It has been eight months since Chattanooga city council has received transportation administrative notice regarding abusive practices by Mayor Andy Berke’s police department.
The notice informs the city’s corporation about the scope, reach and subject matter jurisdiction of Tenn. Code Ann. § Title 55 of the Tennessee code, the transportation statute, and other relevant law about police powers.
By David Tulis / 92.7 NoogaRadio
An open records request response of 31 documents reveals that no city council person has had questions or comments for the mayor, for other city council members, for police chief David Roddy or others in Mr. Berke’s administration. At least not as evidenced by written documents. All documents in the response were from this reporter.
The strong suggestion from this development is that members of city council members do not care about police custom that disrupts the well-being, peace and prosperity of their constituents and others who travel by car, truck or motorbike on city streets.
4 areas of concern
➤ Do members of city council not have the slightest worry about the legal liability of the corporation? Without reform, the city faces tort claims against itself for ignoring the plain meaning of the statute.
➤ Do Ken Smith, Carol Berz, Anthony Byrd, Demetrus Coonrod, Chip Henderson, Jerry Mitchell, Russell Gilbert, and Erskine Oglesbee have no concern about damage made against African-Americans, poor people, immigrants from Guatemala and Honduras, impoverished orphans and widows (whom the Bible orders be strictly protected) and other people who generally dread contact with Mr. Berke’s police employees?
➤ More importantly than care for citizens, do not council members give a whit of concern for the 500 men and women who are sworn officers? Since Feb. 20 when I gave notice, these employees with their high and holy immunities and cult-like powers over life and death are on the line legally in their personas propria. Their estates, their private assets, their houses, their oaken dining room tables and other furnishings, their Tennessee Valley Federal Credit Union accounts, their personal F150 pickups, their H&K and Colt gun collections and other chattel are all exposed to attorneys Jerry summers and Robin Flores, known for helping police abuse victims. They are vulnerable to jury power or to bench verdicts.
Under TAN, these employees of city government are denied their their routine defense in civil rights and oppression litigation — “I didn’t know” and “I didn’t intend.” This prophylactic is pierced under administrative notice.
➤ Do not members of city council care about the city itself as a social and poetical construct, its reputation geopolitically as a prosperous and open city, thanks largely to the arrival of Gig Internet service, to a fair city administration and to a friendly tax atmosphere as a Tennessee municipal gem?
Duty of inquiry
On Oct. 8, I sent the supine, dozing members of city council an e-mail of my analysis in Tennessee law of the notice doctrine. The court rulings cited show that when someone is “put on notice of inquiry,” inquiry becomes a duty. There are two types of knowledge when it comes to notice: Actual knowledge and imputed knowledge.
Officers of the department have imputed knowledge of the limits of the statute outlined in the notice, even though they may not have actual knowledge.
At his tort trial, the officer will be held to the high standard of actual knowledge because he had imputed knowledge. He knew legally of the limits of Title 55, yet he still arrested and charged the plaintiff for a transportation violation even though he had no evidence of that person having been involved in transportation. It’s worse for him if his victim says he is traveling or if that person says he is “under transportation administrative notice.” The officer has acted on rebuttable supposition that his victim was a for-hire carrier of some kind subject to Title 55, outside the requirement for probable cause, and should have made a factual determination first of the person’s status as a commercial for-profit user of the road before arresting him and taking him to the county jail or an infraction.
But the person in the car was outside the scope of Title 55, and the officer should have respected the statute and obeyed it, even though he didn’t personally know about administrative notice and hadn’t taken the time to read it (it is online — hey).
State, city cannot tax any right
He didn’t have personal knowledge, but the city employee is still liable because he has legally imputed knowledge of the limitations on the law, which he breached in his arrest and seizure of a person not involved in transportation, but using the public right of way in Chattanooga as a matter of right.
That’s what right of way means. A person on it has right to be there and cannot otherwise be offended by a claim of a tax, a demand for a license, or a requirement to show a permit of any kind to be there.
The officer is personally liable for a tort because he acted under color of law, under his own authority, and not pursuant to the statute, and in bad faith because he knew by imputed knowledge the limits of the law — yet ignored those limits.
Chattanooga city council and its elected members are men and women of charitable disposition. They put up with a lot to hold political office, especially against their time and their private and personal business. But it is entirely possible that these elected officials are failing in their love of Chattanooga and their due diligence, their duty to boldly and immediately make inquiry into whether TAN is correct in its review of statute and court case.
If TAN is mere fantasy and worthless gobbledygook, that needs to be established within the next 30 days, I suggest, so the council and the corporation might show good faith in acting in terms of the law that Mr. Berke is apparently ignoring without account.
If TAN is wrong, Phil Noblett, city attorney, easily will be able to rebut it by declaring in open meeting the error of the notice, and enter the rebuttal thereby into the public record.
Transportation Administrative Notice creates cause of action vs. cops, new legal defense in court to criminal traffic charge
The whole story in 5 minutes