For about two hours the evening of July 25, 1997 about 5,000 bicyclists rode through San Francisco as part of the monthly Critical Mass bike ride. Plaintiff was among a group of 100 bicyclists surrounded without warning by the San Francisco police, arrested, handcuffed, and taken to jail. Everyone in this group was charged with failure to disperse, unlawful assembly, disobeying a peace officer, and blocking traffic. All 100 mass-arrestees had their bicycles confiscated, and the Mayor threatened to keep them permanently. Plaintiff was finally able to recover his bike a week later. Plaintiff filed a claim against the City of San Francisco, then successfully sued the City in Small Claims Court. The City then appealed to Superior Court.

Though there were clearly crowd control problems and vehicle code violations committed the evening of the arrest, police should have acted against people who violated the law, rather than arbitrarily arresting a group of people in order to set an example. The evidence will show that the arrest was illegal. Furthermore, it will show that throughout this case the Police Department and the City has exhibited a pattern of obstification and reckless disregard for individual rights, from the punitive measure of confiscating and holding the bicycles to legal maneuvering to make it difficult for arrestees to challenge the false arrest.
 

Monthly Critical Mass bicycle rides have taken place in San Francisco for over a decade. For over a year prior to the July 25, 1997 ride, police had provided an escort for the riders. Riders believe that these police escorts waved them through while blocking cross-traffic at intersections, knowing that a mass group of bicyclists would be less disruptive to cross-traffic if the officers blocked that traffic long enough for the crowd of bicycles to pass. (The alternative of making bicyclists stop at red lights might be advantageous for cross-traffic at the lead light, but those stopped bicyclists would cause a gridlock of bicyclists behind them having nowhere to go, blocking cross-traffic for many blocks behind the lead light. Mayor Brown was even quoted as saying "The cyclists make a good point by saying the situation may be made worse by saying you canít run any red lights. I donít want to get hung up on this business of running a red light." ["Mayor Brown Backs Down on Bike Event; U-turn on Critical Mass catches police off-guard," San Francisco Chronicle, July 22, 1997, page A1])

Several weeks before the July 25 1997 ride, Mayor Brown was quoted in the newspapers saying that the Critical Mass event should be stopped. Over the next few weeks his position vacillated, and he actually showed up at the start of the ride to give a speech and joke with the bicyclists.

Plaintiff, along with most bicyclists in the crowd had no reason to believe that this ride would be any different in terms of police escorts and having the crowd of bicyclists pass through red lights to keep the large group from forming gridlock. Not until after the arrests did plaintiff discover that he was on an unsanctioned ride and was not being waved through intersections. If police did warn that the ride was unsanctioned, warning was at an isolated location, and did not reach most of the bicyclists.
 

About 8:30 PM (sun beginning to set) on Friday evening, plaintiff joined a group of bicyclists riding west on Sacramento from Davis, planning to meet friends at the Powell Street BART station and go back to his home in Berkeley. This group was stopping at each stoplight. The group passed a disturbance just before Sansome, but most (including plaintiff) continued on. Just past Sansome plaintiff stopped beside a police wagon and asked an officer a question, then continued west on Sacramento. There was a crowd of bicyclists stopped at the Montgomery Street stoplight, and it took some time for plaintiff to notice that the congestion was not because of the light, but rather because the police had formed a line across Sacramento and were not letting anyone pass. After a while the plaintiff noticed that there was also a line of police at the other end of the block, and that everyone on that block (about 100 bicyclists) had been hemmed in. Plaintiff approached an officer and asked what was going to happen, and the officer said the plaintiff would find out in due time. Plaintiff waited between 15 minutes and half an hour before an officer came out with a bullhorn to announce that all those encircled would be arrested.

No audible order to disperse was given while plaintiff was present, and no opportunity to disperse was given. One by one, each of the 100 encircled people had their bicycles tagged and taken away, were handcuffed, and were put into the back of a police van. Arrestees offered no resistance, no shouts, no chants. Plaintiff was placed in a van without any windows or interior light, and was unable to even see the other arrestees in the van. About an hour later plaintiff was transported to county jail and placed in a holding cell that eventually filled up with about 60 males.

A telephone on the wall in the cell was labeled with a note that it could be used only for phone calls to the 415 and 510 area codes, and plaintiff repeatedly tried calling to Berkeley (510), but the phone would not work to call there.

