On March 19th 2011 I was ticketed for unlicensed general vending on the streets of New York City where I sell my firearm friendly jewelry. it is a misdemeanor charge with a scheduled fine ranging from $250 to $1000.  My court appearance date was scheduled for May 26th 2011 at 346 Broadway.  Since this date is not an actual trial, but rather merely a hearing before a JHO, (judicial hearing officer) a procedure I must go through just to request a trial, I chose to show up early, 2 weeks before that date. After standing on line for 3 hrs and then sitting in the courtroom for another 2 hours, I finally got my 10 seconds before the JHO to request a trial.  I asked my public defender to request the case be moved to criminal court at 100 centre street, which he did, and it was granted.

 

I showed up at 100 centre street on the trial date with the prepared case written below, ready for a fight.  My name was not on the list outside the courtroom so I had to verify with the clerk's office next door to make sure the case was properly transferred over from 346 Broadway. They assured me it was and told me to wait in the courtroom like everybody else. I did, until 1PM, when they kicked us all out for lunch, and came back and waited from 2 until 3-something.

 

Everyone got consultations with a public defender or private council in advance, except me.  I did not understand why. Had there been some mistake? 

 

Finally, they called my case. I had no public defender. I thought this was very odd.  I stood before the judge and she had one word to say:

 "Dismissed"

 

"huh?"

 

"Dismissed." The court officer repeated.  "You can go."

 

I asked for a letter of disposition, the court officer told me I had to come back another day and get it from the clerk's office.

 

The clerk's office told me I had to get it from 346 Broadway.

 

I went to 346 Broadway 2 days later, and had to wait on line again, just to see the clerk. fortunately the line was short that day. 

 

The letter cost me $10. I suppose NYC was gonna get me one way or the other.  I don't ever wanna see that place [346 Broadway] again. 
 

I have no idea why they did not prosecute.  if I were to speculate, I would guess one of two reasons. My first guess is that the courts would rather these cases would just quietly go away.  they don't want to make an issue out of it. if they did, they would have to hear motions and arguments which would go on public record. If won, my case would set a legal precedent for future cases  favorable to jewelers.  Artists working in jewelry would no longer be subject to ticketing and arrests.  Law enforcement would have to recognize our First Amendment rights as they currently do for artists working in paint, sculpture or photography.   I'll bet there are hundreds of similar cases to mine. The reason I say so is because I have seen other jewelers who were approached by police, who showed them a letter from a judge, and the cops left them alone. yet I find no public record of their cases.  

My other guess is that the police officer who wrote the ticket did not feel like coming to court and/or did not do whatever he was supposed to do to move the case forward so the case was dropped.   But whatever the reason, since there are no public records of my case, I am making it public here on my website so that hopefully my research will be helpful to other street artists in New York City who find themselves in a similar situation.

text of my prepared arguments as follows:

 

 

Page 1 of 2

 

Criminal Court of the City of New York

100 Centre Street

 

June 1st, 2011

 

re: People v. Xxxxx Xxxxx  - summons No. 433082835-2  

New York City Administrative Code § 20–453

issued on March 19, 2011

 

I am an artist and political activist.  I have a small table which I set up on 14th street, across  from Union Square Park.  I make necklaces, keychain ornaments, earrings and other designs made from rifle, handgun and shotgun bullets and shells, in caliber sizes ranging from .17 HMR to .50 BMG.  I make them all myself from real ammunition or components. Along with these items I distribute flyers or cards for my website, www.agenturus.org, which is a collection of political, philosophical, historical and spiritual essays and informative links.   I sometimes distribute other literature or bumper stickers. I actively engage in political dialogue with anyone who stops by my table, discussing subjects like the world history, economics, the Federal Reserve, IRS, the Bill of Rights, right to keep and bear arms, common law, secret societies, occult symbolism, and so forth.  I accept donations for my jewelry to support my political activities. 

 

I use the medium of small arms cartridges for my jewelry designs specifically because of the obvious political and social messages that wearing or displaying such items inspire.  In New York City,  many people assume firearm ownership is illegal.  The concept of a right to keep and bear arms is alien.  Many have never even seen real ammo.  My work expresses an act of defiance against this social trend, a trend which I find to be destructive to our freedoms.  I support our right to keep and bear arms, and I believe in non-violence through personal empowerment.  To others my jewelry may mean something else. Some do not like it. But everyone has something to say about it, and I am only too happy to engage in political discussion with all who take interest. As such my activities and designs are expressions of free speech and a petition to the government for a redress of our grievances.  Even though the jewelry does not communicate verbally, it is expression nonetheless. Offering these items for sale or donation qualifies as a constitutionally protected activity under the First Amendment. 

