Streetsblog New York City

The lawsuit seeking to eradicate the Prospect Park West bike lane may be shaky and borderline-frivolous, but Jim Walden, the lawyer representing the bike lane opponents, seems to have luck on his side this week. The source of his good fortune: A front page New York Times story on Bloomberg administration pilot programs. In a letter written the same day the story was published [PDF], Walden told Brooklyn Supreme Court Judge Bert Bunyan that the piece illustrates “precisely the issue we raised during our June 22 conference with the Court.”

That Wednesday, Walden was in court arguing that the Prospect Park West bike lane was installed as a trial project last summer. He has to prove to Judge Bunyan that NYC DOT presented the redesign as an interim treatment, or else the anti-bike lane lawsuit has no standing in court. There is a four-month statute of limitations on the type of complaint filed by the PPW opponents, known as an Article 78, and the plaintiffs filed suit in March 2011, eight months after the city installed the redesign. So Walden’s shot at keeping the case alive hinges on convincing the judge that the city called the project a “trial,” and the installation itself did not set the four-month clock ticking. (Needless to say, we are deep in the legal weeds at this point, and far from the core contention in the lawsuit, that DOT acted in an “arbitrary and capricious” manner by installing the bike lane after years of public process.)

The problem for Walden is that bike lanes are not installed on a trial basis, and from the get-go, the city has not characterized the Prospect Park West project as anything other than a permanent redesign. In a sworn affidavit [PDF], DOT bike and pedestrian director Josh Benson said he publicly corrected the perception that the bike lane was a trial project at a Community Board 6 hearing last year. Walden has asserted that his “trial” theory will be borne out by documents he obtained from Council Member Brad Lander’s office through a freedom of information request. At the hearing last week, Judge Bunyan adjourned the case until July 20 to give Walden more time to review those documents.

Enter the New York Times. As luck would have it, the Times ran a story on page A1 this Monday — “‘Pilot’ Label Lets Mayor’s Projects Skip City Review” — about Bloomberg administration pilot programs, giving prominent attention to DOT initiatives under commissioner Janette Sadik-Khan. Curiously, the story repeatedly referred to bike lanes to illustrate its point, even though bike lanes are all presented to community boards and receive as much public review, if not more, as they did under previous mayors and DOT commissioners. The article erroneously stated that “painting bike lanes green” is a trial program.

Later that day, Walden sent a letter to Judge Bunyan, asking for the case to be adjourned until September 7 to give him more time to submit more FOIL requests. The primary basis for his request was the New York Times story:

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The lawsuit arguing for the removal of the Prospect Park West bike lane is back in court next Wednesday, and Kate Hinds at Transportation Nation has the legal brief in which the New York City Department of Transportation and the city Law Department respond to the charges leveled against DOT.

In new court papers, available above, the city lays out the reasons it decided to install a bike lane on Prospect Park West and proceeds to calmly dismantle the bike lane opponents’ lawsuit. The difference in tone between the city’s methodical argumentation and the insinuations of Gibson Dunn attorney Jim Walden, which were described by an NYU Law professor as “largely public relations,” is particularly striking.

Legally, the city’s lawyers point out that DOT need only have had some rational basis for installing the bike lane — a standard easily surpassed given the long history of public requests for traffic calming and better biking conditions on PPW — and that they ran afoul of neither environmental review regulations nor the city’s landmarks preservation process.

In addition to the legal arguments, the brief goes into detail about DOT’s data collection for the PPW project. From the beginning, the NBBL lawsuit has been used as a tool to undermine public confidence in how DOT selects and evaluates its street safety projects, and for the first time, you can see in this brief DOT’s official, comprehensive response to the allegations that the agency fudged data in evaluating the Prospect Park West bike lane. The brief elucidates in detail how, in fact, NBBL and Walden cherrypicked data to fit their narrative.

For example, when NBBL and Walden alleged that DOT counted crashes that didn’t happen on Prospect Park West, the city explains, they failed to understand how NYPD records traffic crashes at intersections. In those cases, police record one street as the “on” street and the other street as the cross street. Because most crashes occur at intersections, it is standard DOT practice to count a crash as occurring on a given street if it is listed as a “cross street” in the police report. NYPD may, for instance, record a crash that happened at the intersection of PPW and Third Street as happening “on” Third Street, with PPW as the cross street. When studying safety on the PPW corridor, DOT counts such a crash as happening on PPW, while NBBL would have disregarded such a crash, en route to compiling a dataset that doesn’t adhere to the methodology employed by DOT all over the city.

