Open forum, vol. 16, no. 3 (January, 1939)

THE OPEN FORUM

Free Speech - Free Press - Free Assemblage

"Hternal vigilance is the price of liberty"-John Philpot Curran

Vol. XVI.

LOS ANGELES, CALIFORNIA, JANUARY 21, 1939

No. 3

Judge Vickers' Recent Decision

Strikes At Vicious Police Practice

L. A. JURIST EXCORIATES OFFICERS IN WILSON CASE

"The Open Forum" prints below comment

by the legal newspaper, "The Los Angeles

News," upon the important decision uphold-

ing civil liberties by Superior Court Judge

Joseph W. Vickers, as well as a substantial

extract from the noteworthy opinion.

Copies of the opinion are being forwarded

to Mayor Fletcher Bowron, the Police Com-

mission of the City of Los Angeles as well as

the individual Police Commissioners, Clyde

C. Shoemaker, Raymond L. Haight, Henry

G. Bodkin, Dr. John J. Buckley and Van

Griffith; to Chief of Police David A. David-

son; to the City Attorney, Ray L. Chesebro;

and to the District Attorney, Buron Fitts.

Every effort will be made by the A.C.L.U.

to halt this lawless practice by the Los An-

geles Police Department, which has inter-

fered with the civil liberties of many persons

in Los Angeles.

The "News" prefaced the opinion with this

paragraph: :

"Limits to which police officers may go in

holding a prisoner after arrest are defined in

a recent verbal opinion by Superior Judge

Jos. W. Vickers. The court excoriated cer-

tain local officers for an unreasonable delay

in bringing a prisoner before a magistrate."

Then followed the opinion itself, most of

which we give you below:

"In the Superior Court of the State of

California, in and for the County of Los

Angeles.

"Department No. 20

"Hon. Joseph W. Vickers, Judge

"Neville F. Wilson, Plaintiff, vs. James E.

Davis, et al., Defendants.

"Tos Angeles, California, December 23,

19388; 10:00 a. m.

"APPEARANCES OF COUNSEL:

"Ror the Plaintiff: Gallagher, Wirin and

Johnson. By A. L. Wirin, Esq.

"Ror the Defendants: Ray L. Chesebro,

City Attorney. By Robert W. Anderson,

Deputy.

"American Civil Liberties Union, by Julius

Leibert, amicus curie.

"Gq. F. Summers, Official Reporter.

"The next thing in this case to be con-

sidered is the primary question as to the

right of the Police Department to hold a per-

son without a warrant longer than a sufficient

length of time to bring that person before a

magistrate as Section 849 of the Code of Civil

Procedure provides. ...

"A review of the cases cited by counsel

brings us to the inescapable conclusion, in the

opinion of this court, that it was the intent

of this legislature, the legislature of this

State, as well as the legislatures of other

States to which we have referred, in so far

as the cases are concerned, that arrest with-

out a warrant is a special type of arrest,

based upon some impelling cause, such as a

fear that the prisoner will escape if not then

arrested; and that it is the duty of the police

officer without unnecessary delay to bring

that person before a magistrate. The amount

of time necessary to do that, of course, is

dependent upon the circumstances surround-

ing the particular case. It is contended that

the arresting officer had no right to take a

person before the magistrate until he is in-

terrogated and certain investigations have

been made. I do not believe that is the inten-

tion of the law on a mere suspicion and noth-

ing else, that the arresting officer is empow-

ered to deprive a person of his liberty while

he is investigating a case. He must have had

a suspicion at the time of the arrest and im-

mediately thereafter it is his duty, if he so

desires, to have the man fingerprinted, which

so frequently discloses whether or not he is

the man wanted, for that crime or other

erimes; so that within a few hours, at the

most, he can be brought before a magistrate.

If he is arrested at night, it goes without

saying, assuming that at the time he was

arrested it was with probable cause, the offi-

cer would be entitled to hold him until court

met at ten o'clock the next morning, if that

was the only court available, and bring him

before the magistrate. Iam satisfied with my

study of the cases here in California that

that is the law... .

