Defendants' Memorandum of Law in Support of their Defense of Justification: Refusing to Move

Preliminary Statement

This Memorandum of Law is submitted on behalf of the six defendants in the above captioned action in support of their defense that their refusal move out of the South Outer Roadway of the Queensboro Bridg when ordered to do so by members of the New York City Police Department was justified pursuant to § 35.05(2) of the Penal Law.1

When a defendant raises a defense of justification under Penal Law § 35.05(2) the court must determine as a matter of law whether the claimed facts and circumstances would, if proved, constitute a defense to the crime charged. Once the court has determined that a prima facie case for justification has been pleaded, the lack of justification becomes an element of the offense charged and must be proven by the prosecution beyond a reasonable doubt.

The defendants in this action were arrested on October 22, 1991 and charged with disorderly conduct in violation of § 240.20 of the New York State Penal Law for allegedly blocking access to the Bicycle and Pedestrian Lane (also referred to as the "South Outer Roadway") of the Queensboro Bridge. The defendants admit that they were physically present at the entrance to the Bicycle and Pedestrian Lane and that they attempted to prevent motor vehicles from entering the lane by diverting those vehicles to the main roadway. They further admit that they were each ordered to move by a member of the New York City Police Department and that, upon hearing the order, they each refused to move and were subsequently placed under arrest. The defendants offered no resistance to the arresting officers.
The defendants submit that their refusal to move was justified on three separate grounds.

At the time of their arrests, the defendants believed that by diverting automobile and truck traffic away from the Bicycle and Pedestrian Lane, they were acting to prevent an imminent threat of grave physical harm to bicyclists and pedestrians then present on the Bicycle and Pedestrian Lane who would have been subjected to danger if automotive traffic was allowed onto the lane. The defendants were also motivated by the threat of imminent harm to residents of the New York area arising from air pollution and congestion, caused, in part, by policies of the New York City Department of Transportation (the "DOT"), which discourage the use and development of non-automotive modes of transportation. Finally, the defendants submit that the closure of the Queensboro Bridge to bicycle and pedestrian traffic amounts to an infringement of the fundamental right to freedom of intrastate movement recognized under the constitutions of the United States and New York State and that the defendants acted to prevent imminent and continuing harm to themselves and others arising from the denial of a fundamental right by the constitutionally invalid DOT policy.

Consequently, the defendants submit this Memorandum of Law in support of their right to have the trier of fact consider their defense of justification as well as the constitutionality of the DOT policy closing the Queensboro Bridge South Outer Roadway to bicycle and pedestrian traffic.

The Facts

The Department Of Transportation Closes The Queensboro Bridge To Bicycle And Pedestrian Traffic For Several Years

The Bicycle and Pedestrian Lane of the Queensboro Bridge is a single lane, varying in width from eight to eleven feet and running approximately one and a quarter (1 1/4) miles from Manhattan to Queens. Prior to June 11, 1990, the Bicycle and Pedestrian Lane was closed to automobile traffic and reserved for bicyclists and pedestrians travelling between Queens and Manhattan. On the aforementioned date, the DOT, which is responsible for the operation and maintenance of the Queensboro Bridge, initiated a policy calling for closing the Queensboro Bridge to bicyclists and pedestrians Monday to Friday from 3 to 7 P.M. in order to allow the Bicycle and Pedestrian Lane to be used by automobile traffic travelling from Manhattan to Queens. The nearest alternative East River crossings allowing transit by bicycles and pedestrians are the Tri-Boro Bridge, over three miles north of the Queensboro Bridge, and the Williamsburgh Bridge, approximately four miles to the South.

The Bicycle Van Service Provided DOT Is Inadequate And Does Not Carry Pedestrians

The Department of Transportation purports to provide a van service to carry bicyclists and their vehicles across the bridge during the hours that the Bicycle and Pedestrian Lane is closed. Although testimony indicated that, on occasion, a DOT vehicle will "escort" bicyclists over the bridge (i.e., allowing the bicyclists to ride in front of the van) the general procedure is for bicyclists to load their vehicles onto a trailer which can hold between 8 and 10 bicycles and to ride with the van over the bridge.

The DOT makes no provision for transporting pedestrians across the bridge. A number of witnesses testified that pedestrians are not allowed on the van and that they had personally witnessed van drivers refusing admission to pedestrians who sought to use the van service.

All the witnesses who testified that they regularly crossed the Queensboro Bridge with their bicycles during the hours that the Bicycle and Pedestrian Lane was closed indicated that they did not consider the van service an acceptable alternative means of crossing the bridge because the service ran infrequently, did not have a set schedule, was unreliable, and the area where the van stops in Manhattan is unsafe for waiting. Witnesses who had experience using the van testified that crossing the Queensboro Bridge by van could add 20 minutes or more to the time they spent commuting and that this imposed a hardship on them, undermining one of the reasons the relied on their bicycles for reliable and efficient transportation.

An internal DOT Memorandum introduced by the prosecution into evidence (People's "Exhibit 2") admits that the waiting time between vans could be as long as 40 minutes and that only one, instead of two, vans operated on 13 of the 142 days between June 11, 1990 and January 4, 1991, presumably doubling the time between van trips. (A copy of People's Exhibit 2 is appended hereto as "Exhibit A".)

Two witnesses testified that they had counted bicyclists and pedestrians crossing the Queensboro Bridge on four days during the time that the Bicycle and Pedestrian Lane was closed. The results of those counts indicated that approximately half the bicyclists who crossed the bridge did not use the DOT van service. Further, on the two days surveyed in July, 1990, approximately 60 bicyclists crossed the bridge per hour. Testimony indicated that if the van service was running every twenty minutes, as scheduled, the vans could accommodate no more than 24 to 30 bicyclists per hour, with no room for any pedestrians who might need to cross. (The testimony of the counts of pedestrians and bicyclists crossing the Queensboro Bridge is summarized in "Exhibit B", attached hereto.)

Several witnesses testified that they regularly use their bicycles to commute over the Queensboro Bridge and that it is extremely dangerous for bicyclists to ride across the bridge in the same lane with automotive traffic because the cars and vans overtake the cyclists and often try to pass when there is no room for the motor vehicles to safely pass. This condition is exacerbated when a truck or a van tries to use the Bicycle and Pedestrian Lane, or when pedestrians, bicyclists and auto traffic are present together, all moving at different speeds. Some of these witnesses testified to being frightened when they were overtaken by automobiles or vans that tailgated the cyclists, sometimes flashing their lights or honking their horns. There was also testimony indicating that conditions were even more dangerous for walkers on the bridge during these hours, because there is no pedestrian walk and walkers must walk in the same lane as automobile traffic when the Bicycle and Pedestrian Lane is closed.

A number of witnesses testified that because the van service is so inconvenient and unreliable they cross the bridge with auto traffic rather than wait in an unsafe area for a van which runs infrequently and sporadically. These witnesses all reported seeing many other cyclists riding their bicycles across the Queensboro Bridge during the hours that the Bicycle and Pedestrian Lane is closed, despite the obvious dangers posed to bicyclists travelling over the bridge with automobiles.

To summarize, the van service does not and cannot provide a safe and reliable alternative for bicyclists. Furthermore, the DOT does not provide any means for pedestrians to cross the Queensboro Bridge when it is closed to walkers.

Transportation Alternatives Has Opposed Unsafe Conditions For Bicyclists And Pedestrians On The Queensboro Bridge For Many Years

All six defendants are members of Transportation Alternatives ("TA"), a non-profit advocacy group concerned with promoting non-polluting alternatives to automotive transportation. One defendant joined TA as early as 1973. TA's activities include publication of a newsletter with a wide circulation, lobbying and working with public officials and agencies to advance TA's goals, engaging in public education and organizing programs and events to promote bicycling and other alternative means of urban transportation. In their capacity as advocates, members of Transportation Alternatives meet frequently and regularly with officials of the DOT on a number of issues.

