8/1: Courtesy, professionalism, respect

So, two li’l stories from today:

1. While I was playing at Metropolitan Ave., a cop walked the length of the platform to my spot. No panic — cops there always seem well-trained on the rules. But then he turned just as he got to my spot — uh-oh — and heck, he gave me a thumbs-up. OK!

2. At the northern end of 81st St — where I’ve been escorted out once and arrested once — two cops came down the stairs and ordered me out. Now, although I may seem to enjoy getting arrested now and again, I too have my limit. And my limit is especially low when a court date (moving into late September) potentially conflicts with my Fulbright grant (starting in October). Harassment doesn’t always come at a good time, and I’m just not sure how many more arrests I can do this summer.

That said, I took a big gulp of air and asked why. “Because you can’t ask for money,” one answered. “Well, let me show you the rules,” I said. Then I read aloud:

“The following nontransit uses are permitted by the Authority […]: 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.”

Then I handed over the rule pamphlet and pointed to the passage in yellow. The guy took a quick look. “Enjoy,” he said, handing it back. “‘Scuse me?” “Enjoy,” he said — and they were off back up the steps.

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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.

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: 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.

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!