"Many of the cases under which arrests

have been made with a warrant are even

stronger, -but in so far as-this case is con-

cerned, even if the arrest had been with a

warrant, I am satisfied that it was the inten-

tion of the legislature that arrest even with

probable cause must be brought within a

reasonable time before a magistrate, and I

think officers in such cases as this are strictly

limited in their power, under the statute un-

der which they make arrests, which is 849,

no matter what their orders are from their

superiors, they are strictly bound by the pro-

visions of the law in that section. It makes

no difference, so far as they are concerned,

who takes over the prisoner after they have

arrested him, it is the duty of those officers

to see that the section is complied with and

that the prisoner is brought before a magis-

trate without unreasonable delay. It makes

no difference that they simply walk out on

another job, as they often do, undoubtedly

under orders, and leave the prisoner to other

officers, when another delay has occurred

they are liable from the beginning, whether

the original arrest was without probable

cause or not.

"In this case, the prisoner was held for five

days. In the view of the police officers, that

was the reasonable time necessary, that

would be the first opportunity to have the

prisoner at the show-up at which the victim

would have the opportunity of identification.

Their investigation disclosed nothing. There

was no particular investigation made by the

investigating officers, so far as the robbery

charge was concerned. Apparently the pur-

pose of the arrest, and the manner in which

the prisoner was handled, was to discover if

there was any other charge against him

with which he was connected, by reason of

the fingerprint records, or other robbery re-

ports; and then if none were discovered, to

hold him until the weekly show-up to see if

he could be identified by any victim. The

court is satisfied that this delay was an un-

reasonable delay, and that the four or five

days that the prisoner was held constituted a

length of time in this case as not coming

Six Congressional Measures

Sponsored by the A.C. L. U.

Reinforcement of civil liberties by Con-

gressional legislation, to mark the 150th

anniversary this year of the submission of

the Bill of Rights, will be sought by the

American Civil Liberties Union in a special

campaign during the current session of Con-

gress, it has been announcd by the Union.

Enlisting the support of members of Con-

gress of all political parties, the Union will

sponsor or support a variety of bills covering

pressing issues. The measures will deal prin-

cipally with radio censorship, lynching, asy-

lum for political refugees, use of state militia

in strikes, and the prohibition of private

military training.

Among the measures to be backed by the

Union are:

1. Bills providing for greater freedom on

the air by requiring all radio stations to set

aside time for public issues, to treat contro-

versial issues on equal terms and to free sta-

tions from responsibility for libel or slander

on public time.

2. A bill to prevent the misuse of the

National Guard in strikes.

3. Re-establishment of the _ traditional

American right of political asylum for a lim-

ited number of bona fide political and re-

ligious refugees.

4. The anti-lynching bill, providing for

federal prosecution of state officials who fail

to apprehend lynchers and for recovery of

damages by the victim's family.

5. A bill to prevent formation of private

military forces.

6. A bill to abolish the present Post Office

Department censorship of the mails, to be

replaced by juries in federal courts.

Also urged on members of Congress are

bills providing civil government for American

Samoa and the island of Guam, and a reso-

lution for a congressional investigation to

determine the future status of Puerto Rico.

The Union will also support the recommen-

dations to be made by the Senate Civil Lib-

erties Committee.

UNPARDONED

Mooney is free! but who shall free the Courts?

Who pardon the Law's quibble and delay?

Who weigh the mummy dust of their reports

Against the sunlight of the open day?

Mooney walks forth among his fellow men

In world-wide fellowship with all the free,

While Justice hangs on Cesar's skirts again,

Or apes some old Iranian decree.*

Where now the infamy of Mooney's tomb,

Who needs no more to argue his defense?

Where now their dignities who would assume

To hide their nude legality's pretense?

Mooney, the ages yet to come will claim,

As one who, from a dungeon, honor built.

But who will shrive them ever of their shame

Who fouled the Temple of the Law with guilt?

-Robert Whitaker

"The laws of Iran, or Persia, as it is com-

monly known, were supposed to be fixed,

and unchangeable.

within what would be described as a neces-

sary delay.

"The court would probably hold, under

some circumstances, that a 24 hour delay

would be an unnecessary delay; but it is the

(Continued on page 2, column 2)

THE OPEN FORUM

Published every Saturday at 505 Douglas Building,

257 South Spring Street, Los Angeles, California, by

the Southern California Branch of the American

Civil Liberties Union. Phone: Michigan 6529

Clinton J. Taft

CONTRIBUTING EDITORS

Upton Sinclair Kate Crane Gartz

Doremus Scudder A. A. Heist Carey McWilliams

Leo Gallagher Ernest Besig

John Packard Edwin Ryland

A. L. Wirin

Editor

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Entered as second-class matter Dec. 13, 1924, at the

post office of Los Angeles, California, under the Act

of March 3, 1879.

