En Banc Court Strikes Down Seattle Street Performer Regulations

Seattle Center performer rules challenged in Federal Court as unconstitutional

A suit filed in Federal District Court this week charges Seattle Center with creating rules about street performers that are unconstitutional for a city park setting. Performers must wear photo ID's that is an invasion of privacy, the Center restricts free speech by content, and it restricts time and place in a situation that is not a pressing need. The rules are also arbitrarily enforced, according to the suit.

If a performer wants to move under a tree's shelter in the rain or strong sunlight they are prohibited from doing so under threat of revocation of their permit and being trespassed from the grounds. If a woman or a minor performer doesn't want their name known, if they don't wear their badge, they are also under threat of revocation of their permit and being trespassed from the grounds. Performers may not perform before 11am or after 10pm even though the grounds are open other times to the public. No more than two people are allowed to work in a spot. Permits are only available to performers who can apply between 9am to 11am Monday-Friday. In order to get the permit you must agree to terms that are unconstitutional on public property.

The suit was filed by Michael Berger, AKA Magic Mike. In 1996 he filed four Federal suits against the City. Seattle Center had police issue him trespass charges in 1993 for refusing to leave, after being told to stop making children balloon animals at Folklife and Bite of Seattle. Seattle Center prohibited about 2 dozen clowns, balloonists and face painters from suiting up that year during a crackdown on unlicensed vendors who sell trinkets on blankets during the festivals. They claimed that face painters gave out paint and balloonists gave out latex, thus wasn't performing. Magic Mike was the only one who felt he knew the law and he resisted. He was escorted into the police station and given a criminal trespass citation during Folklife, which was open to the public on public property. The city never brought the case to court. The same police trio, at the urging of Seattle Center, gave him a criminal trespass citation in July at the Bite of Seattle, even though he was performing in front of the Space Needle and not in the Bite. That same day they also arrested Greg, the one man band with wings, while he played the National Anthem, during the same Bite of Seattle and took him to jail in handcuffs, charging him with criminal trespass. In 1996 Magic Mike filed against the City in Federal District Court when attorney Peter Cogan agreed to take the cases on a pro bono basis. The City settled for $7000 and agreed to send a letter to Pike Place Market, Seattle Center, Folklife, Bite, Bumbershoot and the police that performers are not subject to vendor regulations even if in their performance they give something out or if they receive donations. The other two suits involved criminal citations he received at Waterfront Park in 1995 for performing in a park without a license or permit. He claimed none were needed. The City didn't call one case at all and dismissed charges on the second case. Attorney Peter Cogan filed in District Court again and the City settled with him on those also.

In 2002 rumors of impending regulations began to circulate at the Seattle Center. On numerous occasions in 2002 he warned Seattle Center security personnel that he would take them to court if rules about performing locations and ID's were put into place on public property. He warned Mike Anderson in January 2003 that not only were the proposed rules unconstitutional, but that the rules might also break the good faith in the Federal mandated mediation settlement he had with the City from the two 1993 incidents against Seattle Center.

He filed a Public Disclosure request on August 19, 2002 with the City Clerk and Seattle Center in order to get facts of impending rules. State law requires a response within days. They refused to comply.
Six weeks later, after two calls to the city clerk threatening to cite the city for failure to respond, he received one unrelated document, a copy of the existing rules and not the proposed new rules or the request for property discription. When he obtained lawyer Elena Garella, she received over 500 pages in an identical disclosure request, about a couple hundred documents. The city is liable $5-$100 per document per day for failure to respond for the period of August 2002 to July 2003. The city had 60 days to respond to a claim for damages on the rules case also, to settle before it was to be filed in court, but they did not respond in any manner to that either.

As a side note, in July of 2003 Joe Fulton, a violinist, was arrested and taken to jail in handcuffs for performing on the sidewalk during the Ballard Seafood Fest because the festival co mplained he wasn't an authorized vendor. In October his case was dismissed, the judge not happy with the charge, since he was performing and not vending and was on public property. He will also be taking the City to court for damages.

