Four hundred and forty days ago I gave Hamilton County Sheriff Jim Hammond a notice that will save officers’ lives and reduce a threat to officer safety.
The notice is a legal description of the state transportation law used to stop people as they travel the roads, boulevards, highways, freeways and lanes on personal business and in the exercise of their rights.
[This letter delivered today to the Hamilton County commission in Chattanooga, seeks to halt overenforcement of Tenn. Code Ann. § Title 55 (vehicles and motor vehicles) against members of the public not subject to it. The state shipping and transportation law, I argue, must be enforced as against shipping and transportation only, and not against people like you and me, and against the poor, the black, the Latino, the immigrant, the ignorant, the weak and everybody else. For that, plainly said, is lawless. It’s human trafficking under color of law. — David Tulis]
One goal is to reduce the personal threat level each officer faces when he makes a traffic stop or traffic arrest under this law.
A second purpose of my March 1, 2018, notice is to alter traffic stop protocols so that the officer may make a correct determination of lawful police authority.
Without probable cause, deputies impotent
No officer can stop or arrest or seize anyone without proper authority in law. Yet the exercise of police power outside the scope of the law is a common occurrence.
The abuse of the law across the state generates a great deal of anxiety and suffering, causes many arrests and court beleaguerment of the people.
These contacts are most damaging to several categories of people who deserve more protection from our authorities rather than less. African-Americans, immigrants and foreign-speaking working people, and the poor. The biblical categories of protected people groups include aliens and strangers on one hand and orphans and widows on the other. That covers many of the simplest folk, unable to argue their rights roadside, make bond or fend for themselves in court. Zechariah 7:8-11
The abuse by Sheriff Jim Hammond of Tenn. Code Ann. § Title 55 is a pragmatic decision in defiance of the constitutional protections of the people pursuant to their bill of rights to be free from unwarranted searches and bills of attainder. Simply do an online search for the document to examine it for yourself.
No. 1 police reform argument
Traffic stops are the most dangerous forms of encounter with members of the public, even more so than domestic violence calls to 911.
Data is compiled by the National Law Enforcement Officer Memorial Fund in its report, “Making It Safer: A Study of Law Enforcement Fatalities Between 2010-2016,” pp. 38-42.
People who shoot or injure officers are citizen members of the public, inhabitants of cities, counties and states. They are private individuals using the road for private purposes. Many harbor anger, resentment, hatred and disregard for law enforcement officers.
The law at Title 55 limits roadside encounters to professional drivers, employees (aka operators) on the clock working in shipping and transportation, carrying cargoes, boxes or pallets of freight with bills of lading, waybills, passenger lists and invoices tucked into clipboards.
It is encounters between cops and private citizens going about private business that are the most dangerous and the most unpredictable for Sheriff Hammond’s deputies.
Lawful subjects of deputies
It’s much, much safer for deputies to deal with professional drivers and operators involved in transportation, serving business and industry in America’s great free enterprise heartland.
Transportation is a term describing regulable travel. Transportation is subject to police regulation and police power because it affects the public interest.
Shippers make a private gain and a private profit and have their principal place of business the people’s roads. The people own the roads and the state is entrusted to maintain them and protects their users.
Only shippers reasonably are subject to regulation for public safety, health and welfare. The general assembly’s safety concerns are expressed through the driver license and the requirement for drivers to obey the rules of the road. Safety also is in view in the imposition of insurance requirements and the registration of motor vehicles as involved in privileged activity.
County has limited authority over sheriff
Hamilton county and its commission have limited control over the sheriff. He has a free-standing authority as protector of the people. The sheriff is above the county and superior to the county and even, I daresay, superior to the constitution as he is not required to take an oath to uphold it (as is Chattanooga police chief David Roddy).
The commission has power over his purse. Respectful of his office, I’ve waited a full year for Sheriff Hammond to undertake traffic stop reform without bringing the matter up here.
Under TAN’s restatement of state and U.S. law, Sheriff Hammond is obligated to make a proper determination of the police authority of his officers.
