10/29/2003
OFFICIAL
PRESS RELEASE ON
CASE No. CV 03-3238Z filed in Seattle Federal
District
Court.
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 description. 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 Festival because the festival complained 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 received 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 10-20% of the performer's value if
they were hired. |
I am the plaintiff Michael Berger, and the
case before the
court. 03-323 competent to testify and I make this declaration
upon personal knowledge and belief.
I found out over the summer of 2000 to the
Seattle Center was
planning things to rules that would require ID permits of street
performers and specified locations. I decided to try and find out
what they were planning, in order to file an injunction, because I was
sure that what they were planning was unconstitutional. Started
to undergo a lot of stress, anxiety, and sleepless nights, as I
experienced difficulty in getting the Seattle Center to provide me with
the information of my public disclosure request, which I believe I
filed legally, and in a manner to resolve what was sure to be a
problem. After two months, they still had not provided me with
any details about their plans and just sent the current rules.
When I complained in January of 2003 to the head of security, that the
upcoming rules would discriminate against performers and that the
Center better follow the law, I began to get harassed the very next
month by Center security. In February 2003, I was told that
because I had warned them about following the law that I would have to
follow all the rules now. That warning was conveyed to me by
Seattle Center security guard Gary. In April after I got my
permit, after the rules had been enacted, the permit was suspended
under questionable reasons, and my magic equipment was seized without
notice while I parked, even though I had two people watching. I was
given no warning, notice, news, or receipt of this and thought all my
show had been stolen. Two children parties were the next day and I
thought I would be unable to perform, lacking money to replace.
This seizure and suspension bothered me mentally for months. In May of
2003 I found that vehicles were being parked on performer spots, my
complaints were ignored all year. I took photos of many times this
happened. This bothered me too. I was told to move a few feet, closer
to designated locations on occasions, when other people were never told
to do so. I was asked to leave the grounds for private
conversations. I was told to leave because they had left my
permit home. I was forced to move from a valid spot, to inside
the Center House, so a festival client wouldn't see me 100 ft.
away. All of this harassment took its toll on my psychological
well being, causing much suffering and depression.
The problem in the large delay to begin with,
according to my
doctor, the end of 2003 was the peak of my depression that was
overwhelming me. My physical appearance deteriorated, my living
area deteriorating, my financial sources deteriorated. Many days I
found myself in a status of them in the ability to function.
Sometimes I would try to go perform do not be able to make it out of
the house even though I was fully dressed with all my equipment.
Sometimes I would leave the house to find that I couldn't bring myself
to go and perform and I would come back and sleep. My diet became very
bad, binge eating, and in December of 2003 I was told I now had
diabetes, which scared me. My psoriasis increased 25% with dozens of
new eruptions, in areas in my legs, back, and feet where there had been
none for years. The psoriasis has gone internal, causing bone nodes of
a form of arthritis. All of this exacerbated my mental and physical
condition.
I had an abhorrence of performing at Seattle Center by then and even
discussing it or dealing with the case became a mental block. Their
rules and restrictions weren't' part of my character. The things
that they tell me I can't do are part of what I have been doing for
over 20 years. And it makes me mad that I should be discriminated
against, because I am voluntarily expressing myself when I voluntarily
come to the Center to visit. They have made me feel like I am an
employee, capable of being hired and fired. When I complained
again in February 2005 that parking on performer spots was still
happening, I was excluded from the grounds on the fake assertion that I
had caused a commotion by asking security guard Winters to do his job.
But performer Marvin Brost was within 15 feet and denies the officer's
claim.
I'm taking my medication in trying to function
as best
possible, and bring this case before the court in a manner that
deserves its importance.
If the City had replied to my disclosure
request in 2002,
instead of NO information, and sent ME a whole box of documents like
they sent Ms Garella six months later, I might have been able to gain
an injunction. But they made sure I had NO info until it was enacted.
Our previous settlement said the city would not treat performers like
vendors, and that is exactly what they have done, and I feel they are
in contempt of the Federal settlement for 1996.
The Center tries to build a case for order and
prevention of
conflict. They are not interested in that. Their meeting notes showed
they just want a tool to remove whomever they want. And they will
hassle them until they get a chance to revoke their permit. They have
shown that they are ready to use and abuse their new power. They
have constantly distorted the facts. They said in the 1993 case that
people complained I was vending, but it was Center personnel that
claimed that, not visitors. They claimed that rules were needed because
of disputes. But all disputes between performers were settled with
common sense. That's not a reason to thwart the Bill Of Rights.
In 1996 I had to drop my case because the City
had an out. The
police hadn't been trained yet in 1993 since 1991 laws. If police
need
to be trained, what chance is there that egocentric security guards
won't abuse the rules? They do not have the review police do. And, they
don't resolve problems they create them, by selective enforcement.
.
They claim the rules are content neutral, but for years they
threatened and put pressure on only magicians, clowns, and mimes that
made kids balloon sculptures. You might wonder why. It was because
their venders claimed we made money without paying rent. Their City
attorneys even claimed I was as commercial as Boeing! Yet there is
proof this was done to appease the rent payers.
When a performer needs to adjust for another
performer or CARS
PARKED ON SPOTS, before the rules it was simple. Now the performer has
to find a whole new spot to play at. Also the people monopolizing the
SOLE spot by the Space Needle threatened me mortally twice. When I
reported it to security they said report it to the police and refused
to act on it OR WRITE A REPORT ABOUT IT. If I have to go to the police,
then existing laws are all we need. Other performers have been
threatened by the same people also. When I complain about a problem
they add that instance as part of their tally of complaints involving
ME.
As for crowd control blocking a 40 foot wide
street, there is
no traffic. Also it is ironic that counsel has pointed out flame and
sword jugglers. I tried to see if Center security would react to an
unlicensed flame juggler blocking the entire street for 45 minutes at a
time. The guard said, in front of a witness, that he wasn't' ".going
to
regulate his performance, and said I'm going to ignore you." So, one
person performing for 3-5 people or performing while wandering around
has an urgent need of regulation, but not performances that create a
crowd of 50 people like the photographs in exhibit, or when the
Festivals attract 250,000 people a day. As I said, it is just pressure
from the Center's rental clients and the Center's desire to have a tool
to use as a club, and they try to cloak this with fake needs that have
been no problem for 40 years.
A handful of people should not be required to
go through the
mental aggravation Seattle Center has created with these rules.
These rules were never needed the last 40 years and I do not believe
they're needed now. When I asked for a spot to be added I was
told there were more spots than registered performers. Obviously, if
that is the case, where is the dire need? I am sure existing laws
adequately handle whatever is necessary. Whatever problems
Seattle Center thinks they're solving, infringing on a few people's
constitutional rights does not solve them. Nor can they be trusted with
being sensitive to the public's rights.
I mean, wouldn't you want to have a permit,
under authority of issuance, to visit public space you
gave tax money on toilet paper, phones, TV, gas, car fees, etc. to, for
the ability to tell you where you can stand,
say, or do?
Signed Michael Berger February 25th 2005 |
Main
Points of the Federal suit I just filed against Seattle Center.
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. |
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