City’s poor get relief, cops avoid liability suits — fruits of administrative notice
East Ridge, Tenn., having been notified about limits of the state transportation law, should act to protect its officers from litigation if they over-enforce Tenn. Code Ann. Title 55, which grants police powers only over commercial users of the roads. (Photo East Ridge city government)
EAST RIDGE, Tenn. — Tennessee has a reasonable and just transportation law. But East Ridge residents have been sharply critical of my pointing out its limited scope.
The law has nothing to do with the kind of auto users in almost 100 percent of cases in East Ridge traffic court overseen by Judge Cris Helton.
By David Tulis / 92.7 NoogaRadio
Transportation is a regulable activity, a lucrative use of the freeway for private or corporate profit, subject to licensure, taxation and other controls because trucking and hauling people or goods for hire affect the health, safety and welfare of the people as a whole. The transportation statute imposes no burden upon people traveling outside the flow of commerce — people who use the roads for private purposes. It regulates for-profit use only.
I propose the city revise its traffic stop protocol and come into compliance with state and federal law. Adding a simple question would help the officer avoid confusion over his authority and help him and his employer avoid imposing a tort on a private member of the public exercising his or her rights.
I am a practicing Christian concerned about abuse of minorities, the poor and immigrants under commercial enforcement of the driver license and other laws. On May 24 I gave a report to East Ridge city council, an administrative notice that creates a legal duty on its recipients.
Mayor Brent Lambert, police chief J.R. Reid and city attorney Mark Litchford act as if Tenn. Code Ann. Title 55, the volume containing the driver license act, imposes a duty on the part of private Tennesseans. These officials hold that citizens conducting private and personal business are bound by the transportation statute, even though these people are not involved in transportation.
No one can dispute that Tenn. Code Ann. Title 55 pertains to use of cars and trucks in commercial or for-hire activity. But does it apply to private travel among individual men and women pursuing their God-given and constitutionally guaranteed rights of free movement? The law indicates no. It makes a distinction between travel (private) and transportation (commercial).
Establishment “policy” vs. Tennessee law
Brent Lambert is mayor of East Ridge, Tenn. (Photo WRCBtv.com)
This distinction originates with the state’s early Shannon’s code and myriad court rulings about transportation and for-hire services (even ones that disagree with my major premise). But courts today reject the distinction and treat all travel as transportation. Repeated opinions hold that travel is NOTHING MORE THAN the change of domicile or residency interstate.
The courts pretend that the 1937–38 driver license law, to name just one, abrogated constitutionally protected rights of free movement by the best conveyance of the day, rights that existed in 1936 and years prior — and yet is constitutional.
Title 55 is constitutional, I would grant. But enforcing transportation law on people not involved in transportation is ultra vires [outside the scope] and unconstitutional. Even in a recent case, the supreme court refuses to ordain a scaling back of enforcement to coincide with the actual commercial scope. In State of Tennessee v. Arthur Jay Hirsch, it imposes what is essentially private lawyer law upon the people of East Ridge in the rest of Tennessee, a form of oppression.
To insist “private travel = for-profit transportation” is to create a legal fiction, a claim ex nihilo (arising from nothing) injurious to East Ridge residents and others and to their rights and prosperity. It is arbitrary and capricious. It is an oppression for which the poor pay most dearly. A federal civil rights lawsuit filed in Nashville is putting huge pressure on the state for revoking tens of thousands of driver licenses for people too poor to pay court fines and fees.
Tennessee suffers from an activist judiciary and complicit branches of state government. Under this cover, cities and counties — 100 percent of which are on board with the policy and rejecting the statute — are invulnerable to pressure for reform.
The only remedy I can see is to pressure cities and counties through their desire to protect their individual frontline officers from tort claims under statute, as highlighted by administrative notice.
How East Ridge can restore rule of law, halt injustice
Local reform and a local solution have three parts:
➤ Add language to traffic arrest protocol reflecting limits on state jurisdiction
➤ The use of such language in traffic stops would protect the officer from personal liability for abusing the law; order him to obey the written law pursuant to administrative notice. I call such local solutions to statewide problems “local economy.”
➤ Market the reform heavily. Promote East Ridge as a problem-solving, forward-looking and independent city that cares about ending police abuse of the poor, of minorities and immigrants — those who are most routinely trapped in the legal system because of that “missing tag light” or “failure to use indicator” traffic stop. Political applause from left and right, from liberals and conservatives, from progressive and libertarian and from Democrats and Republicans will accrue to those who pursue these first-of-a-kind changes.
The city has authority to enforce regulation of vehicles for hire (city charter, Title 9, chapter 4), impose ordinances against businesses and offenses that are “detrimental, or liable to be detrimental” to the “health, morals, comfort, safety, convenience or welfare” of the people (city charter, section 2, section 22), and abate public and private nuisances (section 27). But it doesn’t have authority to enforce compliance of transportation law on private people, and when it does the law requires an abatement of what is a public nuisance.
Compliance with Title 55 starts with every individual officer who swears before God to uphold and obey the constitution and the police department ethics rule pertaining to the proper and courteous enforcement of state law. The individual cop is responsible for doing the right thing at each traffic stop based on his knowledge of the law as written, and as represented under administrative notice.
City unwise to ignore notice
Will officers obey Title 55 and U.S.C. 49; or will they believe the supreme court? That’s the real question.
