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Brooklyn artist set to sue city for civil rights violations

February 3, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Andrew Kalleen joins other performers during a protest in the Metropolitan Avenue Subway station on Oct. 21, 2014, in New York. Kalleen, 30, was performing Friday, Oct. 17 at the G-train stop in Williamsburg when an officer told him he must leave the station because he needs a permit to play there. AP Photo/Frank Franklin II
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An artist arrested in a Williamsburg subway station last October has filed suit against the New York Police Department via the city, claiming that he was unlawfully arrested for performing underground. 

Plaintiff Andrew Kalleen says that busking — or the practice of street performances done with the expectation of gratuities — has been legal for decades. Yet, despite the legality of his actions, Kalleen asserts that NYPD officers ignored the law, wrongfully arrested him and violated his constitutional rights by detaining and imprisoning him with no just or reasonable cause. 

As previously reported in the Brooklyn Daily Eagle, Kalleen, 30, was performing at the Metropolitan Avenue G-train stop in Williamsburg when an officer told him he had to leave the station because he needed a permit to play there.  

Kalleen’s arrest was captured by a bystander video, in which the artist is seen refusing to leave, asserting his right to perform and even referring the officer to the section in the Metropolitan Transportation Authority’s (MTA’s) rules of conduct that says artistic performances and solicitation of donations are allowed. 

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The MTA’s rules generally prohibit panhandling or asking MTA passengers for money, but an exception is carved out for artists and performers who perform on subway platforms. MTA’s rules of conduct allows for “artistic performances, including the acceptance of donations; solicitation for religious or political causes; solicitation for charities,” so long as these acts don’t impede transit activities. 

In addition to the MTA’s rules, Kalleen notes that “[b]usking has been expressly permitted in the New York City subways since 1985.  Permits, permission, schedules or auditions of any kind are not required for any person to perform on subway platforms.”  

Kalleen became familiar with the rules of busking after several encounters with police officers, including incidents in 2012, 2013 and 2014. 

“Despite the law being clear for over three decades, New York City police officers continue to harass, evict, assault and arrest New Yorkers for playing music underground in perfectly legal circumstances,” Kalleen asserts in his suit.

Kalleen’s suit also brings a charge that the NYPD has supposedly engaged in repeated harassment of lawful performers.  According to reporting by the Eagle, from Jan. 1 to Oct. 12, 2014, 293 subway performer arrests were recorded, compared to the 101 arrests in 2013, said NYPD spokeswoman Sophia Mason.  In Brooklyn, at least 54 arrests were recorded during that time frame.  The numbers almost tripled for citywide numbers and more than tripled in Brooklyn.
It is unclear if the arrests cited are for performances inside subway cars, which is prohibited, or on subway platforms.  But the high level of arrests is a direct offshoot of Police Commissioner Bill Bratton’s “broken windows” policy of pursuing low-level infractions under the theory that by eliminating small crimes and an atmosphere of lawfulness, more violent crimes are less likely to be committed. 

Bratton put forth this policy once before in New York, when he was chief of NYC’s Transit Police, which has since been absorbed into the NYPD. During that time, Bratton aggressively went after turnstile jumpers and imposed a zero tolerance attitude toward graffiti artists in a move to clean up the city’s subways and create safety on the underground platforms. 

Kalleen, whose 2014 charge for loitering was never prosecuted by the Brooklyn District Attorney’s Office, was joined in his suit by James Woodward and James Gallagher, who were arrested in 2013 for busking at the Hoyt–Schermerhorn G train subway platform

All three lodge a criticism against the NYPD, contending that “as a matter of policy and practice, [the department] has with deliberate indifference failed to sanction or discipline police officers… who are aware of and subsequently conceal violations of the constitutional rights of citizens.”

Brooklyn attorney Paul Hale, who represents the plaintiffs in this matter, told the New York Daily News that if his clients “weren’t allowed to play anymore, tourists and locals alike would miss it.”

“Nothing is more New York than our street performers,” said Councilmember Stephen Levin (D-Brooklyn Heights/Williamsburg/ Greenpoint) speaking at a rally following Kalleen’s arrest. 

Kalleen’s suit, filed on Tuesday, is being reviewed by the city’s Law Department. Kalleen submitted his notice of filing in January.

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