One of the issues TA has worked on over the years has been advocacy of accessibility of bridges in the metropolitan area, including the Queensboro Bridge, to bicyclists and pedestrians. Mary Ellen Schrock testified that she was active in issues involving bicycle and pedestrian access to the Queensboro Bridge since she joined TA in 1983. She became TA's Queensboro Bridge Coordinator around 1986 and was succeeded in that position by John Kaehny, one of the defendants, in June, 1990.

Ms. Schrock testified that she and others at TA repeatedly contacted DOT officials to complain about unsafe conditions on the Queensboro Bridge, including the entry of unauthorized automobiles onto the Bicycle and Pedestrian Lane.

Jonathan Orcutt, the Executive Director of TA, testified that he and Charles Komanoff, TA's President, became aware of the impending lane closure in late May or early June of 1990. Mr. Orcutt testified that officials at DOT told him that, due to bridge repair and reconstruction, bicycles and pedestrians would be banned from the South Outer Roadway for approximately six years. TA decided to make returning the Bicycle and Pedestrian Lane to its normal use a high priority issue for TA because the lane closure would create unsafe conditions for persons who had no reasonable alternative to crossing the Queensboro Bridge by bicycle or foot2 and that closing a major thoroughfare to bicycle and pedestrian traffic during the evening rush hours would significantly impair TA's efforts to promote alternative means of commuting.3

In the early days of June, 1990, TA initiated a letter writing and petition campaign to urge DOT to reopen the Bicycle and Pedestrian Lane to bicycle and pedestrian traffic. A number of phone calls were made to DOT officials and other public officials, including many by some of the defendants. Prior to June 11, between 300 and 400 signatures were gathered on a petition to DOT opposing the lane closure.

On Monday, June 11, 1990, TA organized the first of a series of approximately twenty weekly demonstrations protesting the closing of the Queensboro Bridge Bicycle and Pedestrian Lane. Prior to the demonstration, members of Transportation Alternatives, including the TA Queensboro Bridge Coordinator, John Kaehny, consulted with the DOT and the police department, informing them of the demonstrators' plans and inquiring whether any permits were needed for the demonstration. TA subsequently paid for a sound permit and Mr. Kaehny also requested that the police be present at the demonstrations because he and other TA members were concerned that security problems could arise if some motorists became angry about the demonstration. The demonstration occurred without incident, and the demonstration organizers continued to consult with police and DOT officials regarding subsequent demonstrations.

In addition to the nonviolent weekly demonstrations, TA continued its efforts at influencing the DOT to reopen the Bike and Pedestrian Lane. Witnesses estimated that hundreds of letters were written to elected officials and DOT personnel seeking a return of the previous policy of 24 hour bicycle and pedestrian access to the Queensboro Bridge. Mr. Orcutt testified that TA received endorsements of its campaign to restore the bicycle and pedestrian lane from at least six members of the City Council. The defendants were involved in these lobbying efforts.
At each of the Queensboro Bridge demonstrations, TA members and supporters would congregate in a triangular shaped traffic island on 59th Street between First and Second Avenues, where they would leaflet passing motorists and pedestrians while waiting for enough demonstrators to arrive for the protest to begin. The traffic island, which was also where the DOT bicycle van stopped, is at the entrance of a ramp leading up to the Queensboro Bridge. The ramp, which accommodates two lanes of traffic, ascends approximately 200 yards, where it merges into the main roadway of the lower level of the bridge. There is a gate at the top of the ramp, marking the beginning of the Bicycle and Pedestrian Lane. The aforementioned gate is normally closed to automotive traffic. Pursuant to its policy of closing the Queensboro Bridge to bicycle and pedestrian traffic, DOT employees would open the gate between the hours of 3 to 7 P.M. on weekdays to allow automotive traffic to drive to Queens on the Bicycle and Pedestrian Lane.

At the weekly demonstration, the demonstrators would close the gate to divert traffic away from the Bicycle and Pedestrian Lane to the main roadway. They would either stand at the entrance to the Bicycle and Pedestrian Path at the end of the ramp, or walk along the Bicycle and Pedestrian Path. Although police were present at these demonstrations on several occasions, there were no arrests prior to October 22, 1990.

At each of the Queensboro Bridge demonstrations bicyclists and pedestrians who were not part of the demonstration would cross the bridge, with most of the non-demonstrators travelling from Manhattan toward Queens. Testimony indicated that because the ramp leading from 59th Street to the lower level of the Queensboro Bridge had a turn and was on a grade, it is impossible for a bicyclist or pedestrian entering the ramp to see whether or not there was a demonstration at the top of the ramp. Further, surveys by TA members indicate that approximately half the bicyclists crossing the Queensboro Bridge during the weekday rush period ride their bicycles on the South Outer roadway, even though it is open to automobile traffic and that some pedestrians cross the bridge during this period, even though there is no safe place for a pedestrian to cross without walking amidst automobile traffic.

On October 22, 1990, the six defendants in this case were standing on the Bicycle and Pedestrian Lane behind the gate at the top of the ramp leading from 59th Street to the lower level of the Queensboro Bridge. They were each ordered to leave by members of the New York City Police Department. The defendants refused to move and were placed under arrest. They are charged with disorderly conduct in violation of Penal Law § 240.20.

The defendants each testified that they refused to move because they had witnessed bicyclists and pedestrians crossing the bridge during the demonstration and believed that any bicyclists and pedestrians present on the South Outer Roadway would be subject to danger of grave physical harm if the lane was opened to automobile traffic. The defendants all testified that they were also opposed to DOT's policy and believed that DOT's closure of the lane violated the rights of bicyclists and pedestrians to move freely.4 Finally, the defendants believed that by discouraging bicycle and pedestrian use of the Queensboro Bridge, the DOT was contributing to the direct harm of New York area residents by exacerbating the problems of air pollution by increasing the use of automobiles.

The defendants each waived their rights against self-incrimination and stipulated to their acts on October 22, 1990 in return for a promise from the District Attorney's office to allow the defendants to present evidence to the Court to prove that their refusal to comply with the police order to clear the Bicycle and Pedestrian Lane was justified due to the exigent circumstances and the grave consequences of the DOT policy closing the bridge to bicycle and pedestrian traffic.

ARGUMENT

I.

THE PROSECUTION MUST PROVE THE LACK OF JUSTIFICATION BEYOND A REASONABLE DOUBT

A. Justification Is Not An Affirmative Defense

New York Penal Law § 35.00 provides that "justification . . . is an ordinary defense rather than an affirmative one [citation omitted]. As such, whenever justification is sufficiently interposed by the defendant, the People must prove its absence to the same degree as any element of the crime charged [citations omitted]." People v. McManus, 67 N.Y.2d 541, 505 N.Y.S.2d 43, 46 (1986). Accord, People v. Karp, 158 A.D.2d 378, 551 N.Y.S.2d 503, 505 (1st Dept.) rev'd on other grounds, N.Y.2d , (December 27, 1990) 1990 WL 212959 (NY).5 "[J]ustification is a defense (Penal Law, § 35.00) which must be disproved by the People beyond a reasonable doubt (Penal Law, § 25.00, subd. 1) and not an affirmative defense which must be proven by the defendant by a preponderance of evidence (Penal Law, § 25.00, subd. 2)." People v. Green, 98 A.D.2d 908, 471 N.Y.S.2d 371, 372-73 (3d Dept. 1983).

