Magic Mike the Magician

Children Magic | Adult Magic | Business Magic |Tavern - Restaurant Customer Builder Promotion |
Learn Tie Trick.
 |Performer's Rights | Send Mike A Donation | Safest Healthiest Water.
Read this site in Espanol | Portuguese | Francais | Deutsch | Italiano | Korean | Chinese | Switch to English at original page.

Performers Rights in Public Places By Magic Mike Berger - Magician and Balloon Artist.

From the movie "National Treasure" -
Benjamin Franklin Gates (Nicholas Cage)
"If there's something wrong, those who have the ability to take action have the responsibility to take action."

The Declaration of Independence, The US Constitution, and The Bill of Rights ARE our national treasures! The founding father's were inspired to protect our rights. Many people risked and gave their lives for it's ideals and promises. Wikipedia says Ben Franklin was a busker as a teen, singing political protest songs for donations. Wandering, strolling, traveling performers date back to antiquity, bringing joy, culture, and new ideas to the public, while performing in the streets
.
Then came the beaurocrats .... with their lawyers.

Seattle's street artists get a green light

Ken Lambert / The Seattle Times
David Yates, 25, of Seattle, juggles near Seattle's Space Needle. The U.S. 9th Circuit Court of Appeals today struck down curbs imposed by the city on those performing at the Seattle Center.
A federal appeals court strikes down the city's curbs on performers.
By Carol J. Williams
June 25, 2009
Just in time for the summer tourist throngs, mimes, musicians and balloon-animal shapers have been newly empowered to bring their entertainments and tip jars to public parks.

In a ruling with potentially wide implications for street artists throughout the West, the U.S. 9th Circuit Court of Appeals on Wednesday struck down curbs imposed by Seattle on those performing at the popular Seattle Center, home of the landmark Space Needle.

Michael "Magic Mike" Berger, a busker who sculpted balloon figures and dazzled children with sleight-of-hand tricks, prevailed in his seven-year challenge of the constitutionality of Seattle's 2002 rules regulating street performers. The city had required them to obtain permits, wear badges, refrain from soliciting gratuities, stay away from "captive audiences" and work only within designated sites.

By contrast, Los Angeles city officials make little effort to rein in the street artists who abound at tourist venues like Venice Beach and the Hollywood Walk of Fame. One local move, a 2001 ordinance restricting street banners in Santa Monica, drew a court challenge but has since been amended.

In the decision by an 11-member en banc panel of the appeals court, a majority rejected Seattle's argument that the rules were appropriate limits on "time, place and manner," rather than an infringement on free speech.

"I think there's going to have to be a reevaluation by many cities, certainly in the 9th Circuit and perhaps across the country, on the validity of various laws that restrict people from speaking in public and performing in public on sidewalks and parks," said Elena Luisa Garella, Berger's lawyer.

Constitutional law professor Carl Tobias of the University of Richmond agreed the ruling could tie the hands of officials trying to control the proliferation of street artists but predicted it would be appealed to the U.S. Supreme Court.

Berger, 61, was in Costa Rica when the ruling was announced but sent an e-mail proclaiming victory.

"The city has been trying to turn Seattle Center into a government-controlled place that is very convenient for commercial interests and hostile to freedom and free speech," he wrote, concluding that "the city needs to wake up and read the Constitution."

Seattle officials suspended the restrictions after a federal judge ruled for Berger in 2005. The city appealed to the 9th Circuit, where a three-judge panel last year upheld the busker rules as permissible safety and order considerations. Assistant City Atty. Gary Keese said the city was still reviewing the 114-page en banc ruling and had yet to consider whether to drop the rules or seek Supreme Court review.

Four 9th Circuit judges, including Chief Judge Alex Kozinski, dissented from Wednesday's opinion. Kozinski observed that the city was merely imposing "some basic rules, to ensure the safety and convenience" of the 12 million annual visitors to the Seattle Center.

