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1938

You Can’t Do That!: Lawless Enforcers of the Law

“Although the nation is sometimes shocked by police brutality…there are even more powerful forces among the enemies of the American people.”

George Seldes, You Can’t Do That:  A Survey of the Forces Attempting, in the Name of Patriotism, to Make a Desert of the Bill of Rights, New York:  Modern Age Books, 1938.  25-54.

Part One:  Liberty or Law

Chapter 3. Lawless Enforcers of the Law

“There is no Constitution in the police station. Jersey City is not a part of the United States.”

—Jersey City police lieutenant {N. T. Post, July 27, 1936)

“There’s plenty of law at the end of a night stick.”

—Grover A. Whalen (as New York City Police Commissioner)

Historically and conventionally, when rights guaranteed by the Constitution and generally accepted under the common law are infringed or denied, the victims belong to the minority. One cannot imagine the Republican or the Democratic Party, for instance, being denied representation in any state through the methods of chicanery which frequently keep minority parties off a ballot. Negro Republicans are denied their constitutional right to vote in the Deep South but the Republican Party operates there just as freely as the Democratic Party in Vermont, although what each has to say in its respective zone matters very little. It is the new, the “radical,” the small, the minority political party or group which always suffers at the hands of lawless enforcers of the law.

Nevertheless there is one group so large that despite its heterogeneity it must be called the majority, which throughout the dark pages of the history of the United States has always been the victim of intimidation, terrorization, violence, massacre and the almost daily denial of rights and liberties. This majority consists of between thirty-nine and forty-nine million adult Americans. It is the working class. It is organized and unorganized labor.

The working people of the United States — that is, everyone from unskilled manual laborers in the ditches to playwrights in solid gold offices in Hollywood — have generally been the victims of that minority known as the ruling families and their politicians, who, through their two holding companies, the Republican and the Democratic Parties, control the judiciary, legislative and executive branches of government and have at their disposal the armed forces of the State. The long history of the growth of the labor movement — from the time of slavery and indenture, from the early times when a labor union was believed “subversive” and when any orderly strike was called “revolution,” to the present day when the same enslaving interests are making the same charges — has been told in many volumes and recently illustrated in “Labor’s Challenge” {PhotoHistory, No. 2) where the reader will find the graphic illustration of the bloody and murderous record…

Thanks to the press, a component part of big business, a national myth has been created which places violence on the doorstep of labor, whereas just the opposite is true…

One of the most brutal instances of mass murder in the nation’s history is the Memorial Day Massacre at the Republic Steel plant in Chicago in 1937. The facts in this case are well known now, thanks to the La Follette Civil Liberties report and to the Paramount film which not only provided irrefutable evidence but exposed the false- hoods of Chicago officialdom and a large part of the press. One has but to compare the Senate testimony and the motion picture with the newspaper reports of the time to realize how biased and unfair certain newspapers are in presenting labor news. Curiously enough, newspaper men covering the march which was turned by Chicago police into a series of murders were among the best witnesses before the La Follette committee, their testimony giving the lie direct to their own newspapers and to the police captains who repeated the old falsehoods about the strikers being “reds” and armed, and “starting violence.” 

Before the committee went into action and public demand freed the Paramount film from company censorship and police prohibitions in many cities, the newspapers were able to fool a large part of the public. Their first reports were the police reports — the usual lies blaming strikers and pickets for initiating violence, presenting the usual alibi of self-defense for the forces of law and order — and murder. The Chicago Tribune praised the police force for protecting “life and property, the business with which it is entrusted by the community…” 

This was the sort of buncombe the Chicago Tribune gave its million readers at the time the entire reactionary press tried to make of a police massacre a noble defense of law, order and big property. But almost every press apology for murder was proven to be false when the official report and the news films were given to the public. The verdict proved that: 

  1. The police charge that the workers intended storming the Republic plant was groundless. 
  2. The police had no authority to limit the number of pickets. 
  3. The workers used no guns or physical violence. They did shout and some stones were thrown from the rear after the gas attack was made by the police, but there was no cause given for the use of either gas or guns. 
  4. Many workers were shot in the back — after they had begun to disperse. 
  5. The brutality of the police was worse than that charged to Huns in the World War, especially in the treatment of wounded. 
  6. Police officials lied both at the time of the massacre and in the Washington hearings. The La Follette report states frequently that “the evidence refutes the police charge.” 
  7. The police charge that reds or communists were inspiring or leading the workmen was proven false.
  8. The official report lays the blame for the massacre upon the police in its statement that “we conclude that the consequences of the Memorial Day encounter were clearly avoidable by the police…” 

