A THP officer gets back into his car after making a scene outside the Hixson Panera bread store, charging a young woman with “texting while driving,” enforcing a transportation statute against a young woman who legally admits she is involved in transportation (though as matter of fact, she’s not). (Photo David Tulis)
The arrest of a soft-drink company recruiter, Kaitlin DeFoor, in the Panera parking lot Friday explains why the Chattanooga area has limits on its prosperous optimism and why in many ways it matters little who top elected officials are after election.
By David Tulis / 92.7 NoogaRadio
A Tennessee highwa patrol officer is charging Miss DeFoor in a day-after-elections case of texting while driving. Miss Defoor is so affected by the transportation stop under Tenn. Code Ann. Title 55 in the parking lot of the restaurant that she delays her day more than 90 minutes, and sits in a state of disconsolation in the parking lot.
She shows me the pink citation from the officer with a September court date set in county sessions court.
She says that she did not know about the no texting statute in Tennessee, did not intend to violate any such statues, and had not received or sent any text messages near the 9:15 time stamp of the citation in lieu of arrest, as might be proven from a record from her mobile phone provider.
Miss DeFoor says the encounter terrified her and shakes her. She says that she is simply scared and frightened by police, and I assure her the officer who seized her was in a marked patrol car and enjoyed being seen at his work among the restaurant patrons (a form of state theater).
Limits on police action in the law
On March 6 I gave transportation administrative notice to Gov. Bill Haslam, who oversees the department of safety and homeland security, the agency in which the Tennessee Highway Patrol resides. The notice informs Mr. Haslam that Title 55, the state transportation code, applies to parties involved in transportation.
Miss DeFoor, operating under a common misconception and unaware of her constitutional and statutory rights, makes admissions to the officer about her status. In testifying against herself, she shows him a driver license, proof of insurance and vehicle registration, all of which are prerequisites under transportation and proofs of her being in the officer’s jurisdiction as enforcer of business law.
She says that she had not been Mirandized by the officer, and I tell her that the warning should have fallen from the lips of the trooper the moment he came up to her window, because what she says about herself will be used against her in court, and were indeed used to prepare the criminal citation against her. This trooper, witness of an apparent crime, gave to her the work of his investigation and detective work, and she obliged him by assigning to herself the evidences of being in his jurisdiction — which is to say, transportation enforcement.
Miranda is generally ignored in Tennessee, even though it is intended to protect criminal defendants from saying or giving anything that is usable in court against them. The defense against self-incrimination begins the first moment of a transportation stop or arrest. As I tell Miss DeFoor, the tendering of a driver license and other commercial papers is a form of answer to interrogation, which she gave prior to being given a Miranda warning that in her case did not come.
Cops and highway patrol officers pretend that Miranda applies only in what they call custodial arrest and interrogation, which they pretend not to understand covers the very first question and the very first answer.
State actors pretend that custodial interrogation is a long sit-down with the detective at the police station when cops are trying to pin a murder on a nervous twenty-something. The concessions are extraordinarily easy to make the traffic stop context, where the barrier of protection against self-incrimination is sharply lower. It is lower because the state has an equitable relationship with most travelers because most travelers are drivers and operators, operating presumptively in commerce, subject to police power.
The texting while driving charge cannot be defeated as a matter of law unless the person assailed is not a driver, but a free user of the road, one exercising a constitutionally guaranteed God-given inherent and unalienable right of free movement. The law applies to people in the transportation sector.
The big hitch, however, is that state policy rejects the concept of travel as a roadway activity, and will hear no appeal from anyone making the “I’m just a traveler” defense.
Yearly emissions test reminds of state’s conversion of right into privilege
Miss DeFoor says she is not involved in transportation, either of people or goods, and is not this morning under any sort of contract or manifest to affect a commercial delivery. She’s just a young woman on the way to work, using the roadways incidentally to her work, the road not being her primary place of business.
The assertion of the right to travel must be asserted at the local level, against the individual officer. This officer legally has been notified about the limit of the transportation law. If he had heard a proper defense by Miss DeFoor of her real status (traveler, noncommercial), he would have had pause before citing her.
What would likely happen in a travel case at the officer level: The traveler must accept arrest, to be properly injured so that he might have grounds to sue the officer for bad-faith tort, under administrative notice.
The loss of Liberty and hope
It’s the day after primaries and elections. But I think more today about Kaitlin DeFoor dabbing her eyes repeatedly in three conversations I have with her as she sits in her car parked in the Panera parking lot. What has happened to her today is far more significant than election results, that fill the news cycle.
Bill Lee, the Republican nominee for governor, probably is more open to making changes to commercial government than would have his rivals. But the hope for this reform of scaling back commercial government is unlikely to come from king or prince, but via a local solution.
Administrative notice is a local solution. It puts responsibility for obeying the law on the individual actor, whether the state trooper, the city cop, the mayor or the warden of a prison.
Sentinel on path; theory of administrative notice.
In government, people come and go. Officials move from one agency to another. They retire. Some go into corporate service. How can anyone be held personally liable? The main idea of the notice is to plant a sentinel ahead of yourself on your path to light up the way for retributive action.
As the state officials commit their misdeeds again, you bring up the fact that they had been notified that their actions in that direction are unlawful. You point out in a lawsuit but these state actors were acting in bad faith. That they knew the rule, that they violated the rule, and that they did not violate the rule because they commited a bookkeeping, clerical, human fault or mistake, but intentionally. Because they had notice of the law that you cited to them, their fresh actions are arguably done in bad faith because they repeated an earlier sin even though you had pointed out the law that now accuses them (thanks to your gracious and generous and helpful admin notice).
Your lawsuit against the individual state actor (Bill Haslam the man, trooper John Doe, city officer so-and-so) is simply the consolidation of the administrative notice project. In the lawsuit you have the two parts coming together.
To recap. The official violates the rules. You notice that he did so. You do him a favor of giving him notice of the rule that he overlooks. He has administrative notice in his awareness and consciousness. Later, he violates the same rule. Only now, this time, he does so knowingly and intentionally. And he is vulnerable in his person for your claims of a tort done against you in regards to the rule, a rule to him in his official role, but violated by the man in his personal capacity. By your earlier notice you have stripped him of his defense of unintentional good faith mistake or error. He KNEW, yet he still did the misdeed.
‘Good faith’
The whole dynamic of good faith error comes into view in a fresh Supreme Court opinion about the exclusionary rule and a deputy’s failure to make three exact copies of a warrant and not have signed one of the warrants. The judges discuss good faith error and rule that the double murder evidence could be admitted because the slippage was unintentional and were not done in bad faith. They were done, in other words, in good faith as part of a good-faith effort with the search warrant upheld under constitutional scrutiny.
“Although the term ‘good faith is not subject to precise definition, a good-faith mistake is one characterized by simple, isolated oversight or inadvertence. A good-faith mistake does not include conduct that is deliberate, reckless, or grossly negligent, nor does it include multiple careless errors.”
Administrative Notice as PDF, 20pp
