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


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