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 startling 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, according to 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 seen, 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 both the law and its ministers the subject of public contempt. Citizens must be 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, houses, 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 everywhere 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.
