or more bicycles "disrupt pedestrian and vehicular traffic, such that ordinary citizens who happen to be in the vicinity of the ride become trapped when the ride approaches."¹⁶ Cyclists in groups of that size "tend to stay together and use the entire lane, thereby making it difficult for vehicles to pass the group, without cutting into oncoming traffic."¹⁷ As explained by Lieutenant Gannon, a police officer who has coordinated parades in Manhattan,¹⁸ "[w]hen a group of bicyclists travels together, there are no natural spaces between the bicyclists." Other vehicles, including nonparticipant cyclists, therefore have difficulty making turns or merging into lanes occupied by the group. "Thus, these vehicles will have to slow down and maneuver in such as way so as to try to get behind the group of bicyclists so that they can negotiate the lanes and make turns safely. Such maneuvering impacts on the flow of traffic and presents the potential for traffic accidents."¹⁹

Moreover, some members of large groups of cyclists have been known to disregard traffic rules by running red lights, traveling along roadways where bicycles are prohibited, riding against the flow of traffic, and failing to use traffic signals, thus preventing pedestrians and vehicular traffic from predicting the cyclists' movements and crossing intersections safely.²⁰ Some Critical Mass participants have engaged in conduct called "corking,"²¹ riding through traffic lights, taking up entire roadways, or dismounting their bicycles to block intersections so as to prevent cars from splintering the group or otherwise becoming entangled in its midst.²²

Groups smaller than 50 present fewer problems. Their impact on traffic flow and safety is comparatively minor because of their relatively smaller sizes.²³ Both Lieutenants Caneco and Gannon agree, however, that groups smaller than 50 can pose significant traffic and safety issues as well.²⁴

The Court accepts the evidence of both Lieutenants Caneco and Gannon that the problems associated with large group bicycle rides can be cured or greatly reduced by a permitting scheme that ensures that the police know a group's route in advance. Having advance knowledge of the timing and whereabouts of a group ride allows the police to reroute pedestrian and vehicular traffic if necessary, block off the group's route so that it may proceed unimpeded²⁵ and, of course, enforce traffic rules more effectively.

Furthermore, the impact of a group of 50 or more cyclists depends upon the streets being traveled, the number of lanes being occupied, the speed of the group, whether there is street construction nearby, the time and day of the week, and the number and size of other events taking place in the City at that time.²⁶ It is possible that some groups of that size will proceed safely and with no detrimental impact on traffic.²⁷ But context matters, and the NYPD is best able to minimize a group's impact by coordinating the group's movements with those of others on the road.²⁸ For example, as Lieutenant Gannon explained, several independent groups of 50 cyclists, each of which, taken alone, might have a small impact on traffic, may find themselves riding along the same or similar routes at the same time, thus concentrating and increasing their overall impact. The NYPD would be able to prevent this if it were able to coordinate the groups' movements.²⁹ In sum, a permitting scheme enables the NYPD to orchestrate the movements of various groups of different sizes and ensure that they proceed at times and places where their impact on each other, other users of the roadways, and the City as a whole is kept to a minimum.

II. The Parade Regulations

The City regulates parades, processions, and other mass gatherings that take place on public roadways through New York City Administrative Code § 10-110, and Title 38 of the Rules of the City of New York, Sections 19-01 through 19-04 (collectively, the "Parade Regulations"). This case concerns the latest amendment to the Parade Regulations to make them apply specifically to group bicycle rides of 50 or more participants.

A. Parade Permits and Applications

The Parade Regulations provide in relevant part as follows:

"A procession, parade, or race shall be permitted upon any street or in any public place only after a written permit therefor has been obtained from the police commissioner. Application for such permit shall be made in writing, upon a suitable form prescribed and furnished by the [NYPD], not less than thirty-six hours previous to the forming or marching of such procession, parade or race"³⁰

Parading without a permit is punishable by a fine of up to $25 and/or up to 10 days in jail.³¹

Permit applications must include, among other things, (1) the date, time, and route of the parade, (2) the locations and approximate times for formation and dismissal, (3) the number of participants, (3) the width of the roadway to be occupied by the event, and (4) the identity of a "chief officer," along with his or her address and telephone number.³² The ordinance provides that the chief officer "shall be responsible for the strict observance of all rules and...