by Samuel Williams Cooper
There has been much discussion concerning the abuse of personal liberty and private property from the exercise of extraordinary rights retained by the government for the protection of the public. Quarantine regulations, and license or prohibitory laws, where the state assumes full control of the individual and the destruction of his effects for the safety of society, may be cited as instances of the evil.
In a narrower and, perhaps, seemingly less important branch of these powers, however, the rights of the people are constantly made the subject of outrage, and little attention is paid to it by the reformers. The press of the country contains daily records of the abuse of authority by police officers.
Two or three friends stand together upon a street corner, after supper, and talk and laugh loudly. A citizen in blue approaches. “Move on. Get off that corner,” he says, and, upon a remonstrance being made, “Shut up, move on, or I’ll pull you in.” If his commands are not then obeyed, he blows a whistle and other officers appear: resistance is offered to arrest, clubs are freely used, and the peaceful friends of a moment before are dragged off with bleeding heads to the station house. If they attempt to escape, the captors use their revolvers. After a night in filthy cells, they are taken before a magistrate and, on the charge of being “drunk and disorderly,” and “resisting an officer,” are held for trial before a jury.
The records of the press and courts show cases of excess more extreme than this. Policemen are supposed to be keepers of the peace, but they have enlarged their fancied duties until they seem to have quite forgotten that they are merely citizens appointed to maintain order, and pose as regulators of the social economy of the streets, even in the most trifling matters.
It may be interesting, in view of these outrages, to inquire into the exact extent of the power of these officials.
In general, it may be said that every citizen, under the common law, is expected to preserve the peace of the community, and may, without a warrant, make arrests for offences which he sees committed. Indeed, if the crime be extreme and be a felony under the law, he is bound to arrest the offender, under pain of fine and imprisonment. He may not make any arrests, however, unless he is an actual witness of the offence. A police officer has little more right than the citizen. It is true that, while the law only allows the latter to arrest in ordinary cases, it makes it the duty of the former in every case where he sees an offence committed. And where it is felony that is charged, the right of the officer is higher than that of the citizen, for he may make the arrest without warrant, upon information, and may use his revolver in case the criminal attempts to escape. With these differences, his rights and liabilities are the same as those of the citizen.
The police, however, think that if a man is drunk, or talks loudly, or sings, or presumes to answer the insults addressed to him by them, he must at once be dragged to prison, and, upon the slightest resistance, be beaten by clubs or “blackjacks.” The average citizen knows very little concerning the officers’ limits of power, and, seeing the order to move on so often enforced by the exhibition of the star and the august “billy,” seldom stops to question the legality of the action. This submissiveness on the part of the public has rendered the police, particularly in large cities, arrogant and brutal, and these supposed conservators of the peace are frequent law-breakers.
That a man is under the influence of liquor is not enough to justify interference and found a charge of “drunk and disorderly;” to sustain an accusation, there must, in addition, be annoyance to others. So creating a disturbance does not consist in unusual noise, but in acts tending to a breach of the peace. In a recent case in New York involving this question, the judge was extremely severe in his charge against a policeman who was sued for damages for having gone beyond his authority, and the jury rendered a verdict for $2,500 in favor of the plaintiff.
Perhaps the most starling example of the evil is in the case of police raids. A complaint, possibly dictated by ill-will, is entered by an officer on some house on his beat. In a night or two an army of blue surrounds the place, and all who are found within the circle are taken in patrol wagons to the station house, and their names entered on the books as criminals. After a night’s confinement in the cells, they are held to bail or fined, depending on the personal disposition of the magistrate at the moment. In New York, not long since, all the patrons of a restaurant were thus treated without any warrant whatever; and in Philadelphia, a few months ago, over seventy young girls, pupils of a respectable dancing school, were taken in patrol wagons to the police station at 11 o’clock at night, because some neighbor, animated by spite, had sworn out a warrant against the proprietor. For actions like these, no condemnation can be too severe, yet they are of such frequent occurrence as to be matters of little remark. With facts of this kind a foreigner might exhibit this so-called free country as a vile despotism.
The legal position may be thus summed up: no policeman has a right to arrest without a written warrant, based upon oath, save for a felony see, or upon accusation of someone who saw it, or for a misdemeanor or breach of the peace which he witnesses. To constitute a breach of the peace there must be blows or weapons drawn, or menaces or cries that show the beginning of an affray. Mere singing, laughter, and noises of like character are not offences, and do not justify police interference either by threats or the use of force. No counter-threat of resistance to the officer, if he without cause threatens to use force, will amount to an affray which will justify an arrest, for the offence must arise before he threatens or offers force, and he cannot, by his own menace of illegal violence, provoke an affray to justify arrest; for in such a case he himself creates the breach of the peace. He has no right to interfere at all, and if he does so, the citizen may defend himself at the unlawful attempt at arrest, and provided he does not go to wicked excess, may kill the officer without being guilty of crime.
The people should be fully protected from the abuse of power on the part of the police, who are, for the most part, ignorant men of violent passions, placed in positions of seemingly high authority, and often disposed or tempted to outrage the laws and the liberty of the public. If resisted, they are often the accusers and the sole witnesses. Their power should be carefully confined to the preservation of the public peace, and any attempt to go beyond this limit should be promptly punished. The correction of the evil is to be found in the exact determination of their authority. Arrests for trivial causes, without warrant, not only tend to create breaches of the peace, but render the law and its ministers the subject of public contempt. Citizens must prompt to resent the unlawful attacks of officers, and should pursue offenders by complaints to the appointing powers, by criminal prosecutions and civil suits for damages. The law is on their side, and with determination, much can be done to correct the present evil.
Of so much importance to the founders was the personal liberty of the citizens that they incorporated an amendment in the Constitution to the effect that “the right of the people to be secure in their persons, papers, and effects, against unreasonable search and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation.” We have lost sight of much of the wisdom and free spirit of those days; our ancestors would have looked with horror upon such infringements of personal liberty as are now constantly made by police officers. Much of the trouble has arisen from the submissiveness of the citizens to any commands which the officers choose to make, and it is time that these outrages under the guise of police power should be met with prompt appeals to the law. They are a constant menace to the welfare of the people, and are opposed in every way to the spirit of our free institutions.
[Samuel Williams Cooper was born March 5, 1860 in Philadelphia’s Germantown section, to one of the city’s colonial families. He was fifth of the eight children of Colin Campbell Cooper, MD, and Emily Williams Cooper. He was educated by his parents and private tutors until he entered the University of Pennsylvania Law School, where he graduated in 1881. He specialized in business and commercial law. He wrote several books, most notably The Confessions of a Society Man (1887) and Think and Thank: A Tale (1890), and occasional pieces for newspapers and magazines, including reprints of his work in the anarchist journal Liberty . In 1893 he married the opera singer Homie Weldon, who bore a daughter, Margaret, in 1895. After a distinguished career in law and active leadership in the city’s Lawyers Club, The Arts Club, Nameless Club, Plays and Players, and Art Alliance, Cooper died on January 13, 1939 of bronchial pneumonia.
This article first appeared in The North American Review, May 1890, page 658. — Ed.]