Writing for the majority, Judge Marsha S. Berzon, a President Clinton appointee, said that "a law requiring a permit to engage in [individual] speech constitutes a dramatic departure from our national heritage and constitutional tradition." She referred repeatedly to a 2002 Supreme Court decision applying the same 1st Amendment protections to Jehovah's Witnesses who take their religious messages door-to-door.

c arol.williams@latimes.com

I have had to have lawyers take the City of Seattle to Federal Court SEVEN times for giving me 7 criminal citations for vending in a park when all I was doing was performing magic and making balloon animals for people and their children. See the video of it below, they did it on TV News! In ALL seven citations cases they refused to prosecute and call it to court so a judge could decide who was right. Why? Because I WAS. But they used the citations each to exclude me for periods of time and threaten longer periods if I didn't obey. So I studied the laws in the County Law Library. Then seven times my lawyers accused them in Federal Court for violating three articles of the Constitution.

#1 Denial of Free Expression, including prior restraint with threat to revoke a permit I am entitled to as free and nonexistent, which no other visitors must suffer, saying where I must stand to perform extemporaneously for my impromptu five minute shows, or twisting a balloon for a child, and saying I couldn't indicate I accept donations if people wish to support my art of 55 years of perfecting stunning close-up sleight of hand illusions, the hardest most skillful art of dexterity and use of fingers, timing, angles, and light known to man.

#2 Violation of privacy making performers agree to wear a photo ID badge which no other visitors must wear.

#3 Denial of Due Process by executing their rules like laws with no judicial hearing or appeal, which no other visitors must experience.

Performers are visitors and users of public space, just like everybody else. Cities cannot treat performers differently than they treat everyone else. Performer's city taxes support that public space. Cities and their departments cannot accept money to use or develop public space, if they do not treat the people that pay for that public space and use that public space, equally.

And each of the seven times they pressured me and my lawyers to accept a settlement out of court so it would not be tried before a judge. But the last time it got before a Federal judge and tried to get him to decide they were right in a summary judgment, declaring them right without a trial. And he said I had true grounds. And he ruled instead in summary judgment, forcible and strongly that their rules were unconstitutional. And the City of Seattle again forced us to settle rather than go to trial. And, they were so upset with his verdict that they appealed to the 9th Circuit Federal Appeals Court. In a controversial 2 to 1 verdict, they overturn him, using spurious reasoning, according to the 21 page dissenting judge. And rights law organizations all over complained about it. In a rare occasion (1 out of 100 times) the Court agreed to rehear the overturning decision with all eleven judges ruling this time, which they did in September 2008. Even though the hearing was to be PURELY based on constitutionality, the City Attorney's illegally threw in unsupported and untruthful statements of half-truth fact(?) to get the judges to lean to them. It occurs to me, that's why there are lawyer jokes. Did you ever, ever, ever hear a joke about a good, truthful, ethical, or moral lawyer?  In each case, they also got the newspapers to report their slimy smears and half-truths also, since they got the statements into record. It was supposed to be a Prima facie ( a Latin expression meaning "on its first appearance) case supposed to be based solely on the merit of law without giving me a chance of rebuttal. You can see my proof below.

This has cost me my health and over $100,000 since it began, It exhausted my finances. I am behind in rent, facing possible eviction, and can't afford my medical expenses. I need 1000 people to donate $5 or more to not be evicted and to help me with medical costs. Please donate as little or as much as you can in my tip jar, below.


Be sure to scroll all the way down this page to read the history of abusing performers by Seattle.

NEW! Seattle Times July 24, 2008 " Court of Appeals to rehear busker's case"

A Seattle street performer known as "Magic Mike," who earlier this year lost a federal appeal on a challenge to regulations at Seattle Center, has won another review of the case before the 9th U.S. Circuit Court of Appeals. In January, a three-member panel of the appeals court overturned a decision by a Seattle federal judge who had found that rules the center imposed on street performers violated free speech and equal protection. Earlier this month, however, the appeals court agreed to rehear the case en banc, meaning that a larger panel of at least 11 judges will reconsider the case.

JDSUPRA - "Recognizing the law and the people behind it." "Magic Mike" Brings Out the Best in Elena Garella and Davis Wright Tremaine
Posted on March 4, 2008

1/31/2008 - Press release regarding petition to 9th Circuit for en banc review of recent ruling by partial court. Read full petition.

Seattle Times 1/12/2008 - Judges overrule street performer's claims

Cal Law Legal Pad  January 09, 2008 Something Tells Us This Opinion Won't Stand
Eugene Volokh, January 14, 2008

May Government Ban Advocacy Near Movie Theaters, Outdoor Restaurants, and the Like?

