Testimony of Transportation Alternatives Regarding Proposed Revision of Chapter 19 of Title 38 of the Official

Good morning, I am Noah Budnick and I am the Deputy Director of Advocacy for Transportation Alternatives. For more than 30 years, Transportation Alternatives has been New York City's advocates for biking, walking and safe and livable streets. We have a long history of working cooperatively with the Police Department, the Department of Transportation, and other City agencies to promote alternatives to private automobile use.

Transportation Alternatives opposes the Department's proposed rule changes. The proposed rules are bad transportation policy because they would discourage group biking -- an activity that is widespread, lawful, safe, and actively encouraged by the city. The proposed rules are also bad law enforcement policy, because they would violate the First Amendment rights of group bicyclists as declared by the state and federal courts1, without improving public safety or order. Because there is no evidence that parade permits for groups of 10 or 30 bicyclists are needed to preserve order or safety, the Department should withdraw the proposed rules.

The Department's proposed rules would expand the definition of a "parade" to include, among other things, a group of ten or more bicyclists proceeding together for more than two city blocks in a manner that does not comply with applicable traffic laws, rules and regulations. The expanded definition would also include a "recognizable group" of thirty or more bicyclists proceeding together in compliance with all applicable laws. Bicyclists traveling in groups that fall within the expanded definition of a "parade" that do not obtain a permit would be subject to fines and imprisonment for parading without a permit.

The impact of the proposed rules must be assessed in the context of the widespread and safe group bicycling that occurs in New York City every day. There are dozens of bicycling clubs and organizations in New York City that together organize hundreds of group rides each year. Just to name a few, group rides are organized by the Boy and Girl Scouts, Woodhull Hospital, the Century Road Club Association, Time's Up, the Kissena Cycling Club, 5 Boro Bicycle Club, the New York City Cycle Club and Transportation Alternatives. Many of these public groups rides are conducted with the support of the City of New York, and the organizations that lead them are noted in the City of New York's official "Bicycle Master Plan" as agencies that are committed to supporting and promoting bicycling in New York City. The Police Department itself has recently issued a joint report with the Departments of Transportation, Health and Parks calling for creation of a family group biking program. In addition to these group rides open to the public, every day bicyclists meet to commute or exercise by bicycle in informal groups. Many of these public and informal group rides involve between ten and one hundred bicyclists. Until about two years ago, the Department allowed virtually all of these groups rides to proceed without parade permits.

In addition to these organized group rides, spontaneous group cycling is an increasingly common feature of traffic in New York City. A group of bicyclists assemble at a red light, and then pedals off together, enjoying the added visibility and safety of their coincidental group. In fact, for safety, bicyclists often prefer to ride together in the street. Bicyclists gathering on bike lanes and paths may occur simply because one bicyclist riding at a relatively slow speed cannot be passed safely by those behind. Cyclists often congregate and ride together in bike lanes because the Police Department advises bicyclists that they "must," under certain circumstances, ride in bike lanes. These factors in combination result in spontaneous group biking every day, especially on designated bike lanes and paths.

Transportation Alternatives is not aware of any evidence to suggest that bicycling in groups of 10 or 30 is dangerous. The Police Department's own study on bicycling safety issued jointly with the City Departments of Health, Transportation and Parks -- the most comprehensive study of bicycling and safety in New York to date -- does not mention group riding as a factor affecting bicycling safety, traffic safety or public safety. To the contrary, group bicycling promotes safety, by making bicyclists more visible to motorists. A leading study found a significant reduction in the number of bicyclists struck by motorists as the number of bicyclists on the street increased. The author attributed the increase in safety to increased bicyclist visibility2. In addition, minors and others inexperienced in urban bicycling require assistance from more experienced bicyclists in order to safely navigate city streets.

The proposed rules would impose a crushing burden on this group bicycling activity, which advocates and the city have worked for years to foster. Three aspects of the proposed rules are particularly burdensome:

  • First, the rules could impose penalties on bicyclists who abide the law, solely because of the number of other bicyclists "proceeding together" with them.
  • Second, the rules could impose penalties on bicyclists, not because of their own conduct, but because of the conduct of other bicyclists with whom they are "proceeding together."
  • Third, the rules do not exempt bicyclists "proceeding together" on designated bicycle routes from the permitting requirement, even though the law encourages and in some circumstances requires bicyclists to do so.