After several hours in the holding cell, plaintiff was processed for release around 1 AM. At the processing, plaintiff told sheriffís deputies that he had missed the final BART train home, and requested to spend the night in the holding cell. Sheriffs told him that if he wanted to spend the night there, he would have to spend not just Friday night, but the entire weekend in jail and would have to go before a judge on Monday. Plaintiff decided that release was preferable than an entire weekend in jail, and tried to hitchhike home to Berkeley. After trying for over two hours (at two separate freeway onramps), plaintiff gave up and tried sleeping in some bushes near the freeway. In the morning plaintiff took BART home. Plaintiff spent the weekend highly agitated over the arrest and loss of his bicycle.
 

Sheriffs deputies handling the release processing had told plaintiff that he could retrieve his bicycle Monday morning at the Hall of Justice. Plaintiff crossed the bay and went to the Hall of Justice Monday morning, only to be told that the bicycle was not ready for release. Plaintiff was told to call back on Tuesday.

When plaintiff returned home to Berkeley, he heard news radio reports indicating that the City was considering permanently confiscating the bicycles. He then picked up newspapers and read quotes from Mayor Brown saying "I think we ought to confiscate their bicycles." ["Brown: Take bikes of busted cyclists", San Francisco Examiner, July 27, 1997, page A1]. He also read an article where the "San Francisco Police Chief will ask the district attorneyís office to hold on to the bikes seized in Fridayís Critical Mass, at least until those arrested show up in court... Lauís recommendation comes a day after Mayor Willie Brown first raised the possibility of seizing the bikes and either auctioning them off or donating them to charity." [S.F. Police Chief To Ask DA to Keep Confiscated Bikes", San Francisco Chronicle, July 28, 1997, page 1]

Plaintiff became very upset and agitated that his only means of transportation was going to be auctioned off. Plaintiff made repeated calls to lawyers and City officials, as well as trips to San Francisco to try to get his bicycle back. Plaintiff was unable to sleep and was inattentive at work for the next week. And plaintiff had to take taxis and busses to get to meetings and appointments that week.
 

The mass arrest of 100 bicyclists was illegal and contrary to proper policies and procedures. The arrestees were not part of an unlawful assembly, and even if one could conceive of their conduct as illegal, they were not given proper warning to disperse and a chance to disperse, as required by the penal code. If an unlawful assembly was declared and people were ordered to disperse that evening, these orders were given somewhere far out of earshot of the plaintiff and all witnesses, perhaps miles away. Even if police thought that such a dispersal order was difficult to give and be heard, they still are required to make a concerted effort to be heard, which they did not do. And common decency would dictate that they make at least a half-hearted attempt to make sure that arrests are confined to those who have heard the dispersal order. (For example, they could have read an unlawful assembly and dispersal order to the 100 people they had surrounded, then given them a chance to disperse.) Both the penal code and Federal Appellate Courts say that individuals must be given a chance to disperse, but no such chance was given by the SFPD that evening. If the police did indeed read a dispersal order somewhere in the vicinity of the arrests, they made no attempt to avoid rounding up and arresting bicyclists who had bicycled into the area after an announcement was made. It is quite telling that no one in the vicinity (except perhaps police officers) appears to have heard a declaration of unlawful assembly or an order to disperse.

There was no cause to declare plaintiff a member of an unlawful assembly. Unlawful assemblies require violent or illegal acts (PC 407), and plaintiff and witnesses were not engaging in violent or illegal acts. Illegal acts most certainly occurred that evening (and violent acts probably did as well), but police do not have the legal right to round up a random group of bicyclists in the City just because a few isolated illegal acts occurred somewhere. There must be a direct tie between the illegal act and the individuals who are declared the unlawful assembly. There were 5,000 bicyclists participating in Critical Mass that evening, and very few illegal acts. Police should have addressed the individual illegal acts. And if they really did need to declare an unlawful assembly (a "need" that the plaintiff would disagree with), the law requires that they audibly declare it as such and give people a chance to disperse.

According to section 726 of the California Penal code (Prevention of Public Offenses: Suppression of Riots), peace officers "must go among the persons assembled, or as near to them as possible, and command them, in the name of the people of the State, immediately to disperse." And the SFPD Crowd Control Guidelines tell officers how to handle dispersals:

• Go as close to the crowd as possible and command them...
• Use a loudspeaker system to assure that all have an opportunity to hear the order
• If circumstances permit (absence of serious violence) the order shall be made repeatedly over a period of time and, if necessary, from a variety of locations
• Provide the crowd with an adequate period of time and a clear and safe route to disperse

A close reading of the law indicates that, unless one is given proper warning, one cannot be a participant in an unlawful assembly. According to the California Criminal Jury Instructions (CALJIC 16.241), both "an unlawful assembly [must have] occurred" and the defendant must have "willfully and knowingly participated in the unlawful assembly". Yet on July 25 1997 no one in the arrested crowd appears to have heard it declared an unlawful assembly, so they could not have been willful and knowing participants.

