Is Standing a Crime?

New York City’s radically reshaped political and economic landscape has me thinking more about the creepy fading Twilight of the Giuliani Era, a time when I viewed the city’s turbulent identity crisis from the vantage point of a silent Silver Man standing very still in the bowels of the subway system. In the decade-and-a-half that’s blazed by since, select sectors of New York have become safer but also heartrendingly sterile, with chain stores and bank branches muscling out locally-owned enterprises, and bohemian live-work warrens razed to accommodate obscenely costly condos—all of that frothy money polishing New York’s idiosyncratic edges into a smooth, homogenous sheen.

Downtown Manhattan and large swaths of Brooklyn that were once tantalizing dominions of mystery and freakishness are now, essentially, gated communities for financiers and the rarefied boutiques that tickle their artisanal fancies. Remember that old Polish bakery on the corner? It’s now a darling little shoppe that exclusively sells imported feathers. So many parts of the weird New York I loved have been enshrouded in a distinctly suburban pall; bland playgrounds welcoming post-collegiate burghers for a decade of mating and careerism before settling down in Scarsdale, handing over the keys to their overpriced units to the next generation of matriculating vampires.

Even public parks have been increasingly ceded to corporations, with tax breaks tossed to luxury condo developers who create “public” spaces that they themselves control. The consequence of this policy was crystallized in the destruction of Occupy Wall Street’s encampment in Zuccotti Park, a small patch of “privately owned public space” created in 1968 by U.S. Steel. As part of a rezoning deal with the city, the park was required to remain open 24 hours a day, seven days a week (in contrast to city-run parks, which generally close at 1 a.m.). This, along with its proximity to the Stock Exchange, made it ideally suited for the Occupation, and the park quickly became an international destination for earnest activists, pseudo-revolutionaries, and the usual assortment of decadent hangers-on.

It goes without saying that in the eyes of the devoutly pro-business Bloomberg administration, the Occupation was an eyesore and an embarrassment, and after a couple of months the NYPD finally stomped into the park and swept it clean. The message was clear: there is no public space in New York City where citizens with an unapproved political agenda can peaceably assemble. At least not for any sustained period of time. Space and Time are doled out carefully by the City, with preference given to corporations with the most money and least offensive political messages. That this is unsurprising doesn’t make it any less revolting.

I experienced this looming regimentation of public space in a very personal way around the turn of the century, during the transition from Giuliani’s unaccountable police state to Bloomberg’s corporate “army,” when I spent a few years standing in a silver unitard in the city’s subways and sidewalks. (Along with my close friend and business partner Victor Wilde, I also worked Bar Mitzvahs, birthdays and, as we liked to joke, “the occasional bris.”) A motionless buoy in a writhing human tidal wave, my station atop a plastic milk crate gave me a unique perspective on a city that simultaneously celebrates and crushes its creative class. Most people seemed to love the guy in the silver unitard who could go without blinking for unbelievable lengths of time, but to the authorities, the Silver Man was a security threat and a dangerous disruption to the underground’s increasingly micromanaged Order.

What follows is an example of one particularly infuriating incident from my time as a silent sentry, one of many tending the flame of New York’s outlaw spirit.

During the years I spent standing, I was sucked into countless futile arguments with police officers about whether I was, in fact, legally permitted to stand in the subway or on a sidewalk. There isn’t a law that explicitly prohibits standing in New York City, but it’s no secret that cops enforce whatever they’re in the mood for. If you’ve lived here long enough, sooner or later you’ll get popped for something; the misdemeanor charges of “disorderly conduct” and “obstructing governmental administration” are elastic enough to encompass just about anything.

More than one cop who shooed me away declared quite bluntly, “Down here, I am the law.” As much as it enraged me, I typically relocated without argument. I wasn’t standing for political purposes; I was literally standing for change, and I doubted there was much of a paying audience for performance art down in the Tombs. I got the chance to confirm this firsthand one evening in the year 2000 following a ludicrous altercation at the 34th Street – Herald Square subway station.

