Is Change Gonna Come?

Musicians fight for their right to play in Rittenhouse Square.

by Will Dean

A man gets arrested. He's handcuffed, thrown in the back of a cruiser, fingerprinted, put in a cell, held for 18 hours, charged with disorderly conduct and then released.

Happens all the time in Philly.

Except this guy's crime was different.

He refused to stop singing in Rittenhouse Square park.

And since his arrest the police have kept anyone else from playing music there, too.

The trouble began on March 27. After spending the day busking — playing music for money — in Suburban Station, musicians Anthony Riley and Robby Torres headed over to Rittenhouse Square park. The park is well-known as a focal point for area musicians and music students. They come to play, meet other musicians, enjoy themselves and entertain passersby.

"It's a special community of art and music," says Drew Gillis, a local musician who plays in the band Stone Soup with Riley and Torres.

Riley was singing Sam Cooke's "A Change Is Gonna Come" a cappella around 9 p.m. when Philadelphia Police Officer Greg Wilkinson of the Center City District told him he had to stop. Riley refused to stop singing, noting that the city ordinance governing street musicians lets him sing until 10 p.m.

OUTSIDERS: Park players Anthony Riley (left) and Robby Torres; Riley was arrested for singing in Rittenhouse Square in March. Photo By: Michael T. Regan (CLICK IMAGE FOR LARGER VERSION)

Wilkinson disagreed, and as a crowd began to form around their argument Wilkinson reportedly said, "I create the law in this park."

"One officer decided to be judge, jury and executioner," says Riley. "It's a violation of my First Amendment rights, my freedom of speech."

Wilkinson called for backup and then, citing the disturbance Riley's refusal was creating, arrested him.

According to the musicians, after Riley's arrest the police started to enforce a 106-year-old Fairmount Park regulation requiring music performances to have permits. Officers began to stop musicians from playing, hand them a little yellow card listing the park's rules and regulations, and threaten them with arrest if they continue to play.

Police say that they're responding to neighbors' complaints about the noise created by musicians playing in the park. The little yellow cards are from the Fairmount Park Commission and list the rules of the park, like no drinking, littering and rollerblading. The rule in question here says "No Unauthorized Events," which covers musical presentations.

"The First Amendment is under attack in Philadelphia," says Torres. So to protect their rights, Riley, Torres and Gillis organized the Philadelphia Artists' Rights Coalition, a petition drive and several rallies in the park.

Ken Collins, a waiter who lives around the corner from the park, witnessed the arrest. "It's totally messed up, it's crazy," he says. "I think it was a power trip by the cop and now they're trying to cover their asses."

The musicians have held rallies in Rittenhouse most Saturdays since May. In a twist of bureaucratic irony, the musicians secured $20 event permits for the rallies, so they could protest a law requiring permits. Even a permit, though, is not a guarantee that everything will go forward smoothly.

One rally in May was halted until Gillis could produce identification because the permit was in his name. At a rally on June 2, Officer Wilkinson attempted to stop the musicians from protesting.

"As soon as we came into the park he said, 'You guys can't demonstrate,' and I said, 'Yes, we can,'" says Gillis. Wilkinson proceeded to phone in Gillis's permit until grudgingly allowing the rally to go on.

"I got a permit," says Gillis. "I shouldn't have to."

This reporter attempted to speak with Officer Wilkinson at the rally, but he refused and biked away. Messages left for him at the Center City District station were not returned.

The Constitution might agree with Gillis.

C. Edwin Baker, a Constitutional law expert at the University of Pennsylvania, found problems with the regulation. "Music, I think, is widely and properly viewed as a First Amendment activity and parks are considered public forums," Baker says. "The [Supreme] Court has generally upheld some regulation ... but it must be narrowly drawn." Baker notes that in a 2002 Supreme Court case (Watchtower Bible v. Stratton, Ohio) a law requiring political groups to obtain permits for door-to-door soliciting was struck down.

Notes from the Underground: Lisa Bouchelle is on a major label. She pals around with Jon Bon Jovi. What's she doing playing for change at Suburban Station?

Mary Catherine Roper, staff attorney at the Pennsylvania branch of the American Civil Liberties Union, sides with the musicians.

"Under the First Amendment, the cornerstone of our democracy, you don't have to ask permission to speak and music is the same thing as speech," says Roper. "There are reasonable restrictions when it's a lot of noise and it gets in the way, but when you're talking about one person — there should not be a permit requirement for one person."

For Riley, a 20-year-old West Philly native, that's good news. Singing is his passion and his paycheck, and he's not shy about it. "I've got a God-given talent," he says.

He showcases his soulful tenor while busking with Torres, who plays electric guitar with a tiny amp. Riley always wears a shirt and tie and exudes a clean-cut charm from his tall, lanky frame. Torres fits into the traveling musician mold more with long hair, a beard, sandals and brightly colored shirts.

