“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.