It was a slow Sunday afternoon in April, and I was standing on what I referred to as the “side stage” of the Herald Square station, in front of one of the shiny silver columns by the newsstand. In many ways it looks exactly the same now as it did then—a smattering of mentally ill homeless people wandered about under low ceilings and unflattering fluorescent lights, as drearily dressed commuters trudged by with grim resignation. In those days the turnstiles still accepted tokens, and you could sometimes glimpse the now-lost art of “token sucking.” To pull off the scam, a particularly desperate grifter clogs a turnstile token slot with debris and waits. Soon an unsuspecting mark drops in his token and painfully slams his thighs into a mysteriously unyielding turnstile. The token has not gone through, but is seemingly impossible to retrieve! After some general cursing and banging about, the victim gives up, plunks another token into a functioning turnstile, and moves on with his life. Here our villain swoops back into frame and, lowering his lips to the little token slit, sucks out the precious prize straight into his mouth. He spits it back out into his hand with a piratical grin, and then the token, dried off and rehabilitated, is ready for resale at a slight discount. The decidedly unromantic MetroCard put an end to all that.

The Herald Square station wasn’t nearly busy enough to make bank that afternoon, but there was a steady trickle of passersby who paused to admire my standing. It was shaping up to be an $80 day, maybe more. A pair of bored cops shuffled by wordlessly, and it was all smooth standing until an MTA custodian emptying the trash bins decided to take a special interest in me. “You know you’re not supposed to be here,” he clucked, glaring up at me on my plastic crate. I ignored him, staring wildly ahead without blinking, and after an exasperated pause he stormed off, calling over his shoulder, “You better not be here when I get back!”

Fuck that fucking tool, I thought to myself and kept standing. But of course my friend returned about fifteen minutes later. “What did I tell you?” he said. “You’re not supposed to be here! You want me to go get the cops?”

Again, I said nothing. The premise of my act was elegant in its simplicity, and required tight discipline: Wearing a cheap tuxedo over a silver unitard, I stood militantly still without blinking until someone dropped money into a plastic bucket at my feet. (Over time, I became adept at distinguishing the sound of coins hitting the bucket from the sound of, say, a small used battery, which mischievous teenagers were particularly fond of using to trick the Silver Man.) The deputized MTA custodian had not made a donation—was I expected to violate the internal logic of my performance to respond to his harassment? Yes, I was performing in the subway, but I was no amateur.

My silence, it seems, sent him over the edge. After a long, ridiculous staredown, he marched off and retrieved two of New York’s Finest transit police officers, sent straight from Central Casting: a slovenly male and female officer, both overweight and weary and humorless. The custodian lingered twenty yards away, watching smugly as the officers quietly and respectfully explained the impossible: standing is illegal.

Have you ever tried to reason with a cop about the law? It’s like every futile argument you had with your parents as a child, when you were clearly in the right and everyone knew it but it didn’t matter.  Life, the power-drunk parental units explained, is not fair, and you, powerless little gnat, have zero control. Our conversation, or whatever the hell it was, went something like this:

“What law am I breaking?”

“You can’t perform here.”

“That’s not true, but anyway, who says I’m performing? I’m just standing. Is there a law against standing?”

“You’re asking for money.”

“No, sir. Sometimes people choose to make unsolicited donations, so I have this bucket in front of me for their convenience.”

“Look, just do me a favor and go somewhere else. This isn’t a good spot.”

“Why not?”

“Because I said so.”

“Where is a good spot?”

“I don’t care, but you can’t stay here.”

“Please, listen to this,” I begged, stepping down off my milk crate and unfolding my well-worn copy of the MTA’s Rules of Conduct, which reads thus:

The following nontransit uses are permitted by the Authority, provided they do not impede transit activities and they are conducted in accordance with these rules: public speaking; campaigning; leafletting or distribution of written noncommercial materials; activities intended to encourage and facilitate voter registration; artistic performances, including the acceptance of donations…

I then read the relevant section to the increasingly obstinate officers, who refused to even look at the paper. “As long as I’m not impeding transit activities, artistic performances are allowed, provided I stay 25 feet from the station booth, off the subway platform, and don’t use any amplification in excess of 85 decibels, which doesn’t apply to my work because I don’t use any amplification at all.”

There was a brief pause as they rolled their eyes at each other and shook their heads. “It’s up to you,” the male cop said. “Do you want to move along or do you want to spend the night in jail?”

