The last few days have been busy, both with busking and because I’ve taken on a commitment as the volunteer ESL instructor for a summer after-school program. That said, I’m still finding time to busk and to do community outreach. And we’re looking forward to having Kalan back in town soon as well, which will double our boots on the ground.
In any case, today brought big news. I spoke by phone with a violinist who received a wrongful summons (‘blocking traffic’ for a solo violinist playing in the evening, written expressly once she had asked for the officer’s badge number.) She was adjudicated guilty at her first hearing, but we’ve gotten her in touch with an attorney and are looking forward to a fairer outcome on appeal.
Then, I met another performer who’s received a summons, this time with a charge of ‘disorderly conduct,’ for playing guitar and singing on the platform. Her court date is just before mine, at the beginning of September, and we’re looking forward to seeing that thrown right out with a lawsuit to boot.
And finally, I met a jazz saxophonist — an excellent one — who’s been arrested no fewer than five times for acoustic, rule-abiding performances.Is that unjust? Well, apparently New York City judges think so: they’ve dropped the charges all five times. Can’t even say how much I look forward to seeing this go back to a court of law — this time with the real wrong-doers as the defendants.
Pretty exciting for one day’s developments. Justice, justice, we’ll get you one day!
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.
135 t-shirts
Printing the first shirt.
With only two people, it took seven or eight hours to finish the front side of all 135 shirts.
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.
And he bought us food!
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.
About half of the finished shirts.
Matthew and Kalan will start distributing them to subway performers this week. Remember: Music is Legal!
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.
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:
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!
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!
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:
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.
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!
I’m dead tired after a long day of commuting, busking, frisbee, and BuskNY conniving with Milo and Kalan. Three quick stories from today:
68th St Hunter College: a man approaches and says, in the thickest of Russian accents: “You play pianoforti?” “Alas, I play only the violin,” I tell him. “I play pianoforti.” I nod. There’s a pause, then a train begins to pull in. “Next time, I bring pianoforti. We play.” Rest assured, I’ll update you all immediately if (when?) this occurs.
68th St, ten minutes later: a woman tells me I remind her of “the music they played when I grew up on P.E.I.” What a great compliment! (Well, except that I was playing Irish tunes. Apparently the Iona session is having its effect on me). It’s surprising how many people have experienced traditional dance music in our hemisphere not just as “folk,” but as a living tradition. Always great to hear!
81st St: ’tis the season for kids’ summer programs, and that means the museum is filled with visiting groups. I get the most amazing reactions — imagine a stream of 40 ten-year-olds coming by, and half of them saying “wow, a violin! Can you play something?” They were on the move, unfortunately, but I played them snippets of the Bach violin sonatas, the Accolay concerto, and the cello suites, and asked which they liked best. Their group leaders kept telling them not to listen, which made me a bit glum. (“Don’t be distracted, kids!”) But then, just at the end of the last group, one group leader took a different approach. “Keep walking,” she said. “But listen!”
Sunday is typically a slow day in the subway, but today I nonetheless ventured into my shark-infested concert hall, where a few audience members were already bobbing around my cove:
81st St is a great station on weekends, since it sees a steady stream of museum visitors headed back downtown in the afternoons. Plus, the B train only runs weekdays — meaning Saturday and Sunday offer extra-long lulls between the screeches of the MTA’s apparently never-maintained brakes.
I had hardly been there ten minutes before a guy came up, holding a violin case, and said he played fiddle. “Which kinds,” I asked. “All kinds!” Having thusly established our shared repertoire, he popped open his case, and we shared a pretty solid set of tunes. It turns out that my new pal, whose name is Douglas, acts, performs, and sings in New York, and has some experience working in the subway as well. You can check out his site here!
Although Douglas had to hurry off to a gig, I kept having a great time at 81st, playing some good tunes and explaining the absence of the B train to visitors from several of Europe’s finestcountries.
After two hours, I was feeling pretty played-out and took off for home. By the 14th St transfer to the L, my mind was already more on finding sustenance than on music. But lo and behold: as I stepped of our train, I saw a violinist killing Bach’s fugue in G minor across the platform.
Having previously thought myself the owner of the subway G minor fugue market, I hurried over to check it out. Turns out it was none other than Filip Pogády, violinist extraodinaire, who I had met last summer after he watched me perform at 81st St.
He’s been very active with a burgeoning solo career, but is still finding time to perform underground as well. MTA riders have lots to complain about, but read this guy’s bio — low-quality violin concerts is one problem they don’t have!
Just a good reminder that, while Joshua Bell may only have played that one time, there’s a broad base of serious talent in the subway. So keep your ears peeled!
buskny.com 
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