The labor movement in New York is stronger than that in Chicago, there is a powerful liberal-radical-labor-progressive coalition and very fortunately one liberal and one semi-liberal evening newspaper and several small but powerful liberal weeklies which are eternally vigilant. Police brutality is immediately noted and injustice at the hands of the executors of justice is quickly brought to light.  Nevertheless instances of police lawlessness in the nation’s metropolis are quite frequent.

In 1934, Major General O’Ryan was police commissioner. He had previously commanded the National Guard, and at the time of the strike of the workers in Andrew Mellon’s aluminum factories the brave guardsmen had murdered a strike leader, raided homes, engaged in illegal searches and arrested one hundred persons, the majority of them illegally. When the strike was over the Mellon organization gratefully presented every guardsman active in it with a set of aluminum utensils, but even when the facts of this small but usual corruption were exposed, Major General O’Ryan denied “the charge… not infrequently made, that National Guard troops are used in labor controversies in the interests of employers and against employees.”  Nevertheless the brave boys had to return their aluminum, and for a while their terrorism and brutality were unrewarded materially…

There are scores of…brutalities in the police record under O’Ryan. That whole summer and autumn, liberal-minded persons argued with the General about civil liberties, but without success, because seemingly in the commissioner’s military mind there was no room for comprehension. O’Ryan’s was the battlefield mentality, excellent in time of war when all our liberties have already died, when there is no time for reason, when the order to shoot for dis- obedience is lightly given and when everything moves to dictatorial order or is immediately crushed. To the military mind the majority of the population and popular rights and popular opinion mean nothing. Reliance is placed upon weapons. O’Ryan established a rifle squad of a thousand policemen, and during his reign an order was issued requiring labor unions to obtain identification papers for their representatives in order “to eliminate racketeers,” as officials put it. O’Ryan was a red-baiter; he also made a statement in which he referred to “the Communists and other vicious elements of the city,” and on another occasion proved his understanding of the Bill of Rights by saying that “I don’t believe in times of emergency in letting crowds collect.” But that is exactly what his duty was and he had taken an oath to let crowds collect and to protect them if they were peaceful, orderly, and constitutional…

The American mob, we all know, is intolerant, and while shouting for fair play, never permits fair play, as does the British mob which makes every national and by-election a vivid, enlightening, amusing and dramatic event. Democrats brave enough to heckle a Republican at a Republican meeting would probably be mobbed in America and vice versa-, whereas heckling is as British as the London fogs. It is therefore the duty of police, in their idealistic service of preserving law and order, to protect any naive citizen who might feel the urge to exercise his right of free speech at a place where the majority might be of an opposite opinion. 

No one in America defends the Third Degree system publicly.  Nevertheless, in private, almost all officials of the police departments of our big cities declare it the only method of dealing with certain criminals. The fact that innocent men suffer is called pure sentimentalism by men of the law. Third Degree terrorism is the rule in the United States, the exceptions being a few cities which have liberal or socialist mayors. The system prevails despite the decision of Chief Justice Hughes in the case of Yank Ellington, Ed Brown and Henry Shields, three Negroes accused of murdering a white man; they confessed the crime when they were strung up and whipped. Chief Justice Hughes ordered the conviction for murder obtained by these methods set aside as illegal. 

Recently in New York a boy named Parmigiani was tortured in a police station basement by police who were convinced he was implicated in robberies. His wrists were tied to steam pipes and he was held screaming, “You’re killing me — I’m dying, I’m dying,” while the police, like so many flagellators and sadists, stood around and laughed. Lieutenant Albert Jenner, according to testimony later given, said “Let him hang,” when the boy cried he had nothing to confess. The charges against Parmigiani collapsed, he was freed, and after being treated in a hospital three months and having skin grafted on his horribly lacerated wrists, he appeared as chief witness against Lieutenant Jenner and Detectives William Walsh and John Moran. 

“Show the jury your wrist,” his attorney directed the youth. 

