A spray-paint artist arrested last year was found not guilty Friday of peddling without a permit at Baltimore's Inner Harbor, a ruling that left the defendant without an opportunity to argue the free-speech issues he says are at the heart of the case.
District Judge George M. Lipman said prosecutors failed to prove their allegations because police officers never saw Mark Chase sell his paintings. In effect, the judge ruled the officers arrested the artist too soon, while he was setting up and before he had made a sale.
Lipman's not-guilty finding prevented examination of Chase's argument that the city ordinance requiring peddlers to obtain a $200 permit from the city is unconstitutional.
"I'm disappointed we didn't get a chance to test the question," said Chase's attorney, John R. Garza, who was hired to represent Chase by the Rutherford Institute, a civil rights advocacy group based in Virginia. Garza said his grandfather was a street peddler in Baltimore.
Outside the courtroom, Chase chatted with one of the arresting officers, William Johnson, a seven-year veteran assigned to the Inner Harbor, telling him, "I'll see you back at the harbor." The officer laughed and shook Chase's hand.
Chase, who readily acknowledges selling his artwork on the street, said that absent a criminal conviction to appeal, he plans to file a federal civil suit against the city, arguing his arrest and detention were illegal. Chase has tested similar permit restrictions in a civil suit in Ocean City. As a result, a federal court judge signed off this month on a consent decree that forced officials in the resort town to rewrite their law.
The federal judge declared requiring permits for artists an unconstitutional abridgment of free speech. Town leaders agreed to exempt from permits any writers, painters, performers, sculptors, musicians and others selling "expressive materials" along the boardwalk. Sellers of manufactured goods, such as candles and sunglasses, would still be required to obtain permits.
Garza said he would like Baltimore to adopt similar rules, and he said the Ocean City decision provides a blueprint for other municipalities
The issue of what is allowed and not allowed in terms of speech, protest, handing out literature and selling goods along Baltimore's premier tourist attraction, a patchwork of public and quasi-public areas, is being argued on several fronts.
The American Civil Liberties Union has been engaged in settlement talks with the city in a civil suit brought by protesters who were arrested in 2003. City officials consequently designated an area, McKeldin Square, where a limited number of protesters can gather without a permit. That's where Occupy Baltimore set up camp last year.
The police officer, Johnson, testified that he and another officer, Francisco E. Pena, saw Chase setting up his paints Sept. 18 on a large blanket near the Inner Harbor amphitheater and about 100 feet from McKeldin Square. They advised him that he needed a permit to continue, and told him two places where he could obtain one.
Johnson responded that he didn't need a permit.
"He advised that he was a painter, that he was an artist," Johnson said in court. "That's how he made his living. I told him he could go to McKeldin Square, and he could paint as much as he liked. But he couldn't accept any money."
The officer continued: "He advised me he was a martyr for all artists and I should go ahead and arrest him, that he wasn't going to stop." Johnson said Chase declined to sign a citation and that he put his hands behind his back "before I had decided whether to arrest him."
Chase, 30, who lives in the Brooklyn neighborhood of South Baltimore, spent 13 hours in Central Booking before being released pending trial. He declined a prosecutor's offer of community service in exchange for dropping the charge.
In court on Friday, Assistant State's Attorney Trey Perkins had the police officer describe Chase's setup, which included a neat row of spray-paint cans and buckets with the word "tips" on the side. Perkins argued that this setup and Chase's remark that "this is how I make my living" proved he was peddling.
But the police officer acknowledged under questioning from Garza that he never saw Chase sell anything. "The officer didn't see Mr. Chase peddle or try to peddle," the defense attorney said. "We don't even have to get to the constitutional question."
Lipman discussed the definition of peddler, and came up with, "to hawk, husk or be a mobile vendor."
The judge asked Perkins, "How did he husk or hawk?"
Perkins answered: "He set up shop."
Lipman quickly ruled that Chase was not guilty.