Monday, December 11, 2006

The tale of Kenneth O'Brien

Reprinted from our September 28 edition, the story of homeless bookseller Kenneth O'Brien, and his battles with a city over the right to make a living.

Bookselling Homeless Man Beats the Odds
By Paul Rice
Spare Change News

CAMBRIDGE – After enduring multiple arrests and vaulting numerous (and potentially unconstitutional) legal barriers, a native Cantabrigian who is homeless, finally won the right to sell used books in Harvard Square.

“All of the obstacles melted,” said newly permitted bookseller Kenneth O’Brien. “They knew they were wrong.”

O’Brien was arrested twice over a two month period for selling books without a permit on the sidewalk at 1324 Massachusetts Avenue in Harvard Square. The first case against him was dismissed, but was arrested again when he set up shop the next day. At his second arraignment, O’Brien was assigned a defense attorney named Daniel Beck, an unusual move considering the charges O’Brien faced didn’t carry a jail term.

“My guess is the judge thought it was an interesting enough case, and Mr. O’Brien needed a lawyer,” Beck told Spare Change News.

O’Brien and his associate Gary Kibler, who was alsos arrested in June for selling books without a permit, provided Beck with numerous court cases they felt proved they should be allowed to sell books without an expensive permit from the city.

The city continued to arrest them for not having the proper permit. However, O’Brien believed the permit the city instructed him to acquire did not apply to his circumstances. It required a $5,000 surety bond as well as $1 million in liability insurance to be approved by the city, fiscal requirements that didn’t bode well for a man who lives on the street with his family.

A glimmer of hope for O’Brien came in the form of an old Cambridge ordinance, entitled “Peddlers”. The ordinance reads: “No person shall place or keep any table, stall, booth or other erection, in any street, public place or any sidewalk, for the sale of any merchandise, without permission from the Superintendent of Streets. The fee for the permit set out in this chapter shall be fifty cents.”

This was the perfect permit for O’Brien’s business. There was only one problem: no one in the city’s bureaucracy knew about this ordinance, or how to apply for the peddler’s permit. Even Superintendent of Streets Bill Dwyer had no clue what the permit was, even though according to the ordinance, he was in charge of giving them out.

Gnomon Copy in Harvard Square helped O’Brien print out hundreds of pages of case files he eventually submitted to his attorney. Beck then filed a motion of weighty determination with the judge:

“The defendant hereby moves this Court to dismiss this case. In support he states that he was engaged in constitutionally protected activity, and that therefore there was no probable cause for the arrest.”

The judge ruled in favor of the dismissal about three weeks later, leaving O’Brien feeling vindicated and hopeful.

“The fact that they had no probable cause to arrest me was in black and white,” he said, smiling.

But whether or not Cambridge police would arrest him again if he tried to set up his stand remained to be seen.

O’Brien went to the Cambridge police station in Central Square and inquired at the front desk whether he would be arrested since he now had a dismissal that clearly showed they had no right to take him into custody in the first place.

The police sent him over to the City Solicitor’s office in Cambridge City Hall, who could not help him because the lead solicitor was unavailable. He went to Mayor Reeve’s office with the dismissal and inquired as to what his best course of action would be. Staff in the mayor’s office explained that the mayor of Cambridge has little to no political power and that he should try the City Manager’s office. Making his way to that office, he started to feel a bit loopy.

A staff member in the City Manager’s office looked at his dismissal and listened to O’Brien’s story; the books, the arrests and the enigmatic permit. She made a call to the City Solicitor’s office and discovered that in fact the lead solicitor was available, and would see O’Brien. He returned to the office he started in and immediately received an audience, and, to his surprise, a peddler’s permit.

The permit he sought for more than 85 days suddenly fell into his lap. The next morning it was signed and approved by Bill Dwyer. A homeless man won a victory over an entire city’s bureaucracy, earning the right to sell books on the Harvard Square sidewalk.

O’Brien’s business, which he officially named “Almost Banned in Harvard Square Booksellers”, has now been in operation for four weeks. At the outset, Cambridge police would routinely stop at his stand and ask whether he had a permit to be there. He willingly shared his laminated copy with anybody who asked. Police interest has since died down, and his stand quickly became recognized by Square denizens as a legitimate business.

“Everybody in the community who’s known about this has been walking up to shake my hand,” O’Brien said. Now that his business has an official name, O’Brien is looking for more ways to link arms with the local business community, namely the Harvard Square Business Association (HSBA).

“The objective of the HSBA is to promote commerce and commerce comes in a lot of forms,” says Denise Gillson, the organization’s executive director. “I think the board would be generally supportive of this kind of enterprise.”

As of press time, O’Brien had received an application for membership from the HSBA and hoped to be a full member within a month.

As for other booksellers in Harvard Square, O’Brien initially expected to meet resistance. As it turned out, he found himself and his business welcomed.

“We welcome competition,” says Alan Powell, corporate general manager for the Harvard Coop. “If anything, we need more bookseller competition. That’s what Harvard Square is traditionally known for.”

Harvard Book Store, O’Brien’s closest bookselling neighbor, agrees.

“We do acknowledge that the bookstand in question is competition,” wrote Frank Kramer, owner of Harvard Book Store, in an email to SCN. “Harvard Book Store deals with competition every day – we compete with the Harvard Coop/Barnes & Noble, with Raven Books, among others. Competition keeps us on our toes, and encourages us to be the best bookstore we can be.”

O’Brien believes he can be stalwart competition, but he’s not looking to put anyone out of business. In fact, he’s hoping to put some people in business as he looks for ways his bookstand can give back to the community he grew up in. He set up importing networks among local homeless people, and even brought in some of his friends, homeless and not, to help him run the table for a share in the day’s profits.

“I especially want to work with the longer-term homeless, not the kids,” he told SCN. “Being older and homeless is two strikes against you right there.”

He sees the potential for a new street economy to arise centered around his activities, an economy that may benefit all those living on the streets of Harvard Square.

“What better than to give back to the streets, where I’ve come from myself,” he said.


Kathy Podgers said...

What a great story! wonderful victory for the people!

I am posting a link to this on my blog!

Anonymous said...

One of my buddy's recently got into some trouble at a bar and the short story is he was arrested on assault charges which are ridiculous we were there and watched as a random guy came up to him punched him in the face and began repeatedly beating him. He stood up to defend himself and in the crossfire the wasted dude fell and banged his head on the kerb. The cops show up and don't want to hear us and arrest him.
It all got cleared up in the end but had that have gone to court and my friend had to have paid court bonds could he have claimed them back or even sued the police force for wrongful arrest? Also where would be the best place for getting bonded?