Was viral arrest of Pa. street singer justified?

James Ochse sees his singing voice as a gift meant to be shared with the world.

For the past three months, Ochse has shared his gift with passers-by and outdoor diners in downtown Allentown, whether they like it or not. His go-to song is the Beach Boys' "Barbara Ann."

It was while singing that song, with its "Ba Ba Ba Ba Barbara Ann" chorus, that he was confronted Aug. 14 by Allentown officer Robert Busch outside Shula's Steak House on North Seventh Street. Videos show him arguing with Busch and turning to walk away as Busch grabs him and throws him to the ground.

The takedown, recorded by a patron and a restaurant employee with smartphones and shared on social media, sparked a police review, a slew of negative comments on the department's Facebook page, a protest at City Hall and a heated debate at last week's City Council meeting.

Ochse, 61, of Allentown, said singing in public is his right, adding, "Hey, they don't have to listen. Put some ear plugs on if they don't like it."

While the takedown angered many, the question, some legal experts say, is why police even approached Ochse.

"Generally people have a right to do things in public, like conveying a message," said Burton Caine, a First Amendment specialist at Temple University's Beasley School of Law. "When people want to convey a message, many do it in a way that is convincing. They sing, they dance, they dress up.

Ochse's eventual arrest — on charges of disorderly conduct and resisting arrest — started with a complaint to police from someone who apparently found his voice more of an annoyance than a gift.

Police say it's not always easy to keep the peace when one person's right conflicts with another's.

"We are called on to do a difficult job," Allentown Capt. Tony Alsleben said.

A person's constitutional rights are a top priority, but if someone is reporting a disturbance, police have to act and find a middle ground, he said, declining to speak specifically about Ochse's arrest.

Bethlehem police Chief Mark DiLuzio, whose officers respond to complaints of people singing and sometimes asking for money on Main Street, argues it's sometimes more of a quality-of-life issue.

"What if you're there to have a romantic evening or you're going to propose to your girlfriend and this guy is out there singing, forever?" he asked. "Not all customers want to hear people singing on the street. If they want to hear music, they want to hear the music from the restaurant."

Ochse, a personal trainer who sings as a way to relieve stress, admitted he doesn't take well to those who tell him to pipe down.

"I was singing 'Barbara Ann' at 8 in the morning and some guy came out and said, 'I'm sleeping.' I said, 'Tough, I'm going to sing anyway,' " he said.

Singing isn't always protected, Caine noted. If a song is repeated over and over again, a court might find that at some point, the singer stopped communicating the message.

"If it's 10 minutes, it should be protected," he said. "If it's 10 hours, it isn't."

Since Ochse wasn't asking for handouts, wasn't singing in traffic and was on private property intended for public use, he didn't appear to be breaking any laws or being a danger to himself or others, Caine said.

There has always been a clash between street performers and police in general, said Matthew Christian, a violinist who formed BUSK-NY, which advocates for street musicians.

Buskers — those who, unlike Ochse, perform for gratuities — have fought to change that, he said.

"In theory, busking has enjoyed increasingly broad legal protection since the first advocates worked to promote public performance in the 1950s, '60s and '70s. But in practice, buskers in the last few decades have faced a great deal of harassment, particularly as they are affected by police departments that carry out arrests over minor or non-existent rules."

Cellphone videos have helped buskers advocate for themselves, Christian said. And social media has helped the cause by bringing some clashes to the public's attention.

This month, five police officers were captured on video wrestling a 21-year-old man to the ground after catching him crooning songs from One Direction on a busy street in Falkirk, Scotland.

According to news reports, police received 14 complaints in six weeks about Steffan McGechie, who used a microphone and portable amplifier to enhance his performance.

The video shows him thrashing on the ground in skinny jeans and screaming profanities as six officers restrain him. McGechie was charged with resisting arrest and obstruction.

Last year, New York's Metropolitan Transit Authority was criticized after a YouTube video showed officers confiscating a musician's guitar and handcuffing him as he sang Neil Young's "Ohio." In the video, Andrew Kalleen, 30, is showing the arresting officer a passage from the MTA rule book that said artistic performances were allowed on subway platforms, and even persuaded the officer to read it aloud. Kalleen refused to leave and continued singing and strumming his guitar until backup officers arrived and dragged him away as bystanders jeered the officers.