Together they perform well-known spirituals, R&B and rock songs like "Little Wing" by Jimi Hendrix and "Duncan" by Paul Simon.

The pair plays most days and together make from $100 to $200 a day. "It's just like a 9 to 5 job," Riley remarks. "We even get breaks." They say they've never played for money at Rittenhouse, though.

Riley is proud of performing music in public spaces. "Singing in the streets and busking are time-honored traditions," says Riley. His sights, though, are set higher than the tough existence of a street musician. "I hope to get some real gigs and stop singing in the park."

Part of that desire spurred Riley to try out for American Idol last year and made him consider traveling to all seven cities to compete this year.

He's equally proud of standing up to the police. "One thing my family taught me was 'always stand up for yourself.'... It starts with not singing in the park, then you won't be able to walk down the street with an iPod."

As for his approaching court date, Riley does not seem overly concerned. "I'm trying to get a not guilty," he says.

Riley's original court date was May 7, but his attorney, Evan Shingles, requested a continuance because he had a conflicting court date with another client. The trial is now set for July 3 at Philadelphia Community Court, located on the second floor of 1401 Arch St. Riley's charge of disorderly conduct is a summary offense and carries a maximum penalty of 90 days in jail.

Riley's chances, though, are pretty good if his case follows the pattern of other musicians, like Felix Welker.

In his snappy, pinstripe suit, Felix Welker is reminiscent of jazz and big band greats. The 65-year-old flutist often plays in Suburban Station and on South Street. Hailing from Panama, Welker formerly taught music at Brooklyn College, where he also received a degree in music. He's retired now, but continues to play music for his own enjoyment. "I play because I want to keep up my music. Music is my soul and I can't be without it," he says.

Except when the police hassle him.

On the same night as Riley's arrest Welker was arrested for playing the flute at 18th and Chestnut, and locked up for 45 minutes.

A judge dropped the arrest charge for disorderly conduct and ruled that Welker had the right to play on the street from 9 a.m. to 10 p.m. as per city law. Although getting arrested was unusual for Welker, harassment from the police, "happens to me all the time," he says.

In early May he again ran into trouble with the police, this time at Fifth and South. A police officer told Welker to leave despite the musician displaying a copy of the ordinance that allows street musicians. "He told me he didn't give a fuck about the ordinance," Welker says. A call to the station's sergeant got the matter sorted out and Welker was allowed to return to South Street and play.

"The bottom line here is that they have to train the police better. They keep harassing musicians," Welker says.

However, Welker also admits that some of the city's police officers like his playing and do not hassle him. "The police from South Street love my playing. They don't bother me usually. Every once in a while a rookie comes in and bugs me out."

Welker's sentiment about police harassment echoes the general feeling of musicians banned from Rittenhouse. Most consider the recent enforcement of park regulations the result of overzealous policing and a desire to stand behind Riley's arresting officer, Greg Wilkinson.

"Because they stand behind each other as police officers they're standing behind this bad decision," says Riley.

"It's all because of one guy using his authority," says Ashley Robb, a young violin player and singer. "If he's removed it'll go back to normal."

Police spokesperson Sgt. D. F. Pace disagrees. "Police have always been in the park. They're aware of the ordinances and if one is violated, they'll act on it."

Pace admits, though, that for issues like playing music the police usually let it slide, unless there are complaints.

"For relatively low [priority] quality-of-life issues like this, what tips the balance about enforcing ... is input from the community."

And input is what Pace says the police have received. Despite the general feeling that music is a positive addition to the park, some residents have complained.

"I've dealt with these people personally," Pace says. "They're real people with real complaints. ... One person went so far as to put $6,000 worth of soundproofing in their apartment."

Pace also points out that Riley was not arrested for violating park ordinances, but for disorderly conduct after he refused to stop singing.

On a bright and sweaty June 2 as white tents from the Rittenhouse Square Fine Arts Show circled the park, musicians held another rally. Members of Philadelphia Police's Civil Affairs Unit watched from a nearby bench and lots of people stopped by to listen to the music and hear the speeches. Most agreed with the protesters.

"I think they should be allowed to play," says Mike Luterman, a software developer from the Art Museum area. "I like the music, it's peaceful. My kids like it."

Then there's Harry Cromley.

Born and raised in Philadelphia, the 64-year-old Cromley, who used to live near the park, is not a fan of musicians playing there.

"This is Woodstock '60s rebellion. This is let-me-shit-on-your-lawn stuff," says Cromley. "It's horrible, the park's not for this. I'd like to see the cops come in here right now and get [the musicians] out."

Cromley had a dim view of what possible benefits musicians bring to the park. "One guitar will bring two, then three, then four. The park is for quiet, reading your paper, listening to the wind blow through the trees," he says.

His comments attracted the attention of other rally attendees and sparked an argument with Noah Solomon, who lives nearby and works on Wall Street.

"Do you really want to see idiots like that, Noah?" asks Cromley, referring to the musicians.

"Yeah, I do," Solomon responded. "They're not hurting anyone."

