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

- Gary Harrington

July 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.

Latest Infraction of Rights by Seattle Center, moving park benches to surround me at 2011 Bite Of Seattle!

Click photos to see videos.

I intervened when they had cops hassle another performer at a free event at Seattle Center park. When people see police hassling a performer they think the performer must have done something wrong. But, these cops were in the pay of the people who are wrong. I called their bluff because I knew they were wrong. So, they couldn't legally make me leave or move, so, they surrounded me with benches when I set up, in retaliation. In 30 years they never placed benches in this spot at festivals. Performers always set up there. The owner of the Bite, Al Silverman, was there at the start. The man in white works for Seattle Center. They did this after I set up, around 3pm. Benches at festivals are always placed a day before a festival, never at 3pm after festival starts. He said they put them where people ARE. That was a lie. They didn't do it anywhere else. This will be another lawsuit. Your support is needed. I stand up for rights of others because it threatens my rights, and your rights. Please help with a donation.
While everyone would agree that its important to stand up for the rights of others and keep performers free from unreasonable harassment, many people forget that it can be a very time and money-consuming fight. You don't need to be a bankruptcy lawyer Los Angeles to be aware that many times justice is not won simply because one party couldn't afford to keep going through the legal system. If you are a performer, or enjoy street performers doing magic shows, card tricks or music in your area, a donation will help to keep this fun, happy profession alive and well.


From the movie "National Treasure" ,   Benjamin Franklin Gates (Nicholas Cage) ,  quoting Thomas Jefferson 
"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, around the age of a present day middle school student, 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.

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.


Metropolitan News-Enterprise

Thursday, June 25, 2009 

Page 1 

En Banc Court Strikes Down Seattle Street Performer Regulations

 By SHERRI M. OKAMOTO, Staff Writer 

The Ninth U.S. Circuit Court of Appeals yesterday struck down the city of Seattle’s regulations governing street performers in the downtown entertainment zone known as the Seattle Center as unconstitutionally over broad.

Sitting en banc, the court disagreed with a three-judge panel that last year voted to overturn an injunction barring the city from enforcing those parts of its regulations which require street performers to obtain permits and wear badges during performances, refrain from actively soliciting money, and prohibiting any communication with visitors who are waiting in line, attending an event or sitting in a spot available for eating or drinking.

The appellate court also remanded, for further factual development, the issue of whether the limitation of street performances to 16 designated locations within the 80-acre district imposed was valid

U.S. District Judge James Robart of the Western District of Washington issued the injunction in May 2005, pursuant to a summary judgment motion by street performer Michael J. “Magic Mike” Berger.

Berger has performed in the area since the 1980s, fashioning balloons and talking “about his personal beliefs, especially the importance of reading books,” according to court documents. In the 1990s, he was ejected from the center on several occasions for rules violations, and filed suit in 1996.

The case was settled after a magistrate judge denied the city’s motion for summary judgment. The city subsequently revised the rules, and Berger brought his second suit in 2003, contending that the challenged rules circumscribed protected activities.

The district judge agreed, but the Ninth Circuit, on a 2-1 vote, held that the rules were constitutional because they were content-neutral, narrowly tailored to serve the city’s significant interests and left open ample alternative means for the performers to communicate.

Panel Split

U.S. District Judge Sam Haddon of the District of Montana, serving by designation, concurred in the opinion by Judge Diarmuid F. O’Scannlain, but Judge Marsha S. Berzon wrote separately, agreeing that the city could limit performance locations and ban active solicitation but contending the permit, badge, and “captive audience” rules were unconstitutional prior restraints.

On rehearing en banc, Berzon wrote for the seven-judge majority, explaining that a permitting requirement is a prior restraint on speech that bears a heavy presumption against its constitutionality due to the significant burden it places on free speech.

Although the city’s asserted reasons for enacting the permitting regulations—protecting the safety and convenience of park-goers by reducing territorial disputes among performers, deterring harassment of audience members and “clarifying and coordinating potentially competing uses”—constituted substantial government interests, Berzon reasoned that they were not promoted in any significant way by the city’s permitting requirements.

Government Interest

As the city claimed that permits are freely issued with little, if any, screening process and without limit on the number of permits that may be issued, Berzon posited that the permitting requirement did not aid in coordinating multiple uses of the center’s grounds or reducing hostile performer behavior.

“Rather than requiring all speakers to pre-register with the government as a prerequisite to engaging in communicative activity, the City could simply enforce its existing rules against those who actually exhibit unwanted behavior,” she suggested, concluding that the registration requirement was facially impermissibly overbroad as it “burdens all performers to root out the occasional bad apple,” and the city’s main objectives could be achieved by far less intrusive means.

