Small Win for Critical Mass, Truth, Protest Rights

The National Lawyers Guild reports that charges have been dismissed against legal observer Adrienne Wheeler, who was assaulted by Assistant Chief Bruce Smolka on February 24, 2006, the night of a Critical Mass bicycle ride. Video Wheeler and the National Lawyers Guild – New York City Chapter (“NLG-NYC”) provided to the Civilian Complaint Review Board in March shows that, wearing plainclothes, Chief Smolka grabbed Wheeler from behind as she rode her bicycle past him and dragged her to the ground by a chain locked around her waist. Chief Smolka did this without identifying himself as a police officer or giving any warning. NYPD Officer Alfred Ortiz then issued Ms. Wheeler a ticket in which he swore he personally observed her ride a bicycle the wrong way on a one-way street – statements he admitted Friday were false.

“Falsely swearing in a complaint – even a traffic ticket - is an actual crime punishable by up to a year in jail, while traffic infractions and the like are categorically not crimes,” said Simone Levine, Wheeler’s lawyer. Levine, who helped coordinate the NLG-NYC’s mass defense efforts during the Republican National Convention (“RNC”) in August of 2004, testified before the City Council that the NYPD had targeted more than a dozen legal observers for arrest and prosecution during the RNC. Speaking for the NLG-NYC, Gideon Oliver, who has represented hundreds of the more than 650 people the NYPD has arrested on the nights of Critical Mass rides since just before the RNC, explained that “the NYPD has been at this for two years now and Chief Smolka and other supervisors appear to have developed strong personal investments in singling out legal observers for arrest and prosecution, likely because legal observers have called attention to repeated instances in which NYPD officers, not bike riders, have endangered the public safety, including by removing people from moving bicycles without warning.”

Officer Ortiz was accompanied to traffic court by Lt. Joseph Caneco, the head of Operations for Chief Smolka’s command, Patrol Boro Manhattan South. Lt. Caneco told the judge that Ms. Wheeler’s was “his ticket” and demanded to testify, but the judge made him wait outside the courtroom instead of offering him differential treatment. The judge then called the DMV in Albany and obtained a different version of the ticket Officer Ortiz had given Ms. Wheeler. Under oath and faced with that document, Officer Ortiz acknowledged having sworn under penalties of perjury that he had personally observed Ms. Wheeler riding her bicycle, although he had not, and agreed that it was unlawful for him to have signed the ticket at all, noting that he had been acting under his Lieutenant’s orders. After the judge dismissed the case for those reasons, Lt. Caneco demanded to amend the judge’s ruling. Rebuffed, Lt. Caneco and a group of top cops promptly stormed out of the courthouse.

Wheeler does not know the status of her CCRB complaint. Another CCRB complaint was lodged against Smolka in May of 2005 after he grabbed and arrested a woman for allegedly riding her bicycle on the sidewalk in Union Square Park on the night of a Critical Mass ride in April. Wheeler is not hopeful even two substantiated complaints would curb Chief Smolka or other top cops. “Commissioner Kelly has consistently given passes to supervisors against whom the CCRB substantiated RNC-related complaints,” Wheeler noted, “and so much for the NYPD’s commitment to internal policing.”

Oliver said that the City Council and the Office of the District Attorney were responsible for turning a blind eye to widespread “testilying” in what the DA considers “protest cases” since the RNC, and called NYPD brass to task for putting rank and file officers in the position of having to choose between following orders and perjuring themselves or telling the truth under oath, thereby risking prosecution for having made unlawful false written statements. “Top ranking members of the NYPD, habituated to having their orders followed, do not have a leg to stand on when judges insist on following the law,” said Levine. “If we want the police to stop breaking the law,” added Oliver, “we must not only protect legal observers like Adrienne, but also watch the police ever closer. Responsible government requires that kind of accountability.”

More at NLG, OnNYTurf.