1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF MASSACHUSETTS 3 4 5 IN RE: ) C.A. No. 04-11618-NG 6 COMMUNITY ARTS ADVOCATES, INC., ) Courtroom No. 17 7 STEPHEN H. BAIRD ) 1 Courthouse Way 8 vs. Boston, MA 02210 9 CITY OF BOSTON 10 BOSTON POLICE DEPARTMENT 11 12 DECEMBER 23, 2004 13 1:38 p.m. 14 15 16 17 18 BEFORE THE HONORABLE NANCY GERTNER 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 Valerie A. O'Hara 25 Official Court Reporter 2 1 A P P E A R A N C E S: 2 Testa, Hurwitz & Thibeault, LLP, by JOHN J. COTTER, ESQ., and JASON A. DUVA, ESQ. and KAREN A. SCHOUTEN, 3 ATTORNEY, 125 High Street, Boston, Massachusetts 02110-2704, for the Plaintiffs; 4 5 THOMAS R. DONOHUE, ESQ., and RONALD G. NELSON, ESQ., Law Department, One City Hall Square, City Hall, Room 615, 6 Boston, Massachusetts 02201, for the Defendants. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 THE CLERK: All rise. 2 THE COURT: Good afternoon, everyone. You can be 3 seated. Can you bring me up to the date of the status of 4 your negotiations? 5 MR. DONOHUE: Your Honor, the city has decided to 6 repeal the bells and noise making ordinances and with it the 7 Boston Police Rule. 8 THE COURT: That means that 75 has been repealed, 9 403 has been repealed? 10 MR. DONOHUE: That's correct, 75 has already been 11 repealed, none of them being enforced, but the city has 12 decided to take the extra step, repeal the ordinance and 13 with it the Boston Police Rule 403. 14 THE COURT: What about the issue of 6B that 15 requires permitting for commercial activities in the Boston 16 parks? 17 MR. DONOHUE: That, your Honor, doesn't apply to 18 this case or these Plaintiffs who are street musicians, 19 facially that's not unconstitutional. That doesn't apply to 20 them. 21 THE COURT: Their position is if someone is 22 playing music and has a cup for people to give 23 contributions, the Boston Police would not call that 24 commercial activity? I mean, the parks police would not 25 call that commercial activity, would they? Would there be a 4 1 need to permit for that? 2 MR. DONOHUE: No, your Honor, that's my 3 understanding as its written in its own terms. That does 4 not apply to street musicians. 5 THE COURT: Let me get the language. "No person 6 shall in any public park, unless a written permit is 7 displayed, engage in any commercial enterprise or solicit 8 business or display or commercial advertising," that's not 9 this. So the notion is that it doesn't apply to the class 10 of Plaintiffs, and the things that could apply to this class 11 of Plaintiffs, which is Rule 403 and the predecessor Rule 12 75, have been repealed so you've won? 13 MR. DUVA: Your Honor, first of all, point of 14 clarification as to 403 and the ordinance have actually been 15 repealed as we stand today or whether those are going to be 16 repealed. 17 THE COURT: 403 was just a regulation of the 18 Boston Police, Commissioner O'Toole could say. 19 MR. DONOHUE: That's correct, it would take the 20 belief, they're not being enforced. 21 THE COURT: I have a representation as an officer 22 of the court that it's not being enforced. What else do you 23 want? 24 MR. DUVA: You understand, your Honor, I think it 25 would be helpful to understand some of the history of those 5 1 in dispute. The city has previously represented to us that 2 they have repealed the police rule and not enforced. 3 THE COURT: That was before you came in front of 4 me. 5 MR. DUVA: That is correct, your Honor, but in 6 actuality, after they represented that to us in the context 7 of discussions and also represented it to the media, who 8 reported it, so that musicians saw those reports and based 9 on their actions on those reports and hearing back from us 10 went out and performed and in fact were confronted by both 11 park rangers and the Boston Common and also by the Boston 12 Municipal Police in Dock Square, and it wasn't until we 13 actually filed this for the preliminary injunction that the 14 city took the step that had not been represented not already 15 taken but was told to us was taken. 16 THE COURT: Your motion was directed to a 17 particular ordinance. The underpinings of the motion for 18 preliminary injunction are dissolved with me. It seems to 19 me if the lawyer represents the ordinance doesn't exist. If 20 you're concerned about unconstitutional enforcement, that 21 only means that the case can stay alive until you see that 22 there is no unconstitutional enforcement for a period of 23 time and not unreasonable period of time so you don't get a 24 preliminary injunction because right now there's nothing to 25 enjoin. They say it won't be in force. They have said in 6 1 court that this won't happen, and if it does happen, if 2 there is unconstitutional enforcement, we can address that 3 in the future. I won't keep the case open indefinitely, I 4 understand, but is the city taking the position that that is 5 an interim measure or is the city -- 6 MR. DONOHUE: No, it's an interim measure. It's 7 going to be repealed. 