It was clear that arguing with them was a spectacular waste of time, but I was irate. As slow as business had been at 34th Street, it was sure to be slower just about anywhere else on a Sunday afternoon. And I needed the money. As I grabbed my milk crate and bucket and prepared to relocate, I yelled to the performance art whistleblower who’d narced me out.

“You feel good now?” I asked him. “Proud of yourself for keeping me from making rent? Does the MTA give you a bonus for this?”

He suddenly charged toward me and got in my face, shouting, “You shoulda left when you had the chance! You wanna make it worse? I’ll make it worse right now!”

It was was not one of my finest moments, but it was probably a fun scene for the tourists: an unhinged Silver Man and an inexplicably enraged custodian jabbering at each other as the police muscled in to separate us. Here was a quintessential New York tableau, worthy of Norman Rockwell or Hieronymus Bosch, and once we were separated, I figured that was the end of it. But lady cop had other plans.

“You shoulda kept your mouth shut,” she shouted, pushing me back. “Drop the milk crate and put your hands behind your back.” Out came the handcuffs, and then I was a handcuffed man in a silver unitard standing in the subway as astonished commuters slowed down to gawk.

“Am I being arrested?” I asked.

“We’ll see,” said the lady cop, whom we’ll henceforth refer to as Officer Dayofrest, for reasons that will soon become apparent. “You got ID?”

The deeply satisfied MTA custodian rocked up and down on his heels crowing, “See, that’s what you get!”

Officer Dayofrest used a payphone to call someone, and the person on the other end supposedly ran the information on my driver’s license. “Hope you don’t have any outstanding warrants,” Dayofrest warned me as she waited on hold. My mind flashed back to an unpaid summons for trespassing one Friday night in the Palisades of New Jersey, about a year prior. Was there a warrant issued for my arrest in the Garden State, and if so, would it show up on a database in New York City? After a long, anxious wait, a grinning Dayofrest slammed down the phone and announced, with all the elan of a Pizzeria Uno hostess telling me my table was finally ready, “Yup, you popped a warrant.”

“You should sue the city!” one middle-age man, a lifelong New Yorker judging by his accent, yelled to me as I was frog-marched out of the station in handcuffs. I’ve never considered myself a fool for standing in the subway in a silver unitard, but I am undoubtedly a fool for not taking his advice.

The cops drove me downtown to a subterranean precinct in the Canal Street subway station. En route, Dayofrest informed her partner she’d book me, and I got the impression she was pretty miffed about all the extra work. “Sunday,” she moaned, “is supposed to be a day of rest.” At the police station I was transferred to a holding cell, where the handcuffs were removed, and Dayofrest got comfortable, ditching her heavy holster and changing into an XXL soft T-Shirt emblazoned with the phrase “Homey Don’t Play That.”

Another cop passing through the room spotted the Silver Man sitting glumly in the holding cell and did a double-take. “What the fuck is this?”

Dayofrest shook her head as she filled out the forms and replied, “Silver Surfer popped a warrant so now I got a ton of paperwork. Sunday is supposed to be a day of rest, know what I’m saying?”

“Mime doesn’t pay,” the other cop quipped on his way out, to general chuckling.

Two hours later, when her Chinese food arrived, it dawned on me that Dayofrest’s catchphrase wasn’t a complaint about arresting me. My arrest was her rest. She spent three hours filling out paperwork, eating dinner, cracking jokes with her co-workers, and generally lounging around in her T-shirt. Boring, but preferable to chasing down token suckers and subway defecators.

“How much longer is this going to take?” I asked at some point.

“Well, you popped a warrant so I have no idea. Could be days. First you’re going to Central Booking. Then maybe Rikers.” Dayofrest wouldn’t even tell me what the warrant was for, explaining that it didn’t show up on her paperwork. I was being charged with disorderly conduct and transferred downtown to Central Booking, a.k.a. The Manhattan Detention Complex, a.k.a. The Tombs. If I was lucky, I’d see a judge sometime the next day. If I was unlucky, I’d be extradited to New Jersey for the Palisades job.

To be fair, Dayofrest did exhibit brief moments of human decency. She offered me some powdered Bon Ami tile cleaner to scrub the silver makeup off my face. (I tried this but then got freaked out about the dermatological consequences and quit midway, leaving my face half streaked with silver paint and traces of crusty white residue.) Dayofrest also allowed me to call my girlfriend to come retrieve my milk crate and money bucket. The Chinese food, however, she kept for herself.

