
    (49 Misc. Rep. 57)
    
    DEVLIN v. McADOO et al.
    (Supreme Court, Special Term, Kings County.
    December, 1905.)
    1. Searches and Seizures—Powers oe Police.
    The police of a city have no right to enter the house of a social club, except with a warrant authorizing them to do so, unless in immediate pursuit of a fleeing criminal or on a call of danger from some one within. [Ed. Note. ■—For cases in point, see vol. 43, Cent. Dig. Searches and Seizures, § 5.]
    2. Gaming—Inspecting Gambling Houses—Power oe Police.
    Charter of New York City, Laws 1901, p. 136, c. 466, § 315, making it the duty of .the police department to inspect all gambling houses and to repress and restrain all unlawful and disorderly conduct or practices therein, does not authorize the entry of any house without a warrant, on suspicion of unlawful acts therein.
    Action by John Devlin, individually and as president of the University Social Club, to restrain .Willaim McAdoo and others, police commissioner and inspector and captain of police of the city of New York, from continuous trespasses against house and person.
    Motion for injunction granted.
    Frederick B. McNish, for plaintiff.
    John C. Breclcenridge, Asst. Corp. Counsel, for defendants.
   GAYNOR, J.

This case discloses again the absolute disregard and contempt of the rulers of the police force in the city of New York for those fundamental principles which are the warp and the woof of our free government, and of free government wherever it exists, and without which free government cannot exist. Freedom of speech, of the press, of assembly, and immunity of person and house", constitute the chief difference between free government and despotism.

The uncontradicted facts here show that the police rulers deliberately trampled under their feet the law and safeguards of the immunity of person and of house which is to be found in the Constitution of the United States, and in the Bills of Rights or Constitutions of every state in this country, and which the people of Russia, with our sympathy and encouragement, are now shedding their blood to attain, the same as past generations of the races now predominant in this country shed theirs to. the same end.

Free government does not exist where executive officials habitually do what the police rulers of New York City did in this case; on the contrary, the Russian system exists, where houses are sacked and people are cuffed about and arrested and locked up without evidence or warrant, but just because a despot or his agent says so. That officials capable of doing what these police officials did in this case, and have been habitually doing, as the records of this court attest, should be permitted to remain in their official positions, is in itself a crime against our system of government which the educated and thinking people of this community have repeatedly resented at the polls, and will resent again when opportunity comes. »

The plaintiff is the president of a social club. It is just as duly organized and has the same rights as the most prominent social club in the city. The police have no right whatever to enter it forcibly, any more than any other house, the greatest or the smallest, the richest or the poorest, except with a warrant in their hands authorizing them to do so; unless in immediate pursuit of a fleeing criminal, or on a call of danger from some one within.

In September last a squad of policemen, under the orders of the defendants, smashed into the said clubhouse through doors and windows by means of axes, crowbars and other weapons, and then with the same weapons smashed the interior doors and partitions, and the chairs, benches, tables, sideboards, water coolers, toilet bowls, shelves, electric lights, and all of the fixtures and furniture in the place. The photographs taken immediately afterwards show that the place was completely wrecked. Nothing more wanton and devilish was ever proved in a court of justice, except the many like cases which have been in our Supreme Court in the last few years. The members were also seized, knocked about and put out of the house, and warned never to come back. If this same thing were done to one of our large and influential clubs, every one would 'see its enormity, and yet it would be no worse than in the case of a club of humbler people. In England the educated, the powerful and the great protect the liberties of the less fortunate, and resent any infringement of them as an attack upon the liberties of all. When is it to be so with us ?

These things were all done without a warrant, and more than that, without a particle of evidence of any criminal offense whatever by any one in the said house. The trespasses have been repeated up to this time. In some of these lawless raids arrests were made and in some none, but no evidence was produced and those arrested had to be at once discharged. When the house would be repaired, the defendants would send a squad of police to smash it again. They deliberately resorted to mob violence, and in the eyes of the law a mob of officials is even worse than a mob of private persons. Finally policemen were stationed at the door and on the stairs to prevent any one from entering. The affidavit of this by Mr. Denison, a reporter of the New York Sun, and of his experience in trying to get into the house, where he. had been sent by his newspaper, leaves no room for doubt whatever. Indeed, there is no contradiction of any of the foregoing facts; and yet those guilty of this criminal lawlessness have been called to no account whatever by the mayor, although he has complete control of the police commissioners, or by any one else. I suggest to this plaintiff, and to all who are being treated in the same way, to go before the Governor and accuse those implicated in the crime, whether by commission or omission, and ask for their suspension or removal from office, or whatever redress the Governor can give. He is given power to remove both the mayor and the police commissioners.

The learned corporation counsel, instead of advising the police rulers that they have no right to do such acts, and refusing to defend or upheld them in such criminal lawlessness, argues here that under section 315 of the city charter the police have a right to forcibly enter any house in the pity of New York without a warrant if, forsooth, they “suspect” that something unlawful goes on there. This is very strange, for not only has our Supreme Court decided repeatedly in the last two years, that this section confers no such authority, and that if it did it would be unconstitutional and void, but the same thing has been decided by the Court of Appeals in the case of the People v. Glennon, 175 N. Y. 35, 67 N. E. 125. It allows entries which are permitted by the householder and no others. If such peaceable entry cannot be obtained, then entry can be obtained on a magistrate’s warrant only. Not only do the rulers of the police force openly deride and defy the decisions of the courts, but they seem to have no trouble to get the corporation counsel to defend them in it, instead of advising them as the law officer of the city that they must not trample on the law. The notion that the police authorities may override and defy the law regulating and limiting their conduct in their efforts, or pretended efforts, to make other people obey the law regulating theirs is the most dangerous and pernicious that could enter the heads of men.

. It is useless to talk about our present police rulers as being so good that they may safely and properly be permitted to break the law.' I do not know how good they are, but I do know that no official is good enough to be permitted to override the law, and the official who thinks himself better than the law, or above the law, is the worst and most dangerous of all. Ours is a government of laws and not of men. And if our police officials are so good, it is all important that they remember every day that good officials in good times should not set a bad example for bad officials in bad times. The lawless entry of houses was long used by the rulers of the police in New York City to extort money, until finally over three millions of dollars a year was collected by them in that way, enabling them to retire one after another with great wealth. And it will probably be used for the same purpose again, if it be not put an end to.

The way the law prescribes is that those police officials should through their secret service or otherwise get evidence that the managers or frequenters of this house bet on horse races or play billiards for money, or whatever the suspected offense is, and that then they go to a magistrate and get a warrant arid arrest them and cause them to be held and convicted and imprisoned. That is the wholesome and effective way of the law; and the police ruler who thinks himself so powerful that he can set the law aside, and smash into houses and take people by the back of the neck at will, is more dangerous to society, a greater menace to the continuance of our free government, than betters on horse races, for such abuses grow fast once they get under way, and extend all over the land.

If the question be asked, “What are the police rulers to do if they cannot get any evidence?” the answer of the law is simple and emphatic, “Do nothing.” Even a suspected murderer has to be let alone if "you cannot get evidence against him, let alone people who only commit the smaller offense of betting with each other on a horse race, and writing the bet on a card.

The motion is granted.  