These features of the proposed rules would strangle the operation of bicycle clubs and other organizers of group bicycling in the city. The numerous bicycling clubs that hold weekly or monthly group rides often do not know whether five people or thirty-five people will participate until the day of the ride. To guard against potential liability as a "parade," ride organizers would need to pre-register no more than 30 participants per ride, and to conduct a pre-ride inspection of each participants' bicycles to rule out equipment violations. Even if organizers limited their groups to 29 participants with properly-equipped bicycles, a violation by one group member might instantly transform the group into an unlawful parade. Organizers seeking to avoid these risks by obtaining a permit would be forced to negotiate the timing and route of their proposed ride with the Department. These burdens are likely to discourage all but the most determined of group ride organizers.

Informal group riding would be even more heavily burdened by the proposed rules. It is impractical to expect a group that meets informally each morning to commute or exercise together to obtain a permit in advance. As for bicyclists who join with (or are joined by) others spontaneously on the road, obtaining a permit in advance is virtually impossible, as are attempts to control the number, the equipment, or the conduct of fellow bicyclists. Yet under the proposed rules, bicyclists could be fined, arrested or imprisoned for parading without a permit based merely on their proximity to other bicyclists. By imposing penalties based on circumstances that may be beyond an individual's control, the proposed rules would also discourage individuals from biking at all, through fear of punishment for an inadvertent violation. The Department's proposed rules would erase years of effort by the City and bicycling advocates to encourage bicycling as a mode of transportation in New York City.

The proposed rules cannot be justified by concerns of public order or safety, because there is no evidence that bicycling in groups of 10 or 30 diminishes order or safety, which can be maintained under existing laws. Bicyclists are already obligated to follow traffic laws and can be ticketed for their failure to do so. They also must abide by bike-specific rules regarding the use of lights and bells to promote their own and public safety. If a bicyclist's conduct threatens public safety in a manner not specifically addressed by traffic regulations, the police can charge the individual with disorderly conduct or another generally applicable offense. The addition of "parading without a permit" to the existing law enforcement arsenal is simply overkill.

The Department's proposed rules are not only unfair but unlawful. Group bicycling has been declared by several courts to be a form of expressive association protected by the First Amendment of the United States constitution. As a consequence, there are several constitutional limitations on the Department's ability to restrict group bicycling. The Department's proposed rules ignore these limitations.

Under the constitution, limitations on protected activity such as group bicycling must be narrowly tailored to serve a significant government interest. The Department claims the proposed rules are necessary to promote public order and safety, but it has not provided any evidence in support of that claim. The available evidence suggests that bicycling in groups of ten to 30 may promote safety. If the Department believes that rules are needed to handle large group rides involving hundreds or thousands of bicyclists, then it should propose new rules narrowly tailored to deal with the issues raised by such groups. By targeting groups as small ten bicyclists and law-abiding users of bicycle lanes, without any evidence of a resulting public benefit, the Department's proposed rules violate basic constitutional limitations.

In addition, the proposed rules raise constitutional concerns because they pose a serious risk that persons who have done nothing wrong will be arrested, fined or imprisoned. This serves to discourage bicycling and arises in two ways.

First, as mentioned above, the proposed rules create the possibility that a law-abiding person "proceeding together" with a group of nine other bicyclists will be punished based on a violation by another member of the group, such as an equipment violation or failure to signal. The constitution prohibits punishment based on membership in a group alone, unless the group itself possesses unlawful goals and the charged individual has the specific intent to further the group's illegal aims. The proposed rules could allow the Department to fine and imprison a bicyclist based on group membership alone without evidence of an intent to further an illegal aim.