8 THE COURT: Okay. 9 MR. DUVA: My concern, your Honor, is that we 10 asked the city whether they would consider entering the 11 decent decree until the ordinance has been repealed. 12 They've been reluctant to do that. My concern, your Honor, 13 is what happens to performers tomorrow, or perhaps more 14 importantly, your Honor, New Year's Eve. Until that 15 ordinance is repealed, if the city is not willing to enter a 16 consent decree to the order that it would not enforce the 17 ordinance, what is to protect street performers? Without an 18 order from this Court, what can a street performer carry and 19 what can a street performer do when they're confronted by a 20 park ranger or by the Boston Municipal Police. 21 THE COURT: What's the answer to that? 22 MR. DONOHUE: It's not being enforced, your Honor. 23 THE COURT: If, Ms. Schouten, a police officer on 24 New Years Eve who walks around, how does the Commissioner 25 communicate with the officers that it's not being enforced? 7 1 What does it do? 2 MR. DONOHUE: It's my understanding that she goes 3 to the captains and the captains within each district, tells 4 everyone and follows the chain of command not to enforce, 5 look out for certain rules. 6 THE COURT: You see, my problem here is that it is 7 not clear to me the repeal, the total repeal of 403 and of 8 75 is in fact more than you could have wished for and that 9 you were in fact wishing for, so an order on my part, I 10 think, it's the right thing to do, but it's certainly more 11 than you could have wished for. 12 An order on my part saying that that's the case 13 would go beyond what the laws allow me to do. The most I 14 can say is that I have a representation that it has been 15 repealed and that there will be no more, no unconstitutional 16 enforcement of the laws in the absence of either 17 ordinance. 18 MR. DUVA: Thank you, your Honor. We appreciate 19 that, and we will be very happy when the day comes that the 20 law is repealed, but until then, first of all, I don't 21 believe we've discussed the Park Rule 1B, which I think, I 22 don't think anyone is disputing is unconstitutional on its 23 face. 24 And, your Honor, I still don't think that I've 25 heard the city say that the ordinance has been repealed. I 8 1 think they're saying it will be repealed. 2 THE COURT: They're saying it will not be 3 enforced, an appeal of a city ordinance takes more than just 4 Commissioner O'Toole saying go away, it takes some time and 5 they're saying they won't enforce it in the interim. 1B 6 says no person shall canvass for alms, and the question is, 7 does the city take the position that a musician that 8 performs with a hat on the street is begging for alms? 9 MR. DONOHUE: No, but even to beg or canvass for 10 alms, that's a constitutionally protected activity, and the 11 Massachusetts Supreme Court has said so it's not being 12 enforced. 13 MR. DUVA: Your Honor, the evidence that we have 14 in the declarations of Mr. Baird and the declaration of 15 Ms. Cohn, no one has disputed, and we know that musicians 16 were in fact told to move along and not to perform in the 17 Boston Common and not to perform on the streets. Those 18 facts are not in dispute. We know that the reality of the 19 world, whatever we're hearing today, is that officers of the 20 police department, the municipal police and the park rangers 21 are asking people to move along. Also, your Honor, a 22 musician has a right to sell his or her own art. 23 THE COURT: They're claiming that's not commercial 24 activity under Section 6, that's not considered commercial 25 activity under Section 6. You would want me to do what 9 1 then? What would be the content of the order that you'd 2 want me to enter? 3 MR. DUVA: We propose an order, your Honor, and 4 what we propose is an order preventing, if you bear with me 5 a second, to prevent the City of Boston from interfering 6 with the rights of a performer, and we define performer, I 7 won't list it, but I'd be happy to, to play musicial 8 instruments, to perform, to display their art or to solicit 9 peacefully and receive consideration for these activities at 10 any time on any city street, sidewalk, ground or park. 11 And it goes on to list those, your Honor, that 12 order. That proposed order was included with our motion for 13 preliminary injunction. 