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!

Kickstarter results; 3rd annual Busker Ball

The Kickstarter closed last night, and thanks to many wonderful friends, musicians, family members, and even unknown Kickstarter aficionados, we made it not just to 100 shirts, but to 135. We’ll be printing them this week and starting to distribute them just after that. Thanks so much, everyone!

On another note, we’d like to point out a concert date that’s not to be missed for those of you in NYC. Theo Eastwind, a long-term NYC busker and an outstanding musician, has organized the 3rd annual Busker Ball for this Wednesday at Spike Hill in Williamsburg. Theo will be performing himself, alongside a handful of the best new busking acts that he’s heard in the last few months. You can catch them all with a complementary ticket ($10 suggested donation). Doors open at 6:30 this Wednesday — and if you make it, find me there!

Polite Police

Busking was funny and kind of slow this past weekend, maybe because of the rain. I spent a lot of time looking for a spot to play, and then giving up good spots to other buskers in solidarity or common courtesy. I think I also got a little bored of myself and made some rather drastic breaks from my regular routine that, while titillating, weren’t really doing me any favors in the long run… [insert clip of american orca whale train party here]
I got heckled and almost attacked by a couple of bros, but also (and probably more relevantly to this project) had to field the weird problem of the Very Polite Police Officer. Apparently, there had been a theft at the Bedford L stop and the cops were surveilling for the suspect and needed full platform visibility, and as a result this basically very sweet, respectful, seemingly understanding policeman kept asking if I could move to the other side of the bench a little further down the platform so the onlookers wouldn’t block his line of sight. I kept trying different places, but in busking, like in hitchhiking, 15 feet can make a huge different, and (besides the unfortunate faux pas of my accidentally pouring a full plate of rice into my suitcase) it really wasn’t happening. It’s hard for me to get belligerent with sweetly tempered people who aren’t being jerks. What to do in this quandary?

#etymology-of-the-void

18/7: How to request the MTA rules booklet

Update: we eventually found a source of official MTA rules pamphlets. They’re available in Downtown Brooklyn at the Transit Adjudication Bureau. The address is 29 Gallatin Place, and the pamphlets are on the 3rd floor on the rack outside the elevator.

Lately we’ve been picking up an increased amount of traffic from Google. Don’t worry, we’re not talking about a flood of thousands yet! But there is definitely targeted traffic coming from buskers — and indeed, last night I got an email with a question specifically on busking legality.

So, like I mentioned yesterday, we’re planning to post more tips and resources for musicians, all the way from macro (class-action suit, you say?) to micro. Today’s subject is how to get your hands on a official booklet version of the MTA Rules of Conduct.

Many of you have seen me walking around, doing my folk-lawyer act, with my trusty blue-and-white booklet of the MTA Rules of Conduct. In fact, I often have it lying in my case while I perform:

IMG_0191

It’s pretty visible, and it may remind transit officers doing routine station-checks that my work is permitted. Who knows — maybe having it out even provides a measure of protection to other buskers? And on a more pragmatic note, I suspect it may even make me a teensy bit more money. We all know where our priorities are!

To request a booklet, go to the MTA online comment tool. You can choose from several categories of request, and I believe either “MTA-wide” or “MTA Police (non-emergency only)” would be a good bet. Then, just write that you’d like to have a copy sent to you, and include your mailing address. You’ll receive a booklet in about two weeks.

Want two copies, to create the much-desired akimbo justice effect? Just ask a friend to submit his or her own request! When it comes to law, the more, the merrier.

16/07: Civilian Complaint Review Board

The original idea for the site was to make legal information about busking accessible online. But, it didn’t take long to see that a jumble of miscellaneous ideas about arrests, complaints, rules, and so forth wouldn’t attract very much traffic, and would consequently be difficult to find through Google, negating the original purpose.

Hence the blog idea — and indeed, I’ve been having a lot of fun sharing stories from underground. (There are so many!) But, it’s time to keep working on the legal aspect, especially now that we have a bit of an audience. We’ll also soon be adding a list of legal posts on the sidebar, so these notes are easily findable for newcomers.

So here’s an important update. Yesterday, I went to the Civilian Complaint Review Board at 40 Rector St., to do an interview in follow-up to a complaint I had filed after my arrest on June 18th.

It’s easy to file a complaint, by the way. Go to this link, and fill out the form or call. You’ll see below why that might be important.

I had actually filed two complaints after the arrest. The first was for wrongful arrest. Essentially, went my complaint, it’s legal to perform, but I was nonetheless arrested for it.

The second was about what the CCRB calls “Abuse of Authority.” When I went back to the Transit District 1 Stationhouse after I was released from Midtown Criminal Court on the 19th, I asked to file a complaint about the arrest. I was told not only that I could not file a complaint there, but in fact that there was no complaint form at all! (As you can see on the CCRB page, that information is not only false, but stationhouses are in fact mandated to accept complaints in person). That conversation ended at that point, because I was threatened with arrest if I didn’t leave the stationhouse.

The CCRB has two ways to pursue complaints. One is to schedule a “Mediation” meeting with the officer in question, and the other is to investigate. However, only certain complaints are in CCRB jurisdiction; the others are referred to other offices like Internal Affairs and the Office of the Chief of Department. (This is, at least, what I was told. I was not the only complainant in the office to experience bureaucracy-induced disorientation!)

When I met with the investigator assigned to my complaint, she immediately knew that the wrongful arrest complaint couldn’t be pursued by the CCRB, because it falls outside their jurisdiction. More on that later.

We did however decide that the abuse of authority complaint could be pursued within the CCRB. So, we did a tape-recorded interview about what happened, and then investigator then asked if I wanted the complaint to go to mediation or to investigation. The process of investigation is outlined in this article by a former investigator that I read last year. The gist of it (as I hazily recall — would that I had more time for this post before getting out the door) is that CCRB investigators make a valiant attempt to substantiate charges, but because they ultimately have no power to impose sanctions, the process is more or less moot.

Point being, I opted for mediation, because it will hopefully lead to a face-to-face meeting with the sergeant who told me I had no way to complain. I have a lot of thinking to do about how to handle that, but my hope is that it could be productive.

And if not, the complaint can always proceed to investigation following the mediation meeting. So, while the CCRB may be unable to impose any kind of sanction, this process still feels tentatively promising with regards to Abuse of Authority.

Now, back to the question of wrongful arrest. My investigator does not make decisions on referrals, and she was not initially able to provide many details on where the complaint could go. (Strange, right? Can I be the only person in NYC to file a complaint over wrongful arrest? Somehow I doubt it).

However, I really worked to advocate for myself and for other buskers who experience harassment. I told her on the record that arrest, harassment, and ignorance of the rules are all widespread problems, as per what I’ve heard in the grassroots, and that I’d like to be heard on that topic, not just about my own arrest. Further, I told her that the NYPD might well be interested in seeking a solution, i.e. reducing the amount of harassment, if the issue is brought to their attention through the right channels.

The end result is ambiguous: my complaint will be reviewed and referred, hopefully within the next two months. The theory I fleshed out with the investigator is that my personal wrongful arrest claim will go to the bureau responsible for those complaints, I believe the Office of the Chief of Department, and that follow-up on performers’ rights may, fingers crossed, be brought to the notice of Internal Affairs for a meeting.

So, touch wood on that one. I do hope this post outlines many reasons why the CCRB can help us with self-advocacy, and would love to hear from performers who have had experiences with CCRB in the past. And, I’ll keep the updates coming about all of these threads — especially the possibility of Internal Affairs!