In court, city makes promise to let its sidewalks be stages

Strike up the band, pull out the magic tricks, and practice that mime routine: The shows will go on on the streets of Boston.

A group of public performers won a victory in federal court yesterday when the city agreed to repeal regulations it has used for years to evict them from Boston Common and from sidewalks from Faneuil Hall to the Back Bay.

A lawyer for the city assured US District Judge Nancy Gertner that police have already stopped enforcing the restrictions and won't chase away performers who show up looking to entertain visitors at Boston's prime tourist locations over the holidays.

"So you've won," Gertner said to lawyers who filed a federal civil rights suit against the city last summer on behalf of the Community Arts Advocates Inc., a nonprofit group of 30 performers.

The suit challenged the constitutionality of both a 19th-century police regulation and a city ordinance that limited where street performers were allowed and what kind of noise they could make. Gertner said there was no need to issue a court order, as requested by the street performers, because the city had already agreed to their demands.

Still, Stephen Baird, a musician from Jamaica Plain who launched the suit, said he remains concerned that word of the decision may not reach police officers or park rangers who patrol Boston Common and other areas.

"They're used to 30 years of kicking people around," said Baird, contending that street performers were threatened with arrest if they didn't leave Boston Common last August, even though city lawyers had told reporters back then that the law wasn't being enforced.

Indeed, Anthony Throne of Dorchester, known as Tony Jam Pots and Pans, was pounding five-gallon buckets in front of Macy's in Downtown Crossing yesterday when he was politely asked to leave by two Boston police officers. He lamented that store owners often call to complain about drummers, because of the noise.

Baird said he plans to test the city on the promise it made in court yesterday. He said he will play his guitar or hammered dulcimer, a precursor to the piano that sounds like a harp, as early as today on Boston Common or in the public park in front of Faneuil Hall.

The ordinance had required musicians, except those in a lawful parade, to be licensed by the police commissioner. As a result, Boston police established a rule in 1878, which has been revisted numerous times, setting licensing requirements. The suit cited, among others, a provision that a licensed female musician cannot play on Boston's streets unless accompanied by a male musician.

The police rule prohibited licensed musicians from playing on city streets on Sunday or at any time within 500 feet of a school. It also limited playing time in many prime downtown locations to between 6 and 9 p.m.

Baird complained that park rangers routinely told musicians that they couldn't play in the Common without a special permit and at the same time told them that such permits aren't given to musicians.

Yesterday, Thomas R. Donohue, a lawyer who represents the city, told Gertner that both the police regulation and the ordinance are in the process of being repealed and would no longer be enforced.

In response to questions about whether performers might encounter problems over the holiday week, Donohue said that Police Commissioner Kathleen M. O'Toole will alert captains that they shouldn't enforce the old rule, meaning that they won't chase performers away from public spaces.

Jason A. Duva of Testa, Hurwitz & Thibeault, the Boston firm representing the street performers, urged Gertner to issue an order prohibiting the city from enforcing the old rules, to avoid any confusion until they are officially repealed.

"We know that musicians are being told to move along and not perform on Boston Common" and other places around the city, Duva told the judge.

Gertner set a Jan. 26 hearing on the status of the case.

After yesterday's hearing, Baird said he's hoping to get some famous musicians who got their start in Boston to come back for a victory celebration. He said he's already been speaking with two folk stars, Martin Sexton and Tracy Chapman.