READ!!! VITAL! First Amendment Center 1/11/08 Divided 9th Circuit backs Seattle's rules for street performers



tip jarI'm doing my part. Are YOU? Please make a donation. ESPECIALLY IF YOU'RE A PERFORMER! Even sending $5 or $10 helps with courts costs, deposition fees, medical, damages, etc.
I NEED YOUR HELP! Donate in my tip jar or to Magic Mike Berger PO Box 31861 Seattle, Wa 98103. This case sets precedent for other 1st Amendment cases!

12 years ago...  

Magician Makes Law Disappear
Friday, October 3, 1997

Christine Clarridge
Seattle Times Staff Reporter

"Magic Mike" Berger said all he ever wanted was for people to walk away from his street performance with a sense of awe, a smile and maybe even a balloon animal.

And if someone wanted to make a donation, well, that was fine. He said it's his right to perform with his hat out, and apparently, the city of Seattle reluctantly agrees.

In a mediation hearing yesterday, the city agreed to pay Berger $6,500 and to issue a memorandum guaranteeing the right of street performers to perform for donations.

"This decision shows I was right and will help other street performers even if I never perform again," said Berger.

Read complete story enlarged


Entertainment Features before the permit hassles.

Magic Mike as Sponge Bob
Magic Mike in
SpongeBob costume

magic salt
Magic Mike at
Seattle Center

poodle balloon animal
Magic Mike at
birthday party


Magic Mike in
Seattle Times 1995

TV11BUMBERSHOOT1991.jpg
Magic Mike Bumbershoot
KSTW-TV Seattle 1991

KIROTV7SEATTLE1983.jpg
Magic Mike on
KIRO-TV Seattle 1983


How_ComeKINGTV1980.jpg
Magic Mike on
KING-TV 1980


Magic Mike in
Seattle Weekly 1980


MagicMike KOINTV2
Portland-1979.wmv

MagicMike Eugene
MagicMike Eugene
KVALTV-1979.wmv


Eugene Register Guard 1979



Eugene Register Guard 1979

Eugene Register Guard 1979

...Traditional public for a - has, as a principal purpose, the free exchange of ideas. Classic examples are sidewalks, streets and parks. Such for a "have immemorially been held in trust for the use of the public and, timeout of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions." Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939).

I was one of the people that started the birth of FM Radio as you know it today!

In 1968, and won a Group W internship scholarship to KDKA-TV in Pittsburgh. Four days after I arrived there in the news department, Martin Luther King was shot. I was picked to drive CBS Dick Threlkeld to interview angry crowds day and night for a week. After that, I breezed thru the other nine departments in one week and told them I wanted the last eight weeks in the promotion department. After I graduated I wrote three TV stations and said, "Dear Sirs I am the person you are looking for." and the NBC-TV affiliate made the youngest promotion director in the country.  In 1972, I had visualization that I would meet the Dalai Lama. After seven years crisscrossing the country and starting new FM radio stations playing rock blues and jazz, I drove to Seattle, got out of my car and met him. I joined the Tibetan monastery and started performing magic on the streets with my hat out. I started studying at the law library when they began to harass me in the parks in 1987.

from Real Change Newspaper- Dec 31, 2008
"Balloonist and magician Mike Berger sued the city over the Seattle Center ’s rules admitting and regulating street performers, or buskers. A panel of 11 federal judges in the United States Federal 9th Court of Appeals reheard the constitutionality of the Center’s rules in September 2008. Their ruling is due in 2009.

What’s at stake, in terms of the right to free expression, in the judges’ decision?

“This fight benefits all performers and all people who go to public places. Seattle Center has tried on a regular basis to say that it's not a traditional forum and that it is not a public park. They tried to say it was not owned by the city. If the earlier ruling does not get overturned, every single person going to any park would need a photo ID permit. The parks and sidewalks are a public forum; that's what public property is.

People from out of town, who have never seen a busker, think performers get paid; they don't even think to give you a donation unless you ask. And doing anything to indicate you need or want some money is a violation of their rules.

They put these rules in effect just to have a tool to get people out — so they don't have the same level of probable cause that you'd have to give to a policeman. There were already rules on the books on illegal actions in public spaces, but they wanted to have something they could use fast and furious.

