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!
I recently got this email from a friend and fellow performer about an incident at the 53rd St mezzanine. I immediately knew I had to share it, not for the nice things she says about our work, but because her description of what’s involved emotionally in standing up to a wrongful order from a police officer is spot-on. I’ve been in her shoes, I know how scary this is, and I’m glad she got it on paper:
“Just a note to let you know how empowered [BuskNY] makes buskers feel. At one time we had no one to stand along with us when we were harassed by policemen.
I had an incident tonight that went over pretty well. Once again, I was singing at 53rd Lexington, (Upstairs on the mezzanine where MUNY performers are scheduled). This is the exact same place I received the first ticket and summons. Well, to make a long story short, everything was going quite nicely until an officer walked up to me and said, “You have five more minutes and then you wrap it up. I’m at this station now.” My response was why did I have to leave. He told me it was because I did not have a permit. I then informed him that I had a right to perform on that mezzanine without a permit and that Tim Higginbotham of MUNY told me to contact him whenever a policeman approached me about that location. Well, the officer did not want to hear it and told me when he came back he wanted me to be gone. I told him I had the same problem with Officer Valdez because he was not informed that performers had a right to play at that station. I told him that if I were to be ticketed that I would sue this time. He said, “do what you want but you have to leave.”
I was so angry but I thought about my equipment. A performer told me that the police took his equipment away from him and he never got it back. But as I began packing up I thought about BuskNY and suddenly felt empowered. I refused to leave. I continued singing. All the while I imagined officers around me, handcuffing and taking me away. Yes, I was prepared for that. I had made up my mind that no matter what the officer or officers said to me that I was going to ignore them and just keep singing.
After about an hour, the officer came back upstairs, saw me singing and walked past me mumbling, “you’ve been here well over an hour now.” BUT he did not bother me. I think it helped when I called the officer’s name that ticketed me the first time but also…I made sure to tell him that I was going to put in a lawsuit. I felt it was something I was able to do easily with BuskNY.
I just wanted to share this story with you and let you know once again how wonderful it is to know that someone and something ‘has your back’ as a performer. It’s tough enough giving the best you have of your talent while most people just walk past you without giving what you do a thought, less lone being hassled by policemen. Your courage has given me courage.”
Performers are wrongfully ordered around by police every day in this city, and standing up to that problem means putting our equipment, our livelihood, our physical freedom, and our safety on the line. It’s scary, it’s very real, and it’s just not going to happen if no one has performers’ backs with legal tips, paperwork, model cases, and moral support. For one, I’m glad we’re doing the work we do.
Station agents often wrongfully call police on performers. If police tell you they were called by a station agent, or simply that they “got a call,” you can assert your right to perform. But also, you have the option of reporting the station agent. To do so, record the number on the badge displayed in the booth window. Then, call 511 and leave a clear complaint stating what occurred. The MTA will follow up with you by mail to consult about retraining — and you have created an official record that will protect future buskers in that station.
Are station agents ever responsible for the arrival of the police? And can we effect change by working with the MTA to address harassment that arises from station agents’ misunderstandings of the rules? That’s a question that most of us don’t think to ask — and indeed, it seems that the police most often get involved with performers of their own accord, when they really should be doing other things.
However, it may be that station agents do request police interventions more often than we realize. After all, when the police throw you out, you have to get right out — which precludes going to the booth to find out from the station agent if there were factually any concerns about noise or traffic. (It also keeps you from filing any complaints, and we’ve written before about being ejected precludes any documentation of the harassment). So really, a performer who’s ejected has no way to know if a complaint was made by the station agent at all, unless he or she risks arrest by disobeying an officer’s order to stay out.
I had the rare opportunity to find out directly about a station agent’s involvement on August 1. As I wrote in a post about that incident, I showed the officers a copy of the rules, and after reading them, they agreed that there was no reason for me to cease the performance.
I haven’t yet shared information about the next part. Once the officers had left, I went to the station agent and asked if she knew why the police had come. To my considerable surprise, she told me right up front that she had called them, apparently in response to a customer complaint. “And you know that performing here is legal?” I asked. “Well, I had to call, because it was a customer complaint,” she replied. I found this a bit unsatisfactory, and asked her if she would call the police if told by a customer that there was a train in the train station. She replied that she wouldn’t, but that she did feel obliged to call to report a musician.
I didn’t find that answer acceptable. So, I took down her badge number and immediately dialed the MTA at 511 to file a complaint. I told them that the police had been called to ask me to stop performing, and that the police themselves had refused to enforce that order. I explained the law to them briefly, and asked if they could look into why the station agent had called the police to report an activity permitted by the MTA.
Well, lo and behold, I got a call this week from the 81st St manager, who is looking into the complaint. I told her in no uncertain terms that she should find out what’s going on with this station agent. When she didn’t immediately sound convinced, I mentioned that wrongful arrests have begun to cost the city through the nose — and indeed, she sounded receptive to that point.
When I arrived home today from Boston, I had a follow-up letter from the MTA. It read:
“This is in response to your August 1 telephone call to MTA New York City Transit reporting a station agent at the 81st Street station.
We regret if you experienced any difficulty while using the subway system. We have forwarded your complaint to supervision in our Department of Subways for review. Based on the information you provided, we hope to identify this station agent for questioning and appropriate action.”
I’m pleased to know that the MTA is looking into this. It doesn’t make sense for their staff to be enforcing rules that don’t exist, and they’re handling the problem the right way.
But, they’ll only be able to do that if we let them know about harassment stemming from station agents, and that means doing some sleuthing ourselves. If you’re ever harassed within a station, given a summons, asked to leave, or arrested, make sure you follow up on it with the station agent. Even if it’s the next day, you can likely find out who the person was and obtain a badge number. If you get confirmation that the station agent called the police — particularly if there’s a known problem with harassment, as there is at 81st St — you should call up 511 and report it.
The MTA’s willing to work with us on this one. And every time we advocate for discussion and training, we have the change to make a ‘harassment station’ into a safe station. That’s what we call change for the better in NYC!
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.
Well, it’s the 28th, which means it’s almost time to make rent. And, thanks to the traveling I did this month, my pile of $1 bills isn’t tall enough to make that happen. Odetta said it best:
My sweetheart, he’d like to get married
I’d like to settle down
But I can’t save a penny a day
Cause I go ramblin’ round, boy
Cause I go ramblin’ round.
On the other hand, I’m excited that BuskNY is off to a good start. We’re set up with Facebook and Twitter now, and the social media prowess of Jon Christian has sent over some thoughts on how to use this format to our best advantage in spreading concrete tips on buskers’ rights. (Our dream, lest we forget, is to make sure no one can Google “busking arrest” without learning that lawsuits are a possibility — something which was nowhere online when I was arrested two years ago).
We’ll be starting to promote the site right about now, and beginning our much-looked-forward-to leaflet campaign very soon. So welcome, everyone, from BuskNY. We hope you’ll stick around for the show!
buskny.com 
