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Originally published January 11, 2008 at 12:00 AM | Page modified January 11, 2008 at 12:19 AM

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Judges overrule street performer's claims

Seattle Center regulations requiring street performers to buy a permit, perform at specific spots and only passively ask for donations do...

Seattle Times staff reporter

Seattle Center regulations requiring street performers to buy a permit, perform at specific spots and only passively ask for donations do not appear to violate the performers' civil rights, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled this week.

The 2-1 decision overturns a 2005 summary judgment by U.S. District Judge James Robart, who agreed with longtime street performer Michael Berger that the Seattle Center regulations violated his First and 14th amendment rights.

Seattle Center requires buskers to purchase a $5 annual permit and limits their performances to 16 locations. The rules also state that buskers can't actively ask for donations — they can put out a hat or instrument case but can't ask people to put money in it.

Berger, who is known as "Magic Mike" when he performs, argued in his 2003 complaint that those rules violate his right to free speech and equal treatment.

After the 2005 District Court summary judgment, the city settled with Berger for $22,000, but the case continued in order to resolve the civil-rights issues. Berger won't have to repay the money if the city prevails, said Berger's Seattle-based attorney, Elena Garella.

Berger said he was "flabbergasted" by the opinion, which was filed Wednesday.

Berger and Garella are planning to petition for a full, 15-member review of the decision. Though such reviews, known as en banc, are rare, Garella believes there's a good chance the full panel will want to review the decision based on the strength of Judge Marsha L. Berzon's dissent.

Failing that, the case could go back to District Court for a trial, or Berger could ask the U.S. Supreme Court to take the case.

"I think that remains very much a possibility," Garella said.

Berger said the case has been the source of emotional distress and he has become "discouraged" about performing.

"If it's sunny and there's a crowd, I'll go," he said, but he feels like Seattle Center security singles him out for rule violations while he's there.

These days he puts more of his effort into a fledgling Web-design and search-engine-optimization business, he said.

Brian Alexander: 206-464-2026 or balexander@seattletimes.com

Copyright © 2008 The Seattle Times Company

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