Performers Rights in Public Places
By Magic Mike Berger - Magician and
"When something is wrong, you just, as an
American citizen, you have to put your foot down and say,
'This is wrong; you just can't take away anymore of my
rights and from here on in, I'm going to fight it"
15, 2014 - I have submitted a claim against the city of
Seattle and Seattle Center for the constitutional violation
described below in their retaliating against my win. While I
have filed the claim, I still need legal representation to
help me fight it. If you or someone you know might be
interested in handling my case please get in touch with me
as soon as possible. I have four other violations against
Seattle center that I plan to file very shortly, depending
on how quick I can get legal representation. I have a
history of prevailing in these cases so far and all legal
fees to attorneys have been paid in the settlements. During
my enbanc case in the 9th Circuit Federal Court, Wash, D.C
lawyer, from David Wright Tremaine firm, Robert Corn-Revere
represented me along with Elena Garella Seattle attorney.
Elena and I won my case in Seattle's 1st Federal District
Court. Robert won the City's appeal in the 9th Circuit
Federal Court. ACLU wrote an amicus in my favor.
- MagicMike Berger 206-632-7152. MagicMike@funandmagic.com
From the movie "National Treasure" ,
Benjamin Franklin Gates (Nicholas Cage) , quoting
If you had fun seeing magic, or wish to keep these 700 pages hosted, use this tip jar.
If you are a performer or busker, or believe in Rights, help pay for the work that was done to protect your right to perform, which made legal precedence. No card? Get a prepaid card or U.S. Postal money order. I fought them on my own, and made a difference for performers everywhere. Contact me.
Performers Rights -
Freedom of Speech in Public Places
HE PUT HIS HAND ON HIS GUN!
|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 will be a landmark Rights case in the textbooks!
Saturday, April 23, 2005, 12:00 A.M. Pacific
Judge rejects Seattle Center rules on buskers
By Susan Gilmore
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."
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.
As a side note, in July of 2003 Joe Fulton, a violinist, was arrested and taken to jail in handcuffs for performing on the sidewalk during the Ballard Seafood Fest because the festival co mplained he wasn't an authorized vendor. In October his case was dismissed, the judge not happy with the charge, since he was performing and not vending and was on public property. He will also be taking the City to court for damages.
PRESS RELEASE 10/29/2003
The Seattle P-I got the facts of the case wrong. I am NOT excluded from Seattle Center as they reported. I AM prevented from performing in spots of my own choosing. If I perform off one of their spots I can have my right to perform revoked and they will ask the police to trespass me from the grounds. The P-I's story confuses past facts with the present, and came up with the lead "A Seattle street magician has sued city for making him disappear" and tailored the story to support that, rather than the important points. I think trampling the rights of people and the Constitution are more important points to report. And worse, other media in Seattle have used the P-I story to report that the suit is about the things that they have done to me, discounting that this effects everyone. And they have done things and denied rights to many people. Many performers have not appeared since the rules were enacted. I hope the important points of denial of free speech, invasion of privacy in a public space, and denial of due process, become known by the public.
As for the exclusions, here are the facts. The rules were enacted on March 15, 2003 without any notice to performers who had been coming there every week for years. I was forced to agree with their terms in order to continue what I HAD BEEN doing there for 23 years without a single problem. Also the spot I had performed at for the last 3 years was not included in their list of approved spots. (They knew I was trying to find that out in 2002, but they stonewalled me and kept from me the fact that they were eliminating my favorite spot from the list of approved locations.) Just after I got their permit they suspended it for a week as "punishment", for driving in to drop off my equipment without checking in with a guard that I didn't see. A security officer reprimanded me and I said I was sorry, I didn't know the procedure and I didn't see the guard. The security officer said okay. I drove off to park and when I came right back my stuff was gone. I was frantic. I was emotionally flattened. I had two child birthdays the next day and had no funds at that moment to totally replace everything so I could do the shows over the weekend as I had just stocked up on a case of balloons which were gone too. I thought someone stole it. I almost left at that point, totally depressed, wondering how I was going to deal with the two birthdays the next day. Finally deciding to report it, I used a pay phone to file a complaint with the police on the grounds. The customer service operator said that the security office wanted to talk to me. At first they told me that someone simply "saw it" and brought it in. But Mike Anderson, head of the security ordered it brought in and it was LOCKED UP in a side room in their office. I was told nothing and made to wait until Mike Anderson was done typing in his office. He came out and summarily I was then handed a letter invoking a one week suspension of my permit, told I should have stopped and that I shouldn't have left my stuff unattended. The punishment was excessive, unnecessary and the confiscation of my equipment without notice, leaving me to emotional distress, was illegal and callous. If I had not called to report it, they would have kept it locked up without telling me, until I went to my post office on Monday and retreived the letter he would have sent me Friday to notify me.
