A New York City guitarist is finally getting some payback in the face of injustice.
In 2014, Andrew Kalleen was wrongfully arrested for loitering while playing his guitar in a subway station. The New York City Police Department officer arrested Kalleen despite his protestations and those of other subway patrons who claimed to enjoy the performer’s music.
Not only was Kalleen not bothering anyone by playing his guitar on the platform, he was fully within his rights to do so. In fact, the arresting officer read aloud the law that protects Kalleen’s right to perform in the station—immediately before arresting him.
As Kalleen objected to the officer’s demand that he put away his guitar, he instructed the officer to read Section 1050.6(c) of the Metropolitan Transportation Authority’s rules of conduct.
The subsection, repeated aloud by the officer, says in part: “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. … [emphases added].”
The plain language of the rule specifically permits musicians to perform in subway stations and accept donations to boot. That is exactly what Kalleen was doing, but the officer persisted in arresting the guitarist, even though he did not appear to be impeding transit activities.
Whoever violates a Metropolitan Transportation Authority rule may be ejected by an officer from transportation authority facilities after notice of his or her violation, but that individual may also face criminal prosecution and a potential penalty of up to a $25 fine, 10 days imprisonment, or both; or civil penalties up to a $100 fine.
The NYPD told reporters, however, that Kalleen was “arrested and charged with loitering” as a “transit recidivist,” which it defined as “someone having an open ticket or warrant, perhaps related to turnstile jumping or a similar offense.”
Fast-forward to 2016. Kalleen recently received a share of a $54,500 settlement from the NYPD. That settlement was due as a result of an unlawful arrest action that Kalleen and two similarly situated subway performers brought against the NYPD.
In order to provide redress for unlawful activities by state actors, the United States Supreme Court held in Gomez v. Toledo (1980) that if a person is deprived of a federal right by someone acting under color of state law, then he may seek redress in the courts. This is commonly invoked by individuals who have been subjected to an unlawful arrest in violation of the Fourth Amendment’s proscription against unreasonable seizures.
The Supreme Court explained in Gomez that police are generally protected under the doctrine of qualified immunity for “acts done on the basis of an objectively reasonable belief that those acts were lawful.” In Kalleen’s case, though, the NYPD officer undermined any such argument by reading aloud the rule that clearly permitted Kalleen’s activity.
Kalleen ultimately turned his case over to BuskNY, an advocacy organization for subway and street performers, which handled the lawsuit. Since its founding in 2013, BuskNY has reportedly collected $120,000 in wrongful arrest settlements for New York City performers.
New York lawmakers responsibly chose not to make nondisruptive performances on a subway platform a crime. These costly settlements should put the NYPD on notice of that fact. Unjustly arresting Kalleen and others for loitering when they committed no such crime doesn’t just harm street performers, it squanders precious resources of the cash-strapped city.
The late United States Sen. William Proxmire, D-Wis., bestowed a Golden Fleece Award each month from 1975 to 1988 upon whomever he deemed responsible for the most egregious misuse of tax dollars.
He once gave the award to the Federal Aviation Administration for conducting a study on “the physical measurements of 432 airline stewardesses.” That study cost taxpayers $57,800.
The NYPD’s waste of taxpayer dollars to make wrongful arrests that fly in the face of active laws is equally ridiculous, making the NYPD a strong contender for a Golden Fleece Award. Perhaps some NYPD officers could use a refresher course on the law to enable them to fight real crime in New York City—and leave law-abiding citizens alone.
