ACLU Says Prosecution of Tombstone Street Performer “Johnny Bones” is Malicious, Unconstitutional

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CONTACT: (212) 549-2666; media@aclu.org

TOMBSTONE – Tombstone prosecutors are moving forward with charges against busker Ronald Koch (a.k.a Johnny Bones), despite written assertions from city officials that they have suspended enforcement of an ordinance regulating street performances because of questions regarding its constitutionality.

“This brings a modern meaning to the O.K. Corral mentality when council members write a law directed at Johnny Bones’ constitutionally protected activities and use this law to order Johnny’s arrest despite the objections of law enforcement ,” said ACLU of Arizona Legal Director Dan Pochoda. “These overzealous politicians demonstrate a lack of concern for First Amendment protections and for the tab to Tombstone taxpayers resulting from litigation needed to insure these fundamental rights.”

The city’s decision to suspend enforcement of the recently-enacted ordinance came just eight days after the American Civil Liberties Union (ACLU) of Arizona sent a letter demanding that city officials stop enforcing the law, which the ACLU described as an unconstitutional restriction on free speech. The ACLU cited numerous court cases protecting expressive activity in public forums like the Schieffelin Historic District, in the heart of Tombstone’s tourist district, where city officials sought illegal and improper restrictions in their attempt to prevent Koch from playing his “ebony bones” without a permit.

On March 13, after receiving the ACLU letter, City Manager George Barnes issued a memo to the magistrate court saying “please be advised that the city has received a challenge to the above-mentioned ordinance. Until this challenge can be resolved and based on the advice of the city attorney we have suspended enforcement.” But, apparently that wasn’t enough to stop city prosecutors from charging Koch with violating the street performance ordinance. A magistrate judge in a Cochise County courthouse gave him until April 19th to respond to the charges that he performed in the town square without obtaining the necessary permit.

At issue is an ordinance, passed on December 13, 2011, that restricts street performances to designated public areas within the Schieffelin Historic District. Specifically, the ordinance, which adds Title 8, Chapter 2, Section 3 to the existing Tombstone City Code, only allows performances in limited outdoor areas many of which do not provide effective access to the public. The ordinance requires all street performers to obtain a permit before performing and carries a possible fine of $200 and 6-months imprisonment. Such provisions have been regularly struck down as unconstitutional by federal courts.

Prior to the passage of the ordinance, Koch, who describes himself as “Tombstone’s Master of Frivolous Merriment,” was able to sustain a modest living by playing the “ebony bones” in the most heavily-trafficked areas of town. But after the ordinance was passed, Koch’s donations were slashed in half because of the restrictions to areas isolated from the normal tourist pathways.

“It makes no sense for the city that relies on tourist revenue and thrives on providing visitors with a wild-west experience to alienate street performers and make it harder for them to entertain,” added Pochoda. “Street performers like Johnny Bones add character to the city of Tombstone and city officials can’t create permitting requirements that impose improper restrictions and prior restraints on the ability to engage in protected expressive activities.”

Koch, who has been performing for tourists in the old western town for the past five years, contacted the ACLU of Arizona after being ticketed on February 9 for performing without a permit. According to police incident reports, the arrest was made just hours after two Tombstone City Council members – James Doherty and Randall Davis – in the absence of the Tombstone Marshal, pressured a Deputy in the Marshal’s Office to cite Koch for violating the ordinance. According to the incident report, the deputy stated that he “believed that Johnny Bones was not disturbing the peace, and that he did not want to get sued, and that he was trying to protect the city.” The City Council members responded by saying the ordinance was passed to specifically target Mr. Koch and that “it wasn’t up to the officer” to use discretion and not bring charges despite clear concerns about constitutionality.

“I’ve been performing for 5 years and for 5 years city officials have been trying to deny me my 1st Amendment rights,” said Koch, 54. “What I do is good and wholesome fun for children and families visiting Tombstone. This ordinance doesn’t just affect me, it affects other citizens and performers who want to bring life and character to Tombstone. Buskers are a part of the community, and working with the community, we can keep Tombstone’s history alive.”

Read the ACLU’s letter to city officials.

Read the response from the city manager suspending enforcement of the ordinance.

Read the incident report following Koch’s arrest.