Watch out: dangerous guitar players could threaten you next!

That seems to be the mindset of the New York Police Department. The NYPD recently arrested a local musician for loitering while playing the guitar in a New York subway station, despite reading word for word the law which allowed him to perform his music.

The incident was recorded and uploaded to YouTube on Friday. The video shows Andrew Kalleen being confronted by an unidentified police officer who orders him to pack up his guitar and leave the subway station.

In the background, an onlooker exclaims, “We have bigger problems in New York City than someone playing guitar!”

Kalleen disputes the order to leave, and instead requests that the officer read Section 1050.6c of the MTA Rules of Conduct. That section states in pertinent part:

Except as expressly permitted in this subdivision, no person shall engage in any nontransit uses upon any facility or conveyance. Nontransit uses are noncommercial activities that are not directly related to the use of a facility or conveyance for transportation. The following nontransit uses are permitted by the Authority, provided they do not impede transit activities and they are conducted in accordance with these rules: public speaking; campaigning; leafletting or distribution of written noncommercial materials; activities intended to encourage and facilitate voter registration; artistic performances, including the acceptance of donations [emphasis added].

Despite reading out loud the clear language of the rule, the officer tells Kalleen that playing the guitar was prohibited, and that since he lacked a permit, he must leave. The officer never told Kalleen he was impeding transit activities—just that playing an instrument required permission from the government.

The crowd watching the confrontation was clearly disturbed by the officer’s ultimate decision to arrest Kalleen and remove him from the subway platform.
An unidentified voice in the background shouts, “You said it out loud. You said it out loud. There are crack dealers in New York City, and you are arresting this man for playing a guitar!” Another says, “I listen to this guy’s music every day, I like it. I don’t wanna hear you trying to arrest him.” reported the NYPD’s response to the incident:

Kalleen was playing guitar, singing and accepting donations ‘without permit of permission’ from the MTA. Because he is a ‘transit recidivist,’ which the spokesperson explained as someone having an open ticket or warrant, perhaps related to turnstile jumping or a similar offense—he was arrested and charged with loitering. There was no mention of him impeding transit activities.

Was there truly an outstanding warrant for Kalleen’s arrest? If so, the behavior and statements of the NYPD officer certainly did not support that conclusion. Kalleen was repeatedly told in the video he would have to leave because he lacked a permit, not because he was a “transit recidivist.”

From all that we can see on the videotape, the musician did nothing justifying his arrest. There is no evidence that the musician was disturbing the public or being a nuisance. What really went on here is that the musician refused to comply with the officer’s directive to leave the station and stood on his rights.

Interestingly enough, our knowledge of this incident was made possible only because someone videotaped it on a camera or cell phone, something that others have been arrested for doing, in violation of the First Amendment.

Not every incidence of perceived misconduct merits law enforcement intervention–especially when the MTA Rules of Conduct allow artistic performances. Unless Kalleen was causing harm to others around him, or impeding the flow of traffic, the NYPD should have refrained from turning an underground concert into a criminal arrest scene.

Instead of entertaining a crowd who were clearly enjoying his rendition of Pink Floyd’s “Wish You Were Here,” this guitarist will be playing “Jailhouse Rock.”