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Harlem in Disorder: A Spatial History of How Racial Violence Changed in 1935

In civil court on September 19 & 20

The first trial to resolve a claim for damages took place in the Municipal Court on September 19 and 20, 1935, before Judge Benjamin Shalleck and a jury of six men. The plaintiff, William Feinstein, was not one of those identified in earlier newspaper stories on the claims and was not represented by the attorney who filed those claims, Barney Rosenstein. He owned a liquor store located at 452 Lenox Avenue, for which a claim of $627.40 of damages had been filed by his lawyer, Charles Garfinkel. Aaron Arnold, an assistant corporation counsel, represented the city, together with four other staff. The trial was reported by the press as a test case, the outcome of which would set a precedent for other claims. The city's lawyers disputed that characterization, telling a journalist from the New York Times that "each of the many suits growing out of the Harlem riot would be tried on its own merits." The response to the jury's verdict belied that claim.

While Feinstein was the plaintiff in the case, he had not been at the liquor store on the night of the disorder, and if he testified at all would have given evidence only about the details of his losses. The only reported testimony, summarized most fully in a later published decision by Judge Shalleck, came from the white store manager, David Schmoockler. He focused not on the absence of police, as had the testimony given by most of the businessmen represented by Barney Rosenstein, but on their ineffectiveness Around 11:00 PM, he and a Black staff member saw a crowd of about thirty people gather nearby. For the next hour, they watched as the crowd "created disturbances, hurled various missiles, broke store windows, set fire to some stores, pillaged others, and in general damaged property of various merchants in the locality." At some point police arrived, but could not control the crowd. Officers "discharged their revolvers in an attempt to disperse the crowd," and sometimes "succeeded in driving the participants from one side of the street, but they would then rush to the other side and back again." By around midnight, the disorder and gunfire had become frightening enough to Schmoockler and his Black colleague that they "locked the doors, closed the [iron] gates" and left the store. About an hour later, despite the presence of police in the area, a group of thirty to forty smashed the windows of Feinstein's store, took bottles of whiskey, and demolished the store front.

Cross-examining Schmoockler, Arnold tried to shift responsibility for the damage from the police to Feinstein's staff. He questioned him about whether he had attempted to remove the bottles of liquor on display in the windows after the crowd arrived on the street. The manager responded he had been "too frightened to know what to do about it." The question related to one of the requirements of the law, that a plaintiff had "used all reasonable diligence to prevent such damage." Whatever doubt Arnold had raised in the jury about whether Schmoockler had done enough to prevent the store's merchandise from being looted was countered by Judge Shalleck's later instruction to the jury that fright was "a reasonable factor." Any witnesses who testified on behalf of the city or other defenses Arnold raised went unreported in the press.

The six-man jury needed only forty-five minutes to agree on a verdict awarding $450 damages to Feinstein, 70% of the sum he had claimed. Discharging the jury, Judge Shalleck offered his support for their decision, telling them "from the facts of the case I don't think you could have done anything else." Having been made aware that "there are now $1,000,000 in law suits pending," presumably by Arnold, he was less supportive of the statute. "The Legislature enacted this law placing property damage in riots on the county and city to inspire citizens to proper vigilance in support of law and order. It is a punishment for permitting riots. The law is drastic and may be changed at the next session. In the meantime, it should be a lesson to our people not to be too eager to incite riots and not to lose their heads too quickly."

Arnold responded to the verdict by filing a motion to have it set aside. He argued that none of the requirements of the statute had been met: the events of March 19 and 20 were not a riot, taking exception when Shalleck gave the jury the definition of riot contained in the penal law rather than articulating a different definition for civil suits; Feinstein's staff did not do everything reasonable to prevent the damages he suffered; and they had not notified the mayor or sheriff of the threat to the store, a question Shalleck had withdrawn from the jury's consideration as unnecessary in the circumstances of the damage to the liquor store. In addition, Arnold argued that the date on the complaint was wrong. While Judge Shalleck's comments after the verdict indicated little sympathy with those arguments, he reserved his decision on the motion, giving himself time to research the law.

Mayor La Guardia made clear that he thought Shalleck should strike down the verdict, presenting it as the precedent that the city's lawyers insisted it was not. "That award opens the way to claims against the city amounting to $1,000,000," he told journalists. "If this decision is allowed to stand, it will be a very serious matter for the city. It would open up a new form of arson." Asked to clarify that remark, the mayor added that the decision "would encourage property owners to stir up trouble with the express purpose of having their premises burned or damaged so that the city could be made to pay for repairs or valueless stock." Just what had caused the total of the claims against the city to jump from $116,000, the sum widely reported in July, to $1 million was not explained. Certainly, the new number served to increase pressure on Shalleck and his judicial colleagues to interpret the law in the city's favor. La Guardia would have to wait almost two months to hear if the scenarios he invoked would lead Shalleck to deliver such a decision.

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