B. The Evidence Must Be Viewed In the Light Most Favorable To The Defendants To Determine Whether They Are Entitled To A Defense Of Justification

Pursuant to Penal Law § 35.05(2), the Court is required to rule as a matter of law whether the facts and circumstances set forth by the defendants would, if established, constitute a defense of justification.6

The Court of Appeals has held that the justification defenses embodied in Article 35 of the Penal Law are to be given the broadest possible scope. People v. McManus, 67 N.Y.2d 541, 547, 505 N.Y.S.2d 43, 46 (1986). In McManus, the Court of Appeals resolved any possible confusion concerning the latitude to be given to the defense of justification when it held "[t]he introductory provision to article 35 of the Penal Law evinces an intent to give the justification defense the broadest possible scope. It states without qualification that the defense is available '[i]n any prosecution for an offense' (Penal Law 35.00) [emphasis by the court]" 505 N.Y.S.2d at 46.7

In determining whether the defendant has articulated a prima facie case for a proffered defense of justification, the Court must consider the evidence in the light most favorable to the defendant. People v. Padgett, 60 N.Y.2d 142, 468 N.Y.S.2d 854, 856 (1983). "Initially, we note the well-settled principle that, in considering whether the trial court's charge to the jury was adequate, the record must be considered most favorable to the defendant [citations omitted]. If, in taking that view of the record, the evidence supports the defense of justification, the trial court should instruct the jury as to the defense and must when so requested [citation omitted]." Id. Accord People v. Ruiz, 96 A.D.2d 845, 465 N.Y.S.2d 604, 605 (2d Dept. 1983). ("[i]n determining whether a justification defense, or any defense for that matter, is available to a defendant the evidence must be viewed in the light most favorable to the accused").

A trial court applied a more restrictive standard in holding that AIDS activists were not entitled to raise the defense of justification in a 1989 decision. People v. Alderson, 144 Misc.2d 133, 540 N.Y.S.2d 948 (Crim. Ct. New York County 1989). The Alderson opinion did not cite the Court of Appeals decisions in McManus or Padgett concerning the broad construction given to the justification defense. Instead, the Alderson court relied on an earlier lower court decision, People v. Brown, 70 Misc.2d 224, 333 N.Y.S.2d 342 (Sup. Ct. New York County 1972), to justify the restrictive analysis which the Alderson court applied to the justification defense offered by the AIDS activists. 540 N.Y.S.2d at 953. The vitality of the Brown decision, which explicitly held that § 35.05(2) "is to be narrowly construed"8, is subject to doubt in light of the subsequent Court of Appeals decisions in McManus and Padgett, directing the lower courts to give the "broadest" possible interpretation to the availability of the justification defense.9

McManus and Padgett require the Court to view the evidence offered in the light most favorable to the defense and not preclude a defense of justification unless no reasonable person could possibly conclude that the proffered facts, if believed, could be a defense to the crime charged. If the facts alleged by the defendants constitute justification, then the prosecution has the burden of proving beyond a reasonable doubt that the acts of the defendants were not justified.

In the present case, the defendants refused to move out of the South Outer Roadway in order to prevent three distinct types of imminent harm. They have firmly established a prima facie case for justification.

C. The Reasonable Doubt Standard Applies When The Court Weighs The Minor Injury The Defendants Are Charged With Against The Grave Harm They Sought To Prevent

Penal Law § 35.05(2) requires that, when a defendant invokes the defense of justification on the grounds that the defendant acted to avoid a threat of imminent injury, the trier of fact must determine whether "the desirability and urgency of preventing such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue." In resolving any ambiguity or uncertainty in the balancing these factors, the trier of fact should consider whether the prosecution has fulfilled its burden of proving the lack of justification beyond a reasonable doubt. McManus, 505 N.Y.S.2d at 46; Karp, 551 N.Y.S.2d at 505.

"When a claim of justification is presented, a crucial fact at issue is the state of mind of the defendant." People v. Green, 471 N.Y.S.2d at 372, citing People v. Miller, 39 N.Y.2d 543, 551, 384 N.Y.S.2d 741 (1976).

In the present case, the defendants produced extensive evidence indicating that they acted to: (1) prevent a threat of imminent physical injury to bicyclists and pedestrians on the South Outer Roadway; (2) to prevent the enforcement of an unconstitutional regulation promulgated by the DOT which improperly deprived bicyclists and pedestrians, including the defendants, of their fundamental constitutional right to travel freely and (3) to prevent the continued enforcement of a policy of the DOT which contributes to air pollution that threatens the health of New York residents.

The injuries which the defendants sought to avoid were imminent and grave. Their actions were reasonable under the circumstances. The violations of the disorderly conduct statute which are alleged against the defendants are minor when compared to the injuries they were seeking to avoid. Consequently, the Court should conclude that the defendants have satisfied their burden of pleading a prima facie case of justification and are entitled to have the Court, as trier of fact, employ the balancing test prescribed by Penal Law § 35.05(2). In weighing the facts, the Court should consider whether the prosecution has disproved the defense of justification beyond a reasonable doubt.

II.

THE DEFENDANTS IN THIS CASE PREVENTED IMMINENT PHYSICAL DANGER TO OTHER PERSONS WHEN THEY PREVENTED VEHICULAR TRAFFIC FROM ENTERING THE BICYCLE AND PEDESTRIAN LANE ON THE QUEENSBORO BRIDGE

A. The Danger To Pedestrians And Bicyclists Crossing The Queensboro Bridge Developed Through No Fault Of The Defendants

The evidence conclusively shows that the defendants had good reason to know that bicyclists and pedestrians who were crossing the Queensboro Bridge would be subject to imminent physical danger if the Bicycle and Pedestrian Lane was opened to vehicular traffic at the time the defendants were arrested.

Penal Law § 35.05(2) requires that the imminent injury which motivates the actor must arise "by reason of a situation occasioned or developed through no fault of the actor." In this case, the evidence has shown that the persons who were crossing the Queensboro Bridge while the defendants were present on the bridge were not connected with the demonstration in which the defendants were participating. Furthermore, the evidence has shown that bicyclists regularly use the South Outer Roadway to cross the Queensboro Bridge during the hours that the Bridge is closed to non-vehicular traffic and, therefore, the threat which motivated the defendants' refusal to move when ordered by the police arose independent of any act by the defendants.10

B. The Defense of Justification Applies To Defendants Who Are Motivated By Opposition To A Public Policy Provided They Are Also Motivated By A Desire To Prevent An Imminent Injury

The defendants in this case admit that, in addition to seeking to prevent imminent injury, they were protesting the policy of the New York City Department of Transportation which calls for banning bicyclists and pedestrians from the Queensboro Bridge between the hours of 3 and 7 P.M. on weekdays. They maintain that the closure of the Bicycle and Pedestrian Lane abridged the constitutional rights of bicyclists and pedestrians to travel freely and was part of the harm the defendants were seeking to avoid. However, even if the closure of the bicycle and pedestrian lane was not unconstitutional, the fact that the defendants were protesting a public policy does not deprive them of the right to avail themselves of the defense of justification.

This issue was recently raised in a case involving right to life protestors at an abortion clinic. The court held that, even though the legislature had enacted a law guaranteeing women the right to have abortions performed during the first 24 weeks of pregnancy, that "a jury of private citizens is free to decide, under § 35.05 of the Penal Law, that many of these abortions are immoral 'injuries to be avoided' and that 'the urgency of avoiding such injuries clearly outweighs the desirability of avoiding injuries such as Trespassing and Resisting Arrest' which the criminal statutes in issue here are designed to prevent." People v. Archer, 143 Misc.2d 390, 537 N.Y.S.2d 726, 732 (Rochester City Ct. 1988). In Archer, the court noted that the legislature manifested an unequivocal intent to make the defense of justification available to persons opposing public policy or laws when "the Legislature DELETED from the preamble paragraph [to Penal Law 35.05] the phrases: 'Unless inconsistent . . . with some other provision of law'". This meant that even if the defendants' behavior was inconsistent with other provisions of New York law, the justification defense was nonetheless available to him [original emphasis]". People v. Archer, 537 N.Y.S.2d at 730-31 n.9.11

In short, the defendants' opposition to a public policy not affirmatively sanctioned by legislative act does not preclude their right to raise the justification defense, provided that the defendants believed that they were also acting to prevent what they believed would have been an imminent injury and that their belief was not patently unreasonable.

