Downs v. Swann

Schmucker, J., delivered the opinion of the Court-. The appeal in this case was taken from an order of the Circuit Court of Baltimore City dissolving a preliminary injunction theretofore issued by it. The injunction had been issued, upon the filing of a bill of complaint to restrain the police authorities of Baltimore City from photographing and' measuring the appellant who had been arrested and was detained by them upon a charge of embezzlement of public funds of the city. The defendants having answered the bill made a motion to dissolve the injunction.

The motion was heard upon bill and answer and the order dissolving the injunction was passed and the appeal taken therefrom. The substantial allegations of the bill are as follows: On March 30th, 1909’, the plaintiff, William B. Downs, who had for some years theretofore been a clerk in the office of the City Register, was arrested by a city detective upon complaint of the Register and locked up at the Central Police Station on the charge of embezzling $1,000 of the money of the city. The police authorities were about to put Downs through the “Bertillon System,” consisting in part of having his photograph taken, the measurement of his head, height, age, color and pedigree, together with his finger prints, in order that the record thereof might be preserved for the use of the Police Department, and it was their intention to take his photograph immediately after his preliminary hearing before the ⁵⁸ magistrate and before bis trial npon the charge of embezzlement. It is also alleged that there is a “rogues’ gallery” in connection with the Police Department of the city, where aie kept the pictures and photographs of criminals and notoriously bad men, who have been tried and convicted of various offenses in different jurisdictions, and that it was the custom of the police authorities to take the photograph of persons arrested for any violations of law, but it does not allege the existence of a custom to put the photographs of unconvicted persons in the “rogues’ gallery” or charge the defendants with a purpose to put Downs’ picture there, but only with an intention to preserve it for the use of the department. .

It is further alleged that Downs, up until his arrest, enjoyed the confidence and esteem of his employer and associates, and that he will be irreparably injured if the police authorities are permitted to carry out their contemplated acts, which it is charged would constitute a violation of his personal liberty and constitutional rights, and that he is without adequate remedy at law. The appellees, as defendants below, answered the bill, admitting the facts of the arrest and detention of Downs upon the charge of embezzling the public moneys, and that prior to the issue of the injunction it had been their purpose to take his photograph in order to enable them to identify him if it became necessary in any criminal proceeding then pending against him or that might thereafter be instituted against him. They also admit the conducting by them of a bureau of identification under the superintendence of a lieutenant of police on the Bertillon system, in connection with which they photograph persons arrested for -felony or other crimes of the character charged against the plaintiff. And they further say that the practice of photographing and measuring persons so charged prevails in every large city of the country where proper police regulations are well established and enforced; and that when a prisoner is arrested charged with a crime of the character charged against the plaintiff, who may be re ⁵⁹ leased upon bail, it is necessary to the proper enforcement of police regulations and the securing of the prisoner for trial that a full description of him should be had in order that, if he should undertake to become a fugitive from justice, the police and detective department may be in possession of such information as will enable them to have him identified, wherever he may be found; that the defendants are required in the proper discharge of their duties to run down and arrest offenders who may escape after having been released on bail, and that, if they are not permitted to provide efficient means of identification of persons charged with offenses their efforts in that direction will become ineffectual and unavailing.

Pui-ther answering, they say that it is not their practice to publish the photograph of a prisoner who has been arrested upon the first offense or to place it among the photographs of well-known and established criminals, until and unless the prisoner whose photograph has been taken has either been convicted or has undertaken to escape and avoid the payment of his bail, and that such was not their purpose with reference to the plaintiff. It is also averred in the answer that, since the filing of the bill, Downs had been admitted to bail in the sum of $10,000, hut that subsequently upon investigation it was discovered that his alleged embezzlements were of such larger proportions than were disclosed by the testimony taken at the hearing on the first charge and his crime was of such greater magnitude that he was re-arrested and was, at the time of the filing of the answer, confined in a cell at the Central Police Station. The issue presented for our consideration is the propriety of the dissolution of the injunction upon the case made by the bill and answer. Without stopping to consider whether the appellant had an adequate remedy at law for any invasion, if such there should be, of his personal rights, we will devote our attention to the substantial issue presented by the record.

The precise question there presented for our determination is whether the police authorities of Baltimore City may law ⁶⁰ fully provide themselves, for the use of their department of the city government, with the means of identification of a person arrested by them upon a charge of felony, but not yet tried or convicted, by photographing and measuring him under the Bertillon system. It is not directly charged in the bill that the police intend to put his photograph in their rogues’ gallery or distribute copies of it to the police authorities of other cities, unless he is convicted or becomes a fugitive from justice, or that they propose to apply his Bertillon record to any other uses than those of their own department of Baltimore City. Furthermore, the answer denies the existence of afiy purpose to apply the photograph or record of the appellant to any other purpose than that of his identification, if it becomes necessary, in criminal proceedings now pending or hereafter to be instituted against him, unless he is convicted or becomes a fugitive from justice. In our opinion, the photographing and measuring of the appellant in the manner and for the purposes mentioned and the use of his photograph and the record of his measurement to the extent set forth in the answer by the police authorities of Baltimore City would not constitute a violation of the personal liberty secured to him by the Constitution of the United States or of this State.

As was said by the United States Supreme Court in Crowley vs. Christenson, 137 U. S. 86 : “The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not