7/31: Rules pamphlets located

The saga is over! An official pamphlet of the MTA Rules of Conduct can be obtained in Brooklyn at 29 Gallatin Place, 3rd floor, on the rack outside the elevator.  (This is, I’m told, the same place one goes to contest a summons).

By the way, you can take as many as you’d like. That’s precisely what I did:

Rules of Conduct
I’ll be delivering these while making the rounds, so that we don’t each have to hike out to Brooklyn. (Speaking of which, I gave out the first two t-shirts today. Find me soon to get yours!)

 

 

7/30: Rules pamphlets: Update

Update 7/31: Further detective work has uncovered a new lead on pamphlets in downtown Brooklyn. The crack BuskNY team is headed over to investigate and will let you know if pamphlets are found.

Two weeks ago, I wrote a post on how to request an MTA rules pamphlet. This was important to be able to demonstrate to MTA officials and to police what the rules say, and it also makes a visual impact when it’s sitting in the case.

As a matter of fact, this booklet is even recommended by the NYPD’s own crime prevention page:

“All persons who are interested in performing on the subway and who wish to avoid violating the law are strongly advised to contact New York City Transit beforehand to get a copy of the Rules of Conduct, as well as a more complete explanation of their requirements.”

When I wrote that post, I submitted my own new request for the booklet through MTA.info to check if the process was working. Four days later, on 7/22, I received this response:

“We truly appreciate your interest in New York City Transit.  The information you requested may be available under the Freedom of Information Law (FOIL).  You must submit an electronic FOIL request to the appropriate MTA Agency via the FOIL Request page on the MTA web site.  If you send an electronic FOIL request in any other way or to the wrong agency, you will not receive the records you are seeking.  You may submit an electronic FOIL request at http://new.mta.info//foil.htm.  Be sure to select the appropriate MTA Agency.”

This was not what’s supposed to happen — but I went ahead and completed a FOIL request addressed to MTA Headquarters. Two days later, on 7/24, I received this response:

“In response to your FOIL request, below is the link from the MTA website  for the New York City Transit Rules of Conduct
http://www.mta.info/nyct/rules/TransitAdjudicationBureau/rules.htm
This completes the MTA’s response to your FOIL request.”

I replied that I needed a physical copy of the booklet, and was immediately emailed a phone number to call the woman I was emailing with. I called, and she said that I should go to the New York Transit Authority building at 130 Livingston St., Brooklyn to get a copy in person. I took down the address, and although things were interrupted by my arrest, I got down there yesterday on the 29th:

NYTA Building

I walked in, but to no avail: the check-in staff told me they had never even heard such a question before and couldn’t tell me where to go. And without a specific office to go to, I wasn’t even allowed in the building.

Fortunately, I’m not easily dissuaded. I called up the MTA representative I had spoken with before, and she said she could call around to find out. She then emailed back with this:

“I called someone at New York City Transit; she has a Rules of Conduct booklet dated 2005 (which I am told is the most recent); if you want to pick it up, you can call [redacted] or she can mail it to you.”

I called the new number, gave my address, and was told that the pamphlet will be mailed out. “In fact, it’s my very last copy,” she said. “Wait, then I have another question,” I said. “I know a number of other musicians who need this pamphlet, and one has already told me that mta.info responds that the supply is exhausted. Who can we call?”

She was unsure.

I emailed back the MTA representative from before, explained about the warning on the NYPD site, and asked if she was aware of any remaining stock of pamphlets. She said she would inquire. Three hours later, she replied with this:

“I am told that the Rules of Conduct brochure has not been printed for several years.  The link you provided to me is from the NYPD website, which does not appear to be up-to-date.  The Rules of Conduct on the MTA website are current.  I was also informed that abbreviated rules are posted in some stations on the front of station booths.”

Now, I am not sure if she’s aware that officers routinely ignore home-printed rules on 8.5×11.” I do assume she’s aware that we are not allowed to play in front of station booths where the abbreviated rules are posted. But in any case, I wrote back with this:

“The link I provided is dated 2013.”

I haven’t heard back yet, but I’ll keep pushing. In the meantime, I’d invite anyone who’s filed a request and had it turned down to drop me an email so I can get a rough count. Again: it is NOT fair for the NYPD to request a pamphlet that cannot be obtained.

7/30: Voice from the blogs: our theoretical protection

One online commenter, writing at Norman LeBrecht’s blog Slipped Disc, had this to say :

“The big problem here is that the NYPD is NOT enforcing the law. In fact the law protects the violinist’s actions. He is being intimidated for no real reason. I have had similar experiences, being threatened by MTA employees etc. When busking I always avoided being arrested, simply because I couldn’t afford the time and money that would go into defending myself, and because I was afraid my instrument would be harmed in the process. The police count on the threat of mistreatment to frighten most buskers into cooperation with their whims — it’s nothing to do with obedience to the law. The police are the ones ignoring the rule of law here.”