AND THAT I WAS FORCED TO LEAVE FOR AN AFTERNOON in September until I got my ID because I left it at home and they were trying to extort me to move because the spanish festival didn't want a performer on a performer spot and the security decided to bend the rules and be the hired goons of the festival instead of protecting the performers from a frivolous and insulting demand by the festival directors.
And I am under threat of exclusion for arguing
about the preceding exclusion.
of the Federal suit I just filed against Seattle Center.
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.
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)
V. FIRST CAUSE OF
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.
CLICK HERE TO SEE THE WHOLE CASE TEXT .
|History of abusing
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.
In the early 1990's Seattle Center began to treat all street performers who were busking with their hat out as vendors. They said we needed to have a permit to perform on the grounds. However, the permit was a contract issued by their Director of Contracts and Concessions. They wanted performers to set hours of operation from 11:00 AM to 6 PM, notify Seattle Center in advance if not coming, and a monthly fee of $300. A few performers agreed to this. I did not. Center security officers would try to chase me off for not having this permit. I made them call police, who informed them I didn't need to comply as I was performing for donations with my hat out. During this time a few balloon performers and face painters decided to get contracts with the Center, and began charging specific prices instead of voluntary donations. They became vendors.
I was told by police many
times over the years that I couldn't perform magic and
balloon art for children and adults for donations unless I
had a permit or license. After trying to get a license and
permit and being denied, I went to the Law Library in the
Seattle Courthouse and researched all Local, State, and
Federal Laws about it. There were NO laws about street
performing, and the one's against begging were for the First
Amendment. I then went to the chief of police and his lawyer
and threatened to take them to court if the police on the
pier threatened me again with a vendor law. The officer on
the pier wouldn't obey they order so they sent a Superior
Officer to the pier to personally brief the officers, when I
called the next time they disobeyed him. All was fine for a
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.
|...Traditional public fora - 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).|
|MODEL STREET PERFORMING REGULATIONS
(An actual Town Ordinance to promote the Arts. does your town have "theta"?)
Section l, Purpose
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 countersued, 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.
Christine Clarridge's phone message number is 206-464-8983. Her e-mail address is: firstname.lastname@example.org
Copyright © 2002 The Seattle Times Company
Thursday, August 5, 1999
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."
|"It happens, however,
that democracies and other forms of government are prone to
overlook the role of the artist in the society. In the
United States, for instance, the artist may write one great
book or make a great motion picture or compose one great
symphony and may achieve, all in one moment, the bulk of the
gains of his lifetime. His whole dedication, from childhood,
might have been toward the creation of this one great work,
and yet democracy, avidly taxing its powerfully creative
individuals into nonproduction, snatches from the artist any
such fruits of victory and exacts an enormous penalty for
the creation of any work of art. One of the greatest single
moves which could be made to advance and vitalize a culture
such as America would be to free, completely, the artist
from all taxes and similar oppressions, and thus attract
into the arts the most ambitious and able and invite them to
pursue unchecked the creation of all the beauty and glory on
which any culture depends if it would have material wealth.
The artist injects the theta into the culture, and without
that theta the culture becomes reactive."
L. Ron Hubbard - FOUNDER - From "Science of Survival" , English edition pages 428-429.
This great quote above, was sent to me by my uncle, Lt. Colonel Willard "Yogi" Berger USAF (ret.), former Commander of the Tactical Air Command and one of the first pilots to break the sound barrier in an F-100. He is an example of an "Alpha" military type can think like a "Theta", a person with creative life force. Structure can be creative instead of restrictive. Laws can protect, rather than deny.this
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by Magic Mike the Magician, Seattle, Wa. 98133, except as noted. All Rights Reserved.
747 N. 135th St #227 Seattle 98133, WA 98133 Phone 206.632.7152