The toughest question Gino Bennett asks me is, “Are you saying that a person who is committing a violation is not under the authority of our officer?”
Mr. Bennett is the chief lieutenant of Jim Hammond, Hamilton County’s elected sheriff, and is almost always attending to the county’s most powerful man as his director of support services and chief seeker for departmental cash-flow and grants.
By David Tulis / 92.7 NoogaRadio
Today he is attending a county commission meeting. Mr. Hammond, wearing a cowboy hat, is tucked away in a back room to discuss a legal matter. Mr. Bennett, bedecked in a sharp purple tie, sits next to Mr. Hammond’s empty seat on his left — and me on his right.
Mr. Bennett says he is unaware of transportation administrative notice, which has been hanging over the head of the department since March 1. He indicates he is unfamiliar with the liberty issues I raise.
‘Under the scope’
My answer in our personable back-and-forth is that if the alleged violator is not under the scope of the statute at Tenn. Code Ann. § Title 55 (“vehicles and motor vehicles” — the transportation law), his misdeed is not “a violation. ”
It is only a violation for someone who’s under the statute, within the purview of the statute.
Now the answer could have been developed. A motorist who catches a deputy’s eye for “a violation” might be stopped under tort and nuisance law if that traveling person is a private user (noncommercial). A man driving drunkenly is a nuisance. Yes, there are way of apprehending dangerous private users of the freeway. But they are not under Title 55.
We move on to cover more ground.
I assure Mr. Bennett that the courts hold in error my position on the right of free use of the public right of way. The statute is of no account in face of court policy. Neal Pinkston, I tell him, has summarized controlling policy in saying there is no right to travel except in the changing of domicile from one state to another and that, therefore, all movement by car or truck is subject to police power under Title 55 and that all such use is commercial.
But I press on. The sheriff and his department should not sit pretty with that comfort of black-robed support — on account of my notice.
I tell him about the power of proper notice. Notice denies the deputy his good faith defense in a civil prosecution for oppression and tort because it cites the statute as properly construed pursuant to the ordinary rules of statutory construction. These rules are ignored by Tennessee courts so that the state might maintain its policy of enforcement and deprive the people by legal fiction of their liberties for the convenience of the state and for the maintenance of custom among police and sheriff’s departments across Tennessee.
Taking grandkids to the pool
But the statute cannot be ignored, and its scope cannot be eluded by practitioners of police powers. I assure Mr. Bennett that the danger of retaliation against his officers is real. His department has been notified. The head has been notified and by law all the agents are notified. I don’t bring up the question about whether Sheriff Hammond and his top deputies care for the officers personal and legal well-being. Clearly and surely they do care for individual deputies in the agency’s traffic division.
The point is: Officers are bound by law and by their oaths, not by policy. If they enforce the law ultra vires (or outside the scope), they are acting only under color of law, even if state policy supports their action.
I insist that Mr. Bennett understand that under the notice doctrine, a proper notice requires response — a traffic stop protocol reform or a rebuttal.
I mention that the doctrine recognizes that the claims of notice stand if not rebutted or if acquiesced in, as these claims have been since the 1st of March.
Does Mr. Bennett see the peril to officers from victims of overbroad enforcement? I ask. Let’s try a different tack:
“When you take your grandchildren to the pool of a summer day, is that an act in commerce?”
“No, I don’t think so,” Mr. Bennett says, thoughtfully.
“Why then do you feel you need to get the state’s permission to get in your car, put your hands on the wheel and put your foot on the gas pedal and move down the road? Why is such a private trip subject to regulation as transportation?”
Mr. Bennett courteously listens, as apparently this line of inquiry is fresh in his mind.
Mr. Bennett, I say, there is a problem with the liberties of the people being abused by Mr. Hammond’s department and I’m going to defend these liberties and these rights, and the only way I can do it is by giving the department notice about the actual scope the statute, though the analysis of the scope of Title 55 is rejected by the courts. I’m jealous for the rights of my readers and listeners at 92.7 FM to make sure they have a means of redress of grievance propped by administrative notice.
Not only does my notice give defense in court for Hamilton County sheriff’s office prosecutions under Title 55 (traffic tickets are a criminal complaint), but I have created a cause of action against them, I explain. Transportation Administrative Notice Tennessee is new, and it is aimed against deputies who abuse the public under Title 55.
Bad boys: Low search, seizure standard
Title 55 allows for police power to operate on the roads under its sharply reduced standard of arrest and charge. Criminal traffic cases are very close to operating as outlawed bills of attainder, which criminalize a group of people by status and strip accused parties of their due process rights to be free of arrest and charge.
I now focus on the jail, which Sheriff Hammond oversees. I complain about the abuse of Title 55 by the department as bringing many many people into the jail. “Two thirds of the people in your jail are unconvicted,” I say, “and many of them are there through it pretext stops having, been caught on the road. The officer has a pretext stop under Title 55 of someone not involved a commerce, and, ‘Oh, we find that you are wanted in another county.’ Or, ‘Oh, we find that there is a complaint against you that you have not answered.’ Or, ‘Oh, you have an unpaid fine in accord in Davidson County and we’re going to have to extradite you there.’ Or, ‘oh, someone has made a criminal complaint against you in Milwaukee.’”
Title 55 opens up people to being swallowed by the legal-industrial system, with the poor, the African-American, the disenfranchised, the alien and stranger least able to bond his way out or hire an attorney to secure one’s freedom again.
I say (paraphrasing), “There is no end of trouble that comes to people in Chattanooga and Hamilton County through the abuse of this statute, people who are not involved in commerce who come into the police net through Title 55 and its abusive use.”
Mr. Bennett says he is going to think through my remarks as part of a personal interaction with me, suggesting that the conversation has little to do with his office as director of support services. I enjoin him to consider the people and their rights, and to consider my having prepared a notice intended to edify the department and serve the interests of the people.
Gathering my microphone, cord, laptop and coat, I dart outside and catch Sheriff Hammond getting into an elevator.
