Why Was This Subway Musician Arrested for Playing Guitar?
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.”