A Constitutional Crisis to Call Our Own

The New York City Police Department wants to require parade permits for groups of cyclists of 20 or more, and wants to unilaterally impose other rules on small groups that choose to protest in what until now seemed like legal expressions of First Amendment rights. As quoted in the New York Times, Donna Lieberman, executive director of the New York Civil Liberties Union said the rules would “threaten to substantially restrict protests.”

The proposed rules seem to have roots in the NYPD’s persistent and absurd paranoia about Critical Mass (a monthly demonstration staged by Transportation Alternatives, a pro-bicycle, anti-auto traffic group, that, while often causing brief traffic tie-ups, is usually quite peaceful), and Commissioner Ray Kelly’s more generic fear of anything that might make “his” city look like some place edgier than, say, Scarsdale on Prozac, but they have the potential to give the police power to break up protests at will (for instance, as I read it, any group of two or more that disobeys a traffic rule can be deemed to be parading without a permit). As lawyer Norman Siegel puts it, “it’s antithetical to the principles and values of the right to protest that New York is associated with. This is simply unacceptable.”

But there is another problem with the NYPD’s proposal, namely, since when does a police commissioner have the authority to unilaterally change a law? Police Department spokesman Paul J. Browne, sounding like NYC’s very own version of Alberto Gonzales, thinks they do (or, at least, I think he thinks that’s what he’s saying):

A permit effectively allows activities that would otherwise be illegal, such as disregarding traffic signals or blocking pedestrian traffic, to go forward with the police making accommodations such as the rerouting of pedestrian or vehicular traffic. Nothing in the amendments changes the penalties.

However, I, like Mr. Siegel, think that under the city’s charter, it’s the City Council that legislates new laws—not Ray Kelly. “My instinctive reaction,” said Siegel, “is he cannot do this, it has to go to the City Council.”

There’s to be a public hearing on the proposed rule changes on August 23rd, but that’s not really the point. The point is that the NYPD doesn’t legally have the right to make the changes. Such moves, if necessary, have to be taken up by the City Council.

So, if you live in NYC, why not give 311 a call and ask for your Council Member’s office. Tell your elected representative in city government that you want him or her to stand up for democratic principles, the separations of powers, and the First Amendment rights of New Yorkers. Ask that the City Council go on record as opposing the NYPD’s unilateralism, and ask that the Council hold hearings on whether Ray Kelly even needs his "rule changes."


(Cross-posted over at Daily Kos.)


(More NYC action on guy2k.)