Why Was This Subway Musician Arrested for Playing Guitar?

Contradictions in New York law have caused numerous musicians to be wrongfully arrested. And the problem is only getting worse

Andrew Kalleen at the Metropolitan subway station in Brooklyn, New York on November 10th, 2014. Credit: Axel Dupeux

"Ten-fifty point six C, man," says the shoeless guitarist to the police officer when the video starts. "Look it up."

Last month, a YouTube video showing the arrest of 30-year-old subway musician Andrew Kalleen for performing in a New York City subway went viral, receiving more than 1 million views within two days of posting.

Kalleen, a resident of the Bedford-Stuyvesant neighborhood of Brooklyn and nightly busker at the borough's Metropolitan G Train subway station, was approached by an NYPD officer at 1:30 a.m. on Saturday, October 18th. The officer – identified as Michael Franco on Kalleen’s desk appearance ticket – told Kalleen to put his guitar away and exit the premises and was enforcing a so-called "quality of life" violation. This could be any one of a number of common, non-violent crimes like panhandling and vandalism that, when enforced, ostensibly lead to a decrease in higher-level crimes. It’s the "broken windows" theory of enforcement that peaked under Mayor Rudy Giuliani in the mid-Nineties and, critics allege, are seeing a resurgence under Mayor Bill De Blasio.

Except, according to Kalleen and other subway musicians, busking isn’t a crime. The NYC Transit Rule of Conduct that Kalleen is heard repeating in the video – Transit Rule 1050.6 – has become a favorite among New York buskers who know their rights because it outlines acceptable behaviors within the transit system. The rule’s language initially suggests that any non-transit activity on or around the subway is illegal, but section C outlines the exceptions, crucially "artistic performances, including the acceptance of donations."

After some arguing in the video, Franco agrees to read the rule aloud, thinking that it supports his case for ejection. But when he reads section C, Kalleen raises his hands in victory, bolstered by applause from the smattering of onlookers who had gathered around.

But the officer, for reasons not explicit in the clip, doesn’t feel this exonerates Kalleen. He explains that he is not arresting the busker, merely ejecting him. Kalleen refuses to budge, clearly relishing the crowd’s support.

At the end of the footage, the officer pushes the guitarist up against a wall and aggressively handcuffs him, aided by several other cops that have materialized on the platform. Kalleen is escorted out of the station to chants of "fuck the police" from the subway denizens. 

Rather than understanding the law's nuances, officers arrest subway musicians based on what they assume the law would be under the umbrella of "broken windows." But that principle applies to crimes, and 1050.6 suggests that busking is entirely legal.

Kalleen's arrest exemplifies what many musicians already know: Officers are arresting musicians on an inaccurate reading of the law, citing a theory that doesn't apply to support their actions. And the number of these arrests are only increasing.

Critics of the broken windows policing have varying degrees of frustration with quality-of-life enforcement, but many agree that the text of law doesn't apply to subway musicians. They argue, essentially, that the NYPD has continued to arrest musicians for a law that's misinterpreted, under a policy that doesn't apply.

After the camera stopped rolling, according to Kalleen, he was taken out of the station and put into the back of a cruiser. "When I was riding to the precinct," he tells Rolling Stone, "my officer was frantically looking through his phone to try to find some law to charge me with, because usually they would write you up for 1050.6, but he pretty clearly didn’t have the ground to stand on for that one. He found a penal law for loitering in a transit area for the purposes of entertainment."

Officers are arresting musicians on an inaccurate reading of the law, citing a theory that doesn't apply to support their actions.

That penal law — PL 240.35, section 6 — is an explicit piece of legislation that contradicts the officers' reason for approaching Kalleen in the first place. "A person is guilty of loitering when he...loiters or remains in any transportation facility," the law states, "unless specifically authorized to do so...for the purpose of entertaining persons by singing, dancing or playing any musical instrument."

A spokesperson for the Metropolitan Transit Authority referred Rolling Stone to an NYPD spokesperson, who did not respond to several requests for comment. But according to a statement given to New York-based blog Gothamist shortly after Kallen's video went viral, he was arrested for performing "without permit of permission" and was a "transit recidivist" – indicating he had an open ticket or warrant for a similar crime. Kalleen, for his part, called the suggestion that he had an open warrant "demonstrably erroneous."

He then spent, he says, a little over five hours in a holding cell and was released after 6:30 a.m. Saturday morning with a Desk Appearance Ticket.

The following Tuesday, an activist coalition for musicians called BuskNY assembled a rally on the same subway station as Kalleen's arrest. It was attended by other freelance musicians and entertainers alongside Brooklyn councilmembers Steve Levin and Robert Cornegy. Matthew Christian, founder of BuskNY, organized the rally to support Kalleen, but to also call attention to just how common these types of arrests are. They happen so often, in fact, that Christian had exchanged emails with Kalleen earlier this year after another instance where an officer attempted to eject him from the station. 

