Judge Defers on Constitutional Issues in Arrest of Artist at Inner Harbor

… Baltimore rules requiring peddlers license at issue …


By Peter Hermann, The Baltimore Sun

8:58 PM EST, January 24, 2012

A spray-paint artist who was arrested on a charge of peddling without a permit at Baltimore’s Inner Harbor will stand trial next month after a judge deferred ruling Tuesday on the complex First Amendment issues at stake.

District Judge George M. Lipman tried to resolve the case without a constitutional debate over free-speech rights — an unusual issue in the state’s lowest court. At the Patapsco Avenue courthouse, judges deal mainly with a parade of miscreants, traffic scofflaws and low-level drug arrests.

But with 26-year-old Mark Chase determined to make a principled stand that a city ordinance requiring a $200 annual license to sell goods on public property is unconstitutional, there was little left to debate. The two sides largely agree on the facts behind the September arrest.

Still, Lipman decided he wanted to hear the merits of the arrest argued in court, and to decide Chase’s guilt or innocence, before he delves into whether the peddler’s ordinance passes legal muster. As a district court judge, he has no authority to rule the law unconstitutional.

“It’s just a little old opinion by a little old judge,” Lipman reminded the participants, noting his place on the judicial hierarchy. After determining that he could not convince Chase to seek a permit or the prosecutor to drop the charge — which carries a fine but no jail time — Lipman remarked that at least the case is “more interesting” that his typical docket. Trial was set for Feb. 17.

The case is of the utmost importance for the city — trying to preserve a fee that brings in revenue — and for Chase, who is trying to make a point about the rights of artisans to produce and sell their wares in public without government restriction or interference.

Chase is embroiled in a similar civil case in Ocean City, and a federal court judge has in that case imposed a temporary injunction forbidding the resort to charge permits for peddling on its boardwalk. The judge ruled that the permits violated the First Amendment.

Lipman had that ruling, along with briefs submitted by the prosecutor and Chase’s attorney, and said he would read them in detail before next month’s trial.

Chase was arrested Sept. 18 after he set up his spray-paint stand on the promenade near Light and Pratt streets. He refused a police officer’s orders to move, declined to sign a summons and was arrested and held at central booking for 13 hours before being released pending trial.

According to police reports, two officers did not see Chase sell anything, but he had two cans with the word “tips” written on the side. The prosecutor said it’s clear Chase was “engaged in or about to engage in” sales. Chase does not dispute that he sells his paintings.

Assistant State’s Attorney Trey Perkins said the ordinance does not violate free speech rights because it doesn’t differentiate among content. In other words, the law doesn’t restrict or regulate what is being sold, just the act of selling.

“It’s the selling of an object,” Perkins said.

But defense attorney Sonia F. Lakhany described Chase’s work as more of a performance that is for sale after it’s completed. “He’s not selling widgets,” she said. “He’s selling speech.”

Lipman said he wasn’t trying to avoid the free speech issue, but he repeatedly noted his limited authority as a district court judge. At one point, he discussed speech that is protected — a T-shirt linking the New England Patriots’ Tom Brady to a perverted act, for example.

At the end of the hearing, Lipman conceded that a plea bargain would not work. “This case has to go to trial,” he said.


Copyright © 2012, The Baltimore Sun

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