Finally Dayofrest handcuffed me again, led me back up to the street to a police van, and chauffeured me further downtown to the legendary Tombs, where arrestees wait a day or more to be brought before the Judge and either released or plunged deeper into the hell that is Rikers Island. The Tombs’ nickname dates back to 1838, when the Halls of Justice building opened in lower Manhattan with an exterior design evoking an ancient Egyptian mausoleum. It was located in what is now City Hall Park, on the murky landfill of the old Collect Pond, and over time the foundation began to sink into the swamp. That original Tombs was ultimately demolished and rebuilt in 1902, and then again in 1941, and a third time in 1974, with a second building added in 1989, connected by a pedestrian “Bridge of Sighs,” as it’s aptly called.

Though the buildings changed, the nickname and the overwhelming saturation of dreariness remained. Seen from the outside today, the earth-toned Tombs endures as a largely windowless monument to despair. No one who’s there wants to be there—not the guards nor the prisoners nor the underpaid Legal Aid lawyers. But it definitely doesn’t look like the kind of place you want to show up wearing a silver unitard.

Inside the gates, Dayofrest handed me over to another officer who took one look at me and asked her, “Seriously?”

“He popped a warrant,” she replied with a shrug and revved up the engine, driving off to observe the rest of her Holy Sabbath.

I was manhandled through a series of hallways with a line painted on them—prisoners were required to keep to one side—and then down a series of stairs to a brightly-lit room that would be my home for the next ten hours. Numerous holding cells arranged in a Panopticon faced a central desk where extremely abrasive men and women in sloppy uniforms shuffled through their day with bored, cynical insouciance.

They confiscated my shoelaces to thwart suicide and tossed me into a cell with about 20 other men. A silver stainless steel toilet with no seat beckoned in one corner with grim inevitability, and silver stainless steel benches ringed the perimeter. At least I matched. Several of my fellow prisoners shook their heads and chuckled when I appeared, but most paid me no mind, consumed as they were in their own woes. The ambiance, if that’s the word for it, was turgid with despondency. We were being systematically processed, and this system was not known for its speed nor efficiency.

I took a seat on a bench next to a guy hunched over into himself as if he’d been kicked in the kidneys. The bench was exceedingly slippery, especially for someone wearing polyester tuxedo pants, as I was, and my ass was perpetually sliding to the edge, which is maddening when the only thing you have to do for ten hours is sit on a goddamn bench. I’d had to peel down the top half of my unitard in order to be fingerprinted, so I was bare-chested under my black catering tuxedo jacket. The sleeves of the unitard were tucked into my trouser pockets, and after some time I absentmindedly pulled them out and started twirling them like pinwheels.

At one point the fingers of one of the sleeves accidentally brushed against the knee of the guy next to me, and he snapped out of his self-absorbed internal misery hamster wheel to look up and realize, for the first time, he was seated next to some sort of psychotic circus freak. Probably in for pederasty. I apologized for invading his personal space, and he murmured that it was cool, but then cautiously slid away from me down the slippery bench.

I was lonely and bored, but eventually I realized I was probably one of the scariest-looking motherfuckers in the Tombs that night. Given enough time, I probably could have run the joint, selling biodynamic small batch toilet wine and teaching inmates how to stand for a living.

Finally they distributed sandwiches made with white bread, mystery meat, and bright yellow mustard, which I gave to the sad-sack to my right. He was pushing forty, and his face vibrated with that coarse, primal desperation commonly seen among hopeless drug addicts. I asked him what he was in for, and he said he’d fallen asleep in a bank’s ATM vestibule and gotten arrested. I believed him, but when we finally appeared before the judge the next day, I watched him get sentenced to a week in jail at Rikers. He had priors, and the prosecutor alleged he was loitering in the bank lobby waiting to mug someone. I made a mental note not to stand in or around banks.

In the holding cell, he asked me what I got picked up for, and after considering it for a moment I decided to tell him the truth: “The Sabbath.”