"Ejection is the single most common harassment of subway performers," says Christian, a subway musician himself. "This is when police officers come and either request that you leave the station, or they order you to leave and actually walk you out. And, the unfortunate thing about ejection is that it doesn’t trigger any official record. So if you want to complain, they can’t substantiate your complaint because there’s simply no official paperwork."

Christian had also been arrested in a similar manner – harassed, thrown up against a wall, charged after the fact with the loitering law PL 240.35 – a few years back. He started BuskNY to teach subway musicians their rights and to promote public transit. "There’s no training on the MTA rules given to the NYPD officers," he says, adding that this is why the reliance on assumptions – that busking seems like it would be illegal – leads to real-world arrests.

The biggest problem with arresting subway performers is that the way PL 240.35 is written implies that loitering with the intent to play music is always illegal. Officers often overlook the line that reads, "unless specifically authorized to do so." That line, according to Christian and Kalleen, offers up the possibility that 1050.6 – the law that outlines acceptable behaviors in the subway – authorizes legal busking. It is the "specific authorization." But coming to that conclusion requires a deep reading of the law on the fly – something that NYPD officers shouldn't be required to do and generally aren't equipped to carry out. At the very least, it's not a discussion worth having at 1:30 a.m. in a subway station.

"I actually don’t think it’s appropriate, fundamentally, to have police officers looking at the raw text of New York law, trying to interpret it," says Christian. "They need to be trained on something that's more clear and bullet-pointed than the actual text of the law."

This kind of mishandling isn't only bad for musicians, as it leaves the NYPD vulnerable to wrongful-arrest lawsuits.

That's especially true given that the NYPD is going after subway offenses more aggressively than ever. According to a statement given to the MTA board by Chief of Transit Joseph Fox in March, arrests of panhandlers and subway musicians (so-called "quality of life" offenses) were up 174% from the same period last year. "Our enforcement of quality-of-life offenses remains strong," Fox said at the time. "Our focus on the relationship between lower-level offenses and major felonies within the transit system will continue."

Fox essentially spelled out how "broken windows" has become a catch-all for a wide range of activities, even when it doesn't necessarily apply to the very people the NYPD are cracking down on. And it's one of many ways in which this kind of policing can leave room for problematic interpretation.

"[Subway performing] is not low-level crime; it’s not a crime at all. It’s totally legal."

Christian has seen the problem get much worse. "What happened is the moment Bill de Blasio took office and appointed William Bratton as police commissioner, these kinds of arrests started to escalate in two ways," he explains. "Musical performers in the stations were harassed more and made to stop performing, and performers on the trains were under more scrutiny. They began to be charged not under MTA rules, but under state reckless endangerment charges, which we found legally unjustifiable and just very insane." 

Councilmember Levin, who attended the rally, wholeheartedly supports Kalleen. "I think that if the premise behind broken windows is that you crack down on low-level crime and you’ll decrease higher-level crime, that doesn’t apply here," he told Rolling Stone. "[Subway performing] is not low-level crime; it’s not a crime at all. It’s totally legal.

"It needs to be separated from this broken windows discussion because this is not a crime," Levin added. "What was sad about that incident on the video was that Andrew was well-equipped with the information he needed to show that he was doing something that was totally protected, and the officer disregarded that. I think that the responsibility is with the NYPD to make clear to every officer, particularly those in the transit bureau, that this is legal and that there’s not only nothing wrong with it, but it’s actually a great thing." 

"Subway performers make the system much more humane," says Christian. "They keep various parts of the city’s cultural heritage alive. I think that people who come here from all over the world, don’t really have a venue in their communities to do the kind of performance music that’s part of their culture, because the first priority when arriving in New York isn’t to set up a bar with weekly performances. Having an accessible space gives them a chance to actually hear and support live performances."

Kalleen attended his desk appearance six days after his arrest, but was told his paperwork wasn't ready and was sent home. He has yet to receive a new scheduled appointment, but tells Rolling Stone that he plans on trying to get his charges dropped and sue for wrongful arrest and "the harshest reprimand that I can give to the city or the NYPD." (Kalleen says he will donate whatever compensation he receives to an organization supporting Bedford-Stuyvesant.)

"I’ve been getting emails from all over the world, every continent, and I have not received one email that’s been negative, which is incredible," says Kalleen. "I think the world is ready to unite around freedom. Even if you look at what happened to me as a small issue – one person goes to jail for five hours – I think it’s symbolic of something much larger."