Turning to the restriction on performers’ abilities to solicit donations, Berzon reasoned that the city regulation was a content-based restriction by its very terms as it specifically restricts street performers from communicating requests for donations, though it purports to only regulate the manner in which performers solicit contributions.

Additionally, even if reducing aggressive solicitation would qualify as a compelling government interest, she noted that an absolute ban was “simply not the least restrictive means of reducing overbearing street performer behavior.”

Berzon further reasoned that public park-goers are also not a protectable captive audience for constitutional purposes, as such public fora have traditionally been used for discussion and gathering.

“Given the importance of these locales, we cannot countenance the view that individuals who choose to enter them, for whatever reason, are to be protected,” she said.

Judges Harry Pregerson, Stephen Reinhardt, Michael Daly Hawkins, Kim McLane Wardlaw,  Richard A. Paez, and Milan D. Smith Jr. joined Berzon in rejecting all of the challenged rules as unreasonable time, place or manner restrictions, except for the regulation limiting performances to designated areas. The summary judgment record provided conflicting inferences regarding the adequacy of access to the performers’ intended audience, Berzon said.

Chief Judge Alex Kozinski and Judges Ronald M. Gould  and Richard C. Tallman dissented, with Kozinski and Gould writing separately and joining in each other’s opinions and Tallman concurring with both.

Kozinski argued that the majority “overstates the problems that the rules supposedly cause for the street performers, and minimizes the problems that the street performers caused,” while Tallman maintained that the majority “utterly fails to give due weight to the valid interests of the City of Seattle in protecting a smoothly running Seattle Center.”  Both argued that all of the city’s regulations were constitutionally valid.

Judge N. Randy Smith agreed with the majority that the city’s permitting requirements and ban on active solicitation for street performers were facially unconstitutional. He also joined the majority in invalidating the city’s captive audience rule, but contended that the city’s performance location rule was constitutionally valid. Kozinski joined the dissenting parts of Smith’s opinion.

The case is Berger v. City of Seattle, 05-35752.


Seattle's street artists get a green light - June 25, 2009

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 - L.A Times

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.

Performers Rights - Freedom of Speech in Public Places
Freedom Of Speech For Performers Busking In Public Places
By Magic Mike Berger - Magician and Balloon Artist.
See a model law in an actual town at bottom, obviously a "Theta" town. Is YOUR town a theta town?
Permission is granted to distribute the contents of this page.
Please help with courts costs and deposition fees by donating in my tip jar, further down page.
Helping win this sets precedent for other 1st Amendment cases.

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
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."

  Read the Judge Robart's ruling in full.

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 discription. 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 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.

Contacts: Elena Garella - Attorney at law
206 675-0675
Magic Mike Berger

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 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.

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- of the performer's value if they were hired.

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. 

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. 
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.
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.
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.
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. 
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


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.


History of abusing performers.

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 $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 two years.
   Then at a festival at Seattle Center, they said all clowns and ballonists 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 performng 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.

...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).
(An actual Town Ordinance to promote the Arts. does your town have "theta"?)

Section l, Purpose
WHEREAS it is the intent of the City Council to encourage within the central business district and other public places a free exchange of social, cultural and entertainment opportunities between members of the public.

Section 2, Definition
For purposes of this Resolution street musicians are defined as follows: a composer, conductor, or performer of vocal, instrumental, or mechanical sounds having rhythm, melody or harmony.

Section 3, Contributions
Street musicians, mimes, dancers and theater groups shall be permitted to perform for the public upon the public streets and within the public places of the City, and shall be permitted to solicit and accept voluntary contributions from members of the public who wish to reward such activity.

Section 4, Conduct
(a) The above permitted activities shall not be considered "begging" in connection with the City enforcement of its Disorderly Conduct Code being section______, nor shall they be considered a "trade or business" for which a license might be required under Chapter ______ of the City Code.
(b) Street musicians and other performers shall at all times comply with all other provisions of the City Code, specifically including the City Noise Ordinance and Code provisions prohibiting the obstruction of sidewalks and public passage. A performer may not block the passage of the public through a public area. If a crowd gathers to see or hear a performer such that the passage of the public through a public area is blocked, a police officer may disperse that portion of the crowd that is blocking the passage of the public. In the event the blocking of passage persists, said officer shall cause the performer to relocate to a less congested area.
c) It shall be unlawful for any performer to totally obstruct streets and sidewalks or to interrupt free passage along the same.
(d) No performer or group shall perform at a distance of less than 50 feet from another performer or group of performers that already is performing.

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 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:

Copyright © 2002 The Seattle Times Company

Balloon performer settles his legal beef with city

Thursday, August 5, 1999


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" [1951], 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.

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