BuskNY and the performing community were disturbed to learn of a new wrongful arrest. A longtime, well-loved performer was arrested early this morning at Metropolitan Avenue, a key station for Brooklyn performers. Fortunately, he was well-prepared: a copy of the rules of conduct was in play, and the full arrest was documented on video:
BuskNY is preparing a public response to this arrest. Please reach out if you would like to be updated. We thank this performer for standing up to the undocumented and ungrounded ejections that occur daily in New York City — and we believe, as always, that the end of wrongful ejection, ticketing, and arrest is in sight.
I got a tip from a performer recently about a problem at 86th and Broadway. He was able to be quite specific about the problem: apparently, the station agent on the weekday afternoon shifts calls police every time she hears music, which has led to a number of arrests.
I made a trip up there today to see what the problem was. The station agent was very forthcoming about having called the police because of music on the platform. I showed her a copy of the rules, which she said she had never seen before. After a careful reading of the section about permitted non-transit activities, she said she now shared my opinion, but that she would still call her supervisor when she heard music. (According to her, station agents are trained to call their supervisors whenever they hear music. Fact or fiction? Maybe FOIL can tell us).
At this point, I asked her to confirm her claim with the Music Under New York office at the MTA. Surprise, she said: she is only able to call her supervisor and no one else. She did, however, agree to “call someone” to “come sort this out.”
After a fifteen minute wait, who arrived but a police officer. I showed her the rules pamphlet and she agreed that I’d be okay playing in the station. (She did ask why I had taken a picture of the station agent’s badge, which is required to be displayed in window of every station booth. Apparently the station agent had complained, in her call to the police, that a member of the public had dared record her badge number. I’m sure the MTA will love to hear that an employee was retaliating for having her badge number recorded.)
The police officer then went into the station booth to speak with the station agent for a few minutes. When she came back out, she had changed her opinion: it’s not okay to play on the platform, she said, but only on the mezzanine and only with a “license.”
I then showed her the pamphlet again, and provided the MUNY phone number so that she could confirm that no license was needed. She was convinced regarding MUNY, but seemed to think that the sections mentioning noise and blocking traffic provided a blanket justification for arresting and jailing any performer who ever performs on 86th St between the hours of 1 and 9 PM.
There was only one thing to do at that point. I pulled out a copy of the settlement notice from my lawsuit and told her that the last police officer to share her opinion cost the City of New York thirty thousand dollars. That made her doubt herself again. She said she would check with her sergeant about the rules, and invited me in to the 59th St precinct to discuss the matter further.
The only problem there? Well, the sergeant in question once threw me out of 59th St for daring to show him a copy of the rules (itself currently the topic of a CCRB investigation). So I doubt that the issue will get a fair hearing — at least, that is, until my two arrests from this summer cause some lawsuits to land at the 59th St doorstep.
And as far as the station agent goes? I’ll be filing a complaint shortly about the badge number reprisal and the harassment of performers. Given that my complaint about harassment at 81st generated a personal phone call and a promise to speak with the employee in question, I have high hopes. 86th St, we’ll bring the music back yet!
Update: I just happened upon this excellent article on the geographic distribution of NYC summons charges. The author describes the use of “disorderly conduct charges … as a kind of policing panacea — a catch-all charge officers can use against behavior they don’t like.” That’s something we’ve seen too — and when it’s so difficult to have charges dismissed in a timely manner, it’s no wonder that the NYPD isn’t pushed to act lawfully.
Many of you know that I was in Manhattan Criminal Court on Monday and Tuesday. I had been hoping to post an update immediately afterwards with good news, but unfortunately, that didn’t prove to be the case.
On the other hand, it’s not bad news per se. In a nutshell, the only thing that happened was that the courts kicked my two cases down the road a month. Somewhat of a letdown when you’re thinking in terms of right, wrong, and resolution, huh?
In more detail, the situation is this. I’ve been offered an Adjournment in Contemplation of Dismissal, or for the initiated, an ACD. That’s an agreement in which the charges are dropped after six months with no admission of guilt, provided that you don’t rob any banks in the meantime.
Now, the Powers that Be would very much like for me to take an ACD. It wouldn’t be the worst thing in the world to do so: I would still be able to sue over the arrests, and the arrest charges would be sealed. However, I’m a stickler for, y’know, not accepting things involving ‘adjournment’ or ‘contemplation’ when I’ve been arrested for something that is, last time we all checked, specifically okayed by the MTA Rules of Conduct.
Once you’ve turned down the ACD, though, it turns out to be awfully hard to actually get a trial. The prosecution now has a thirty day period to prepare its case for trial, meaning that I’ve been given new appearance dates on October 7th and 8th. In the meantime, various things will be happening that could suspend or set back that thirty day period. (Side note: why the prosecution did not start preparing its case after I turned down the ACD the first time on June 18th is beyond me.)
All of the delays mean that ultimately, I’m likely to show up and be offered another adjournment – and if that adjournment date is after October 14th, I will already have left on my Fulbright grant to Senegal. So if the case is adjourned again, I’ll be forced to take the ACD and waive my right to a trial.
I imagine it’s clear why this was something of a disappointment. I earnestly don’t think it should be so naive to envision having a trial date within four months of an arrest.
During my July 25th arrest, I was given multiple reasons to leave the station, including “performing without a permit” and “performing on the platform.” Fortunately, both of these things are specifically permitted by the MTA Rules of Conduct. Oops! One officer also raised the idea of a “safety concern.” But, as he was unable to identify any such concern on video, his idea wouldn’t seem likely to hold water in court.
So, when I was released with my Desk Appearance Ticket, the charges listed were: “LOC000.00 0V.” Apparently the legal team needed more time at that point.
A search on WebCrims the next day returned nothing at all. Fortunately, Andrew Ramos at Pix11 was able to get an explanation from the police by phone: they had simply misspelled my name. So, as reported in his coverage, the charges were “blocking traffic.”
Well — it appears that someone has changed his or her mind yet again. According to a WebCrims search this afternoon, I am now charged with a violation of NY penal law statute § 240.35. Among other fun activities, this statute forbids:
“[remaining] in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia,”
“[remaining] in a public place for the purpose of engaging, or soliciting another person to engage, in oral sexual conduct, anal sexual conduct or other sexual behavior of a deviate nature;” and
Congregating in a public place while “being masked or in any manner disguised by unusual or unnatural attire or facial alteration.”
I guess someone just doesn’t want us to have any fun.
Anyway, they got more specific with me, focusing on section 6:
“Loiters or remains in any transportation facility, unless specifically authorized to do so, for the purpose of soliciting or engaging in any business, trade or commercial transactions involving the sale of merchandise or services, or for the purpose of entertaining persons by singing, dancing or playing any musical instrument.”
Nonetheless, it would appear to make an ironclad case against me. Wait, what’s that you say, English teachers? Subordinating conjunctions, you say? Ah yes, let’s reread:
“Unless specifically authorized to do so.”
Aha! Well, given that this business is specifically addressed in 22 NYCRR / the Rules of Conduct in the first place, it looks like we’re alright. Thanks, justice system: you done me a solid.
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!
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.
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.
buskny.com 
