New-York tribune., 1907-12-12
Cow WAS ASSAULTED.
so SAYS JUSTICE BURh.
Thinks Police Guilty Of Gross Out
rare in Measuring HIM.

In an opinion handed down in the nahuaIiN'
nroceeding TO compel the police I" destroy '
photographs and Berton measurements
William Cow Justice Burr, III the supp en''
Court Brooklyn. said yesterday tild' INC p'-.lO
were guilty of gross outrage Criiiiiii'i i'
nature and that they were open to a SUIT lol
damages on the ground Of assault. AT the same
time the motion for the mandamus Is uehieo CO
the wrong remedy for the case
Cow a director Of the Borough Bank was
indicted on November - After he had sur
rendered himself to the District Attorney ana
was prepared for arraignment he was seized by
Acting CAPTAIN Kuhne, Of the Brooklyn detec-
tive bureau and dragged off to Police Head
quarters to be photographed and measured
The Justice raises the question of the legality
of the steps taken by Kuhne and bis men All
men. says the opinion. have AS one OF their nat
ural rights the right 10 be let alone NhIie
person indicted for a felony should be arrested
and arraigned he is not to he subjected to any
more restraint than is necessary
mo statute has been found the justice con-
tinues, which in express terms authorizes any
member OF the police force of this city to de-
prive any person Of his liberty of action or IN
wade his right to personal immunity to the ex-
tent of requiring him to submit to having his
photograph taken and measurements and i'm
preserving them in the criminal records of the
department. simply because such person has
been indicted. charged with criminal offence
After reviewing the assertion of the police
that they had the power to treat Cow as they
did under the city's charter and the latest
amendments Of the Penal Code, the justice says
that ito subject citizen never before accused
to such an indignity was certainly unnecessary
in order to detect and arrest him. for he must
have been detected and arrested before he could
have been so dealt with" The opinion continues
in part:
The exercise of any such extreme police power
q is here contended for is contrary TO the spirit
of Anglo Saxon liberty The construc-
ton (of the latest provision of the Penal CodeD
Contended for by the Police Department Is in di-
rect conflict with the provisions of the charter
itself, which makes it the duty OF every member
of the police force under the penalty of q fine
or dismissal from the force Immediately upon
an arrest convey the offender not to Police
Headquarters to be photographed and meas
ured but before the nearest sitting magis-
trate that he may be dealt with according TO
law
Legislature intended to make that which was
unlawful when it done lawful act simply
by providing that the result of that unlawful
act should nnder certain contingencies be de-
stroyed.
1t is perfectly clear therefore that there is
no statutory authority justifying the acts of
the Police Department which are here attacked.
The time has not vet come when the entire
sovereign power of the people Of the state ex-
eCutiVe, legislative and judicial. Is united In
member of the police force. The acts OF the
Police Department here criticised not only
Il gross outrage. not only perfectly lawless, but
they were criminal in character. Every person
concerned therein is not only liable to a civil
action for damages. but 10 criminal prosecu-
JiOn for assault.
1t Is scarcely conceivable that a department
of the city government whose acts are not only
unlawful but criminal in character, should hes
ftate to undo such acts when their attention is
called to the character of them. II is made the
duty of the Police Department under the charter
to prevent crime. 1t remains to be whether
under pretence of doing that, they shall per-
sistentIy commit crime.
The application must be denied, but without