LOS ANGELES, CALIF., JAN. 21, 1939

Printed Cooperatively

aires ener:

Frankfurter Gives A.C. L. U.

A Good Bill of Health

Pres. Roosevelt's nomination of Prof. Felix

Frankfurter of the Harvard Law School to

fill the vacancy on the U. S. Supreme Court

bench caused by the death of Judge Cardozo

caused a murmur of disapproval on the part

of the Red-baiters and reactionaries. Several

of them rushed to Washington to voice their

antagonism to his appointment-among them

Mrs. Dilling, author of the "Red Network,"

who made herself positively nauseating and

imbecilic in her remarks about Frankfurter

and other distinguished people.

A Senate Judiciary sub-committee that in-

quired into the nominee's qualifications

wanted to know about his relation to the

American Civil Liberties Union. Frankfurter

did not shy off at this point but seemed to

covet the opportunity to tell them about the

work of the Union. He stated it was con-

ceived during the post-War period when

hysteria seized the country and resulted in

lawless activities of law enforcement officers

against radicals-a practice that was later

denounced by many, including Chief Justice

Hughes. Continuing he said:

"T would not be surprised if Mr. Roger

Baldwin himself asked me if I would be one

of the people who would lend their moral sup-

port to the vitalization of the principles and

practices of the Bill of Rights.

"My experience as a prosecutor, with

knowledge of the terrible instruments which

are placed in the hands of a prosecutor, made

me alive to the importance of being one of a

group of people whose special job it would

be to be watchful that the Bill of Rights was

not violated."

The sub-committee voted unanimously to

confirm Frankfurter's nomination. There

seems little doubt at this writing that the

Senate will approve him. Thus there will be

added to the bench of our highest court a

man of outstanding legal ability and a liberal

who will carry on the fine traditions of

Holmes, Brandeis and Cardozo.

FEDERAL THEATRE PLAYS

"VOLPONHE," a satire by Ben Johnson

dealing with the Italian Renaissance, is now

at the Belasco.

"RUN, LITTLE CHILLUN," Negro play

of the deep South, is in its second half year

at the Mayan.

"TWO A DAY" is in its 12th week at the

Hollywood Playhouse.

BOOKS

You may secure any book you desire through

the AMERICAN CIVIL LIBERTIES UNION.

We have dealings with all publishers.

Prompt service and regular list prices.

Send your order to our office

505 DOUGLAS BLDG., LOS ANGELES

Fifteen Years on Freedom's Front

EXPERIENCES AND OBSERVATIONS OF AN A.C.L.U. DIRECTOR

By Dr. Clinton J. Taft

Vill.

MOONEY MASS MEETINGS

The granting of an unconditional pardon

to Tom Mooney on January 7, 1939 recalls

the efforts made here in Los Angeles from

time to time to keep the public informed and

to enlist their cooperation in securing Moon-

ey's release. One occasion stands out with

particular clearness as I look back over the

years-the great mass meeting held in Trin-

ity Auditorium on the ninth of August, 1929.

The place seats 2200 and was packed that

night. Dr. Arthur E. Briggs, Dean of the

Metropolitan Law School, presided. There

were nine or ten speakers, the most outstand-

ing among them being Judge Franklin A.

Griffin, who presided at Mooney's trial. He

had become convinced that Mooney was the

victim of a dirty deal, and he spoke out

frankly and fearlessly about the matter. "I

have a personal interest in the case of the

People against Thomas J. Mooney," he said.

"For it was in my court that that gross mis-

carriage of justice occurred, and I resent -

with all the power of expression that I have

Judge Vickers' Verdict Scores Police

(Continued from page 1)

Court's opinion, and as a matter of fact the

court will find, that under the law a man must

be brought before a magistrate at the first

opportunity so to do. And that being so, the

court is of the opinion that the arresting of-

ficers in the case, because of their actions in

this matter, and because of the system, are

liable to the plaintiff.