And these places get our tax money. If they're not a public forum, why do they need public money? If you're taking money you have to act in a manner that's in accord with the Constitution.

I've been fighting this on my own. The depression it causes me is really un motivating, and you have to be motivated to perform. This is the seventh time I've had to take the city to court, and I can't afford the medicine to alleviate the conditions that developed from the stress of the lawsuits: diabetes, psoriatic arthritis in my feet and toes, insomnia, and manic depression. I am behind in my rent and facing eviction. I haven't been able to work for the last two weeks because of the weather. And Pike Market refused me a permit; they say there are only four balloonists allowed, which is prior restraint and regulating content. They're my next case.”

Magic Mike's web site details his struggle over freedom of expression in public space that started in 1987. You can make a donation."

Seattle never gets it. After this arrest, below, the first of two in 1993, they settled with me in a Federal mediation, paid me off and promised not to do it again. But we had two more in 1998. They settled by Federal mediation. And guess what? They did it again in 2003. They settled with me but reserved the right to appeal the decision to the famous 9th Circuit Court of Appeals. So the case has become a landmark Rights case in the textbooks. They try to pretend that this arrest and the one 3 months later never happened. Scroll down.!
MagicMike_FolklifeFestival_arrest KIRO-TV7Seattle1993 HE PUT HIS HAND ON HIS GUN!

 

 

 

 

 



In 1996 I tried to get licenses and permits from the City and Parks Department. They didn't have licenses and permits for performing and engineering wouldn't give a street use permit for it. So it was outside the system. Sheehan was blowing blue smoke and the paper inhaled.

But they rarely quoted me, or asked my side of the story before publishing the City's propaganda. Now, he is a City attorney who is either ignorant of the law and doesn't know that performers accepting money in a hat is protected 1st amendment rights, as is the performance, ... - or he is blatantly lying. What do you think? Why do you think there are lawyer jokes? I know I'm a big guy, but he can't tell the difference between me and a Boeing 747 and its tens of thousands of employees. I get a dollar donation and they get billions. hmm. Can't tell the difference. And why wouldn't they prosecute me on the FOUR criminal citations they gave me on public property, and let a judge decide who was right!! Because I was!

And the people that complained I was vending wasn't the public, but the Seattle Center and Folklife officials and the balloon company that had a concession. They were trying to put commercial rights over people's rights. I just found a flyer someone was giving out in 1993, showing that every performer was threatened. The tried to make everyone think it was all an issue about ME! It's people, organizations, officials, and businesses like this that abuse our freedom of expression, that The Bill of Rights is to protect us from. You should stand up with me and say "No!"
 
If you know who made this flyer call me! - Magic Mike
- Magic Mike

 

 

I lived in New Oleans on the #13 trolley route seen in "Benjamin Button". Each day I'd take the 20 minute ride down St. Charles Street into the French Quarter to perform on street corners and hone my busking skills. There are three acts to learn and your food and roof depended on how well you did them.
Act One - Get people to stop and watch.
Act Two - Get the fact Ta-Da you got the first act to work, use their presnce to get more to sop.
Act Three - Sell the Hat. Get people to throw in a donation.
At three could consist of a number of different strategies. The simplest strategy would simply be just stand there and wait for them to reach into their pockets take out some money and hand it to you,  another way is to have a guitar case or a hat or a jar out on the ground or on a table for people to put money into.  Another way is to have a small sign in the guitar box or hat or clipped to stand.  The signs I have seen are: it's hip to tip: tipping is not a city in China: suggested donation: support the arts: support a street performer: please support my art: Art is heart: and, thank you.  Magicians might point at their hat on the ground and say, "Ta-Da!!!".  A musician might make up a song about making a donation.  A mime may act it out.  The most ingenious one I ever saw was a banjo player in New Orleans, who had a dog, they would rise up at the perfect moment and walk around the circle of the crowd.  He would walk up to people and take a bill out of the hands of people in the crowd and walked back to the banjo case and drop it in.  And then he would go get another one.  I also saw a man with a monkey that would do that.
But no matter what, act three is getting some action going the other way after you giving of yourself to them.  If you are renting a hall you get paid and you pay taxes.  If you're performing in a club or a tavern, you get paid.  But if you're playing at an open mic, or in a park or some other place such as a sidewalk, where you are not being paid , it is perfectly legal for people to support your art with a donation. Receiving a donation because someone wants to support you is no different from a panhandle asking for spare change or financial hep. The Federal Court ruled asking for help is protected speech. CONSIDER - If you couldn't do it on public land or space, where could you do it? Not on private or commercial property!