Penal Law § 35.05(2) requires that "the necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder [emphasis added]."

The defendants in this case are not protesting the statute under which they were arrested or its applicability in general or to any class of persons. Nor are they protesting any other statute. Even if they were, their claim of justification would be valid based upon their sincere concern regarding the imminent danger to bicyclists and pedestrians if automobile traffic was allowed through the South Outer Roadway during their protest.

III.

THE CLOSURE OF THE QUEENSBORO BRIDGE TO BICYCLES AND PEDESTRIANS ABRIDGES THE FUNDAMENTAL RIGHT OF PERSONS TO TRAVEL

A. The Right To Travel Intrastate Is A Fundamental Right Under The Constitution Of The United States

All the defendants testified that a major part of their motivation for demonstrating on the Queensboro Bridge Bicycle and Pedestrian Lane was their belief that the Department of Transportation policy closing the bridge to bicycle and pedestrian traffic imposed a significant hardship on a class of bridge users, thereby violating the right of bicyclists and pedestrians to travel freely. In fact, the lane closure infringed on a fundamental right to travel which has been recognized by the courts of the United States, including the Second Circuit.

"[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution." United States v. Guest, 383 U.S.745, 758, 86 S.Ct. 1170, 1178 (1966). Accord Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901, 106 S.Ct. 2317, 2320 (1986); Dunn v. Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 1001 (1972). The right of persons to travel freely within and without the United States has been recognized by the Supreme Court in a multiplicity of contexts, including the eligibility war veterans for state benefits without prior residence, e.g., Attorney General of New York v. Soto-Lopez, supra; the right of women to travel to obtain an abortion, Doe v. Bolton, 410 U.S. 179, 200, 93 S.Ct. 739, 751-52 (1973); durational residence requirements for voting registration, e.g., Dunn v. Blumstein, supra; eligibility for public assistance, Shapiro v. Thompson, 394 U.S. 618, 629-33, 89 S.Ct. 1322 (1969) and the right to travel abroad, e.g., Aptheker v. Secretary of State, 378 U.S. 500, 505-06, 84 S.Ct. 1659 (1964).

The Second and Third Circuits have held that the right to freely travel within a single state is a fundamental constitutional right. "[T]he Constitution also protects the right to travel freely in a single state", Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir. 1990) (Kearse, J.) (reversing the dismissal of a civil rights suit by the parents of a black man fatally beaten by a gang of whites). Accord Lutz v. City of York, 899 F.2d 255, 267-268 (3d Cir. 1989) (Becker, C.J.) (the right to travel intrastate is grounded in substantive due process under the 14th Amendment); King v. New Rochelle Municipal Housing Authority, 442 F.2d 646, 648 (2d Cir) (Waterman, C.J.) cert. denied, 404 U.S. 863 (1971) ("[i]t would be meaningless to describe the right to travel between states as a fundamental right and not to acknowledge a correlative constitutional right to travel within a state").

Although the Supreme Court has not yet decided a right to travel case involving purely intrastate travel, the conclusions of the Second and Third Circuits follow inevitably from the reasoning of the Court in some of its earlier decisions. The broad scope of the right of a citizen to travel unencumbered was recognized by Justice Douglas in one of the Supreme Court's "passport" cases:
The right to travel is a part of the "liberty" of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.

Kent v. Dulles, 357 U.S. 116, 125-126, 78 S.Ct. 1113 (1958). Accord Aptheker v. Secretary of State, 378 U.S. at 505-06.

In Shapiro, Justice Brennan wrote "[t]his court long ago recognized the nature of our Federal Union and our constitutional concepts of personal liberty require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules or regulations which unreasonably burden or restrict this movement." 394 U.S. at 629. Indeed, the proposition that citizens are free to travel within a single state as well as between states was established early in our jurisprudence and resonates through the Court's twentieth century decisions. Over a century ago Chief Justice Haney wrote "We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass without interruption, as freely as in our own States." Passenger Cases, 7 How. 283, 492 (1849). Accord Shapiro v. Thompson, 394 U.S. at 630.

While the Supreme Court has unequivocally recognized the right to travel as a fundamental Constitutional right, the Court's decisions do not clearly indicate a single "textual source for the right to travel" and various Justices have articulated a number of different paradigms. Attorney General of New York v. Sotto-Lopez, 476 U.S. at 902, 106 S.Ct. at 2320. See Shapiro v. Thompson, 394 U.S. at 630 n.8.12

The Second Circuit has grounded the intrastate right of travel on the Equal Protection Clause of the Fourteenth Amendment. King v. New Rochelle Housing Authority, 442 F.2d at 648. In that case, the Second Circuit held that a durational residency requirement for applicants of public housing infringed on a fundamental right and therefore the rational basis test was inappropriate. Id. Instead, the court invoked the compelling state interest test and invalidated the regulation. Id. In the present case, the prosecutor has not adduced any evidence to show that the Department of Transportation policy denying bicyclists and pedestrians access to the Queensboro Bridge during the evening rush hour promotes a compelling state interest. Consequently, the regulation improperly deprives bicyclists and pedestrians of their right to freely travel.

In Lutz v. City of York, a municipal traffic regulation was upheld only after the Third Circuit applied intermediate scrutiny to the ordinance in question. 899 F.2d at 269 "Not every governmental burden on fundamental rights must survive strict scrutiny, however. We believe that reviewing all infringements on the right to travel under strict scrutiny is just as inappropriate as applying no heightened scrutiny to any infringement on the right to travel not implicating the structural or federalism-based concerns of the more established precedents. For this conclusion we rely heavily on the time, place and manner doctrine so firmly entrenched in the jurisprudence of free speech." Id.

In applying intermediate scrutiny to an "anti-cruising" ordinance banning "repetitive driving," the Third Circuit noted that the ordinance was narrowly drawn, limited to specific streets at specific times and provided "ample alternative routes to get around town without difficulty". 899 F.2d at 270. By contrast, the closing of the Queensboro Bridge requires bicyclists to choose between waiting for the unreliable DOT Van or to detour over six miles. There is no alternate route at all for pedestrians.

In short, closing the only East River bridge for many miles imposes an unacceptable hardship upon a class of people, namely bicyclists and pedestrians, which implicates the constitutional right to intrastate travel. Whether this Court applies the compelling state interest test of King or the reasonable time, place and manner test of Lutz, the closing of the Queensboro Bridge to bicyclists and pedestrians, without provision of an adequate alternative cannot pass constitutional muster.

The denial of a basic constitutional right is a palpable injury by itself. It is not necessary for the victim to know the textual source the right thus abridged. The opposition of the defendants to the harm occasioned by the improper infringement of the right of bicyclists and pedestrians to travel freely should be given significant weight by the Court in determining whether the defendants' acts were justified.

B. Freedom Of Movement Is A Constitutional Right Recognized By The Courts Of New York State

The constitutional right to intrastate travel has long had an analogous jurisprudence in New York State, where the state courts have adjudicated challenges to infringements on the right of citizens to move freely. "The right to use of the highways is said to rest with the whole people of the State . . . [citations omitted]. This public right is '"absolute and paramount"' [citations omitted]". New York State Public Employees v. City of Albany, 72 N.Y.2d 96, 101, 531 N.Y.S.2d 770, 772 (1988) (municipal ordinance granting preferential parking status to residents held to be discriminatory and invalid).

The police power under which localities regulate traffic is ultimately derived from state law. 72 N.Y.2d at 100-01, 531 N.Y.S.2d at 772.13 However, when a rule established under the police power is alleged to improperly restrict the constitutional right of public to travel described in New York State Public Employees v. City of Albany, supra, the deference usually granted with respect to the exercise of the police power is dispelled, resulting in a higher scrutiny than is normally given to exercises of the police power. This higher scrutiny is embodied in the requirement that, in addition to being "reasonable", such a traffic regulation must also be "nondiscriminatory". People v. Randazzo, 60 N.Y.2d 952, 471 N.Y.S.2d, 52, 53 (1983). See People v. Grant, 306 N.Y. 258, 260 (1958) (local traffic regulations must be "'reasonable, nondiscriminatory, and authorized by, and not in conflict with, state law'"[citation omitted]).

