TOMBSTONE, Ariz. — Each morning, Ronald Koch wakes up, puts on his minstrel costume, and transforms into his alternate persona of Johnny Bones as he prepares to go to the streets of Tombstone to perform for the tourists visiting the historic city. Koch dances and plays his "ebony bones," a traditional minstrel instrument to the delight of many visitors.
But this entertainment could soon be forced from the streets and shut down for good.
An ordinance adding Title 8, Chapter 2, Section 3 to the Tombstone city code, Koch claims, is limiting and violating the constitutional rights of Koch as well as other performers on the streets of Tombstone. The ordinance requires all street performers to obtain a permit for a fee of $10 and perform only in designated areas. It also says no performers shall perform at a distance of less than 30 feet from another performer or use electric amplification and the performance shall not infringe on events for which a permit has been issued. If violated, the citation carries a possible fine of $200 and 6 months imprisonment.
"Such provisions have been regularly struck down as unconstitutional by federal courts," wrote Lindsay Nordstrom of the American Civil Liberties Union in a press release.
Bones contacted the ACLU and asked them to review the law. The national organization announced Thursday it would take on the dispute.
The ordinance was written to encourage street performances in public areas, but the ACLU believes it is doing the opposite.
"The permit requirement in 8-2-3 not only fails to achieve the city's asserted purpose. 'to encourage street performers in public areas,' but in fact achieves the opposite effect," according to a press release by the ACLU.
The ACLU also believes that the $10 fee places a price tag on the right to exercise free speech.
Koch was cited on Feb. 9 by the Tombstone Marshal's Office for violation of the ordinance.
According to the ACLU press release, on the date of citation, council members Randall Davis and Jim Doherty went into the Marshal's Office to speak with Deputy Norris. Davis and Doherty spoke to Deputy Norris about what he was going to do with "Bones."
"Doherty and Davis stated that they had been getting complaints for the previous two days on Johnny Bones and he was busking, performing for tips, without a permit, was using an amplifier, and was not in the designated area. Deputy Norris stated he had been looking into the constitutionality of the city code regarding busking, and found numerous case laws concerning busking. Norris stated that case laws showed that busking was a freedom of speech and therefore protected by the Constitution," according to information received from the ACLU.
Deputy Norris goes on to state that he did not believe Johnny Bones was disturbing the peace, that he did not want to get sued, and that he was trying to protect the city.
"Davis and Doherty stated that Bones was the one reason that they had written the city code, and that he (Norris) needed to enforce it. Davis and Doherty also stated that it was not up to the officer to make the determination if the law was constitutional or not, and that the officer was to make the arrest regardless and let a judge and jury decide," according to information received from the ACLU.
Koch says the ordinance is violating his 1st and 14th amendment rights and the city doesn't want to recognize that.
"I've been doing this for five years and the city has been trying to run me off for five years. What I'm doing is good family fun. They try to say I'm a panhandler but I'm not. People that tip me thank me and thank me for being here," said Koch.
Koch has spoken to tourists visiting the city and have heard many rumblings about Tombstone.
"The tourists complain to me a lot that Tombstone is boring. Yes, there are shows to go to, but the people that come here like to mosey, like to browse. They don't want to get hemmed up. They want to see entertainment out in the street, and that's what busking provides. It puts entertainment out in the street to see," said Koch.
After hearing of the possibility of the ordinance being unconstitutional, City Manager George Barnes sent a letter to the Magistrate Court and other officials that the ordinance has currently been suspended as of March 13, 2012, so officials can look into case law to determine if the ordinance is truly unconstitutional.
Even though the ordinance is currently suspended, Koch is still facing charges enforced under the ordinance.
"Bones still has a court date. If suspended they would normally drop the charge but that hasn't happened. We are prepared to provide Koch an attorney and bring litigation against the city of Tombstone," said Dan Pachoda, ACLU legal director. "We would have no other concerns if they drop the charges against Mr. Bones."
Pachoda also said if the matter wasn't resolved then they would have no choice but to assist Mr. Bones and sue Tombstone for federal private rights violations.
Koch just wants to continue his performances and provide entertainment for the tourist visiting the historic city.
"If I can make a tourist happy I like doing that, especially families. If I can make a happy moment that's what I like to do. That's why I'm here." said Koch
Koch's court date is currently scheduled for April 19. Lawyers representing the city could not be reached at time of publication.
Information from: Sierra Vista Herald, http://www.svherald.com