“Stop,” shouted County Judge Brancato, “I won’t allow a trial in my court to be conducted by inflaming the minds of the jury.” 

The suggestion that Mayor La Guardia and the Bar Association do something fell on barren ears…

The record in other cities is different only in episode, not in the fundamental character of police illegality…

There are four forms of “punitive police work,” Ernest Jerome Hopkins points out in Our Lawless Police:  beating of arrested men; slugging, beating and shooting of individuals or groups in the street; secret punishment in station houses; and “the more unbridled forms of the third degree.” Mr. Hopkins’ important and valuable volume concludes rather pessimistically that “the policeman has usurped in amazing degree, the power to punish; and that without the formality of trial and conviction, often without the formality even of arrest. Embedded in our national mores is the subversive idea that because a man wears the star of authority, he thereby enjoys some sort of general disciplinary control over the population. It is an old, and a peculiarly American, fallacy; on duty or not, the citizen in uniform has no power to punish other citizens; for him to do so is as definitely ‘against the law’ as it is for you to punish your neighbor.  Only the courts of law may punish, and their right is definitely restricted. Our government itself may not use fist, club, blackjack, or revolver as penalties for even the worst of crimes. Our constables, agents of government, long ago arrogated to themselves this extraordinary privilege, and our public today hardly realizes what it implies.  It is an invasion of the most fundamental right that can be granted by any government to its people: the right of personal or bodily safety…” 

Chapter 4. Law versus Liberty

Laws are always useful to those who own, and injurious to those who do not… . Laws gave the weak new burdens, and the strong new powers; they irretrievably destroyed natural freedom, established in perpetuity the law of property and inequality, turned a clever usurpation into an irrevocable right, and brought the whole future race under the yoke of labor, slavery and misery… . All men were created free, and now they are everywhere in chains.

J.-J. Rousseau

We have long suffered under base prostitution of law to party passions in one judge, and the imbecility of another. 

—Jefferson to Governor Tyler (May 28, 1810)

ALTHOUGH the nation is sometimes shocked by police brutality, especially when an instance is so flagrantly and graphically proved, as in Chicago, and although the evidence shows violence is provoked by the police, the National Guard, and other legal or quasi-legal armed forces in the nation, there are even more powerful forces among the enemies of the American people. Some of them are magistrates, judges, members of the Supreme Court, mayors and governors, most of the newspapers, “leading” citizens, “patriots” and men elected or appointed to office who use their power against that general welfare with which the Constitution is primarily concerned. 

The outstanding example at the end of 1937 was the action of Mayor Hague of Jersey City who on his own authority outlawed the labor movement in his dukedom in the same manner as the Duce did. in Italy. You cannot organize a labor union in Jersey City despite the Supreme Court and the Wagner Law. You cannot even distribute leaflets urging such an organization. You cannot pass the frontiers of the city if you are an organizer and are recognized as such. You cannot hire a hall because hall owners are terrorized by Hague’s police. You cannot meet in the open… 

In a less civilized zone, Harlan County, Kentucky, for example, a greater terrorism prevails. Here you cannot enter the mining region at all if you intend to write or talk about it later; you will be driven out under threats of death, and should you happen to be a union organizer the threat is likely to be carried out. This was proven by the La Follette Civil Liberties committee. Miss Clinch Calkins in summarizing the La Follette report on Harlan County finds that “sixty-five killings a year has been the employers stint in the recent past. The government of Harlan County is first owned by the coal operators and then delegated to a high sheriff”. At a profit for their depredation which has netted him over $100,000 in three years, this sheriff” has deputized a staff” of nearly 400 drunken hoodlums whose killings of an evening would seem to be nothing but the merry nightcap of a round of whiskies, if they were not remunerated so handsomely for the results by the coal operators’ association.”

The evidence cannot be questioned. It proves that every fundamental right the Constitution guarantees has been denied citizens in Harlan County, and that in addition to the average of sixty-five murders a year, there are many more instances of torture, abuse, beatings and sadistic cruelty committed by the legally constituted authorities. This terrorism is unequalled in certain dictatorships.  The evidence is similar to that from the Nazi concentration camp at Dachau. 

Lynchings are generally associated with the South, although one of the most horrible instances occurred in California, where the victims were white men accused of a kidnapping. But the lynching mentality is not confined to the South. Moreover the lynching threat has been uttered by responsible persons, including many whose job it has been to maintain law and order.

