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| Re: Buskers Protest Arrest of Fellow Musician Who Was Busking at Metropolitan Ave(G) Last Friday Night (1320114) | |||
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Re: Buskers Protest Arrest of Fellow Musician Who Was Busking at Metropolitan Ave(G) Last Friday Night |
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Posted by BusMgr on Wed Oct 22 19:25:50 2014, in response to Re: Buskers Protest Arrest of Fellow Musician Who Was Busking at Metropolitan Ave(G) Last Friday Night, posted by The Silence on Wed Oct 22 15:10:37 2014. The state statute reads as follows:A person is guilty of loitering when he: * * * 6. Loiters or remains in any transportation facility, unless specifically authorized to do so, for the purpose of soliciting or engaging in any business, trade or commercial transactions involving the sale of merchandise or services, or for the purpose of entertaining persons by singing, dancing or playing any musical instrument * * * . Loitering is a violation. N.Y. Penal Law § 240.35. The NYCTA and MaBSTOA rules read as follows: Except as expressly permitted in this subdivision, no person shall engage in any nontransit uses upon any facility or conveyance. Nontransit uses are noncommercial activities that are not directly related to the use of a facility or conveyance for transportation. 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: * * * artistic performances, including the acceptance of donations * * * . 21 NYCRR § 1050.6(c). Any person who is observed by a New York City police officer to be violating any of these rules and who may receive or has received a notice of violation therefore is subject to ejection from the facilities. 21 NYCRR § 1050.11. So state law would characterize Mr. Kalleen's conduct as loitering, which is a violation, unless this persons was "specifically authorized to [loiter]." Strictly read, the NYCTA rule permits persons to engage in certain non-transit use, but does not directly permit such persons to loiter in pursuit of such permitted non-transit use. So it was not that Mr. Kalleen was engaging in unlawful activity by singing and playing his guitar, but rather he was loitering, and while loitering he happened to be singing and playing his guitar. I think the City's argument is weak. In order to engage in the permitted non-transit use of artistic performance and accepting donations, it is necessary to loiter. Therefore, the NYCTA rule implicitly authorized Mr. Kalleen to loiter. Moreover, the prosecution would have to show that Mr. Kalleen was loitering or remaining in the station for the purpose of entertaining, but Mr. Kalleen might well be also to show that he was loitering or remaining in the station for the purpose of waiting for a train (which, at that hour, does not operate frequently) and just entertained while waiting. This is not an issue of state law "trumping" MTA rules. The state law does not apply if the loitering is "authorized," and it seems clear to me that the NYCTA rule intended to authorize such loitering. This is a stupid case that ends up (1) costing the taxpayers to make a settlement, and (2) causes disrespect by the citizenry of its police force. Dumb all around. |
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