"Now, so far as the investigating officers

are concerned, the court is satisfied under the

law that those officers are liable, because of

the unnecessary delay, even though they

didn't cause that delay, that any one who has

actively participated in the detention of the

prisoner is also liable. It appears that the

prisoner could not be released without the

approval of the investigating officer. Their

duty is to investigate and make their reports

direct to the head of their department before

the man can be released. That is another

product of the system. A good soldier, whe-

ther a police officer or otherwise, must obey

the orders of his superior officers in the

course of his duty. It was their duty, under

the system, to make an investigation in this

case, and after Officers Cunningham and

Phelps had signed the arrest report, there-

after the prisoner could only be released upon

affirmative action by Bridgeman and Mans-

field; and they thereafter had an active part

in his detention for a period of time.

"Next, to secure such a release they had

to report to the head of their department,

Officers McCaleb and Maxwell. Officer Max-

well, I believe, was the officer in charge at

the time of the arrest. Therefore, the actual

booking of the prisoner in this case caused

him to be incarcerated, which was partici-

pated in by Officer Maxwell. He received the

report of the investigating officers and ex-

amined it, and the prisoner's detention was

due to his active participation in it, and the

court finds that he is likewise liable.

"Officer McCaleb, now chief, generally I

speak of them as officers, and incidentally I

think they should be proud of that fact, Mc-

Caleb who was then captain, had the direction

of Bridgeman and Mansfield, and likewise,

apparently, Cunningham and Phelps, partic-

ularly Bridgeman and Mansfield. He knew

about the case, they reported it to him, and

the prisoner could not be released without

his approval. Therefore, he was held subject

to the order of Officer McCaleb, and he is like-

wise liable. . . .

"Judgment for $300 against Ass't. Chief

S. J. McCaleb, Capt. H. Maxwell, E. W. Mans-

field, H. Bridgeman, J. S. Cunningham and

Cecil Phelps."

that such a thing could have occurred in the

court over which I presided."

Then he reviewed the case, dealing with

the perjury and the conniving that had gone

on. His concluding sentence was: "I say to

you that you wouldn't hang a dog on such

testimony !"

Fremont Older, editor of the "San Fran-

cisco Call-Bulletin" also spoke. When he

arose and was introduced as the "Grand Old

Man of Freedom," he was given a tremen-

dous ovation. He had championed Mooney's'

cause for a long time, and he declared that

he felt Gov. Young was about to free the

famous prisoner.

Others who took part in the meeting were

Dr. E. P. Ryland, Rabbi Herman Lissauer,

Sec. J. W. Buzzell of the A. F. of L., and

Ignatius McCarty, federal investigator who

disclosed what a dictaphone placed in District

Attorney Fickert's office had revealed. Mrs.

Kate Crane-Gartz, who had just returned

from a world tour, said that the Mooney case'

was well known in Europe. Attorney Joe

Ford riddled the testimony in the Mooney

case.

Upton Sinclair brought the meeting to a

close with this ringing utterance: "The

Governor will free Mooney when the people

of this city and state make plain to him their

demand." He was right. No convincing man-

date was given to any governor until Culbert

Olson came to power last fall.

An attempt to hold a Mooney mass meeting

in Philharmonic Auditorium on October 30,

1931 was thwarted by the Cossack cops of

Los Angeles. Hynes, head of the Red Squad,

threw a cordon of his men across the en-

trance to the auditorium and prevented any-

one from entering. More than that, they

used their clubs on people and suffused all

the area around the auditorium with tear-gas

fumes. Confusion reigned for a while. Driv-

ers had to abandon their cars in the middle

of the street, and the swanky Biltmore Hotel

guests were coughing and cursing as the gas

flooded the place. It was one of the most

flagrant exhibitions of police lawlessness that

we have ever witnessed. I saw it all myself,

and so know just what happened.

There were other occasions when the cops

trampled the Constitution in connection with

Mooney meetings. But last Sunday, January

15th, when Mooney came in person to Los

Angeles to participate in that great mass

meeting in the Memorial Coliseum, the cops

were as docile as little lambs. They were

there in great numbers, but they protected

the meeting instead of breaking the heads of

the attendants. Times do change-even in

Los Angeles.

SANTA BARBARA RALLY

It has been found advisable to change the

meeting place of the A.C.L.U. Rally in Santa

Barbara to the Carrillo Hotel, corner Chapala

and Carrillo Streets. Friday, Jan. 27, is the

date. A 75e dinner will be served at 6:30

o'clock. Please make reservations by the

25th. The program starts at 7 730, with ad-

dresses by Attorneys Wirin and Macbeth,

Mrs. Chester Arthur, and Drs. Ryland and

Taft. Those not caring to participate in the

dinner are asked to come for the program.

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