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#3: Before NBBL was lobbying City Hall to remove the Prospect Park West bike lane, Marty Markowitz and Iris Weinshall were lobbying DOT to not even build the PPW bike lane (PDF). #4: NBBL has a U.S. Senator on their side.

If opponents of an effective street safety project repeat dishonest distortions about it often enough, does that make their position true? Apparently, the Daily News editorial board thinks so. An opinion piece they published over the weekend on the Prospect Park West bike lane might as well have come straight from the desk of Gibson Dunn lawyer Jim Walden, the corporate litigator, Chuck Schumer campaign donor, and rumored Brooklyn DA hopeful who’s now representing bike lane opponents “pro bono.”

A decade ago Daily News reporters were crusading for safety improvements on Queens Boulevard, leading to measures that prevented injuries and saved lives. Now, without any hint of skepticism, truthseeking, or other basic journalistic impulses, the Daily News editorial writers seem content to lift talking points straight from street safety opponents, aligning themselves with the goal of making New York more dangerous. They apparently believe the narrative spun by the anti-bike lane group known as “Neighbors for Better Bike Lanes” and their spin-off, “Seniors for Safety” — a story in which DOT Commissioner Janette Sadik-Khan is the only person in New York who wants safer streets for biking and walking, and the local community could, at any moment, “erupt into open revolt.”

It can be time-consuming to visit the neighborhood you’re opining about, do nuts-and-bolts research, or fact-check the faulty assertions in a lawsuit before you reprint them for hundreds of thousands of readers, so Streetsblog has compiled this handy list for the future reference of the Daily News editorial staff, or anyone who’s actually curious about how this project came to be and what the opponents are really after (hint: it’s not safety or “better bike lanes”).

The NBBL narrative obscures the following:

1. Community groups asked for the project

   One of NBBL’s basic tenets, unchallenged by the tabloid dailies, is that the city foisted the Prospect Park West redesign on the neighborhood. But the fact is that public pressure to tame traffic on Prospect Park West had been mounting since 2006, when the Park Slope Civic Council’s traffic and transportation forum highlighted rampant speeding on PPW as a major quality of life concern.

   Later that year, after holding a series of public workshops, the Grand Army Plaza Coalition produced a report including recommendations for better bike access to GAP, and in 2007, Brooklyn Community Board 6 asked the city to study the implementation of a two-way, protected bike lane on PPW. Park Slope Neighbors later gathered 1,300 signatures asking for a two-way bike lane and traffic calming measures on the street — all before DOT proposed the PPW redesign in 2009. No one had to convince people that their neighborhood streets could function a lot better.

2. DOT’s safety data is rigorous and honest

   Data collected from the six-month study period after implementation of the re-design clearly shows that the incidence of speeding on PPW has gone down significantly, and the early results indicate that crash and injury rates have declined. You can’t be “for safety” and oppose a project that produces these benefits, so NBBL has attacked the data and cherrypicked numbers to undermine confidence in DOT’s methodology.

   To do this, NBBL claimed that DOT typically doesn’t use multi-year averages of crash data to ascertain the effect of street redesigns, when the truth is that this is exactly how DOT and other transportation agencies measure safety effects, because that’s the statistically rigorous way to do it. As Gary Toth, a 34-year veteran of the New Jersey Department of Transportation, told Streetsblog: “It is the opponents’ lawyers who are grasping at aberrations and doing the very thing they accuse the DOT of — selectively picking data to stack the deck in their favor.”

3. Before NBBL was lobbying City Hall to remove the PPW bike lane, Iris Weinshall and Marty Markowitz were lobbying DOT to not even build the PPW bike lane

   From the beginning, the campaign against the bike lane has been spearheaded by opponents with political clout. In October 2009, after the PPW redesign had been approved by CB 6, Borough President Marty Markowitz wrote to Transportation Commissioner Janette Sadik-Khan, asking her not to install the redesign. “I am joined in this request by former DOT Commissioner, Iris Weinshall — who absolutely agrees that the installation of a two-way, barricaded bike lane would cause incredible congestion,” Markowitz wrote in a letter [PDF] obtained by Streetsblog through freedom of information requests. The attempt to perform an end-run around a multi-year community-led planning process had begun. Weinshall would later join Louise Hainline and Norman Steisel in penning a letter to the New York Times on behalf of NBBL, speciously claiming that the redesign increased danger on PPW.

