There are many artists and musicians in New York City that support themselves by performing in the subway system. However, those artists run the risk of being arrested – oftentimes wrongfully – for violations of New York City Transit Rule of Conduct 1050.6.
That statute makes it an infraction punishable by up to 10 days in jail and/or a fine or civil penalty for obstructing or interfering with the flow of traffic in the subway system. (See Section 1050.10). The statute specifically states that artistic performances, including the acceptance of donations, is generally speaking permissible, so long as the performance does not cause any disturbance in the flow of traffic. The precise language is below:
Use of the transit system.
- No person may perform any act which interferes with or may tend to interfere with the provision of transit service, obstructs or may tend to obstruct the flow of traffic on facilities or conveyances, or interferes with or may tend to interfere with the safe and efficient operation of the facilities or conveyances of the Authority.
- No person, unless duly authorized by the Authority, shall engage in any commercial activity upon any facility or conveyance. Commercial activities include (1) the advertising, display, sale, lease, offer for sale or lease, or distribution of food, goods, services or entertainment (including the free distribution of promotional goods or materials); and (2) the solicitation of money or payment for food, goods, services or entertainment. No person shall panhandle or beg upon any facility or conveyance.
- Except as expressly permitted in this subdivision, no person shall engage in any non-transit uses upon any facility or conveyance. Non-transit uses are noncommercial activities that are not directly related to the use of a facility or conveyance for transportation. The following non-transit 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; leaf-letting or distribution of written noncommercial materials; activities intended to encourage and facilitate voter registration; artistic performances, including the acceptance of donations; solicitation for religious or political causes; solicitation for charities that: (1) have been licensed for any public solicitation within the preceding 12 months by the Commissioner of Social Services of the City of New York under section 21-111 of the Administrative Code of the City of New York or any successor provision; (2) are duly registered as charitable organizations with the Attorney General of New York under section 172 of the New York Executive Law or any successor provision; or, (3) are exempt from Federal income tax under section 501(c)(3) of the United States Internal Revenue Code or any successor provision. Solicitors for such charities shall provide, upon request, evidence that such charity meets one of the preceding qualifications.
The statute is obviously somewhat vague – what does it really mean to obstruct the flow of traffic? – and unfortunately, as is often the case with vague criminal statutes, it invites abuse by police officers. In particular, we have been made aware of police officers arresting musicians on subway platforms that are doing nothing more than standing in one place and playing musical instruments. This conduct can hardly be said to be an unreasonable obstruction of the flow of traffic, and seems to be specifically permitted by the statute itself. After all, if someone is permitted to perform music in the subway system, how can he possibly by any less obtrusive than that? Certainly, a criminal defense attorney may also be able to prove that the accusatory instrument was insufficient as a matter of law with respect to this element or as to the “authorization” element. See e.g. People v. Flowers, 8 Misc.3d 516 (Crim. Ct. New York County, 2005).
If you or a loved one have been arrested and wrongfully detained for allegedly violating Section 1050.6 whilst performing in the subway system, you may be able to successfully pursue a civil lawsuit for damages against the NYPD, and you should contact an experienced criminal defense and civil rights lawyer to discuss your case immediately.