My statement before Federal Judge Robart:

I am the plaintiff Michael Berger, and the case before the court.  I am competent to testify and I make this declaration upon personal knowledge and belief. I found out over the summer of 2002 the Seattle Center was planning rules that would require ID permits of street performers limit them to 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.  I 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 mailed me the current 2002 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, who refused to allow me to perform under some rain shelter where others had huddled.  In March they said that the place I performed at for four years was not an approved spot now. In April after I got my permit, after the rules had been enacted, the permit was suspended under questionable reasons. They said I went thru a stop sign when I drove in to drop off my equipment 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. I had two children parties the next day and I thought I would be unable to perform, lacking money to replace my show.  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 many times of this. 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 I had left my permit home one day.  I was forced to move from a valid spot, and told to go inside the Center House, so a festival client wouldn't see me 100 ft. away.  But it was sunny and more people were outside.

All of this harassment took its toll on my psychological well being, causing me much suffering and depression.  By the end of 2003 my depression was overwhelming me.  My physical appearance deteriorated and my financial sources deteriorated. Many days I found myself in a status of being unable to function.  Sometimes I would try go perform, but 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 so I couldn't’t bend my toes and they hurt at night in bed. 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 made 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, the lawyer I found, 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 in 1996 (see the other four cases, below) said the city would not treat performers like vendors, and that is exactly what they did again, and I feel they are in contempt of the Federal settlement for 1996 and 1998. 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 a legal 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.

Before the rules it was simple when a performer needed to adjust for another performer or CARS PARKED ON SPOTS. 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, would YOU want to have a permit, under authority of issuance, to visit public space that you gave tax money to, when you paid sales tax on toilet paper, phones, TV, gas, car fees, etc., to give them the ability to tell you where you can stand, what you can say or do?

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 $200. 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 balloonists 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 performing 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.

Local News: Friday, October 03, 1997 Magician makes law disappear by Christine Clarridge
Seattle Times staff reporter "Magic Mike" Berger said all he ever wanted was for people to walk away from his street performance with a sense of awe, a smile and maybe even a balloon animal. And if someone wanted to make a donation, well, that was fine. He said it's his right to perform with his hat out, and apparently, the city of Seattle reluctantly agrees. In a mediation hearing yesterday, the city agreed to pay Berger $6,500 and to issue a memorandum guaranteeing the right of street performers to perform for donations. "This decision shows I was right and will help other street performers even if I never perform again," said Berger. On several occasions in the mid-1990s, city officials stopped Berger from performing at festivals and fairs, claiming the kind of show he performs is subject to laws regulating vending, trespassing and panhandling. At the time, police claimed Berger was selling his balloon animals during his show and not giving them away. Berger denied this and filed a claim against the city and the officers involved for $100,000 plus punitive damages, saying that stopping his show was a violation of his constitutional right to free expression. "You have a First Amendment right to express yourself in public and you have a First Amendment right to ask the public for money. I believe a person should be able to do performance art and solicit money," said Berger. In response to Berger's claim, the city and the officers counter sued, claiming that Berger's lawsuit was frivolous and constituted an abuse of the legal system. "Everybody is eager to claim a constitutional right to do their own particular thing," said Assistant City Attorney Sean Sheehan. Yesterday's mediation hearing was held at the behest of U.S. District Judge William Dwyer, who denied the city's request for a dismissal of the case. "The judge feels the city and the magician should be able to find a way to live together," said Berger's lawyer, Peter Cogan, "and we just want to clear this up because we feel street performers add a lot to the city's colorful atmosphere. The main issue is whether you have the right to perform in public." Berger said he was a well-known and respected street performer in Seattle for more than 15 years. "I've been performing for people out of the niceness of my heart since I was 6 years old and taught myself how to do close-up magic. When I saw the sense of awe I could give people, I made a vow that this is what I would do," said Berger. "If someone wanted to make a voluntary donation, that was fine, but I made it clear to people that they didn't have to pay to enjoy my magic," Berger said. But Sheehan said: "He's no more a philanthropist than Boeing. This is how he makes money, and that's fine if he's got the permits. But there are rules against selling things on public property." Sheehan said the city was acting on reports that only people who donated money got a balloon animal. According to police Officer Michael Hargraves, who, along with Lt. Robin Clark, was named as a co-defendant in the suit, police would not have responded unless there had been several complaints. "There were people who observed him that said getting a balloon depended on whether or not you put money in the hat. When he was aware he was being watched, his act changed," said Hargraves. Berger claims the city's crackdown resulted from complaints by the Red Balloon company, which was issued a permit to sell balloons at the city's festivals. The Red Balloon Company could not be reached for comment. Currently, Berger said he runs subscription sales for newspapers, trains salespeople and produces motivational videos featuring his magic act. He said he will never perform on the street again. "When I see the festivals now, they leave a bad taste in my mouth," he said.

