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Stop and Busk: The Rights of Subway Performers

By Justin Zim

Many consider New York City to be the mecca of art, music, fashion and culture. The city streets are home to some of the most talented musicians and artists, some of whom one might not even recognize while hustling to their next destination. This is because many of them are "buskers," musicians and artists who perform on the street, in the subway, or in parks. Recently, however, these performers have been hassled, ejected, and even arrested by police officers, primarily from the subway, for allegedly violating the law.

According to the Metropolitan Transit Authority's (MTA) Transit Rule 1050.6(c), "artistic performances, including the acceptance of donations" are explicitly permitted in the subways of New York so long as the performances do not "impede transit activities." (http://web.mta.info/nyct/rules/rules.htm). For many New York buskers, this rule has allowed them to freely entertain the hordes of city-goers day in and day out.

Most buskers know about this rule. As recently as October 18, 2014, singer/songwriter Andrew Kalleen was hassled by a New York Police Department officer. In a video posted to YouTube, one can clearly see and hear the musician citing MTA Transit Rule 1050.6(c) to the officer. Yet, the officer insisted that Kalleen could not play his instrument in the subway and, after other officers arrived, Kalleen was forcefully taken into custody. (Cady Drell, Why Was This Subway Musician Arrested for Playing Guitar?, (November 20, 2014), http://www.rollingstone.com/music/features/subway-musicians-arrested-20141120).

According to Rolling Stone, Kalleen was taken to the police precinct and held for several hours. Allegedly, Kalleen was ejected from the subway for performing and collecting donations "without permit of permission." He was then charged and arrested for loitering. This was justified under section 240.25 of the New York Penal Law (NYPL). Section 240.35 contradicts Transit Rule 1050.6(c) by making street performances in the subway the crime of loitering. Specifically, NYPL ยง 240.35 makes it a crime to: "[remain] in any transportation facility, unless specifically authorized to do so, for the purpose of soliciting or engaging in any business..., or for the purpose of entertaining persons by singing, dancing or playing any musical instrument."

Those involved in this back and forth between the two laws disagree sharply on what is and what is not legal in terms of subway performances. This disagreement has led, and continues to lead, to a number of wrongful arrest lawsuits. (Drell, http://www.rollingstone.com/music/features/subway-musicians-arrested-20141120). While most of us who ride the New York City subways understand that panhandling is a very real and frustrating occurrence, we also take note of the many talented musicians who take a seat next to the wall and sing their hearts out for quite possibly no reason other than to entertain.

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