He said it better than I can.  We hear the same from other performers: harassment is a regular phenomenon. Further, musicians feel disempowered to fight it, particularly when police will neither read the rules nor create any form of documentation of their harassment short of cuffing us and hauling us away. How can you fight a station eviction later when you were asked to leave verbally? Which agency investigates complaints based on a verbal record? And when an insistence on getting some measly scrap of official paper in order to lodge a complaint leads, as it did in my video, to arrest and detention, will we insist that every performer also be an activist, have a practical knowledge of arrest procedure, wear a sweater to protect against the cold in jail, and have a fund ready to replace his or her instrument? Are those the criteria in order to benefit from the protection of the law in NYC? We are sick and tired of this theoretical law, sick and tired.

7/29: How to sue for a wrongful summons

Update at 7:30 PM: I spoke with Paul Hale of Hale Legal Group this afternoon, and he said he’d be more than willing to take on summons cases for the performing community. I think we’ve found our guy.

I emailed back and forth recently with a prominent arts advocate. He had big news: if you receive a wrongful summons, you can go ahead and sue for it.

I followed up on this with Galluzzo & Johnson, and it was confirmed that a wrongful summons is potentially an easy target for a lawsuit. (Remember — even if your officer was polite, and even if he or she mentioned pretexts like blocking traffic, your summons was still wrongful if you weren’t clearly breaking a law).

Your first step after getting a summons should be to get it dismissed at the adjudication. I haven’t done this personally, but it’s said to be easily done. We’re hoping to observe the process and post tips soon. (You can also talk to a lawyer at any point for a consultation, although you can’t typically sign the retainer agreement to start a suit until after your charges have been dropped or you’ve received an ACD.)

After that, you can go ahead and get going with a lawyer. Alternatively, you can even file a notice of claim yourself with this form, and the city may settle without you needing a lawyer. (I suspect it’d best to work with someone for now, at least until we know the ropes better).

Last item: if you contact us, we can send additional information privately, cheer for you during the process, and potentially even help your attorney document other cases of harassment to support you. Let’s get this show on the road!

7/28: What I learned yesterday

Yesterday brought us an article in Gothamist, a flurry of discussion on Twitter and Facebook, and thousands of views between here and YouTube. Here’s what I learned:

1. New Yorkers love their music, and they want their musicians protected. Response to the story was overwhelmingly supportive and affirmative of the power and importance of public music.

2. New Yorkers have seen musicians harassed and arrested. I read through a lot of comments, and let me tell you, I’m not the first musician that these readers have seen escorted out of a station. Why doesn’t that news spread? Because there’s no central forum to share it — and we’re working to change that.

3. New Yorkers love their music — but they don’t always know it’s legal. Many comments from supporters still expressed unsureness or confusion about the rules. And that haziness in the public consciousness translates into a haziness in police practice, which results in harassment, summonses, and arrests. Let’s fix that: New York, Music is Legal!

Printing the “Music is Legal!” shirts

The shirts arrived Thursday evening, and since I only had two days available to print them before losing access to my studio space (and I’m spending Sunday helping to install my show at the Painting Center), we had to rush to get them done.

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135 t-shirts

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Printing the first shirt.

With only two people, it took seven or eight hours to finish the front side of all 135 shirts.

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We started with the pink shirts.

My cousin Zeke took a detour into the city on his way up the Appalachian Trail, and he offered to help us print the backs. With his help, we finished them in four hours.

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And he bought us food!

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The print shop’s mustachioed Pratt Cat, who is most often found sleeping in the paper guillotine’s scrap bin, visited us in the silkscreen lab.

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About half of the finished shirts.

Matthew and Kalan will start distributing them to subway performers this week. Remember: Music is Legal!

7/26: What happened next? And what happens next?

Update 7/27: We’re getting huge traffic from reposts and from Gothamist. Want to keep hearing from us? Hit like on our Facebook page. And, you’ll be seeing us around in the subway — just look for performers wearing bright “Music is Legal!” t-shirts!

Hi all. Last night’s post and video-editing took 100% of the energy I had after the arrest, and I didn’t get around to the end of the story. Here’s an update for the morning, both on my experience at the stationhouse and on what comes next for us.

First off, the HMS BuskNY ain’t sinking yet. We’re taking off for the screenprinting studio in half an hour, rolling 135 blank t-shirts on a dolly. The fronts will be printed by the end of the day, with the backs coming tomorrow. So by mid-next week, Kalan and I will be hitting the tunnels & platforms for outreach harder than we have yet, each carrying a bag of shirts, a stack of flyers, and a notebook full of email addresses. We’re building the first community mailing list, we’re creating an incident database for the day this issue gets a hearing, and we’re checking through the community for stories of summonses, harassment, and arrests that are still within the three-year statute of limitations. Meanwhile, you’ll start seeing “Music is Legal!” around the city. Hold fast!