Second, the Department, the DOT and other government agencies encourage group bicycling in a variety of ways, making punishment of innocent group bicyclists even more likely. The City promotes bicycling, installs bike lanes and encourages bicyclists to congregate in them, and sponsors group rides. The Department specifically has encouraged group bicycle rides, by not enforcing the existing parade permit rules against them -- with the sole exception of the Department's crackdown on the Manhattan "Critical Mass" group ride beginning in 2004. The courts' rejection of that crackdown has raised awareness among bicyclists that group riding is protected by the constitution. As a result, bicyclists reasonably believe that group bicycling is encouraged by the City, protected by the constitution, and completely lawful. To punish group bicycling under these circumstances is arbitrary and violates the constitution.

In addition, the Department's proposed rules are unconstitutional to the extent they are selectively enforced to suppress Manhattan Critical Mass. It is widely believed in the bicycling community that the Department will do so, based on the Department's handling of Manhattan Critical Mass as compared to other public group bicycle rides since the summer of 2004. Selective enforcement of laws based on the exercise of constitutional rights is itself a violation of the constitution.

Transportation Alternatives is not a spokesperson for Critical Mass, but when the bicycling laws are enforced in an arbitrary and unconstitutional manner that will discourage and decrease cycling, all bicycling advocates must be concerned. Selective law enforcement breeds hostility between police and bicyclists, and breeds contempt among bicyclists for the law. The Department's stated goals of safe and law-abiding bicycling would be better served by parade rules that are capable of reasonably uniform enforcement and that are in fact so enforced.

Finally, Transportation Alternatives is also concerned with the potential impact of the Department's proposed rules on pedestrians. Pedestrians must enter the street every block to use the crosswalk, bringing them within the scope of the proposed rules. The rules could impose penalties on a group of 10 pedestrians proceeding together without a permit, if some members of the group violated a traffic rule -- for example, by entering the crosswalk after the flashing "don't walk" signals have begun, in violation of 34 RCNY § 4-03(c)(2). Punishing such conduct would not improve public order or safety and would interfere unnecessarily with the rights of pedestrians.

The City of New York should be doing everything in its power to encourage and increase bicycling and walking, but the Department's proposed regulations will only make it more difficult for New Yorkers to take part in these healthful, environmentally-friendly activities. Regular exercise is needed to combat heart disease, obesity, diabetes and other public health ills and to reduce the air pollution that triggers asthma. Heart disease is the number one killer in New York City; over half of New Yorkers are overweight or obese, three-quarters of a million New Yorkers have diabetes; and, one million New Yorkers are struggling to breathe with asthma.

Bicycling and walking also reduce traffic congestion and subway crowding, make efficient use of our streets and help keep New York City moving. With the city's population predicted to increase by one million people in the coming decades, increasing biking and walking will be critical to help New Yorkers make the best use of our limited street space. However, active discouragement from the Police Department will stop biking and walking from becoming everyday activities for more New Yorkers, thus contributing to even more congested streets and crowded subway cars.

The NYPD should withdraw its rules and consider adopting rules similar to those enacted in the District of Columbia, which are used to handle large demonstrations in Washington D.C. -- a city with extensive experience managing political and other group activity. The D.C. system does not discourage walking, biking and other physical activity and requires parade permits only for group events that are reasonably likely to jeopardize public order or safety, and where the permit process does not unduly burden the exercise of First Amendment Rights.

Thank you for the opportunity to testify.


1 See Bray v. City of New York, 346 F. Supp. 2d 488 (S.D.N.Y 2004) (declaring that "Plaintiffs' participation in the Critical Mass bike rides constitutes 'expressive association' entitled to First Amendment protection"); People v. Bezjak, 812 N.Y.S.2d 829 (Sup. Ct. N.Y. Cty. 2006) (same); People v. Barrett, 821 N.Y.S.2d 416 (Sup. Ct. N.Y. Cty. 2006) (if court was forced to reach the constitutional issues, it would rule that arresting participants in small group bicycle rides as a permitless parade would violate the First Amendment).

2 P.L. Jacobsen, "Safety in numbers: more walkers and bicyclists, safer walking and bicycling." 9 Injury Prevention 205-209 (2003).

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Compilation of Rules of the City of New York