4. They have a U.S. Senator on their side

   NBBL leaders have taken to saying that only “a small number” of their members are politically connected. But it only takes one former deputy mayor to go over the heads of the local community board and get direct access to City Hall. It only takes one former transportation commissioner to lend an air of legitimacy to spurious claims about a traffic-calming project increasing risk. And if that former DOT chief is married to a U.S. Senator, that’s all you need to enlist City Council members to start agitating against the current DOT and its projects to improve safety for pedestrians and cyclists.

5. They have media access that would make Snooki jealous

   In the annals of NYC NIMBYism, NBBL may be the only neighborhood-level opposition group that has hired a PR firm to get its message out to the press. They’ve also received a helping hand from Marty Markowitz’s office, which offered to put members of NBBL in touch with CBS2 reporter Marcia Kramer last October, according to email correspondence obtained by Streetsblog. CBS2 aired a Kramer segment in February featuring Markowitz, NBBL member Steve Spirn, and video footage provided by NBBL. The coordination between all these parties is never revealed to the viewer, who sees a series of bike lane opponents that seem unrelated to each other. Kramer never mentioned NBBL herself during the segment; only after she kicked it back to the anchor did he say that a group called “Neighbors for Better Bike Lanes” planned on suing the city.

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Gibson Dunn attorney Jim Walden is making the media rounds smearing the DOT over its installation of the Prospect Park West bike lane, while former DOT commissioner Iris Weinshall, Senator Chuck Schumer, and former deputy mayor Norman Steisel stay out of the spotlight.

This morning, Gibson Dunn attorney Jim Walden continued his media tour calling attention to the lawsuit he filed earlier this month to remove the Prospect Park West bike lane. Appearing on the Brian Lehrer show, Walden tried to distance the group he represents from former DOT Commissioner Iris Weinshall and her husband, Senator Chuck Schumer.

Walden told Lehrer that Weinshall is “not part of the group” suing the city. That may be true in some strictly legal sense, but just a few months ago Weinshall was writing letters to the Times alongside fellow bike lane opponents Louise Hainline and Norman Steisel. (Get your free access to it while you still can.) The paper identified all three authors as members of the bike lane opposition group “Neighbors for Better Bike Lanes,” which is now a plaintiff in the lawsuit.

Speaking of Steisel, he doesn’t seem to be making media appearances very much these days, either. Having press quotes come from a former deputy mayor, who tried to circumvent the public process by writing directly to a current deputy mayor, was probably bad optics for NBBL. (And can we drop the pretense that “Seniors for Safety” is somehow an independent group, distinct from NBBL? The leaders of each acronym, Louise Hainline and Lois Carswell, live within a stone’s throw of each other on the northern blocks of PPW, and their goals and message are indistinguishable.)

With Weinshall and Steisel no longer visible players for the opposition, Walden tried to portray his clients as a persecuted minority seeking justice from the government that wronged them.

When caller Megan said she feels safer walking to the park with her three children, this is how Walden tried to flip the script:

I think there are a very significant number of people, and maybe the minority at the end of the day, statistically, but a significant minority that feel less safe, and for the Department of Transportation to say their voices don’t count, and we need to neutralize them and counterattack them, I think is just awful conduct for a public official. We filed this lawsuit three weeks ago, and not one of those DOT employees has been put on administrative leave. I find that just shocking.

Walden later said that he took the case pro bono because it fits with his commitment to “good government litigation.”

Statistically, of course, the minority who feel less safe are actually safer, because speeding is much less prevalent on the redesigned street. The notion that the DOT has been dismissive of the concerns that remain overlooks the ongoing adjustments it’s making, like installing rumble strips for bike traffic at pedestrian crossings. DOT has a successful and popular project on its hands. Should it start firing people because someone sued to remove it?

As for the “counterattack” language that Walden finds so shocking — consider the full context. As with other arguments the plaintiffs make, Walden is cherry-picking the information he chooses to present.

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This Wednesday, while Streetsblog reporter Noah Kazis was wrapping up his piece on the propriety of devoting pro bono legal services to help wealthy Brooklyn residents eradicate a bike lane, we received a letter from Gibson Dunn attorney Jim Walden. We think the letter is illustrative of the tactics employed by opponents of the Prospect Park West redesign.

