A Subway Musician Is Suing New York City After His Arrest Video Went Viral

Andrew Kalleen asked the cop to read off a cell phone.

"The following nontransit uses are permitted by the [Metropolitan Transportation] Authority, provided they do not impede transit activities and they are conducted in accordance with these rules," the officer boomed in front of an increasingly irate crowd before ticking off a list. When he got to the part permitting artistic performances, those watching the scene on the G train platform in Brooklyn clapped. They thought it was over, that Kalleen had proven his right to busk for money on the Brooklyn subway platform, as hundreds of performers do every day all over New York City.

They were wrong.

Franco called for backup as Kalleen broke into a rendition of Pink Floyd's "Wish You Were Here." In the middle of the song, his instrument was jabbed at and then forcibly removed. The police arrested the musician to chants of "Fuck the police!" and video of the ordeal made headlines from the New York Daily News to the Guardian last October.

This week, the 30-year-old announced plans to file suit against the city and the NYPD. People have sued—and won—over this very issue in the past, and New York will probably be paying out some more settlements this year, according to advocates. It's the latest development in an all-out war against street performing—a practice that's been legal for decades—and one that has only been exacerbated since Bill Bratton became police commissioner again in January.

New York City street performance largely originated in Five Points—the neighborhood that Martin Scorsese chronicled in his movie Gangs of New York. It was "part of the culture along the docks," according to Jack Tchen, a history professor at NYU. "It came from people getting on and off ships from many parts of the world and having to learn how to coexist and talk to each other."

The clash of Irish and African-American cultures in Five Points birthed new forms of expression, like tap dancing. But the street performers were demonized by temperance-minded Protestants, Tchen says, who eventually moved away from the mass transit areas they considered crime-ridden and dirty.

Busking became a touchstone of life among the downtrodden. It became such a popular way to make money during the Depression that in 1936, Mayor Fiorello LaGuardia banned it altogether. People protested for decades—including beat poets like Allen Ginsberg—until the ban was lifted in 1970. But that didn't stop cops from harassing street performers.

In 1990, Bill Bratton became the head of the New York City Transit Police. He was a big proponent of the " broken windows" theory of policing, which suggests that targeting minor crimes like fare dodging and vandalism deters larger crimes. He's still pushing the same policy now that he's the police commissioner again (he served in the role in the mid 90s)—and last year he oversaw a massive increase in the arrests of panhandlers and buskers.

Kalleen had been busking long before the latest crackdown. He moved to the city from San Francisco six years ago and played duets with his roommate at the Bedford L stop in Williamsburg before he started going there alone. His favorite spot to play was the Metropolitan stop on the G train, because it was close to his home (he lives in Bed-Stuy) and because he had the most time to connect with his audience (the G train is notoriously slow). Commuters who frequent that platform know that it attracts some of the most polished performers in the entire system, and is far less frantic than popular spots like Union Square.

"It just has great acoustics," Kalleen told me. "People are there late at night waiting for 20 minutes, which means you can put on an actual show for them."

He soon became a full-time busker, which meant enduring occasional harassment from cops. He's been ejected from the platform six times before, he told me, but decided to make a stand during the widely publicized incident last fall. Because the officer had no reason to arrest him, he was ultimately charged with a Depression-era penal code violation, according to his lawyer, Paul Hale. After the charges were dropped, Kalleen decided to take the cops to task.

He's not the first. Matthew Christian, who plays violin, won a $30,000 settlement from the city after he was arrested for street performing in 2011 . Now he's the head of an organization called BuskNY that hooks performers up with legal help. He's had his hands full since Bratton took office.

"Historically, New York City has been a leader in public performance, and 2014 was sort of a change in that trajectory," he told me. "[Bratton] pushed 'broken windows' and a lot of officers into the subway."

Kalleen found Hale, his attorney, through BuskNY, and now they're putting together a multi-party lawsuit that they intend to file in a matter of days. If they win, Kalleen says, he will pour the settlement into improving Bed-Stuy. He sees the issue as an abuse of power that extends way beyond subway platforms, although he considers what goes on there a vital part of the city.

"There is incredible art happening beneath New York," he says. "It would be so sad if we got to a place where it all stopped. Millions of people per day support it and enjoy it, and it would be an enormous hit to the city's culture."

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