14 THE COURT: The city was not willing to enter into 15 an order that said that? 16 MR. DONOHUE: That's correct, your Honor. It's 17 unnecessary. The Plaintiffs have challenged the 18 constitutionality of an ordinance in a Boston Police Rule. 19 They are not currently being enforced, and it will be 20 appealed, I'm sorry, it will be repealed. 21 THE COURT: You're getting a little ahead of 22 yourself, aren't you? 23 MR. DONOHUE: I apologize, your Honor. 24 THE COURT: Here's what I'm going to do, I'm not 25 going to enter an order. I'm going to make a finding that a 10 1 preliminary injunction is unnecessary at this time, and I'm 2 not going to do so in the light of the representations that 3 have been made by the city, A, 75 will be repealed, 403 will 4 be withdrawn and that neither of these will be enforced as 5 against the Plaintiffs. 6 And so I will not make a ruling at this point 7 because the question is whether or not in the light of that 8 representation what has gone on in the past would continue. 9 If the rules remain the same, it is reasonable to believe 10 that the pattern of enforcement would remain the same. 11 Since we have a representation that the rules are 12 going to be different, I can't conclude for emergency relief 13 that there's a likelihood of the success on the future, and 14 the future may look totally different than the past, but I 15 will make those, not enter an order at this time on the 16 strength of those representations. We'll put the case down 17 for a status conference at the end of January, and if the 18 pattern of enforcement is otherwise, then you have an 19 opportunity to amend your complaint to include whatever 20 additional activities you've seen, but certainly the facial 21 challenges are gone since there is no facial, there's no 22 document to challenge on its face. 23 MR. DUVA: Your Honor, can I just clarify that 24 those findings and those representations expressly include 25 Boston Rule 16.12.24, which is the ordinance? 11 1 THE COURT: The parks ordinance? 2 MR. DUVA: No, that's the Boston City Ordinance, 3 your Honor. 4 THE COURT: What's the relationship to that to 75? 5 MR. DUVA: The ordinance is the law that gives the 6 Police Commissioner the authority to issue either police 7 Rule 75 or now police Rule 403. It's that law that 8 delegates the authority and on its face bans all music by 9 any person other than a licensed itinerary musician or a 10 musician. 11 THE COURT: 1612? 12 MR. DUVA: 1612.24, your Honor. Your Honor, if I 13 may, I believe the City's already indicated they plan to 14 repeal that. I don't believe it's in controversy. 15 THE COURT: Is that right? 16 MR. DONOHUE: That's right. 17 MR. DUVA: To also clarify, your Honor, to make 18 sure that the findings and the representations in the city 19 include repeal of Park Rule 1B, which I'm still not sure 20 we've gotten an answer on that. 21 THE COURT: The answer we got was unconstitutional 22 under the Supreme Court Judicial Court law, and 6 was 23 dealing with commercial activity which is not involved in 24 the Plaintiff's case. Is that right? 25 MR. DONOHUE: That's correct. 12 1 THE COURT: You really read these prohibitions 2 permits, "no one shall use profane or obscene language on 3 the streets of Boston." This would be an interesting 4 enforcement or "don't tie a horse to a tree," all thought of 5 suits to come, so I'll make the findings based on these 6 representations. We'll set a status conference at the end 7 of January. 8 THE CLERK: January 26th at 3:00. 9 THE COURT: You'll monitor the way in which these 10 representations have been implemented, then you'll come back 11 and see where we are. Okay. 12 MR. DUVA: Thank you, your Honor. 13 MR. DONOHUE: Thank you, your Honor. 14 (Whereupon, the hearing was suspended at 15 2:20 p.m.) 16 17 18 19 20 21 22 23 24 25 13 1 C E R T I F I C A T E 2 3 UNITED STATES DISTRICT COURT ) 4 DISTRICT OF MASSACHUSETTS ) 5 CITY OF BOSTON ) 6 7 I, Valerie A. O'Hara, Registered Professional 8 Reporter, do hereby certify that the foregoing transcript 9 was recorded by me stenographically at the time and place 10 aforesaid in No. 04-11618-NG, In Re: Community Arts 11 Advocates, Inc., Stephen H. Baird vs. City of Boston, Boston 12 Police Department and thereafter by me reduced to 13 typewriting and is a true and accurate record of the 14 proceedings. 15 In witness whereof, I have hereunto set my hand 16 this ________ day of ___________________, 2005. 17 18 _________________________ 19 VALERIE A. O'HARA 20 REGISTERED PROFESSIONAL REPORTER