Balloon performer settles his legal beef with city Thursday, August 5, 1999 By GORDY HOLT
SEATTLE POST-INTELLIGENCER REPORTER

Seattle's balloon-blowing magician, "Magic Mike" Berger, has ended his six-year dispute with the city. Although Berger wouldn't disclose the amount of the settlement, Ruth LaRocque, spokeswoman for the city attorney's office, said it was for $500. A colorful and energetic street performer who wowed children and grown-ups alike with his talent, Berger filed a claim in United States District Court alleging the city arrested him falsely, then prosecuted him maliciously after he tried to perform at a downtown waterfront park in 1995. Two years ago, Berger settled a similar claim against the city stemming from two run-ins with police at the Seattle Center, where he had been huffing and puffing and making things disappear around the fringes of the Folklife Festival and Bite of Seattle. In all three cases, the city said Berger violated a 1987 law that requires vendors to register with the city. The city tells the vendors where they can sell their wares. But Berger said he wasn't selling anything. He was merely performing, he said, although he did pass the hat. Before reaching the settlement, completed earlier this week, Berger said he hoped a judge would tell the city there is a difference between performing and selling. He settled the suit, "because my lawyer thought we ought to." Berger has not performed since 1995 and doesn't intend to in the future, he said.

He owns and manages a newspaper circulation consulting firm, which, he said, "keeps me pretty busy.

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" at "funandmagic" dot "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.

Read the Judge Robart's ruling in full.
CLICK HERE TO SEE THE WHOLE CASE TEXT


I need help with legal fees, supporting my lawsuits for the rights of artists to perform in public places without municipal and police harassment. And the fight caused medical problems and loss of performing tips so I am behind in critical bills.


To enter Seattle Magic Mike the magician's site map click here. enter Seattle Magic Magic Mike's site

Email Magic Mike.

Webmaster Magic Mike Berger.

No portion of this site may be used, displayed, or linked to without written authorization.
All Rights Reserved Copyright 1996 - 2009
by Magic Mike Berger, Seattle except as noted



NEW! Seattle Times July 24, 2008 " Court of Appeals to rehear busker's case"

A Seattle street performer known as "Magic Mike," who earlier this year lost a federal appeal on a challenge to regulations at Seattle Center, has won another review of the case before the 9th U.S. Circuit Court of Appeals. In January, a three-member panel of the appeals court overturned a decision by a Seattle federal judge who had found that rules the center imposed on street performers violated free speech and equal protection. Earlier this month, however, the appeals court agreed to rehear the case en banc, meaning that a larger panel of at least 11 judges will reconsider the case.

JDSUPRA - "Recognizing the law and the people behind it." "Magic Mike" Brings Out the Best in Elena Garella and Davis Wright Tremaine

Posted on March 4, 2008

1/31/2008 - Press release regarding petition to 9th Circuit for en banc review of recent ruling by partial court. Read full petition.

Seattle Times 1/12/2008 - Judges overrule street performer's claims

Cal Law Legal Pad  January 09, 2008 Something Tells Us This Opinion Won't Stand

Eugene Volokh, January 14, 2008
May Government Ban Advocacy Near Movie Theaters, Outdoor Restaurants, and the Like?
READ!!! VITAL!