Contacts: Elena Garella - Attorney at law
206 675-0675 garella@mindspring.com
Magic Mike Berger
206 magicmike@funandmagic.com

PRESS RELEASE 10/29/2003
Seattle P-I story is misleading.
by - Mike Berger

The Seattle P-I got the facts of the case wrong. I am NOT excluded from Seattle Center as they reported. I AM prevented from performing in spots of my own choosing. If I perform off one of their spots I can have my right to perform revoked and they will ask the police to trespass me from the grounds. The P-I's story confuses past facts with the present, and came up with the lead "A Seattle street magician has sued city for making him disappear" and tailored the story to support that, rather than the important points. I think trampling the rights of people and the Constitution are more important points to report. And worse, other media in Seattle have used the P-I story to report that the suit is about the things that they have done to me, discounting that this effects everyone. And they have done things and denied rights to many people. Many performers have not appeared since the rules were enacted. I hope the important points of denial of free speech, invasion of privacy in a public space, and denial of due process, become known by the public.

As for the exclusions, here are the facts. The rules were enacted on March 15, 2003 without any notice to performers who had been coming there every week for years. I was forced to agree with their terms in order to continue what I HAD BEEN doing there for 23 years without a single problem. Also the spot I had performed at for the last 3 years was not included in their list of approved spots. (They knew I was trying to find that out in 2002, but they stonewalled me and kept from me the fact that they were eliminating my favorite spot from the list of approved locations.)  Just after I got their permit they suspended it for a week as "punishment", for driving in to drop off my equipment without checking in with a guard that I didn't see. A security officer reprimanded me and I said I was sorry, I didn't know the procedure and I didn't see the guard. The security officer said okay. I drove off to park and when I came right back my stuff was gone. I was frantic. I was emotionally flattened. I had two child birthdays the next day and had no funds at that moment to totally replace everything so I could do the shows over the weekend as I had just stocked up on a case of balloons which were gone too. I thought someone stole it. I almost left at that point, totally depressed, wondering how I was going to deal with the two birthdays the next day. Finally deciding to report it, I used a pay phone to file a complaint with the police on the grounds. The customer service operator said that the security office wanted to talk to me. At first they told me that someone simply "saw it" and brought it in. But Mike Anderson, head of the security ordered it brought in and it was LOCKED UP in a side room in their office. I was told nothing and made to wait until Mike Anderson was done typing in his office. He came out and summarily I was then handed a letter invoking a one week suspension of my permit, told I should have stopped and that I shouldn't have left my stuff unattended. The punishment was excessive, unnecessary and the confiscation of my equipment without notice, leaving me to emotional distress, was illegal and callous. If I had not called to report it, they would have kept it locked up without telling me, until I went to my post office on Monday and retreived the letter he would have sent me Friday to notify me.

AND THAT I WAS FORCED TO LEAVE FOR AN AFTERNOON in September until I got my ID because I left it at home and they were trying to extort me to move because the spanish festival didn't want a performer on a performer spot and the security decided to bend the rules and be the hired goons of the festival instead of protecting the performers from a frivolous and insulting demand by the festival directors.

And I am under threat of exclusion for arguing about the preceding exclusion.

These are just a few incidents of their repression. There are many more which I have documented for the court. But more to the point, it is illegal for them to enact these ID and location rules in a public space. It is a violation of 1st Amendment rights, an invasion of privacy, and an arbitrary use of regulation. A performer or artist can't pick their favorite spot to create. Performer spots were not installed near the entrances to the Pacific Science Center or the new opera house, all funded with public money since 1963. Only the people volunteering to make people happy are subject to these indignities. NO ONE ELSE HAS THESE RESTRICTIONS, NOT AGGRESSIVE PANHANDLERS, NOT PETITIONERS, NOT LEAFLETTERS, NOT NEW CHANGE NEWSPAPER SELLERS.
And not any of the rest of the public who are welcome to be on public space. It is all an administrative misuse of power, that has not ever been needed in the 40 years of Seattle Center's existence, instead of promoting and nurturing artistic performances that would make more people visit the park. Instead of recognizing the value that performers bring to Center, the bean counters and people involved with businesses that rent space on public property are jealous and resentful of the money performers get in their hat, even though that amount is only 10- of the performer's value if they were hired.