In a letter to Streetsblog, Gibson Dunn attorney Jim Walden, who represents "a number of individuals and groups in connection with a bicycle lane on Prospect Park West," said a reader comment left in response to a February 14 blog post is "potentially libelous." Photo: Gibson Dunn

The letter is dated February 18, two days after Noah started submitting inquiries to Gibson Dunn about how the firm decided to work pro bono for Prospect Park West bike lane opponents.

In the letter, Walden contends that a reader comment left in response to a February 14 Streetsblog post is “potentially libelous” in its treatment of Steven Spirn, a member of the anti-bike lane group Neighbors for Better Bike Lanes who appeared in a Marcia Kramer CBS2 news segment embedded in the post.

I called Walden yesterday and told him that Streetsblog will not be removing the comment in question because it does not violate our comment policy and does not constitute libel. I asked if he intended to pursue legal action.

“I’m going to evaluate that with my client and I’ll let you know,” he said.

I asked Walden if his client in this case is “Neighbors for Better Bike Lanes,” and he said no, in this case, he’s representing Spirn individually.

I asked Walden if he was representing Spirn pro bono, and he said, “I don’t see how that’s any of your business.”

He then refused to answer any questions about his representation of Neighbors for Better Bike Lanes.

Update: At the request of the commenter, the comment in question has been removed.

Here is Walden’s letter to Streetsblog (you can click to enlarge).

In an effort to undo a bike lane reportedly opposed by Senator Chuck Schumer, Jim Walden, a partner at Gibson, Dunn, and Crutcher, is providing free legal services to wealthy Prospect Park West residents who live in some of the most exclusive real estate in Brooklyn. Photo: Gibson Dunn.

Jim Walden is a partner at Gibson, Dunn & Crutcher, the kind of white shoe firm where lawyers represent major corporations at rates of nearly a thousand dollars per hour. His name has been popping up on Streetsblog recently because he represents a politically-connected group attempting to undo the redesign of Prospect Park West. According to press accounts, Walden is doing this work at no charge to the client. Walden would not comment to Streetsblog for this story.

Under the ethical standards of the legal profession, lawyers are expected to donate a certain amount of their time pro bono publico, for the good of the public, and some of Walden’s pro bono representations are quite impressive. In 2007, he received Gibson Dunn’s top award for exemplary pro bono work for representing 11,000 New Yorkers whose food stamps had been wrongfully terminated. Last June, Walden won a pro bono case in front of the United States Supreme Court preventing a legal resident from being deported for a minor drug offense.

Walden’s newest pro bono case, however, doesn’t rise to the standard he’s set in the past. In representing a group of Brooklyn residents fighting against the traffic-calming Prospect Park West street redesign, Walden is devoting his pro bono time to the affluent and politically connected, not those in need.

The New York City Bar Association’s statement of pro bono principles, which Gibson Dunn has signed on to, defines pro bono work as legal services provided without fee to:

• “persons of limited means,
• charitable, religious, civic, cultural, community, governmental and educational organizations committed to serving the needs of persons of limited means and/or in matters which are designed primarily to address the needs of persons of limited means,
• individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights,
• individuals, groups or organizations who have been harmed by a natural disaster or public emergency or who are providing assistance to persons harmed by a natural disaster or public emergency, and
• charitable, religious, civic, cultural, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of legal fees would significantly deplete the organization’s economic resources.”

Esther Lardent, the president of the Pro Bono Institute, wouldn’t comment on the particulars of a specific case, but did share some general principles about pro bono work. “If this is something that could be handled on a contingency basis in the marketplace,” explained Lardent, “that would be unlikely to be something that could happen on a pro bono basis.” If the clients can afford to pay, in other words, it’s not likely to merit pro bono services.

The Pro Bono Institute is a non-profit organization that helps support pro bono work; Gibson Dunn has signed on to the institute’s Law Firm Pro Bono Challenge. “In recognition of the special needs of the poor for legal services, we believe that our firm’s pro bono activities should be particularly focused on providing access to the justice system for persons otherwise unable to afford it,” reads one section of that challenge.

The pro bono coordinator of another major law firm, who asked to remain anonymous in order to protect the firm, told Streetsblog that while different firms have different approaches to pro bono work, “We try to focus all of our pro bono on helping the poor, or helping institutions that help the poor, or advancing rights.”

It’s hard to call the leaders of the anti-bike lane group either poor or powerless. The group’s leading spokespeople are Norman Steisel, a former deputy mayor, and Louise Hainline, a dean at Brooklyn College. They have published letters in print and online media alongside Iris Weinshall, a former DOT commissioner and the wife of Senator Chuck Schumer.

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