In 1983, the Court of Appeals promulgated a three-pronged standard regarding constitutional challenges of regulations limiting the right of free passage on streets and highways. "Where an ordinance limits through traffic, factors to be weighed in determining its validity include the availability of convenient alternate routes, any discriminatory effect, and the necessity of the regulation in relation to traffic conditions." People v. Randazzo, 60 N.Y.2d at 953-54, 471 N.Y.S.2d at 53.

The closure of the Queensboro Bridge Bicycle and Pedestrian Lane during the busiest hours of the day violates all three prongs of the Randazzo test. There is no acceptable alternate route14 and the closure clearly discriminates against bridge users who do not drive automobiles.

With respect to the third prong of the Randazzo analysis, the prosecution has not shown any necessity for the closure which would justify impinging on a fundamental constitutional right. The testimony of former New York City Commissioner of Transportation, Ross Sandler, described the gridlock conditions existing on the Queensboro Bridge and in lower Manhattan. Under such conditions, providing one additional lane for automobile traffic would simply add to the volume of automobiles without reducing congestion.

The application of the Randazzo standard yields the inescapable conclusion that the closure of the Queensboro Bridge bicycle and pedestrian lane is not only a hardship, but amounts to a violation of the state constitutional right of free passage over public thoroughfares recognized by the courts of New York.

C. The Closing of the Queensboro Bridge To Bicycle and Pedestrian Traffic Is Discriminatory And Not Rationally Related To Any Legitimate Public Policy Objective

1. The Closure Of The Queensboro Bridge To Bicycles And Pedestrians Will Not Alleviate Congestion

The hardship which the closing of the Queensboro Bridge to bicycle and pedestrian traffic poses to the class of people who rely on those modes of transportation is particularly egregious when weighed against the lack of any evidence that opening the Bicycle and Pedestrian lane to car and truck traffic will even marginally alleviate automobile and truck congestion on the bridge. Ross Sandler's testimony indicated that when a gridlock condition exists, providing more lanes for traffic simply increases the density of automotive traffic without alleviating congestion or decreasing traffic transit time.

The prosecution did not produce any evidence indicating that the diversion of automobile traffic into the Bicycle and Pedestrian Lane has resulted in even a marginal benefit which could counterbalance the severe hardship which the closing imposes on bicyclists and pedestrians. In short, there has been no showing that the DOT policy has a rational basis. The policy clearly cannot satisfy the higher scrutiny required when a violation of a fundamental constitutional right is alleged.

2. The Closure Of The Bicycle And Pedestrian Lane On the Queensboro Bridge Discourages Commuting By Bicycle, Thereby Violating DOT's Stated Policy Of Encouraging Increased Commuting By Bicycle

Any alleged necessity of closing the Queensboro Bridge to bicycles and pedestrians is further undercut by DOT's stated policy of encouraging bicycle commuting in order to help alleviate the problems of congestion and pollution in Manhattan. In a September, 1990 report the DOT stated "The Department of Transportation (NYCDOT) recognized the bicycle as an efficient and healthful mode of transportation that can play an important role in reducing congestion and air pollution." Improving Manhattan Traffic And Air Quality Conditions - Effectiveness of Bicycle Programs, p.1 (Defendants "Exhibit G" in evidence, a copy of which is appended as "Exhibit C" hereto, hereinafter "DOT Report".)15

The foregoing conclusion was based on the results of over 2,000 surveys of people working in Manhattan returned to DOT. The surveys indicated that 28% of the respondents would switch from their present mode of commuting to bicycles if bicycle lanes were painted on the streets, parking was provided at the work site and showers and other amenities were provided at work. DOT Report at 9.

The DOT Report further states, "[t]he current level of bicycle ridership in New York City is not indicative of the potential use of the bicycle mode, but rather indicative of those who are so dedicated to cycling that they are willing to utilize a transportation system that has been shaped for decades without extensive provisions for bicycles. It is anticipated that only through installation of bicycle facilities, and increased consideration of the safety requirements of the bicyclist that an increase in bicycle use will occur." DOT Report at 2, 4.

Ironically, the unsafe and inconvenient conditions engendered by the DOT's closure of the Queensboro Bridge to bicycles and pedestrians increases the impediments to commuting by bicycle and is therefore at variance with DOT's stated policy of encouraging increased bicycle commuting. This factor has to weigh heavily against any claim by DOT that the closure of the Queensboro Bridge was reasonable or necessary for the regulation of traffic on the bridge. Further, the deleterious impact that the closing of the Bicycle and Pedestrian Lane has on DOT's stated policy of encouraging bicycle commuting belies any claim by DOT that the lane closure is rationally related to a legitimate objective.

3. The DOT Shuttle Van Is Not A Constitutionally Adequate Alternative Route

Extensive testimony concerning the shuttle service provided by the DOT conclusively establishes that the DOT shuttle van is unreliable, unable to accommodate more than a fraction of the bicycle traffic currently using the Queensboro Bridge, and completely unavailable to pedestrians.

A number of witnesses testified to infrequent and irregular van service, indicating that they had sometimes waited forty minutes or longer. Indeed, the DOT memorandum admitted into evidence by the prosecution as People's "Exhibit 2" admits that the headway between vans is as long as 40 minutes and that frequently only one vehicle is in service. Exhibit A, infra.

Although one witness testified that, on occasion, a DOT vehicle would escort bicyclists by allowing the bicycles to ride in front of it, the evidence indicated that the general policy of the DOT was to require cyclists to load their vehicles onto a shuttle van, which has the capacity to carry between eight and ten bicycles and their riders. Counts of bicyclists crossing the Queensboro Bridge indicated that approximately 60 bicyclists per hour were using the bridge during rush hours in the summer. Exhibit B, infra. Even if the vans were running every twenty minutes, as scheduled, they cannot carry more than 24 to 30 bicyclists across the bridge. Thus, the DOT van service cannot accommodate the current level of bicycle traffic using the Queensboro Bridge, let alone provide for any increased future use of the bridge by bicyclists.

Finally, the uncontested evidence indicates that the bicycle van is unavailable to pedestrians who cannot travel between Queens and Manhattan without violating the law or paying $1.15 for public transportation. Although People's Exhibit 1 does not contain an express statement of DOT's policy of refusing to carry pedestrians on its shuttle van, extensive evidence conclusively showed that pedestrians are routinely denied access. Whatever DOT's stated policy, the practice of denying pedestrians access to the van abridges a fundamental right and is unconstitutional as applied.

The inadequacy of the shuttle van service is underscored by the fact that approximately half the bicyclists using the Queensboro Bridge do not wait for the van but instead ride over the bridge, subjecting themselves to the danger of occupying the same traffic lane as automobiles and trucks.

In conclusion, the closure of the Queensboro Bridge to bicycles and pedestrians violates the fundamental right to freely travel recognized under the Constitutions of the United States and New York and has a discriminatory impact on bridge users who do not use automobiles. The continuing abridgment of this fundamental right is part of the imminent harm which the defendants were seeking to avoid when they were protesting on the Queensboro Bridge.

Whether the Court applies the compelling state interest test of the Second Circuit in King, the "reasonable and nondiscriminatory" standard of the Court of Appeals in Randazzo and Grant, or the reasonable "time place and manner" standard adopted by the Third Circuit in Lutz, the closure of the Queensboro Bridge to bicycles and pedestrians amounts to an unconstitutional infringement on the right to travel guaranteed under the constitutions of the United States and New York State.

