Is this acceptable?
I came across this through Mike Skidmore’s Photography is Not a Crime weblinks.
61 year old James Ochse is eccentric. He reminds me of a homeless person who tend to suffer from “mental illness.” But he’s not (from what I have researched) homeless. He’s quite functional in certain aspects of his life (he’s a marathon runner). And even the professionals have a hard time distinguishing between an eccentric personality and a mentally ill one. (And even if he is “mentally ill” that issue is legally irrelevant to the case.)
As an attorney, what I know about free speech law is that if someone is causing a ruckus on private property, they can be excluded. The sidewalks, however, are free speech zones subject to time, place and manner restrictions (like noise ordinances). Indeed, that the Westboro Baptist Church can loudly assert their reprehensible message from sidewalks is a nice baseline for what is permitted.
As far as I can tell, this took place on a sidewalk and I doubt he violated a noise ordinance.
I know in Boston you have to be licensed to perform music in most public places. Which look, I get the impulse that says, “The street is the commons and you can do what you want there.” However, that doesn’t work because music interferes with other people enjoying the commons.
It just does. This is basic psychological reality.
Anyway, shared spaces require compromise. They require some kind of regulation. We might agree “more liberal is better than less liberal,” but not to the point that the commons become unusable.
This is essentially communitarian and political. The choice to “allow anything” has its own costs, its own winners and losers.
That said, this city, near as I can tell, is pretty open about licensing. Most busy subway stations have active street musicians, as do the parks.
It’s actually kinda nice. Sometimes you’ll be wandering through the public garden or the common and encounter some really fucking good blues guitarist or maybe some girl playing violin.
Of course, sometimes you’ll encounter preposterous crap, but variety is the spice, and all of that.Report
I miss Boston. I can’t believe I haven’t been there in almost 20 years since I graduated from Berklee.Report
Ha. My sweetie and I met there 38 years ago. He teaches there now.
Little Stevie’s Pizza is a family tradition.Report
I’ll get back there one day. Boston was a great city. Though one thing that sticks in my mind — I was a poor college student. And even though I am privileged in how my parents paid for my education, I was and am imbibed in frugality. So even if I tried to spend a lot of cash (which I didn’t) they wouldn’t have supported it and I would have had to get a job (which I didn’t).
Bottom line: There was so much to the city that I could observe but not partake in because I was cash poor.Report
My Daughter’s leaving because she cannot afford rent there. Probably to Portland, ME.
My first apartment there was $350/month (on Queensbury St.); the same one-bedroom would probably be in the neighborhood of $1,800 to $2,000; it had a nice view out the back of the building and across a church parking lot and into the Fens in the direction of the Isabella Steward Gardiner Museum.
The Boston park system, and the many (often free) outdoor events are pretty awesome. We used to go to reggae and kite festivals in Hyde Park; movies and fireworks on the Charles River, and my sweetie and his crew played roller frisbee in the (then) unused, empty-of-water frog pond in the middle of the Boston Common. This may be one of his team mates:
https://www.youtube.com/watch?v=laseCxX5eM4Report
Yup. I loved the outdoor free stuff. And I remember the “Back Bay” where you would pay good $ for dumpy space. (The space that was not dumpy was not affordable.)
Newbury Street, where I could afford comics, coffee and maybe pizza. Still I have fond memories of walking up and down the entire street.Report
So if I have this right, he was singing a song, not overly loudly (at least, didn’t seem that way from the video), not busking, not getting in anyones way, just singing, & he gets manhandled.
No, not acceptable. And certainly not if police are going to tolerate the kids in the car with the bass pumping so hard I can see the windows and trunk vibrating.Report
Maybe I misread the article but isn’t the allegation that he was singing next to an outdoor dining? Still I don’t get why they wouldn’t just ask him to go away rather than calling the cops. Then again the article mentioned him being accosted by a security guard? Maybe they did ask him to go away and he refused? There seem to be some unknowns in this that I’d want filled in before I was comfortable rendering an opinion.Report
Is he on a pubic sidewalk or private property adjacent to the sidewalk, between the restaurant and it’s outdoor dining area?
From the video, it’s not clear.
But he was, so it seemed, leaving, too.
sad sad sad sad sadReport
I’d question whether his “singing” counts as “performing music”. I mean, it obviously DOES, technically – but it’s not like this guy had a jar on the ground for donations, or was carrying an instrument, etc. He didn’t appear to be busking AFAICT, he was simply singing, which people often do when they are happy. And other things that interfere with my enjoyment of the commons might be loud speech, or vulgar speech, etc., and (AFAIK) we mostly just have to live with that, so I am not sure why adding a melody should push that to the other side of acceptable.
Another factor, is the outside dining you can see from the video – the establishment from which the video was taken, appears to have cafe tables out on the sidewalk. I’m not sure whether it was the establishment (or its patrons) that contacted the police, or whether the cop just thought the restaurant’s patrons might be disturbed (and who were the burly security guys?) – but there’s an argument to be possibly made, that it is the *restaurant* here that is unfairly intruding upon the commons, for its monetary gain.
I like sidewalk dining a lot, so I like when cities approve it; but that also means that sometimes you might get serenaded by a random kook, and again, you may have to live with that.Report
Great point about the gate swinging both ways, @glyph . The presence of those tables was interfering with HIS enjoyment of the commons. But because we consider their behavior socially acceptable and his not so (which is fine), the latter quickly elevates to criminal behavior (which is very not fine).Report
Yes, but people seem to be putting up with idiots talking on their cell phones and not paying attention, and thus walking into people, people farting and burping, and all kinds of other unpleasant noises. This is different how?Report
A few thoughts…
1.) I’m not certain that is a public sidewalk. It looks like a walkway between two buildings (a restaurant in the foreground and some sort of other building in the background) which makes me think it might be private.
