Suit on outdoor music is settled
Flutist arrested on the street will get $27,500. Police will be told performing is legal.
Let freedom ring in Philadelphia, and sing, and even play the flute.
The city last week settled a lawsuit filed by Felix Wilkins, a 66-year-old street musician who alleged that his civil rights were violated in March when he was arrested for playing the flute on a Center City corner.
As part of the agreement, the police commissioner is required to issue a memorandum instructing all officers "that the ability to play a musical instrument or sing in a public place and solicit funds are forms of expression that are protected by the First Amendment."
Under the settlement, anybody wishing to be tuneful must comply with the city's long-standing ordinance on when a person can "play a hand organ or other musical instrument."
Rittenhouse Square, which has been the focus of controversy over who has the right to be musically expressive, is not mentioned in the settlement.
But Paul Messing, the lawyer who filed the suit on behalf of Wilkins, a classically trained flutist, said the agreement "should have citywide application."
The city also agreed to pay Wilkins $27,500 to settle claims of damages. U.S. District Judge Juan R. Sanchez approved the settlement Thursday.
About 4 p.m. March 28, Wilkins was playing the flute at 18th and Chestnut Streets when a police officer ordered him to stop.
Wilkins showed Officer Scott Wallace a copy of the city's public music ordinance, which he always carries when he plays. Nonetheless, the officer arrested Wilkins for disorderly conduct, handcuffed him, and took him to a police station to be cited.
The case was dismissed May 7 by Municipal Court Judge Gerard Kosinski, and Messing filed the suit a week later.
Wilkins' arrest came one day after police apprehended Anthony Riley for singing in Rittenhouse Square.
The case against Riley, who was singing Sam Cooke's "A Change Is Gonna Come," was dismissed in July.
His arrest was part of a controversial crackdown by police on musicians and performers in Rittenhouse Square based on complaints from nearby residents.
Riley also has a lawsuit pending. Evan Shingles, his attorney, said he also believed the Wilkins settlement should apply to Rittenhouse Square. He called the crackdown on performers in the park "patently ridiculous."
City Solicitor Romulo L. Diaz Jr. did not respond to a request for comment. Police Commissioner Sylvester M. Johnson and administrators of the Fairmount Park Commission were unavailable for comment.
Messing credited the city for agreeing to the settlement and "taking concrete steps to make sure these rights are protected."
He added: "I think at the end of the day, everybody recognizes that music is protected and that musicians are a rich cultural asset for the city."
This is not the first go-around for Messing and the government regarding street musicians. He represented Byard Lancaster, a jazz saxophone player, against the city and twice against SEPTA.
The transit agency paid Lancaster $15,000 in 2002 and an additional $18,000 in 2003. That led SEPTA to tell its police officers to leave street musicians alone.
After Philadelphia was criticized this year for its latest effort to target musicians, city lawyers tried to craft new rules, but they essentially punished performers who drew crowds - for example, barring performers who attracted more than "a handful" of people.
Those rules, Messing said, should now go by the wayside and the old regulations for organ grinders (with or without monkeys) should prevail.
Under the existing ordinance, musicians cannot play on the street between 10 p.m. and 9 a.m., near a hospital or "other institution housing sick persons," or in front of school during class or a house of worship during services.