The Court should hold that the complete closure of the Queensboro Bridge to bicycles and pedestrians during the evening rush hours without providing an adequate alternative is unconstitutional and that the arrest of the defendants for violating an unconstitutional regulation is void. In the alternative, as long as the defendants were motivated by a legitimate concern that the closure of the Bicycle and Pedestrian Lane violated a fundamental right, they are entitled to the defense of justification because the defendant's state of mind is a crucial element in the defense of justification. People v. Green, 98 A.D.2d 908, 471 N.Y.S.2d at 372.

IV.

THE HARM WHICH THESE DEFENDANTS SOUGHT TO AVOID IS GREATER THAN THE HARM WHICH THEY ARE ALLEGED TO HAVE CAUSED

As discussed in II. C., supra, in weighing the evidence to determine whether the harm which the defendants sought to avoid is greater the harm which they are alleged to have caused, the Court should determine whether the prosecution has proved the absence of justification beyond any reasonable doubt. McManus, 505 N.Y.S.2d at 46; Karp, 551 N.Y.S.2d at 505.

A. The Defendants Acted To Protect The Safety Of Persons In Imminent Danger Of Grave Physical Harm And To Prevent The Harm Attendant To The Improper Abridgment Of The Fundamental Constitutional Right To Travel _

The prosecution produced absolutely no evidence contradicting the extensive testimony indicating that bicyclists or pedestrians present on the Bicycle and Pedestrian Lane would have been subject to a threat of grave physical harm if automobile and truck traffic had been allowed to enter the Bicycle and Pedestrian Lane. The evidence further shows that bicyclists and pedestrians regularly cross the bridge with automobile traffic during the hours that access to the bridge is denied to them. There was extensive testimony indicating that a number of persons, who were not part of the demonstration, crossed the bridge on the Bicycle and Pedestrian Lane on October 22nd and during previous demonstrations.16 Indeed, there was testimony of a bicyclist who was riding from Queens to Manhattan on the Bicycle and Pedestrian lane that he arrived at the Manhattan side of the bridge just as the defendants were being arrested. Had the Bicycle and Pedestrian Lane been opened to auto traffic any earlier, this bicyclist would have faced oncoming traffic, in a situation where the first drivers on the Bicycle and Pedestrian Lane could be expected to have been travelling at high speed without anticipating encountering a bicyclist travelling in the opposite direction.

The prosecutor has claimed that bicyclists or pedestrians that use the Queensboro Bridge during weekday rush hours do so out of "choice", implying that they assume the risk of their actions. This argument cannot be a justification for a policy of a public agency charged with promoting public safety knowingly establishing and perpetuating a condition under which scores of persons are subjected to grave physical danger daily. The fact that the danger to bicyclists and pedestrians on the bridge recurs daily when the Bicycle and Pedestrian Lane is opened to automotive traffic does not mitigate the fact that there was a clear and present threat of imminent grave physical harm to individuals not associated with the demonstration which motivated the defendants to refuse to move when they were ordered to do so by the police.

The defendants testified that the dangerous situation resulting from the elimination of the Bicycle and Pedestrian Lane during rush hours was one of the major motivations for their protests against the lane closure and that their concern for the individuals who might have been present on the bridge while they were demonstrating naturally followed from their concern for safety as a policy.17

The fact that the defendants, by failing to move when directed by the police, acted to prevent possible injury to other persons, by itself, establishes their defense of justification. However, the defendants testified that their protest was also aimed at preventing the continuation of a policy that contributes to air pollution which inflicts an inexorable toll on the health and well being of residents of the New York area.

Stephen Markowitz, a medical doctor, offered expert testimony indicating that the exhaust fumes from automobiles are a major source of carbon monoxide pollution and that this pollution has been statistically linked with increased instances of lung and heart disease. Dr. Markowitz and Ross Sandler both testified that New York City air does not meet the standard required under the National Ambient Air Quality Standard for carbon monoxide and that excessive emissions from automobiles are largely responsible for the lack of compliance.

The DOT Report admitted into evidence as Defense Exhibit G embodies DOT's own conclusion that increased bicycle usage would help reduce air pollution in Manhattan by alleviating congestion on public transportation, thereby making those means more attractive to people who drive in the city. Ironically, the DOT policy of closing the Queensboro Bridge to bicyclists during the evening rush hours creates the sort of impediment to increased reliance on bicycles as a means for commuting which DOT eschews in the DOT Report at 2,4. In short, the harm to residents of New York arising from high levels of carbon monoxide is grave and imminent and only exacerbated by policies such as banning bicycles and pedestrians from the Queensboro Bridge during the rush hours.

The defendants' third motivation for refusing to move was their belief that the DOT policy closing the Queensboro Bridge to bicyclists and pedestrians was discriminatory and a violation of the right of people to travel freely. As set forth in III. A. and III. B., supra, the right to travel freely is a constitutionally protected right under both the United States and New York Constitutions. The denial or significant infringement of a fundamental right is a grave injury by itself providing further support for the defendants' defense of justification.18

B. The Defendants Undertook Extensive Fruitless Lobbying Efforts To Convince DOT To Alleviate The Dangerous Situation On The Queensboro Bridge Before They Resorted To Civil Disobedience

The defendants and other members and supporters of Transportation Alternatives engaged in an extensive lobbying campaign in which hundreds, if not thousands, of communications were directed at DOT and elected officials regarding the unsafe conditions created by the closure of the Bicycle and Pedestrian Lane on the Queensboro Bridge and the concomitant denial of the rights of bicyclists and walkers. Beginning in Spring, 1990, TA organized letter writing campaigns, petition drives, phone calls and meetings with DOT and other public officials aimed at convincing DOT to return to its previous policy of allowing bicyclists and pedestrians 24 hour access to the Queensboro Bridge. The defendants testified that they were actively involved in this campaign prior to the October 22nd demonstration.

Although the efforts of TA and its supporters to reopen the Bicycle and Pedestrian Lane were endorsed by at least six members of the City Council, the DOT remained intransigent and refused to alter or reevaluate its policy.

The defendants resorted to civil disobedience as a last step only after undertaking extensive and exhaustive, but unavailing, efforts to correct the dangerous situation on the Queensboro Bridge and to end the policy under which the DOT was unjustifiably imposing a serious hardship on the ability of a class of people to travel freely.

C. The Harm Which The Defendants Are Alleged To Have Caused Is Minor And Should Be Weighed Accordingly

The defendants are charged with disorderly conduct in violation of Penal Law § 240.20. The lack of seriousness with which the authorities regarded defendant's transgressions is underscored by the fact that the October 22nd demonstration was preceded by approximately twenty previous demonstrations in which demonstrators were present in the Bicycle and Pedestrian Lane of the Queensboro Bridge during the hours that it was closed to bicycles and pedestrians. Members of the police department and the DOT were present at many of the aforementioned demonstrations, where protestors were engaged in precisely the same activity for which these six defendants are now charged, and the authorities did not deem it necessary to make arrests. Indeed, the organizers of the Queensboro Bridge protests, including a number of the present defendants, took extraordinary steps to prevent any harm from arising from their demonstrations. The organizers of the previous demonstrations informed the authorities in advance of the demonstrations, obtained sound permits and even requested a police presence to insure the safety of the demonstrators. They clearly were not seeking to create any harm and were not perceived to be doing so by the DOT and the police.

There is no evidence that the defendants created any harm to motorists who used the bridge to drive between Manhattan and Queens. The defendants testified that when they were arrested they were attempting to divert traffic to the lower level of the bridge, not deny motorists an opportunity to travel between Queens and Manhattan. Further, there has been no showing that the October 22nd demonstration impeded the flow of traffic from Manhattan to Queens. To the contrary, the evidence indicates that the gridlock conditions existing on the Queensboro Bridge would not have been ameliorated by the addition of a single lane for auto traffic.