Now, to finish up the story from last night: I was arrested just after the last video in that series. (By the way, we’ve also uploaded the full footage to give as much context as possible. You can see it here). The decision to arrest was made by Sgt. Robson.

Now, it’s my understanding that Officer Kennedy — who receives kudos for his calmness and politeness — really did believe his version of the rules, i.e. that performances are allowed only on mezzanines. He didn’t seem to agree completely with them — as he said, “it’s not my rules, it’s the MTA rules” — but he was still committed to clearing me out of the station when he saw me.

However, he didn’t want it to involve an arrest. Rather, he wanted it to happen “voluntarily” — which is a terme d’art for “under intimidation with no official documentation.” Officers like the fiction that we scuttle off in shame when we’re ‘caught’ breaking the rules. But the reality is that we know full well, every last one of us, that we’re allowed to play. We’re simply scared shitless, and we vacate the stations because we know crystal clearly that the alternative is arrest.

The biggest shame is that these interactions of extra-judicial intimidation are never documented. We are asked to leave verbally and without any sort of justification — e.g. Officer Kennedy’s “not today”! No document is ever created to record this, and indeed, Officer Kennedy refused to create one through a summons (which I requested). Instead, he wanted me to “just get out of here” with no evidence of the interaction, no stated cause, and a hill of beans to go to the MTA or CCRB with.

When I suggested to him that he choose either a summons or an arrest, but avoid extralegal harassment, that’s how the hour-long saga began. He was not confident enough to choose arrest, but also didn’t want to back down. So, he called a supervisor — allegedly to have me arrested — but who ultimately arrived, talked with him, and then left. He then waited until I performed again, then came to confront me again and gave me a second ultimatum to leave, extralegally, with no documentation. I again insisted on documentation, and backup was called for a second time. Officer Bastien then gave me his own ultimatum, again asking me to leave “voluntarily.” (These guys love when you do things “voluntarily” — i.e. when you comply with an unrecorded verbal order whose only alternative is arrest. Do you think that’s because it cuts down on paperwork? Or because it’s harder to substantiate allegations against them? Or is it just callousness?)

In any case, when I turned down the third ultimatum for “voluntary” departure — which would still have been undocumented despite the presence of at least six officers and two supervisors — then things had to proceed to arrest. (Remember, in the world of “voluntary” choices, every carrot has to have its stick). So when Officer Bastien gave Sgt. Robson the news that I wouldn’t leave, then the choice was made for arrest without hesitation.

I was held for four hours at the Columbus Circle stationhouse. Officer Kennedy appeared to have cold feet ever after the arrest — I believe he had ended up with no way to back down from an arrest he knew was wrong. In any case, he came over after a couple hours and said he’d recommended me for a DAT (Desk Appearance Ticket), a form of early release that’s given conditionally. I haven’t had one before.

By the way, charges (“soliciting,” “blocking traffic”) do not appear on my DAT. This was confirmed by ecourts.ny.us, where my name returned last night with an open case from 7/25 with no entry under “charges,” and this morning returns only my arrest from June (!). We’ll see if a decision is reached by the DA after the weekend.

7/25: Arrest: how the decision is made

Summary:

If you are approached by police while performing in accordance with MTA rules, you have the right to continue your work. It is highly recommended to film the encounter, to display the MTA rules (we’ll mail you a copy free), and to state the officer’s badge number out loud.

If you are arrested for doing so, you have not committed a crime, and you have the right to a wrongful arrest lawsuit. See “Who To Call” for more information on doing so.

So, the big news from today is that I was arrested for a third time. Here’s how it happened:

I arrived at 68th St at 12:10 PM, unpacked, stood up with the instrument, and saw a police officer on the other platform as I did so. He shined his flashlight at me and shouted: “Not today!”

Well, it just so happens that I believe that music’s legal. So I hollered back: “Yes! Today!” Then I launched “Gigue” from the third Bach partita, and the officer set off for the stairs to reach my platform.

By the time he reached me, I had my instrument in its case to avoid damage. He told me to leave, I asked why, and this is what we established as the situation:

I then said that I was clear on the rules [“The following nontransit uses are permitted by the Authority, provided they do not impede transit activities and they are conducted in accordance with these rules: public speaking; campaigning; leafletting or distribution of written noncommercial materials; activities intended to encourage and facilitate voter registration; artistic performances, including the acceptance of donations; solicitation for religious or political causes; solicitation for charities.”], and that I would continue to perform until given a summons or being arrested.