The charge of "Refusal to Disperse" was also blatantly illegal. The penal code (PC 409) states the individuals must be "lawfully warned to disperse" (which they were not). Federal appellate courts have ruled (Washington Mobilization Committee et al v. Maurice J. Cullinane, Chief of the Metropolitan Police Department et al, No. 75-2010) that individuals must be provided with "fair notice and opportunity to comply" with a dispersal order for that order to be lawful. In this case, the arrestees were given no notice, and no one had an opportunity to comply.
 
 

The City Attorney may try to make the argument that just being a part of Critical Mass constituted an unlawful assembly. But this argument is contradicted by repeated SF Police statements to the press in the weeks before the July 25 ride. In these statements police spokespersons said that they thought that most Critical Mass-ers were well-intentioned and law-abiding, and that any crack-downs would only affect a few trouble-makers. "ëItís a small proportion that wants to actually create traffic havoc, perhaps one percent,í said Captain Dennis Martell. ëThe overwhelming majority are just there for another San Francisco happening.í" ["Brown Wants to Put Brakes on Mass Bike Ride", San Francisco Chronicle, July 2, 1997, page A1] In an article appearing in the Examiner several hours before the ride started, Police Chief Fred Lau indicated that police would deal only with the few trouble-makers, not try to condemn the entire set of riders: "Anybody who independently diverts away or commits some type of traffic violation or some other type of offense is going to be dealt with on an individual basis." ["Critical Massí moment of truth", San Francisco Examiner, July 25, 1997, page A1]

Plaintiff and witnesses believed that they were on a sanctioned event, that had even been kicked off by a speech by the Mayor. They did not realize that the police had called off the escort, nor that they were following an "inappropriate" route until they read so the next day in the newspaper. Few cyclists knew the "appropriate" route, and most thought that they were going the right way on a sanctioned event. Even Police Captain Martell acknowledged this, telling the Examiner "many bicyclists might have followed the dissident bikers by mistake." ["Critical Mass a Mess", San Francisco Examiner, July 26, 1997]
 
 

Confiscation of Bicycles

In their legal brief submitted to Small Claims Court, the City made the absurd claim that the bicycle confiscation was necessary for evidence as "instruments of the crime". First of all, the charges leading to arrest (failure to disperse, unlawful assembly) did not involve bicycles, and this stance on the part of the City lends credence to plaintiffís contentions that he was arrested for being a bicyclist, not for failure to disperse or unlawful assembly. Secondly, the City already had more than enough hard evidence to show that the plaintiff had been riding a bicycle that evening: bicycles were tagged and labeled at the arrest scene, and plaintiff was given a receipt.

The bicycles were not confiscated as evidence; they were confiscated to punish the arrestees and send a message to other bicycle riders. This was the message given by Mayor Brown when he advocated auctioning off the confiscated bikes, and by Police Chief Lau when he asked the DA to keep the bikes. According to an article appearing the Chronicle the following Monday, the bicycle confiscation was punitive in nature. "The tactic, which Lau announced to the Chronicle yesterday, is intended to send the message ëthat we are not going to tolerate any more of this mob mentalityí." [S.F. Police Chief To Ask DA to Keep Confiscated Bikes", San Francisco Chronicle, July 28, 1997, page 1]
 

Plaintiff suffered direct business damages, incurred transportation costs, and suffered emotional trauma as a result of the arrest and confiscation of his sole means of transportation (for monetary details, see Plaintiff documents P-1).

The night of the arrest, plaintiff was handcuffed and made to sit in the back of a windowless van that was so dark he could not even see his own waist or knees. He was held for many hours, then released after the last BART train, and had to sleep on the street. From those experiences he suffered embarrassment and anxiety, and his sleep patterns were disrupted for more than a month afterwards.

The confiscation of his bicycle forced him to use (and pay for) taxis and public transit, made him late to numerous meetings and appointments, and took him much longer to get places. In addition, the threat of permanent bicycle confiscation caused him even greater anxiety, and forced him to seek immediate legal advice.

Plaintiff was forced to seek legal counsel to defend himself against the charges. He had to spend many hours meeting with lawyers, contacting witnesses, reviewing documents, etc.