19.    Despite the multiple notifications of the right to perform publicly at Seattle Center, Defendants City of Seattle, Virginia Anderson, Mike Anderson and Five Unknown Employees and/or Officers have promulgated a set of Rules, entitled "Seattle Center Campus Rules" that impermissibly interfere with Magic Mike's - and indeed all citizens'-right to freely express themselves artistically and politically.  These Rules are appended as Exhibit A of this Complaint. 
20.    The following Seattle Center Campus Rules, and others, violate the First Amendment to the United States facially and/or as applied: 
--    Requiring performers to wear a badge that shows the performer's name and photograph.  See Exhibit B to this Complaint.
--    Allowing the Director, Defendant Virginia Anderson, the discretionary right to withdraw permission to perform at the Seattle Center.
--    Prohibiting performers to request donations vocally, by gesture, or through third parties.  
--    Prohibiting performance before 11:00 a.m. and after 10:00 p.m. when Seattle Center is open at other times.
--    Requiring performers to stand at certain designated locations, which are far fewer in number, and farther away from the path of passersby, than required by any constitutionally permitted state purpose. 
--    Censoring performers from "treat[ing] any person or animal in a manner that is aggressive, menacing, vulgar, profane or abusive."   These terms are not defined.
--    Prohibiting the exercise of free speech activity, including presumptively political speech such as leafleting and signature gathering, within thirty feet of persons standing in line to obtain tickets, food or other concessions, attending any event, or seated outdoors where food and drinks are being consumed. 
--    Prohibiting persons from performing at Seattle Center unless they sign a statement agreeing to comply with the Seattle Center Campus Rules, including those rules that violate Constitutional rights. 

28.    Despite the previous lawsuits and complaints establishing free speech rights at Seattle Center and the Center's self-imposed commitment to cultural and artistic diversity, the Defendants have imposed unconstitutional regulations aimed at prohibiting citizens from engaging in what the City arbitrarily concludes is (as described in the Rules) "inappropriate behavior." 
29.    The Defendants have ignored legal precedent, legal actions, complaints, letters, and repeated notice over many years, continuing to trample the rights of the visitors to Seattle Center by imposing unconstitutional rules limiting free speech.  This lack of regard for the rights of others is reckless, intentional and/or malicious. 