Judge Benjamin G. Atlee, of the Lancaster County Court, Pennsylvania, was given a hearing by a committee appointed by the state legislature at the request of two Negro members. He was accused of making the following statement in sentencing a Negro prisoner:

“It is no credit to the people of Columbia that they allowed you to be in court today. Had they lynched you they would have been justified.  It is most fortunate for you that this offense occurred north of the Mason-Dixon line. No court has to bother with cases of your kind south of here.”  

On July 21, 1936 at committee hearings Judge Atlee did not deny the accuracy of this quotation. Witnesses testified that the judge “in the depths of his heart does not approve lynching,” but the incitement to violence by a member of a court is not the kind of talk one expects to hear from the bench. 

Or take the Americanization address made by James W. Gerard recently. It is true that Mr. Gerard spoke as a private citizen, but he has a certain responsibility, being one of the Elder Statesmen, who was once not only an ambassador but an associate justice of the Supreme Court of New York. Mr. Gerard upheld Americanism, denounced foreign Isms, and burst out with the following: 

“Let me warn parents and children alike that those who will not conform to the institutions of this country, who seek to overthrow our government and substitute some foreign communism will soon be hunted like mad dogs in our streets.” The shocked editorial writer of the Post called this “not the language of Americanism but the language of Fascist thugs and hooligans … the language of a Hitler, a Goebbels, or a Goering and not of a responsible American teaching new citizens the principles on which this government was founded.  Mr. Gerard should know that this is an incitation to mob violence.  He should know that every worker who goes on strike for an extra dollar in his pay envelope is at once accused of seeking to overthrow the government.” 

Governor Rolph of California not only publicly condoned the lynching of the alleged San Jose kidnappers and murderers, but added that “this is the best lesson that California has ever given the country.” He admitted he did not call the militia because he did not want to prevent the lynching. The American Civil Liberties Union drew up a brief charging Governor Rolph with murder in the first degree. However, the governor was beyond the law. 

Another governor, Frederick P. Cone, of Florida, visiting New York City in October, 1937, surprised a delegation of liberals who came to talk about the failure of his state to punish the murderers of the Vermont freeman, Joseph Shoemaker. Ewald Sandner, field representative of the Committee for Industrial Organization protested the threat of Florida vigilantes to run organizers out of the state…

The lynch threat has also been made by many lesser officials. President George U. Harvey of the Borough of Queens, New York City, while denying the right of “reds” to hold public meetings in his bailiwick “was threatening to hang a communist from every tele- phone pole.” “No public official in New York City,” commented the Post^ “has shown more Fascist tendencies than Harvey. His tele- phone-pole statement was almost a replica of Goering’s threat to hang a communist from every telephone pole between Munich and Berlin.” Even the staid Times turned upon the red-baiter with the declaration that “once we suppress the right of free speech and assembly for any group, however small or obnoxious, we violate the basic principle of liberal democracy. We establish a precedent that ends in the suppression of all groups except the increasingly narrow group that finally rules by force…”

From magistrates to the Supreme Court, the questions of law and lawlessness and the rights of the majority (the working people), as well as of the minorities and of the non-conforming individual, are as intensely important to the American people today as they were at the time of the Dred Scott Case. In discussing that decision the historian Bancroft concludes that “when courts of justice fail, war begins…That ill-starred disquisition is the starting point of this rebellion…The so-called opinion of Taney…upheaved our country.”

In the Roosevelt administration 1932-38 none of the many Supreme Court decisions against labor and social security enraged the public, as did the Dred Scott Case, but they did make the Supreme Court a public issue. Not only did the labor struggle grow more violent but plans were announced for decisive unionization (which the reactionaries denounced as “class war”); and the independent and militant wing of labor, which seems destined to win the entire movement, continues to pay no attention to Tory howls and to the Hearst press. 

It is significant that Lewis, unlike Green from whose American Federation of Labor he departed with more than a million men, pledged labor’s participation in politics. The time may come soon when instead of Republicans and Democrats sitting on all the benches, from the police courts to the Supreme Court, there may be the representatives of labor, and a resultant diminution of judicial lawlessness against labor, against the majority, at least.

This is part of a series