The sun., 1907-12-12
CONVTCTS ONLY in GALLERY
POLICE MAY NOT TAKE PICTURES
BEFORE A CONVICTION.

suits Lie as a Result OF Decision.
Justice Burr in the Supreme Court. Brook
lyn, handed down a decision yesterday
holding that the Police Department has
no right to photograph and to measure a
prisoner against his will before conviction.
In the case Of William Cow, the indicted
Borough Bank director. which was the one
before the court, Justice Burr held that
the acts of the police were not only law
less but criminal in character and that
every person concerned in the photograph
ing and measuring Of Cow is liable both
to civil suit for damages and to prOsecu-
ton for assault.
Justice Burr's decision, il sustained,
means that the Police Department's
rogues gallery will go out of existence
except for pictures Of convicted criminals.
MIR. Cow was taken by the Brooklyn
police after he had surrendered himself
TO the District Attorney. His counsel,
Martin W. Lttleton, who accused the
police OF having, kidnapped Cow. applied
to Justice Burr for the writ OF mandamus
directing the Police Commissioner. Acting
Captain Kuhne of the Brooklyn detective
bureau and others to bring the Cow pictures
and measurements into court and to destroy
them.
Justice Burr denied the application on
technical grounds. The relator. he held
has mistaken his remedy A writ of man
damus lies only to compel one to do what
ought to be done in the discharge Of a public
duty and not to undo what has been done
improperly. The Justice pointed out that
Mr. Cows relief lay in a civil suit or in
criminal prosecutions.
The Police Department, in "mugging"
prisoners charged with criminal offences.
has relied on two provisions of the Charter
of the city and an amendment to the Penal
Code adopted at the las session of the
Legislature. One section of the Charter
provides that il is the duty of the police
especially to preserve the public peace
to prevent crime AMI to detect and to
arres. offenders. The other SAYS that
the Police Commissioner mus make such
rules. orders and regulations as may re
reasonably necessary to eiiec. a prompt
and efficient exercise of all powers conferred
upon him by law
Justice Burr found nothing in either
OF these provisions that authorized such
action on the part of the police. In regard
to the power of the Commissioner to make
rules for the department colferre1 b v the
second provision. Justice Burr sud:
The exercise of any such extreme police
power as is here contended for is contrary
to the spirit Of Anglo-SaVOn liberty"
The amendment to the Penal Code cited
by the Police Department counsel is the
one which gives an acquitted person the
right 10 demand the return of all pictures
thai were taken in the course Of the criminal
action against him. The police have con-
tended that by inference, at least. the Legis-
lature had recognized the right of the de-
partnent to photograph pris )ners. -.
1T is not conceivable, said Justlc1 Burr,
that the law making power which pro-
caeded so carefully and by express enact
nents with reference To the cases of per-
sons convicted of crime should have in
tended by vague and indefinite provisions
to affect the sacred rights of persons pre-
sumed to be entirely innocent of any crime.
= Mere custom or practice is not sufficient,
| in the opinion of Justice Burr, to justify
tho acts Of the police.
The officers Of the Police Department
are purely executive and administrative
officers. The act Of determining whether
I the liberty of citizen shall be infringed
in the manner above referred 10 belongs
solely to the Legislature. Inssmuch as
even under the rule of the depa partment only
such suspected persons are Photographed
and measured az the Officials Of the de-
plrtment determine Nshlll be SO treated,
the act of determining what conduct on
the part Of a citiI IN justiiies such infringe
ment upon his natural rights is an act
judicial in character" continued Justice
Burr.
"Io sustain a mere rule Of the Police
! Department under such circumstance
would be to confer upon the officials OF thai
! department rot only executive, hut lagis-
lative and judicial powers. The time has
not yet come when tho entire sovereign
power of the people of the State, executive,
legislative and judicial. is united in a mem
bcr of the police force"
lt was here that the Justice declared
that the acts OF the Police Department were
mot only n gross outrage. not only per-
fectly lawlesS but also criminal in charac-
ter" Justice Burr said it was with great
regret that he had been compelled 10 come
to the decision that he could not afford the
relator any relief in the present form Of
the proceedings. He added:
1T seems highly probable. however
that the Police Department will gladly
undo the wrong that has been done IL i
scarcely conceivable that a department Of
the city government whose acts are not
only unlawful but criminal i'm character
should hesitate to undo such acts when
their attention il called to the character
of them. Ii IL made the duty Of the Police
Department under the Charter 10 prevent
crime. II remains to lie seen whether,
under pretence of doing that they shall
persistently commit crime"
Although the application was denied,
the relatOr will not have to pay the costs.
Lawyer Littleton announced several days
ago that he would bring suits for damages
against the polce and possibly criminal