V.  FIRST CAUSE OF ACTION
DECLARATORY JUDGMENT - CIVIL RIGHTS - FREE SPEECH
34.    This is an action for declaratory judgment pursuant to 28 U.S.C. §§ 2201, 2202, of an actual substantial justiciable controversy as alleged in paragraphs 1 through 31, set forth above.  Plaintiff seeks judgment that many of the "Seattle Center Campus Rules" are unconstitutional, both facially and as applied to the Plaintiff and similarly situated persons, because the Rules violate the right of free speech guaranteed by the First and Fourteenth Amendments to the United States Constitution. 
VI.  SECOND CAUSE OF ACTION
DECLARATORY JUDGMENT - CIVIL RIGHTS - DUE PROCESS
35.    Plaintiff incorporates by reference paragraphs 1 through 31 and 34, set forth above.
36.    Plaintiff further seeks declaratory judgment that the enforcement of the Rules deprives Plaintiff, and all other persons in Plaintiff's position, of due process of law, in violation of the Fifth and Fourteenth Amendments to the United States Constitution.  The Rules fail to provide adequate notice as to the precise nature of the conduct prohibited, thereby inhibiting the exercise of constitutionally protected rights and inviting selective, ad hoc and arbitrary prosecution. 
37.    Plaintiff seeks further redress against enforcement of the Rules pursuant to 42 U.S.C. § 1983.  The Defendants' actions in suppressing Plaintiff's performances and speech do and will deprive Plaintiff of his rights, privileges and immunities secured by the Constitution and Laws, as described above.  Furthermore, the Defendants' unconstitutional actions are taken under color of state law, in violation of 42 U.S.C. §1983.
VII.  THIRD CAUSE OF ACTION
INJUNCTIVE RELIEF - IRREPARABLE HARM
38.    Plaintiff incorporates by reference paragraphs 1 through 31 and 34 through 37, set forth above.
39.    If the Act is allowed to continue in effect or be enforced, Plaintiff and all other persons similarly situated will continue to be subjected to immediate and irreparable injury for which no adequate remedy at law exists.  Plaintiff will be forced to continue to refrain from asking for donations, or freely expressing his opinions if those expressions are considered by Defendants to be in some way "aggressive, menacing, vulgar, profane or abusive."  Loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.  Plaintiff seeks injunctive relief pursuant to 42 U.S.C. §1983.
VIII.  FOURTH CAUSE OF ACTION
DAMAGES
40.    Plaintiff incorporates by reference paragraphs 1 through 31, and 34 to 39, set forth above.
41.    Enforcement of the Rules has caused, and will continue to cause, Plaintiff damages for which he is entitled to compensation.  Such damages include past and future income and serious emotional distress. 
42.    Defendants have been aware that their policies with respect to the right of free speech are unconstitutional for many years, and yet have, with reckless disregard, intent, and/or actual malice, disregarded the Constitutional rights of Magic Mike and other persons on the Seattle Center park grounds.  Therefore, pursuant to 42 U.S.C. §1983, plaintiff seeks punitive damages of such amount that the defendants will be punished, and that the defendants and other will be deterred from violating the rights of others.
IX.  FIFTH CAUSE OF ACTION
VIOLATION OF WASHINGTON'S PUBLIC DISCLOSURE ACT
43.    Plaintiff incorporates by reference paragraphs 1 through 5, and 32 and 33 as set forth above.
44.    Defendant City has failed to comply with Chapter 42.17 of the Revised Code of Washington and Plaintiff seeks mandatory statutory damages, attorneys' fees and costs as provided by the Act. 
X.  RELIEF REQUESTED
WHEREFORE, Plaintiff asks this Court:
    1.    To issue a temporary restraining order and/or preliminary injunction restraining Defendants, their employees, agents and successors from enforcing and executing the Rules;
    2.    To enter judgment declaring certain of the Rules to be in violation of the United States Constitution and 42 U.S.C. § 1983, and permanently enjoining the enforcement of its provisions;
    3.    For compensatory damages, for all injuries past, present and future;

Wednesday, October 29, 2003

Street magician sues Seattle, saying rights denied

SEATTLE POST-INTELLIGENCER STAFF

A Seattle street magician has sued city for making him disappear.

Michael Berger's federal lawsuit alleges that city of Seattle employees have systematically violated his constitutional right of free speech by preventing him from performing on the grounds of Seattle Center.

Berger -- also known as Magic Mike -- "has been the target of harassment by city officials seeking to enforce unconstitutional regulations that would limit Magic Mike's -- and everyone else's -- rights to engage in the quintessential protected activity: speaking freely in a public park," the lawsuit says.

Court papers assert that the city's arbitrary exclusion of the magician flies in the face of a 1997 federal court ruling on a suit he brought against Seattle that establishes "a constitutionally protected right to perform magic tricks, create balloon sculptures and receive voluntary donations in a public park."

"The city appears not to have taken these words to heart," wrote Elena Garella, Magic Mike's attorney.

Waterfront Park

Beginning in 1987, at the Waterfront Park, officers had begun rousting all performers and beggars along the pier, trying to use a 1987 ordinance against vending in a park. The officers said I could leave or they would confiscate all my equipment and money until the case was heard in court. I tried to get a license, but was told I by the City Engineer Department I could not have a street use permit. I tried to get a permit from the director of permits at Parks and Recreation. They denied me a permit. I tried to use their system but it wouldn't accept me. In the Spring of 1992, after five years of putting up with this, performing anyway and trying to dodge the police patrolling the pier, I went to the law library and saw that vendor laws didn't apply to street performers. I confronted the Chief of Police and his attorney, Leo Plotts. I said if the police tried to hassle me with a vending law I would take them to Federal Court for denying me my First Amendment rights to express myself in a public place. When I confronted the patrolman, Officer Miller, he told me he was being influenced by the Waterfront merchants who he said were paying him to keep the area clear of persons that were getting money. The merchants felt it was cutting into their daily till. I again called Mr. Plotts and they sent a Lt. Brown to the pier to make Officer Miller desist, after being hassled by him again, even though I told him of my agreement with his superiors. Officer Miller was transferred.

