For mayors and sheriffs, it’s easy to turn a bad practice into a morally neutral policy option.
But is it just and right? The deafness of Hamilton County Sheriff Jim Hammond and Mayor Andy Berke of Chattanooga to calls of traffic stop reform is what might be described, delicately, as a “continuing democratic deficit.” Such terms as this are used on NPR to describe dictators such as Egypt’s Abdel Fattah el-Sisi.
By David Tulis / 92.7 NoogaRadio
According to to public records, Sheriff Hammond has been under transportation administrative notice since March 1, 2018. Mayor Berke has been under notice since Feb. 20. As of today that is 427 days for Mr. Hammond and 436 days for Mr. Berke and his chief, David Roddy.
The refusal to respond to TAN is not bad news necessarily, from a legal standpoint. Silence implies acquiescence. With defendants’ consent and compliance with notice, plaintiffs will have stronger grounds in their claims of abuse of the state transportation law at Tenn. Code Ann. Title 55.
They will argue oppression, tort, abuse, injury, false arrest, and these all done with malice and bad faith.
No lawsuit has been filed yet citing the notice as an element of the case. The first one that might’ve, by cop-chasing Robin Flores, leaves F$1 million on the table in a F$3 million claim.
Why are lawyers not jumping to use TAN? Lawyers are greedy for lucre, yes. But they are instinctively conservative and not liable to view favorably the people’s rights and constitutional liberties as implied in the notice. So the shifting of tectonic plates in notified jurisdictions may be difficult for them to understand.
What TAN does for you
TAN is a 20-page document which makes clear that in Tennessee there is a scope of authority and police power in the law that simply cannot be ignored. The law regulates transportation and the commercial shipping lines and businesses. But this authority does not extend to private use of the road by citizens and residents of Tennessee or by other people passing through the state on the public freeway.
The authority of Title 55 is upon and administrative and privileged relationship that transporting parties have with the state. In the first ruling about the law, in 1940, Sullins v. Butler, 135 S.W.2d 930 (Tenn. 1940), the judges make clear that the relationship between the state and the licensee is equitable (business).
That means that the licensee is in a relationship with the state pursuant to a privilege. A privilege in Tennessee is an occupation or trade or line of business. People tag their autos as motor vehicles and obtain driver’s licenses because they understand they’re involved in commercial activity on the road, are moving goods or people for profit and gain in either interstate commerce or intrastate commerce.
Most everyone in Tennessee applies for a license because they think they need one, though they are not involved in commerce. They are perhaps confused. (Deceived, maybe? Just maybe?) Legally, they have entered into a commercial relationship with the state, and have yielded their right to travel and communicate by movement of their persons, papers and effects in exchange for a commercial privilege, a kind of state hybrid privilege (using a car is not, by itself, an occupation, but an activity).
Sheriff Hammond might gently be described as one who has a democratic deficit. He is a political conservative and a standard-issue Republican, but he is upholds and maintains an authoritarian and extra-legal system of enforcement, as if he were a member of the police and not a member of the judiciary.
Odd as that may sound, it is highly significant because his office is based in a biblical economy and a biblical understanding of the role of government. The sheriff’s department has a judicial and peacekeeping and rights-protecting origin.
In contrast, police departments are executive government organizations that have as their primary job to instill fear and terror and to collect money against those who are exercising state privileges. They enforce laws rather than keep the peace. They are part of the war by the modern state against the individual and the family and the people, and operate as absolutists rather than public servants or instruments of righteousness and justice.
Berke the absolutist
Mayor Berke leads the city’s executive branch, and is boss of Chief Roddy. He is a liberal Democrat with strong socialist and progressive tendencies, but that is not to say he avoids using what are traditionally said to be right-wing concepts. In his anti-hate committee event on XYZ date, Mr. Berke’s guest speaker was Michael Signer, former mayor Charlottesville.
Mr. Signer is an authoritarian police-state backer whose main argument in a 20 minute talk was about policing and improving the executive-state capacity for surveillance, group oppression, the crushing of dissidents’ free speech rights (with, of course, due lawyerly respect of the first amendment).
In keeping with Mayor Berke’s siding with right-wing authoritarianism, he has maintained for the past 436 days a stony disregard for my persistent analysis on the airwaves and on the website about the need to create a sanctuary city from the judicially approved practice of ultra vires enforcement of the transportation law on people not involved in transportation.
Democrat Andy Berke, like his GOP superior in the sheriff’s office, Jim Hammond, is marked by a continuing democratic deficit.
Ending a longstanding abuse of a law that seemingly effects every adult Chattanoogan would be highly democratic, highly merciful, highly just, highly favoring of African-Americans, great for poor people, and deliciously relieving for Hispanics, who face other oppressions than those merely occurring against them on the road.