Solomon, like many others at the rally, was also concerned about the police wasting time and resources. "This city has the highest murder rate in the country and they're [the police] throwing some poor SOB in jail for playing a guitar."

Cromley, though, still feels the musicians should go somewhere else. "There's a million different places for them to do it," he says.

T.J. Reilly, president of the Center City Residents' Association, has sympathy for the musicians. "The CCRA has no position on music in the park, but I enjoy walking through the square and hearing the music."

Rittenhouse Square Park is so well-known as a musical destination that its music was a main theme in the recent documentary about the park. Released in 2005, Rittenhouse Square is an elegiac film that focuses on, among other things, how music helped create a vital green space in Philly. Twelve-year-old violin prodigy Caeli Veronica Smith was prominently featured in the movie along with other musicians.

Albert Neff, a longtime area resident, remarked in the film, "Curtis Institute, one of the greatest music schools in the world, is right here. You can hear them practicing and often the students come to the park and play for a few dollars. You hear great music."

For Barry Bessler, chief of staff for the Fairmount Park system, the rules are the rules, but enforcement lies with the police. "It's a delicate balancing act," he says. "If I'm reading a book and Riley or someone else decides to sing that could be seen as infringing on my use of the park," says Bessler.

Bessler disputes the idea that Fairmount Park is banning music from Rittenhouse. "Nothing could be further from the truth. We have musical events all the time. He [Riley] can do so with a permit given by us."

Photo By: Michael T. Regan (CLICK IMAGE FOR LARGER VERSION)

However, according to the Fairmount Park Web site, a permit for a special event, which covers musical performances, at Rittenhouse Square park could go up to $5,000 since it's classified as a park "A" site. (Music at political rallies is considered political expression rather than performance and so isn't subject to this fee.)

Sgt. Pace notes that the scope of the Fairmount Park regulations makes them troublesome. "There's a very broad definition of what music is allowed in the park."

He's adamant, though, that the police are interpreting the regulation in the correct manner. "Most people would say a guy with a guitar and another guy with a drum is a musical performance," Pace says. He did not know of any other arrests like Riley's but insists that the recent strict enforcement of park regulations is a response to community complaints, not a result of the arrest.

So who's right?

Are Riley and other musicians right in blaming police for allegedly closing ranks around a single overzealous officer? Or are the police merely responding to community complaints?

Pretty soon it might not matter.

Thanks to some encouragement from Babette Josephs, who represents the Rittenhouse Square area in the Pennsylvania House, and the Pennsylvania branch of the ACLU, police higher-ups hosted a meeting at police headquarters on Race Street on June 7 for the interested parties.

Josephs, Roper and Gillis attended the meeting. Police Commissioner Sylvester Johnson was supposed to attend but had to attend a meeting with Mayor Street. First Deputy Police Commissioner Patricia Giorgio-Fox did attend, along with Counsel for the Commissioner Frances Healey and captains from the Center City and 9th police districts.

After the meeting, Josephs, who has thrown her full support behind the musicians, was optimistic. "The police were very receptive, they want to resolve it and free up their officers' time."

It was obvious that only one kind of response is the right kind for Josephs. "The only reason you need a permit is if you need to reserve an area, for protection, or if there's cleanup. ... If citizens want to gather and speak that's their right."

Police officials promised to have the city Law Department work on an opinion for how the police ought to enforce the law and let Josephs and the ACLU see the opinion prior to enacting it.

They also promised to review the conduct of officers in the park. No timeline was given for when the city will release its decision.

The meeting has already provided some help for the musicians. ACLU lawyers informed them that they did not actually need the $20 event permits for their rallies if they expect fewer than 75 people.

Additionally, rallies held after the meeting were devoid of watchful Civil Affairs officers and any harassment over permits.

"When they [the police] know you have the ACLU on your side they don't bother you," says musician Jessica McDowell at a rally on the June 16, the second protest without a permit.

Regardless of how the city ends up reinterpreting the law, Riley has a court date to look forward to and a busy schedule. For now he and Torres busk at Market East. "There's less competition there," says Torres.

There they participate in the age-old tradition of playing music in a public space, hoping to garner enough attention to warrant passersby throwing some money their way.

There's a term Constitutional law experts use to describe the effect that violations of freedom of speech have on society — the "chilling effect." Even if no one is put in jail, laws that constrain freedom of speech cause people to speak up less out of fear of reprisals. Thankfully, the musicians who frequent Rittenhouse are not letting this issue go quietly, but their attitudes are changing.

"This has been a very disillusioning experience for me," says McDowell. "I really thought the police are here to make things better and here's a clear-cut case of them making things worse."

Riley too has changed his tune. "I used to go to rallies and think people were crazy," he says, "but then I had my rights taken away."

"I wouldn't want anyone to think I'm cocky but I know what I know and to do any less would make me less of a man," he says. "We're gonna keep rallying, until something changes."

(editorial@citypaper.net)