Time slowly gargled us for hours and hours in the back of its inflamed maw. Nothing happened until much later that evening, when my group was transferred en masse up to another holding cell which, we were told, was the last stop before we got to the Judge. This cell was dimly lit, and very crowded. As my eyes adjusted I was appalled to see men lying directly on the filthy floor, fast asleep. But there was no available bench space, and after an hour of standing around I found myself jockeying for a spot on the floor to stretch out alongside the others.

At some point after midnight the scent of marijuana miraculously wafted through the cell, like the climax of some truly amazing magic trick. I struggled to fall asleep on the floor; it was about as comfortable as you might imagine a holding cell floor to be, and there was a chill in the room. But it was surprisingly quiet, and I pulled my unitard back up over my torso and head for warmth, contemplating my life choices and finally drifting off just before 4 a.m.

I think I slept for about five minutes until the lights were cranked up full blast and everyone was forced out into the hall so that a custodian could mop the floor. While we waited, breakfast was distributed: a small fun size box of Rice Krispies and a small container of milk. No utensils. You poured the milk into the box and slurped it down as the bracing scent of bleach kicked your head in.

When they let us back in the holding cell, there was a scramble to score coveted bench and floor space for sleeping. The benches were immediately occupied by the more menacing-looking prisoners, but the floor was still wet, and nobody wanted to lie down immediately. So we staked out our positions and nervously waited for it to dry. Not content to hover there doing nothing, one ingenious prisoner got down on one knee, removed his shirt, and flapped it around inches above the floor like a fan, to accelerate the drying process. It’s still one of the most pitiful yet inspiring things I’ve ever witnessed.

In the back of the cell were small vestibules, like church confessionals, and later that morning the guards began calling out names of individual prisoners to go meet with their attorneys. The lawyers entered from another side and were separated from their clients by bars and chicken wire. When my name was finally called, I shuffled back into one of the little chambers to meet my public defender, who glanced up from her papers to give me the chagrined head shake and eye roll I’d seen repeatedly since my arrest. She told me that I’d be released without bail as soon as I appeared before the judge, and if I stayed out of trouble for six months the disorderly conduct charge would be dropped.

This was called an Adjournment in Contemplation of Dismissal. In essence, I was pleading guilty to disorderly conduct in exchange for the charge being dropped in half a year. It was bullshit, but by then I’d been in police custody for almost 24 hours with a face streaked with silver makeup, so I decided to eat it.

“But what about the warrant?” I asked.

She rifled through her papers and asked, “What warrant?”

“The cop who arrested me said there was a warrant out for my arrest.”

“There’s nothing about an outstanding warrant here. Just disorderly conduct.”

Had Officer Dayofrest just made up my warrant so she could justify spending the afternoon eating Chinese food in a comfy T-shirt and slowly filling out paperwork? Was I just a random victim of her lust for bureaucratically-induced lethargy? An irrelevant body for her to spend her day processing, fulfilling her quotas and appetite for Orange Peel Beef at the same time? I’ll never know for sure… but I know.

I was finally summoned before the judge late that afternoon. After more than 24 hours in custody, the actual proceeding took about a minute, but the system couldn’t let me go without one last little reminder of my status way down at the bottom of the power structure. As I stood before the judge with my court-appointed lawyer and the prosecutor, I made the mistake of casually slipping my hands in my tuxedo pants pockets.

Immediately the bailiff approached me from behind and brusquely yanked my hands out in the open. I turned and sneered at her incredulously, but said nothing—I could tell from her exultant expression that she’d love any excuse to escort this exhausted clown across the Bridge of Sighs and back to oblivion. Like the MTA custodian who preceded her, it was clear this was her favorite part of the job.

Having your hands ripped out of your pockets isn’t exactly a police baton up the ass, but it’s the kind of unexpected little humiliation and invasion of personal space that sticks with you. Sometimes I still think about that bailiff when I find myself innocently standing around with my hands in my pockets. Why did she seem to take such pleasure in forcibly micromanaging my body language? I’ll admit it’s not the most dignified way to stand, but it wasn’t a crime… or was it? This, you’ll recall, was Giuliani Time, and the “broken windows” approach to law enforcement extended further and deeper into our banal daily lives than many of us were willing to admit, all the way down to the silent Silver Man in the subway, treated like a criminal for standing around doing nothing.