Seattle Center

In the early 1990's Seattle Center began to treat all street performers who were busking with their hat out as vendors. They said we needed to have a permit to perform on the grounds. However, the permit was a contract issued by their Director of Contracts and Concessions. They wanted performers to set hours of operation from 11:00 AM to 6 PM, notify Seattle Center in advance if not coming, and a monthly fee of $300. A few performers agreed to this. I did not. Center security officers would try to chase me off for not having this permit. I made them call police, who informed them I didn't need to comply as I was performing for donations with my hat out. During this time a few balloon performers and face painters decided to get contracts with the Center, and began charging specific prices instead of voluntary donations. They became vendors.

I was told by police many times over the years that I couldn't perform magic and balloon art for children and adults for donations unless I had a permit or license. After trying to get a license and permit and being denied, I went to the Law Library in the Seattle Courthouse and researched all Local, State, and Federal Laws about it. There were NO laws about street performing, and the one's against begging were for the First Amendment. I then went to the chief of police and his lawyer and threatened to take them to court if the police on the pier threatened me again with a vendor law. The officer on the pier wouldn't obey they order so they sent a Superior Officer to the pier to personally brief the officers, when I called the next time they disobeyed him. All was fine for a two years.
   Then at a festival at Seattle Center, they said all clowns and ballonists were venders and not performers. They even told people giving a Tarot reading on blankets to leave. A woman told me they took her cards away from her little six year old girl, who was playing with them, afraid she would give someone a reading. They did the same to many street performers that were not vendors, by "declaring" that they WERE vendors. I alone chose to rely on my knowledge of what was right and continued to perform.
While being filmed for a TV news show, six police officers escorted me away, gave me a trespass
ticket, and told me not to come back for a year. I came back the next day with a TV News crews
walking behind me. We confronted the Festival manager, and the Seattle Center manager and
I was reinstated, although others were not. At the Bite of Seattle, on the same grounds, 2 months
later I was again confronted by the same officers, give a criminal trespass citation, and told to leave.
The citations were never given my day in court by the prosecutor. I began to work as a subscription salesman for the local newspapers, and began to manage the contract as Sales Manager. When that
contract was over, two years later, I went back to the pier to perform and two officers gave me a citation for soliciting in a park. Two months later they did it again.
   By Christmas I still had not heard from prosecutors, giving me my day in court. So, I filed papers on my own in Federal District Court naming the City and the police officers involved with violating my First Amendment Rights of Freedom Of Expression In a Public Place. They again didn't let it get into court, I settled for $7000 because I saw they had an out on a technicality, gave my attorney a third, and I gave $1000 to the Seattle Tibetan Sakya Monastery to help pay for their statue of a famous Buddhist Lama Magician who wrote The Tibetan Book Of The Dead and The Tibetan Book of The Great Liberation.
   The City of Issaquah did this to me also in 1993 and I did the same process. They settled for $1800 and my lawyer got a third and I donated $500 towards the Monastery's statue.
   The festivals in the cities of Kirkland and Edmonds tried to also have me cease, but wiser and kinder police officers said there was no law against performng for donations in a public place.

Waterfront Park again

In September and October 1995, while performing in Waterfront Park, upon instigation from Seattle Aquarium management, I was again confronted by police who said I had to have a permit. The police issued two more criminal citations, this time for soliciting in a park. The cases still were not called. In January I left for San Francisco and one of the cases was called for April 1st. My public defender asked them to drop the case. They refused, telling him they definitely wanted to try this case. When they found out I had flown back they dropped the case on Wednesday, then decided to call it on Friday for Monday's court hoping I had gone back. When I appeared in court they dropped the case. April Fools!

I then found a lawyer, Peter Cogan, who would help me pro bono, and we filed 4 cases in Federal District court against the city and the police. The city settled for a total of $7000 on the 4 cases. Part of the settlement was that the City Attorney had to inform the police, the Seattle Center, the 3 Festivals, and Pike Place Market that performers asking for donations were not subject to vendor laws.