2.) Furthermore, the presence of the two gentlemen in dark suits screams “private security” to me and makes me further think that the space is private and that they requested the police.
ALL THAT SAID…
I do not think that the police response was appropriate, for several reasons.
1.) If we assume this WAS public space, than the cops should not interfere with what he was doing, unless or until it becomes some sort of substantial hindrance for others. And even then, there is a chance this sort of thing works itself out. If that is a heavily crowded walkway, eventually the crowds will overwhelm him. And if they can’t, well, then those people can enlist the police’s support.
2.) If this gentleman suffers from a mental illness that contributes to his atypical behavior, than tackling him to the ground is a highly inappropriate response. The appropriate mental health professionals should be engaged.
3.) Even if this gentleman was of sound mind, tackling him to the ground is highly inappropriate. Why the fuck can’t the cops employ tactics that don’t involve slamming people into the ground? I recognize that sometimes their job will entail physical restraint of an individual. But that can be done without body slamming. This guy wasn’t an imminent threat. Back up could have been called and he could have been approached and subdued in a way that, again, doesn’t involve slamming his body into concrete.
So, yea, I think any way you slice this, the response was inappropriate. It is acceptable that the police become involved if he was on private property and their services were requested by the property owner. But it remains unacceptable that a non-violent individual (who potentially suffers from a mental health issue) was body slammed to the pavement for the ‘crime’ of singing and being potentially obnoxious.Report
I agree with most of that, @kazzy , especially because the cops seem to have way overreacted and because, as @zic pointed out, he seemed to be leaving.
That said, there was a point in the video when the guy kind pushed the cop off him or whatever, right before the cop slammed him to the ground. I wouldn’t be completely surprised if the cop interpreted that brush off as the first step by the guy to escalate the situation. It’s always hard to know how it appeared to the cop. But to me, with no knowledge of what it’s like to be a police officer, the cop’s reaction seems a huge overreaction and seems unacceptable.
I’ll also say that in theory, I *could* agree with what I take to be @veronica-d ‘s point, that it’s acceptable for a municipality to ban “intrusive” noise making in public fora or other types of intrusive speech.* Even so, that doesn’t excuse the cop’s actions. And one argument against those types of bans is that they could lead to more police-citizen confrontations that could escalate like this one did.
*I was walking in downtown Big City the other day, and some group of civic volunteers handed me a flyer that explained what types of panhandling were legal and what types were illegal. It was clear from reading the flyer that it was published or somehow sponsored by local business owners. What the flyer described seemed reasonable at first blush: panhandlers shouldn’t follow people who refuse to give money; panhandlers shouldn’t block store entrances, etc. But taken as a whole, it would seem impossible for any panhandler not to incidentally violate at least one of those rules, especially if a cop were set on enforcing the letter of the rule. So while the laws seemed to make sense, they also seemed potentially to function as a way to grant police huge discretion. Not sure if how relevant that is to this discussion, but I thought I’d bring it up.Report
Someone brushing another person’s hands off of his own body is a … Curious … Example of “escalation.” I realize you aren’t saying it is such, @gabriel-conroy . But I’d counter a cop doing so saying that evasion is not physical escalation.Report
I definitely agree. Or that’s how it looks from a camera taken tens of yards away. In the heat of the moment, it might feel different.
And regardless, cops are supposed to be professionals and to my knowledge are supposed to be trained to know the difference. And if this was an escalation, it seems to be coming from the cop and not from the singer.Report
Well, that seems to be the standard nowadays. Lay into the guy and then scream, “Stop resisting!”
I get that when the bullets start flying, there is only so much training one can have for that situation and sub-ideal decisions may be made. A real problem seems to be cops who put “weird guy singing on the street” in the same bucket as “bullets were flying.”
“Anything coulda happened, man. You weren’t there. You’re not a cop. You don’t understand. What if he started singing show tunes, man. SHOW TUNES! I had to slam him. It was him or me!”Report
That’s a fair cop, Kazzy.
(Pun kind of intended, but not really, especially since we’re talking about unfair cops and not fair ones. I just wanted to get away from saying “fair point” or “true that,” as I usually do.)Report
I’ll also add that I’m uncomfortable about the way we–by which I mean I, as well as others–draw the public/private distinction for these things so neatly. As some have suggested above, it’s not clear whether this was public or private property, and most above (and I, too) seem to accept that if it were private property, regulating the speech is more acceptable.
And yet, I’m uneasy about that distinction. If that area was private property, it was private of a sort different from, say, an office building. The fact that it wasn’t clear to us (and perhaps not to the singer, either) whether it was public or private seems to support that thesis. I’ve heard that the law or legal jurisprudence sometimes assigns a quasi-public status to what is technically private property. I don’t know if that’s true, but if some the lawyers here know, it’d be cool to hear their response.
But whatever the lawyers’ answer(s), I’m still bothered by the way that private property seems to change the rules about what can be forbidden or permitted so quickly or drastically in the way we think about things. Maybe the alternative to drawing this distinction is worse than the bad things that sometimes come up from the distinction. Still, it bothers me, almost as if once something qualifies as “private property,” it becomes a black box.Report
Well, I think a property owner should reserve the right to make the rules for his property. However, I think there should be a social expectation of how that is achieved. Don’t go right to calling the police unless a real threat exists. Engage direct, escalate slowly. Of course, it is possible that happened here.Report
Isn’t there a concept of public right of way with regard to some private property?Report
I think I had heard there was, but I don’t know.Report