First Amendment Center 1/11/08 Divided 9th Circuit backs Seattle's rules for street performers

Saturday, April 23, 2005, 12:00 A.M. Pacific

Judge rejects Seattle Center rules on buskers

By Susan Gilmore
Seattle Times staff reporter

Under the street-performer rules imposed by Seattle Center, "a latter-day Gene Kelly cannot sing in the rain," fretted U.S. District Judge James Robart in finding the center's busker rules unconstitutional.

In a 14-page ruling issued yesterday, Robart wrote that Seattle Center regulations that require buskers - or street performers - to obtain permits, wear identifying badges, confine performances to certain locations and refrain from asking for money violate the First Amendment.

"The street-performer permit requirement is a form of prior restraint, and thus raises First Amendment warning flags," Robart wrote.

The decision grew from a lawsuit filed by Michael Berger, a street performer who calls himself "Magic Mike." He asserted in the lawsuit filed in February that the Center trampled his constitutional rights by regulating his magic tricks.

Robart agreed. "The court accepts the city's evidence that some street performers have caused difficulty for Seattle Center patrons and tenants, but this is no justification for a ban on all street performers without a permit," he wrote.

"The city may have aimed the rules at performers like the plaintiff, but their reach is much broader. No matter how persuasive the lyrical urgings of Martha Reeves and the Vandellas might be, there is no dancing in the street in the Seattle Center, at least not without permission."

Center rules, which went into effect two years ago, also required an annual $5 busker license.

Seattle Center officials said yesterday they hadn't seen the ruling. "We'll sit down and read it with our representatives and find out what it's about," spokesman Perry Cooper said.

As soon as Berger heard about the ruling, he raced to the Center to perform, said his attorney Elena Garella.

"My client absolutely hollered with joy," she said. "It's been a long struggle for him, and he's been very disheartened by all the rules. Now he can go and have a good time with the people."

Berger, 57, has been performing magic and making balloon animals at the Center for years, but he said he's been harassed by Center security.

Last evening, he was squeezed into a Styrofoam SpongeBob SquarePants costume and back at his usual spot behind the Ferris wheel, twisting a pink balloon into a parrot for a passing customer. (The customer had asked for a SpongeBob balloon, but the notoriously curt Berger said, "Yeah, I don't really do those.")

"You bet I'm happy," Berger said, finishing the balloon and reaching for a crumpled copy of the judge's ruling. He suddenly shouted to a bystander, "Do you have a permit to be here? Do you? Why should I?

"I've been telling them for years that they can't tell me not to be here. They messed with a guy who not only taught himself magic, but taught himself First Amendment law."

Gary Keese, assistant city attorney, said he hasn't talked to Seattle Center officials about the ruling and it isn't certain when it goes into effect. "The Center's going to have to assess this and how best to operate so it's a safe environment for everybody," he said. "The Center will have to look at the decision, figure out if there's some way to modify the system they have so it's both effective and complies with the decision, or appeal it."

Keese said the rules were adopted after entertainers began arguing with each other about who could perform where.

The Center set up 16 locations where buskers can perform, and they have to stay within 5 feet of those spots, Berger has said.

In his ruling, Robart wrote that the rules are not being evenly applied. "While one person cannot sing without a permit, 81 people wishing to congregate at Seattle Center to proclaim their political views can do so without concern."

The case focused on the definition of Seattle Center, whether it is a "traditional public forum," as Berger claimed, or a "limited public forum," as the city claimed. The judge sided with Berger.

He pointed out that city documents say the Center is "the nation's best gathering place" and a "gathering place and public space open to everyone."

Robart wrote that the Center can't restrict the places where buskers perform, require identification badges or restrict their ability to ask for money. "While a street performer cannot offer a meek oral request for a donation from passers-by, a beggar who does not perform can solicit Seattle Center visitors with relative impunity."

Garella, Berger's attorney, said the legal fight cost Berger about $25,000, money she hopes to collect from the city.

Berger said that if he received a large enough reimbursement, he'd like to use some of it to put up an awning so street performers could get out of the rain.

"They have rain protection at Pike Place Market," he said. "We should, too."

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 STAFFA 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.ourt 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.