The short of it is this: They are not to stop private users of the road at all — unless the officer sees that private user commit an actual crime in the criminal statutes, in Title 39. If a citizen does commit a crime the officer sees, or he has a sworn warrant, the officer uses his citizen’s arrest authority to seize that person for the crime or conduct a search under probable cause or warrant.
Maintaining our deputy ranks
Americans have so many negative encounters with police and law enforcement that the national press reported in December a massive decline in applications for police new hires. In Nashville, Tennessee, job applications dropped from 4,700 in 2010 to 1,900 in 2017. Here, departments are scrambling for recruits. Sheriff Hammond reports a staff shortage of 15.
Hamilton county cares about its officers. It tries to be competitive in wages and benefits. It doesn’t want to lose too many to retirement.
It doesn’t want to lose an officer to death or injury in a traffic encounter. So it is imperative to take the long-term view of deputy ranks and find a way to reduce the danger to officers from the riskiest call.
Sheriff Hammond’s hangup
State law, as cited in Transportation Administrative Notice Tennessee, requires Sheriff Hammond to obey the statute as written. His oath is to uphold the rights of the people and obey the law. I intend to hold him to his vow despite the activist and disobedient Tennessee courts of appeal that deny by policy that a private citizen can travel on the public right of way, the freeway, apart from state privileges, licensure and commercial permissions from the state.
The abrogation of this right by the crooked judiciary and members of the bar is a manifest wrong for which there is no centralized top-down remedy. Politicking of the ordinary sort cannot end the abuse. Appeal by criminal traffic defendants — such as Arthur Jay Hirsch in a noted Lawrence County case — meets deaf ears.
The state denies any distinction between travel and transportation, though these categories are built into the DNA of our law and the origins of state regulatory authority as evidenced by Shannon’s Code and numerous court cases.
The policy is a lie. It has allowed a long-term corrosive use and abuse of policing against the people in their movements on the road and their free enterprise and prosperity. This abuse has to stop in the interest of amity, mercy, justice and respect for black-letter law.
TAN is a lococentric reform that reduces pressure on the county and on the dockets of sessions and criminal courts. It reduces arrests and citations. My project has a incrementalist framework to make us a strong town. We obey and respect black-letter law even though policy out of Nashville rejects the law and its clear limits.
Silence is acquiescence
County attorney Rheuben Taylor, district attorney Neal Pinkston and Sheriff Hammond have responded to administrative notice with a silence that is, I’m happy to say, golden for the people.
Under the doctrine of notice, my rehearsal of law stands secure. TAN is a public document in Rhea County register’s office, and has met requirements for notorious publication in the legal classifieds. Hearing no rebuttal and no correction of its statements of either fact or law, residents can rely on this public document in their own defense and in litigation against the county.
Notice seeks to reduce physical danger to officers by requiring them to establish proper police authority at every roadway stop. In a proper arrest, the court will have subject matter jurisdiction.
But TAN elevates legal danger to them. TAN affects a shift in liability and eliminates a key aspect of their qualified immunity.
My notice denies the state actor his trusted prophylactic — the defense of “I didn’t know” and “I didn’t intend.” With notice he intentionally stops that citizen outside the scope of his authority. With notice, the officer malevolently and maliciously stops a person who clearly is not in transportation and arrests him without determining first whether that person is a shipper operating a commercial motor vehicle. With notice, he seizes a person knowing he lacks authority that gives a court subject matter jurisdiction. With notice, the arrest is done in bad faith, and is worth considerably more in damages that will have to be footed by taxpayers and our insurance carrier.
It is time for Hamilton County to address this shortcoming in the administration of Sheriff Hammond’s department, and bring relief to citizens under an oppression.
A reform can be affected by the addition of a single question to the traffic stop protocol. It’s just a matter of discussing the rights of the people with Sheriff Hammond, their chief protector and guardian, the chief peacekeeper in Hamilton County, and getting him to ask this question.