The enormous time spent on criminal legal defense for the October 6 court date prevented plaintiff from completing a $2600 consulting contract with the Getty by the Sept 30 1997 deadline (see Plaintiff document P-2). Though plaintiff had had a series of regular overlapping contracts with branches of the Getty since 1993, he has not been able to negotiate a single new contract with them since he missed that contract deadline. Plaintiff believes that his failure to make this deadline has damaged his reputation and cost him tens of thousands of dollars thusfar in various missed contacts (and much more in the future).

Throughout this process the City Attorneyís Office has used their knowledge of the law to thwart attempts by those illegally arrested to seek legal redress. The City Attorney tried to make it so difficult and time-consuming to pursue this, that only one of the 100 arrestees could afford to see the process through to the end. The City Attorney routinely denied claims of false arrest filed against the city without ever contacting plaintiff or other claimants for further information or clarification. When the City lost in Small Claims Court, instead of just paying the $500 judgment, they appealed in still another attempt to avoid compensating the plaintiff. When the plaintiff contacted Joe Sandoval of the City Attorneyís Office to request that the Court date be set at a time that he and his witnesses could attend, Sandoval said "I donít mind setting another date, but I refuse to stipulate to it" -- knowingly forcing the plaintiff into a legal quagmire (involving several trips to San Francisco, waiting in Court, filing of Ex Parte petitions, serving papers, etc.-- Plaintiff document P-3). Sandoval also never responded to plaintiffís March 1 letter (Plaintiff document P-4) requesting a chance to review the videotape that the City had tried to show at the Small Claims trial (not even sending a note or phoning to inform plaintiff that the City would not allow him to see the tape). The City Attorneyís Office has shown no interest in justice, and has exhibited a constant pattern of trying to wear down the aggrieved parties in the hopes that they would become frustrated and drop their case (as most of the arrestees did).
 

The Cityís position, as articulated in their Small Claims Court Brief, strains credibility. They would have us believe that police audibly warned the crowd to disperse or be arrested, yet 100 adults chose to be arrested. They would have us believe that the arrestees were the same group of people who the Cityís Brief calls "an angry crowd" that chanted threats at officers when they tried to ticket bicyclists -- yet this same crowd became docile and neither chanted nor acted hostile when they themselves were surrounded and arrested.

The City has come up with these unbelievable scenarios because they are unwilling to admit the truth -- that they did not follow the law, and that they arrested and incarcerated 100 innocent individuals. Though officers may have warned of an unlawful assembly elsewhere, they made no attempt to follow the law and assure that the individuals they had arrested had heard the warning, nor did they give those individuals any chance to disperse. Police decided to make an example of innocent individuals to prove that they could be tough and crack down. And they continued to harass these individuals by illegally confiscating their bicycles.

The City Attorneyís role throughout this whole affair has been shameful. Instead of making sure that the police followed the law, the City Attorney has stretched out the process of paying damages for almost two years -- long enough that only one claimant has stuck with the process. The City Attorney even appealed plaintiffís $500 judgment against the City in the hopes that plaintiff would realize that the time and effort required for a Superior Court Appeal would be worth more than the $500 judgment.

In light of the significant damages suffered by the plaintiff (as well as 100 others), plaintiff asks the court to provide the remedies outlined in the following section.
 

Considering the flagrant disregard for individual rights and proper legal procedures on the part of the San Francisco Police Department, and the stonewalling and frivolous Appeal of Plaintiffís Small Claims judgment by the City Attorneyís Office, Plaintiff requests that the Court order the following:

• That the City of San Francisco send formal letters of apology to all 100 persons arrested in the mass arrest, and that they arrange for a summary letter of apology to be printed in all local newspapers.
• That the San Francisco Police Department be reprimanded and enjoined from further mass roundup arrests of citizens without warnings.
• That the San Francisco Police Department be reprimanded and enjoined from further confiscation of bicycles by claiming that they serve as "evidence".
• That the City of San Francisco be ordered to pay plaintiff for all (criminal proceeding) costs incurred from the illegal arrest and incarceration, as well as the confiscation of his only means of transportation (see Plaintiff document P-1a).
• That the City of San Francisco be ordered to pay plaintiff for (civil proceeding) legal costs including legal fees, court filing fees, legal research, photocopying of legal documents, and time lost due to dealing with the legal case (see Plaintiff document P-1b).
• That the City of San Francisco be ordered to pay all witnesses for the time they had to take off of work to testify at both the Small Claims and the Superior Court trials.
• That the Court admonish the City Attorney for engaging in a frivolous Appeal of plaintiffís Small Claims judgment (spending more money on the Appeal than on paying the original judgment).