The Long Forgotten Obligation to Resist the State on Behalf of Others

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I was recently
doing research in a law library when I stumbled upon an obscure
court opinion from 1890, Roberts v. Stuyvesant Safe-Deposit Co.,
123 N.Y. 57. (N.Y. Court of Appeals 1890). The opinion gave me pause
as I reflected on just how much the principles of American law have
been altered by the lawyers and judges of the past century.

The case
involved a woman (Roberts) who had stored a large sum of cash, some
U.S. bond certificates, and "numerous other bonds issued by
various railroad and telegraph companies" in a safe deposit
box owned and operated by the Stuyvesant Safe-Deposit Company in
New York City in 1873. For reasons that are unclear, Roberts became
a target of the local police and prosecutor establishment, and a
group of New York police officers arrived at the Stuyvesant Safe
Company with a search warrant to search the woman's box, apparently
under the suspicion that the box might contain various securities
(including a large number of U.S. bond certificates) that had been
stolen from the Third National Bank of Baltimore. The Stuyvesant
Safe company officers protested against the cops, but "made
no other resistance, and furnished the officers with the means of
identifying the safe in which the plaintiff's property was, and
pointed out the safe. . . to the officers. "[N]o attempt was
made by them to interfere with the officers, who expressed a determination
to enter the safe by force."

The search
did not substantiate the cops' suspicions. Other than some cash,
"nothing corresponding to the property described in the search
warrant" was found, with the exception of 14 U.S. bond certificates,
(which were commonly owned by Americans of the period). Notably,
"the warrant contained nothing that would enable any one to
identify [the bond certificates] by number, date, issue, or otherwise,
as the stolen property." Nonetheless, the cops snatched all
of the woman's money and bond certificates, no doubt with the intention
of cobbling together some kind of criminal prosecution. The booty
was not returned to the court that issued the warrant (as the warrant
commanded) but instead taken directly to the District Attorney.
The D.A. probably spent several minutes trying to figure out how
the woman's property could implicate her in a crime, but ultimately
came up with nothing. Instead of returning the stolen money and
certificates, however, the D.A. contacted several of the woman's
purported creditors (who seem to have loomed large from the shadows
of the narrative, and were probably friends or allies of the city
power structure). These "creditors" swooped in and claimed
the booty as their own. In all, the woman lost some $40,000 worth
of money and securities.

Prosecutors
and cops are notoriously difficult to sue, so Ms. Roberts sued the
safe company, pointing to the contract the company had signed when
it offered its safe deposit boxes for rent. One provision of the
contract provided that no person would be allowed inside the vaults
for the purpose of opening any safe except the renter, or his substitute.
Another clause mandated that two persons would never be allowed
to enter the vault at the same time, unless personally known to
one of the bank's officers. The highest court in New York held that
the safe-deposit company was liable for the property taken from
the vault by officers because the company failed to resist
the taking of property not described in the search warrant.

Although the
high court did not hold that the safe company employees were legally
obligated to resist the police by force, the court stated that the
company manager should have "ma[d]e such opposition to the
trespass as they could and should have made under the circumstances."
For example, the bank manager should have demanded to scrutinize
the search warrant, notified Ms. Roberts immediately, monitored
the cops' search of the safe, and forbade the cops' taking of any
items not listed in the search warrant.

Such a ruling
seems astounding from the perspective of today's legal regime, which
overwhelmingly favors the state in most matters of police prerogative,
and forgives almost any ordinary citizen for obedience to the state.
Nonetheless, the Roberts decision was consistent with precedents
that had been on the books for centuries. Throughout early American
history, every American had a legal right to resist and defy authorities
who came to search or seize property or make an arrest without following
proper procedures. Early American law even allowed
third-party intermeddlers
to forcefully “rescue” an arrestee
from authorities who made unlawful arrests. And if a rescuer killed
a sheriff while freeing an arrestee from unlawful arrest, the rescuer
was guilty of only manslaughter.

What made
the Roberts decision unusual in my mind is its holding that
a private contract may obligate us to make resistance against the
state on behalf of others. (The only other area of the law that
may be analogous involves certain client-privilege situations, such
as when an attorney is obligated to resist the state's warrantless
taking of privileged documents.)

Fast forward
to 2010. "The law" has evolved to make almost any citizen's
resistance to police aggression "obstruction of justice."
Today's Americans are subject to arrest for asking
questions
to cops. A little old lady in Atlanta was recently
arrested for asking
a cop "Why"
in response to his orders to move. Modern
Americans have even been arrested
for inserting money
into expired parking meters to protect strangers
from parking cops. Others have been arrested for alerting
their fellow citizens of police speed traps
, either by CB radios
or by flashing their headlights. Police in many jurisdictions make
it their regular practice to shoot
family pets
that approach or bark at them during their "investigations."
Lawyers have even been arrested for obstruction of justice merely
for offering
their services to arrestees
during arrests.

Today,
the legal principles behind the Roberts decision have been
turned on their head. Consider the case of AT&T, which has signed
millions of contracts with its customers agreeing to keep its customers'
telecommunications private and confidential. In 2005, the New
York Times revealed that AT&T and other government-friendly
telecommunications providers have been systematically violating
these contracts on a massive scale (in addition to feloniously breaking
federal wiretapping statutes) by allowing the government to have
unlimited access to telecommunications without warrant. Lawsuits
against AT&T
by the company's customers have been systematically
stymied by government lawyers and federal judges, and Congress even
enacted a
series of bills to immunize
the telecoms from all liability
relating to the issue. The CEO of the one major telecom firm (Qwest)
that refused
to cooperate
with the National Security Agency in its illegal
warrantless eavesdropping was criminally indicted and imprisoned
for "insider trading."

One can only
imagine what would happen today to a bank manager who might demand
to scrutinize a search warrant in the hands of police officers (let
alone one who might dare to crosscheck the inventory of a police
search against the warrant or prohibit officers from taking any
items not listed in a search warrant). Today's courts have imposed
a virtual "anything-goes" approach to police investigative
practices. Search warrants are now often executed as paramilitary
raids, accompanied by massive displays of force.

June
28, 2010

Dr. Roger
Roots, J.D., Ph.D. [send him
mail
] is an assistant professor of Behavioral Science at the
New York Institute of Technology (NYIT) in Old Westbury, New York.

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