Any marginal benefit which might accrue to some motorists as a result of providing one additional eastbound lane for automotive traffic during the weekday rush hours cannot counterbalance the significant hardship which the closing of the Bicycle and Pedestrian Lane imposes on people who depend on other means for their trips between Manhattan and Queens.

In conclusion, the harm which the defendants are alleged to have caused is minor compared to the danger which they were seeking to prevent as well as the compelling state interest in preventing the enforcement of a public policy unreasonably denying a fundamental right to a class of people.

D. In Considering Whether The Defendants' Acts Were Justified The Court Should Weigh Mitigating Factors

In determining whether the actions of the defendants were justified, the Court should weigh mitigating factors which bear on the seriousness of the infraction alleged against the defendants as well as to their intent. In a recent case in this jurisdiction, Justice Donati dismissed charges against participants in a demonstration organized by the AIDS Coalition to Unleash Power (ACT-UP) who, like the defendants in this case, had no prior criminal record. People v.Ben-Levi, Docket No. 90N059336 (Crim. Court N.Y. County 1990) (N.Y.L.J. January 3, 1991 p.23) (appended hereto as "Exhibit E"). Although the dismissals in Ben-Levi were made pursuant to a Clayton motion made under CPL §§ 170.30(1)(g) and 170.40, Justice Donati's analysis of the factors leading him to dismiss the charges serve as a guide for how courts should approach the issues of mitigation and scienter with regard to persons who take part in civil disobedience as an act of conscience.

Eight of the defendants in Ben-Levi were charged with blocking traffic in violation of Penal Law § 240.20, as the defendants are in this case. The aforementioned eight defendants were also charged with resisting arrest in violation of Penal Law § 205.60, a class A misdemeanor, because they passively resisted arrest. Two other defendants in Ben-Levi were also charged with class A misdemeanors for allegedly obstructing governmental administration in the second degree (Penal Law § 195.05).

Justice Donati indicated that he was convinced that the defendants had committed the acts that they were charged with. Id. However, the Justice observed that "demonstrations involving no offensive conduct and an objective as laudable as that of the defendants here, with an impact of unlawful activity as minimal as occurred here, should be entitled to be treated with an approach grounded in the principles of freedom of expression, as well as with compassion, at least as to those defendants with no prior record of unlawful activity." Id. The court indicated the factors which it weighed in deciding to dismiss the charges against the defendants with no prior criminal records as follows; "considering the defendants' motives, the lack of offensive conduct, the peacefulness of their actions, including the lack of any affirmative resistance to the police, even though the charges include resisting arrest (PL § 205.60), and the lack of physical harm to any person or property, it is my view that a dismissal of the cases of those defendants who have no prior history of arrest is an appropriate exercise of the court's discretion under the specific guidelines set forth in CPL § 170.40." Id.

Although this case comes before the Court as defense of justification, not a motion to dismiss under CPL § 170.40, Justice Donati's analysis provides a useful paradigm for analyzing the severity of the harm alleged, with consideration for the motives of the defendants as well as the interplay of civil disobedience with freedom of expression. The weight given to the mitigating factors in this case should be at least as great as those in Ben-Levi, for none of the defendants in this case are charged with misdemeanors and none of them resisted arrest either actively or passively.

CONCLUSION

The defendants have established three defenses justifying their refusal to vacate the South Outer Roadway when ordered to by the police. First, the defendants were motivated by a legitimate concern for the safety of other people who would be subjected to an imminent threat of grave physical harm if the South Outer Roadway was opened to automotive traffic. Second, the defendants acted in defiance of DOT policy which was unconstitutional and therefore void because it abrogated the constitutional right to travel freely. Finally, the defendants were motivated by legitimate concerns about the environmental impact of the closure of the bicycle and pedestrian lane.

A principal motive of the defendants' refusal to obey the order of the police officers to clear the South Outer Roadway was their concern for persons who they believed would be subject to imminent danger if automobile traffic had been allowed to enter the South Outer Roadway at that moment. The evidence conclusively indicates that bicyclists and pedestrians were present on the South Outer Roadway and that these persons could have been subjected to a threat of serious injury if traffic had been allowed to enter the Roadway.

The defendants were also concerned with alleviating the hazard posed to New Yorkers by pollution arising from internal combustion engines. They have produced evidence showing that air pollution is taking a heavy toll on the health and physical well being of New Yorkers and that the major source of pollution is related to internal combustion engines.

That the defendants were also protesting public policies with which they disagree does not obviate the fact that they were motivated by what they reasonably perceived as a threat of imminent physical injury to identifiable persons on the Queensboro Bridge, as well as a separate, but equally imminent, danger to their fellow New Yorkers arising from air pollution.19 The defendants have clearly carried their burden of establishing a reasonable basis for their defense of justification.

In determining whether prosecution has sustained its burden of disproving the defense of justification beyond a reasonable doubt, the Court must weigh the injury which the defendants were seeking to avoid against the minimal injury with which they are charged. In making this balance, the Court should consider that all the defendants are without any criminal records, the disorderly conduct violations they are charged with are minor, the actual harm they are alleged to have caused is insubstantial and they offered neither active nor passive resistance to the arresting officers. Indeed, in judging the veracity of the defendants' testimony as to their motives for refusing to obey the order to move, the Court should consider that these defendants were willing to take the extraordinary step of waiving their right against self-incrimination because they so deeply believe in the justifiability of their conduct and the capacity of this Court to appreciate the sincerity of their motives and the reasonableness of their actions.

In making the foregoing balancing test the Court should conclude that the defendants have established that their acts are precisely of the kind which were intended to be justified under Penal Law § 35.05 and, therefore, they should be found not guilty of violating § 240.20 of the Penal Law. The defendants also respectfully request that the Court consider the question of whether the Department of Transportation policy completely denying bicyclists and pedestrians access to the Queensboro Bridge without providing an adequate alternate route is an unconstitutional infringement on the defendants' right to travel and is therefore void as a nullity.
Dated: New York, New York
February 13, 1991

Respectfully Submitted,

Ronald B. McGuire, Esq.