 

Quoting from Mastrovincenzo v. The City of New York :

“In the Robert Bery case, the District Court summarized, the Bery Court was "unwilling to provide blanket protection for all jewelry, pottery and metalwork because such items do not always communicate an idea or concept to the viewer." Mastrovincenzo, 313 F.Supp.2d at 289 (emphasis added). Instead, as the District Court observed, "for these and other items, as distinct from paintings, photographs, prints and sculptures, courts must conduct case-by-case evaluations to determine whether the work at issue is sufficiently expressive”

 

Because my jewelry is designed for the specific purpose of expressive content, and is accompanied by supportive political literature, clearly it qualifies as a case in which “the work at issue is sufficiently expressive” to be protected under the First Amendment, as opposed to “mere commercial goods”

 

further discussion in  Mastrovincenzo v. The City of New York :

           

“Among other criteria, the Court considers: [1] the individualized creation of the item by the particular artist, [2] the artist's primary motivation for producing and selling the item, [3] the vendor's bona fides as an artist, [4] whether the vendor is personally attempting to convey his or her own message, and [5] more generally whether the item appears to contain any elements of expression or communication that objectively could be so understood. No one factor can control the outcome — as is the case in connection with many other judicial decisions concerning borderline issues, the criteria fit together to form a matrix.

 

Page 2 of 2


Certainly an item may be sufficiently expressive to fall within the realm of the First Amendment regardless of, for example, the educational background of its creator. At bottom, the purpose of the inquiry is to determine the degree of the item's expressiveness, which may best be accomplished by examining it in the light of objective considerations.”

 

 

According to this, my jewelry designs meet all the criteria required for First Amendment Protection.

 

Furthermore, if we look at the background of the General Vendor’s laws, we see the following discussion:

 

“the public health, safety and welfare are threatened by the unfettered use of city streets for commercial activity by unlicensed, and therefore illegal, general vendors. Such illicit operations have a pernicious effect on both the tax base and economic viability of the City. Unlicensed general vendors do not pay taxes, often sell stolen, defective or counterfeit merchandise.... The practice of selling their wares ... impedes the flow of pedestrian traffic, caus[es] the overflow of traffic, and, at worst, it creates the potential for tragedy.”

 

I do not see how any reasonable person would mistake my activities for some illicit operation conducted by some questionable vendor selling stolen trinkets on a cardboard box.  However, on the streets of New York City, law enforcement seems either unaware or unconcerned with the legal discussions involving what is protected under the First Amendment and what is not. 

 

…Which brings me to the matter of the questionable tactics used by the NYPD to obtain the information used against me in writing the summons:

 

On Saturday evening, March 19th,  two NYPD officers from the 6th precinct, Abounam (Shield #109) and Cuervo (shield #27083)  came to 14th street, where I set up along with a dozen or so vendors,  demanding ID from all of us. When they came to me, officer Abounam demanded that I surrender my ID.  I asked him if he had any probable cause, which he disregarded and instead continued to demand my ID.  I asked for probable cause 3 times, and 3 times he refused, becoming increasingly agitated. I asked, “what seems to be the problem, officer?” to which he replied, in an intimidating and threatening manner, “The problem is I need some ID!” to which I finally relented and complied out of fear, and not of my own free will.  Fear of what he might do – although no specific threat was verbally stated, his non-verbal language was completely threatening, and as a police officer he carries a gun, a taser, a club, handcuffs, and has the power to arrest. 

 

This is illegal.  I am protected under the Fourth Amendment against unreasonable search and seizure without probable cause, and such cause must be supported by oath or affirmation.  Simply put, if a police officer wants to see my ID, he is required, if asked, to state why. He must have probable cause. If he cannot show probable cause, there is no requirement for me to show him my ID.  This is the law of the land throughout the 50 states of the United States of America.

 

Because it is illegal to compel or force a citizen to produce ID, police will avoid explicit verbal threats i.e., “you must do this or I will do this”. Instead they rely on ambiguous non-verbal threatening “tough guy” behavior. This practice is standard operating procedure throughout the NYPD.   I understand they don’t want to get into arguments with citizens over alleged offenses. I know it makes their job easier but it’s still illegal, it’s an invasion of privacy, it violates the fourth amendment, and it must stop.  In a fair court of law, information obtained unlawfully would be thrown out, and the case would be dismissed.

 

Anyway….after collecting everyone’s ID the two officers eventually got around to returning mine, in which I was handed the above numbered desk appearance ticket.  Neither officer showed any interest in whether or not my activities are protected under the First Amendment or any other law. It was clear that they were only interested in writing tickets, and if I had a problem with that, I should take it up with the judge.  So here I am.

 

Thank you for your consideration.