Unrebutted administrative notice on points of law shifts the burden of obedience upon the individual cop. The officer has a duty to obey the law regardless of what anybody else says about it, even a judge. Administrative notice disallows excuses for abuse, the main ones being lack of intentionality (“I didn’t intend to act outside the law”) and good faith ignorance (“I didn’t know he wasn’t involved in transportation”).
Arresting someone apart from lawful authority is the gateway abuse from which other sorts of violence follow. East Ridge residents and the American people are increasingly unforgiving of officer transgressions that involve the death or injury of a citizen who has done nothing worthy of summary capital punishment, beatings, arrest or jail.
In light of notice, cops face false arrest charges and civil tort claims if they use Title 55 for alleged offenses laid against people not involved in transportation, men and women who are freely using the roadway for pleasure.
Given the position of the courts, there is no political or legal constituency for top-down policy changes to bring enforcement statewide into alignment with the statute. So transportation administrative notice implies a work of compliance to the law from the bottom-up, at the city level, at the officer level. That’s how a constitutional system works. Every person who swears before God to uphold the constitution makes its claims live in his area of authority. The constitution lives where the official faithfully executes his duties in obedience to a given statute.
Easy solution to solving problem
Here’s how the city can act in good faith pursuant to transportation administrative notice and end its non-compliance: Add this question at every traffic stop.
“Ma’am [or, Sir], are you using this car in a commercial or for-profit capacity — are you employed at this moment by a company or business carrying goods or people for hire today, ma’am?”
If the woman says “Yes, I am in business carrying parcels,” the follow-up question is: “May I see your driver license, your proof of insurance and your vehicle registration, ma’am?”
If she says, “No, what are you talking about? I’m just taking my kids to soccer practice,” then the officer realizes he has no authority to continue the arrest/stop/seizure. He says he’s sorry for having delayed her, advises her to adhere to the rules for traffic for her own safety, and lets her go on her way.
Justified arrests only on court dockets
Tennessee law is much more liberal than you think, much less authoritarian, much less “police state.” Under state law, traffic stops of regular private car users should be a thing of the past.
My goal is to bring reform of police practice along the roadway, for the betterment and safety of the citizenry, for the blessing and safety of city police.
Adding the question will reduce the tensions that occur at every transportation/traffic stop imposed on upon people using the freeways and roads outside of the scope of the transportation law. It will avoid the encounters that African-Americans and Hispanics view as racial harassment and bias-based profiling and which often are the occasions of police violence.
Think about a cop’s work in traffic from his perspective. He would much rather enforce laws upon trucking and shipping employees who are busy about the work of transportation that makes the American economy so magnificent and rich. An East Ridge traffic reform will reduce risk and save lives by being stricter upon actual drivers and operators such as Johnthany Walker (Woodmore bus wreck) and Benjamin Brewer (Ooltewah truck crash killing six), and avoid encounters with hot-headed citizens along the roadways. Let traffic enforcement respect the rights of private parties and focus on buses, trucks and commercial operators with their mighty loads, worn brakes and stressed frames.
Transportation Administrative Notice creates new cause of action vs. cop, new legal defense in court
If East Ridge acts to respect the limits of the law, it will become a sanctuary from its abuse elsewhere. As regards traffic enforcement, it would become a free city, attractive to people from afar who have had trouble with the state over driver licenses, which could be as much as a quarter of the population.
You may not realize that for the poor, travel is the circumstance in which they become entangled with courts, jails, bondsmen, fines, fees and trouble. By obeying the law, East Ridge would be a sort of biblical city of refuge, a safe place for people who would come here to prosper.
Probable cause protection restored
Under current policy, Title 55 enforcement LOWERS the threshold of probable cause in police action against the citizen. No longer are encounters initiated under probable cause for real crimes (assault, rape, theft the officer has witnessed), but are premised on technical faults (brakelight out) or traveling indiscretions (going 50 in 40 mph zone).
These violations are not sins before God nor real crimes, only wrongs under contracts inked between state government and people in transportation who signed an application and paid a privilege tax under error about their rights and status.
Against poor minorities city police and the DA’s office routinely use the “exhibit on demand” statute against people traveling without a driver license — a statute directed solely against “licensees” required to have the “licensee’s license” on his person and to exhibit it on demand (Tenn. Code Ann. 55–50–351). East Ridge police make a false claim upon private activity under the pretense that private travel is transportation. Private travel is not transportation and never has been
Obeying the law restores to common citizens their constitutional protection to be free from unwarranted search and seizure.
Join me in pursuing change
I am motivated by Christian goodwill and an old-fashioned journalistic ethic as I undertake this effort to inform city government about the overbroad activity of police.
The notice project is one of personal racial reparations for African-Americans and categories of people the Bible would call strangers and aliens in the land — repeatedly cited in the Word as deserving our special care.
In this activist journalism, I’m taking God’s warning seriously, that “for everyone to whom much is given, from him much will be required; and to whom much has been committed, of him they will ask the more” (Luke 12:48). Since I’m rich in study of these laws, it is my duty to act in a spirit of repentance to God for my long indifference to these problems and to expose and resist unjust government claims of jurisdiction pursuant to Romans 13.
Bold action and clear thinking about Tennessee law as written law will free East Ridge to pursue a rich destiny among American cities.
David Tulis hosts a show 9–11 a.m. at 92.7 FM and 95.3 FM HD4 NoogaRadio, covering local economy and free markets in Chattanooga, East Ridge and beyond.
Originally published at nooganomics.com on June 27, 2018.