Attorney for Jonathan Orcutt and Stephen Kretzman

Legal Adviser to
Charles Komanoff,
Ann Sullivan,
John Kaehny and
John Gray

494 Broadway
New York, N.Y. 10012
(212) 941-4600
(201) 656-2474

1 New York Penal Law § 35.05(2) provides: Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when: Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.
2 The Court heard extensive testimony indicating the dangers associated with bicyclists riding with cars on the South Outer Roadway during the hours of closure. Testimony was also offered indicating that approximately half the bicyclists crossing the Queensboro Bridge during the hours the lane is closed ride across with traffic, creating a continuing dangerous condition. See "Exhibit B", infra.
3 The DOT has a stated policy of encouraging bicycle commuting through the removal of impediments to bicycle use in Manhattan. See Defense Exhibit G, a copy of which is appended hereto as "Exhibit C" and discussion at Section III. C., infra. Ironically, the lane closure is precisely the kind of barrier to bicycle commuting that DOT identifies as an impediment to greater reliance on bicycles as a mode of transportation.
4 The freedom of movement within a single state is a basic constitutional right, as discussed at III. A., infra. The denial of a fundamental constitutional right is a grave harm and not mere moral opposition to a law or a public policy. Consequently, the deprivation of a fundamental constitutional right by the DOT, even without the concomitant threat of imminent physical harm to third parties, qualifies as an "imminent public or private injury" under Penal Law § 35.05(2).
5 The Court of Appeals decision reversing the First Department on People v. Karp is appended hereto as "Exhibit F".
6 "Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense." New York Penal Law § 35.05(2)
7 Cf. People v. Chachere, 104 Misc.2d 521, 428 N.Y.S.2d 781 (1st Dist. Suffolk County 1980). In a pre-McManus case, a trial court incorrectly held that justification defenses were to be narrowly construed and refused to allow a demonstrator to raise a defense based on the theory that the demonstrator's trespass on a nuclear power plant under construction was justified because of a public danger posed due to the incorrect construction techniques used in pouring concrete. Id. Chachere, supra, is distinguishable on other grounds, for the court held that the defendant did not have the expertise to know whether methods used to pour the concrete were improper. 104 Misc.2d 521, 428 N.Y.S.2d 781. By contrast, the defendants here were reacting to an imminent danger to other persons on the Queensboro Bridge which required no special expertise to perceive.
8 People v. Brown, supra, 333 N.Y.S.2d at 349.
9 Even if the restrictive standard applied to the AIDS activists by the Alderson court is applied, the actions of the Queensboro Bridge defendants would be justified. In Alderson, Judge Drager held that for justification to be interposed as a defense four conditions must be met. The defendant must show that the alleged criminal act was necessary to (1) protect the "life or health" of the defendant or others "from a direct and immediate peril"; (2) "the harm to be prevented must be imminent"; (3) alternative options do not exist to the defendant and (4) "the action taken by the defendant must be reasonably designed to prevent the threatened greater harm." Alderson, 540 N.Y.S.2d at 953-54.
The concern of the defendants for the safety of bicyclists and pedestrians who would be subject to danger if automobiles were permitted to travel on the South Outer Roadway and their refusal to move clearly satisfies the first, second and fourth Alderson conditions. With respect to the third condition, the factual record contains extensive evidence that these defendants and others availed themselves of every possible opportunity to change the DOT policy prior to being arrested.
It should be noted that the Alderson four point analysis does not appear to envision an injury involving an illegal deprivation of a fundamental right by a public authority, as occurred in this case.
Another recent case denying the defense of justification involved demonstrators protesting the construction of a naval facility on Statan Island. People v. O'Grady, 147 Misc.2d 118, 560 N.Y.S.2d 602 (App. Term 2d Dept.) appeal denied, 76 N.Y.2d 942 (1990) (appended hereto as "Exhibit D"). Like Alderson, the O'Grady decision does not refer to the broad standard for the applicability of the justification defense enunciated by the Court of Appeals in McManus and Padgett. Instead, the O'Grady court cites two decisions by the Ninth Circuit as its authority for disallowing the justification defense, neither of which applied New York law. Furthermore, the O'Grady defendants appeared to have relied heavily on international law and the "Nuremberg defense" to establish their claim of justification and do not appear to have alleged that they were moved to act out of either concern for actual persons in imminent physical danger, or to prevent the harm incurred as the result of the denial of a fundamental constitutional right.
10 The defendants offered evidence indicating that air pollution poses an imminent threat to the health of New Yorkers, and that this threat is exacerbated by policies of the Department of Transportation, such as the closing of the Queensboro Bridge to bicycle and pedestrian traffic. Clearly, the defendants are not responsible for the injuries accruing to New Yorkers due to air pollution.
11 Cf. People v. Crowley, 142 Misc.2d 663, 538 N.Y.S.2d 146 (Justice Ct. Town of Greece 1989). In ruling that demonstrators at an abortion clinic were not entitled to raise a defense of justification, Justice Rogers drew a distinction between protesting legal activity and protesting acts affirmatively sanctioned by specific legislative enactments as well as the United States Supreme Court. 538 N.Y.S.2d at 149-50. Justice Rogers employed a highly restrictive standard for determining whether a defense of justification would be inapplicable to legally sanctioned activity. He noted that the abortions which the protestors in Crowley were seeking to prevent, in addition to being specifically sanctioned by an act of the legislature, were "procedures which the Supreme Court has deemed to be a fundamental right". 538 N.Y.S.2d at 151. By contrast, the DOT policy which the defendants protested is no more than an exercise of the police power, and not even an act of the legislature.
Furthermore, the Crowley court expressly did not decide the issue of whether the defendants would be entitled to a defense of justification if they believed that the acts they were protesting were being performed in violation of state law. 538 N.Y.S.2d at 150 n.3. The defendants in this case have testified that they believed that the closure of the Bicycle and Pedestrian lane abridged the right of bicyclists and walkers to freedom of movement, which is recognized as a fundamental constitutional right. See III. A. and III. B., infra.
In any event, unlike the anti-abortion protestors in Crowley, whose sole motivation was to oppose activities expressly authorized by State law, an important part of the motivation of the defendants in this case is their belief that they were reacting to the threat of imminent physical harm which had no relationship to any legally sanctioned activity.
12 "Various Justices at various times have suggested no fewer than seven different sources [of the right to travel]: the Article IV Privileges and Immunities Clause, the Fourteenth Amendment Privileges and Immunities Clause, a concept of national citizenship said to be implicit in 'the structural logic of the Constitution itself', the Commerce Clause, the Equal Protection Clause, and each of the Due Process Clauses." Lutz v. City of York, 899 F.2d at 260-61, discussion, supra, at 260-67.
13 "The general delegation of power to localities allowing them to regulate the highways within their boundaries is contained in article IX, § 2(c)(6) of the New York Constitution, Municipal Home Rule Law § 10 and Vehicle and Traffic Law § 1604." Id.
14 Ironically, the Second Department cited a dangerous detour which necessitated truck drivers to lengthen their trips by 3.3 miles as one of the factors leading it to declare that a municipal ordinance which banning trucks from utilizing a two-tenths of a mile portion of a city street was unconstitutional. Peconic Avenue Businessmen's Association v. Town of Brookhaven, 98 A.D.2d 772, 469 N.Y.S.2d 483, 484, 486 (2d Dept. 1983). The closure of the Queensboro Bridge Bicycle and Pedestrian Lane has created hardships for the bicyclists and pedestrians who must make an even longer detour through unsafe city traffic or abandon their mode of transportation altogether.
In an earlier case, the Court of Appeals held that the a local ordinance banning transient traffic from a ten block area required higher scrutiny than normal traffic regulations. People v. Grant, 306 N.Y. at 263. In invalidating the local ordinance, the court held, "[t]he prohibition of all through traffic from entering a designated area is, however, more severe [than other traffic regulations]. The difference is so great that it cannot be said that power to enact this ordinance parallels any of the other powers granted to local authorities by section 90." Id.
15 The inside front cover of the DOT Report contains the following statement: "This document is disseminated by the New York City Department of Transportation in the interest of information exchange. It reflects the views of the New York City Department of Transportation, which is responsible for the facts and accuracy of the data presented."
16 The prosecution cannot sustain a claim that the demonstrators were responsible for the dangerous condition which they were protesting. Testimony indicated that bicyclists and pedestrians regularly crossed the Queensboro Bridge during the hours that the bridge was closed to them and that the persons crossing the bridge during the October 22nd and earlier demonstrations were unconnected with the protests. Further, persons entering the bridge from Manhattan or Queens would be unable to see whether there was a demonstration, since the gate to the South Outer Roadway, where the demonstrators held their protest, could not be seen from the bridge entrances.
17 At previous Queensboro Bridge demonstrations organized by TA, the authorities allowed the demonstrators to remain in the Bicycle and Pedestrian Lane until 7 P.M., when the lane was closed to automotive traffic. Consequently, the October 22nd demonstration was the first time that the demonstrators were confronted with a situation where they were ordered to clear the Bicycle and Pedestrian Lane in order to allow auto traffic through, thereby creating a hazard to bicyclists and pedestrians on the South Outer Roadway.
18 Furthermore, in light of the unconstitutionality of the DOT regulation banning bicyclists and pedestrians from the Queensboro Bridge, the use of the disorderly conduct statute to enforce an unconstitutional regulation is improper and charges against the defendants should be dismissed.
19 The unconstitutionality of the DOT policy depriving the defendants and others of a fundamental right gives rise to a separate, but legally sufficient, justification for the defendants' conduct.

Testimony Old URL
911108queensboro
Secondary Title
(Preventing Automobile Traffic from Entering the Bike and Pedestrian Path of the Queensboro Bridge)