Officer Kennedy — who had given me his name and badge number on request — said he would “call a unit” to arrest me, and that in the meantime, I could speak with the station manager. I went up, called Milo to say I’d be arrested soon, and talked to the station manager. This is what I found out:

I went back downstairs to meet my fate, and shortly afterward, two more officers arrived, one in a blue shirt and one white-shirt. They conferred with Officer Kennedy, then left without talking to me. After that, I waited for a possible arrest on my platform, and Officer Kennedy waited across the tracks without saying a word. I felt about like this:

After a long period of waiting, I wanted to work or be arrested, not sit around and be scared of some pseudo-legal threat. So, I got out the violin again. Officer Kennedy waved his arms, disappeared upstairs, and came back down a minute later with a new story, this time about a non-existent permit:

Since he was back in my face, I asked what options there were at that point. He still wanted me to leave “voluntarily”, which is how the NYPD says “through intimidation and without any legal justification.” I wasn’t having it and asked again if he would proceed to arrest:

Now, I’m not sure what was said in his initial meeting with his superiors, but I think he had cold feet at this point. In any case, he called for backup a second time, and I got to talk to Officer Bastien, who asked why it was legal to play:

Strangely, his curiosity about the law seemed to evaporate when he had the chance to have a copy of the rules in his hands. He changed to a new tactic, telling me that the rules could be “overruled” in the case of a safety problem.

Here’s the second part of his explanation of why police officers can decide the law:

I understand what he was saying, but what I didn’t see was the safety problem on that platform, which I repeatedly pointed out was quite empty. He finally said that he couldn’t explain the problem since he wasn’t there when I was asked to leave, and I asked if Officer Kennedy could explain it to me again:

Check out that long pause when he’s asked if Officer Kennedy can identify a safety concern. The reason he comes up with: “He asked you to stop playing and you would not stop.” So essentially, I was performing, there was no safety concern — but when I was then asked to leave the station and refused despite intimidation, THEN there was a safety concern.

And THIS reasoning, ladies and gentlemen, justified my arrest. Just after this video, Officer Bastien walked over to his superior, Sgt. Robson. There was a ten-second conversation, then Sgt. Robson approached me, ordered me to put my hands behind my back, and had me step against the wall.

7/25: Busker Ball; ghosts of ’11

Milo and I just got back from Theo Eastwind’s 3rd Annual Busker Ball — and you should be sorry that you missed it! We stayed the full five hours with grins on our faces. If you want to hear one reason why, here’s a quick sample from Elijah Bridges, which I hope he won’t mind me posting. (A bit low-fi — but check that harmonica!)

For me, it was a bit of a tear-jerker too. These days I hear buskers in the subway every last day of my life, of course, but it’s different to have the evening to ourselves. For one thing, talent can do a lot more when it has hour-long sets to work with. (It also doesn’t hurt to have no trains coming through). I’m not saying that I forget how much artistry is in busking — but still, is it ever great to get a reminder of how high the high points can be. So thanks, Theo Eastwind, for making this happen!

One more thing. Just as we were taking off, we ran into Jesse Cohen, who played the third set. He asked if I had played the first set, since I was carrying my case. “No,” I said, “I was just out busking beforehand, that’s all. I play fiddle.” There was a pause — I could see the gears turning — and then, just about at the same moment, we realized that Jesse and I had shared a van the night we were both arrested in 2011.

I don’t want to retell that whole story here  — soon, perhaps — but Jesse was already in the van when me and my fiddle were thrown in head-first that night. I was scared half to death at the time, and Jesse was the first bit of sanity I found and clung to. We were put in different cells on arrival and never swapped contact information, so we’ve been looking for each other for the last two years. And now, here we are. It’s a great big community, busking in NYC, but it seems smaller all the time.

Busking log 7/23: Mandos’R’Us; busking with Hannah

Things have been quiet here for the last week, both because we’ve been hard at work with the Kickstarter, and because I was as sick as a horse all weekend. Also, the whole of last week was above 90° — and that’s a no-go for performing!

But, we’ve been using the time off to good ends. For instance, BuskNY now has a mandolin:

twang! twang!

Granted, it sounds like a cheapo instrument. But that’s great — it is, in fact, an ultra-cheapo instrument!

It went through a trial by fire yesterday when I busked with my pal Hannah, who I used to play with in the Annandale Ramblers, at the 57th St F station. We were out informally — finished with the workday and volunteer-two-hours, respectively, and we had an hour to kill before the Scottish session at the Iona. That meant that we had no stools, which led to logistical difficulties with the mando. (It’s really hard to pin it against your body while picking — especially when you start sweating!)

Nonetheless, we had a blast. I got to work on my chording, which is a work in progress — but the audience really enjoyed it. Whether for the music or for the sense of humor, we don’t know! But in any case, we made good money, even à deux, and certainly had good fun. To be repeated!