In February, he filed a lawsuit against the city.

Ochse, who plans to sue Allentown and has retained South Whitehall Township attorney Rick Orloski, said he didn't realize the power his voice held until he started singing while walking around downtown.

At a city bus station, he sang to people who appeared forlorn, their heads down. One man looked up at him and grinned.

" 'I forget all my problems when I hear you sing,' he told me. That really touched me," Ochse said.

When he sees a nice-looking woman walking down the street, he's apt to break into "Pretty Woman."

"She'll look back and she'll smile," he said. "So I'm doing the right thing. I'm just trying to make people happy, that's all."

Noise laws

Allentown has a noise ordinance that makes it against the law to do anything that "annoys or disturbs a reasonable person of normal sensitivities or endangers or injures personal or real property." The law is a little more liberal when it comes to animals. Dogs can bark and birds can squawk for up to 10 minutes before being considered a nuisance.

While neighboring Bethlehem's ordinance says anything that can be heard from 40 feet away is considered a disturbance, Allentown's reads that if it can be heard across property lines, it could be a problem.

Ochse is no nightingale. His voice can be heard across several property lines, possibly city blocks.

"It's just the way I sing," he said. "It's a command-style voice. I learned that in the military."

Ochse, a former ultra-marathoner and former athletic trainer at DeSales University who twice won the Empire State Building Run-Up of 86 flights in the 1980s, noted his voice isn't the loudest thing on Hamilton Street.

"Am I louder than a siren? No. Am I louder than some of these cars and some of these jackhammers they have downtown right now? They're a heck of a lot louder than me," he said.

After watching a video of Ochse's takedown, Judy Ritter, law professor and director of the criminal defense clinic at Widener University/Delaware Law School, said he doesn't appear disorderly or particularly noisy.

Ritter said a person's conduct is disorderly when it creates an unreasonable amount of noise with the intention of disturbing the public.

Ochse said his intention wasn't to disturb anyone.

"I do it for the intrinsic value of making me feel better and the extrinsic value of making them feel better," he said.

If Ochse had been singing songs laced with obscenities, his conduct might have been considered disorderly, Ritter said.

Lauren Sharpe, a bartender at Chickie's & Pete's on the 700 block of Hamilton Street, said she can hear Ochse singing from a block or two away and has joined him in "Barbara Ann."

"I love that guy," she said.

He'll serenade groups of young women, telling them, "Don't let my age fool you," she said, and everyone appears to have a good time.

Her co-worker, Patrick Zeeger, recalled patrons cheering on the Fourth of July weekend as Ochse walked down Hamilton Street singing and waving an American flag.

Zeeger said he's asked Ochse to leave the area on behalf of customers who weren't as charmed by his performance, and didn't meet with any resistance.

"He walked away quietly," Zeeger said. "No problems."

But some who work downtown said Ochse has gotten out of hand at times, cursing and causing a ruckus when asked to move. At The Hamilton Kitchen, he disturbed a band that was performing, grabbing the microphone to sing "This Magic Moment."

Ochse said that was a "gag."

His detractors didn't want to give their names for fear of backlash from Ochse's supporters. Many of those supporters expressed their anger on the Allentown Police Department's Facebook page, which racked up more than 300 comments on Ochse's arrest. Some suspect Ochse's supporters of giving Shula's one-star ratings on Yelp, an Internet restaurant-rating system used by the public. (Ochse said he has no problems with Shula's and that the restaurant has treated him to free ginger ale since his arrest.)

Days before his arrest, Ochse said police talked to him about his singing, saying they had complaints from some office workers who said he was disrupting their meetings. He said he had an "unofficial agreement" with police that he wouldn't sing until after 5 p.m.

Ochse said he was explaining the arrangement to Busch when the officer approached him just after 7 p.m. Aug. 14. In a criminal complaint, Busch said Ochse refused an order to stop and turn around and "remained very hostile."

"I don't have a personal vendetta against the cops or anything, there's a lot of cops I like," Ochse said at his lawyer's office last week. "But they need to reason and be more compassionate with the public and only use force or physical restraint as a last resort."

Alsleben said the police are conducting a review of the incident, talking to witnesses and, he stressed, not just looking at the videos.