Enforcement power limited to ‘public offense,’ police manual says

Unidentified Chattanooga police officers take part in community relations activity at a local restaurant. (Photo Chattanooga police department)

The Chattanooga police department claims authority to enforce the state”s freight, shipping, trucking and transportation law at Tenn. Code Ann. § Title 55 from two provisions in the code. It is questionable from the department’s claims whether this power is lawfully exercised.

By David Tulis / NoogaRadio 92.7 FM

Here are the lines from city police’s manual.

Police Authority to Enforce Laws [1.2.1]

1. T.C.A. 38-3-103 and 38-3-108 give police officers the authority to enforce the law and make arrests for violations of the law.

2. Section 13.2 of the Chattanooga City Charter, enacted in 1901, provides, “The officers and patrolmen of the police department shall have all the powers now possessed by constables, except for the service of civil process.” 

ADM-25 – POLICE AUTHORITY AND DISCRETION, July 2015, Chief Fred Fletcher

The two state law provisions cited, T.C.A. 38-3-103 and 38-3-108, suggest the department has derivative power from or parallel authority to that of the sheriff. 

What is remarkable in my review of police department authority is that officers’ power appears limited to — get this — to public offenses. These are crimes that are visible to the eye, as we have discussed in recent posts. They are offenses that tend toward causing a public disturbance. Alleged crimes such as “driving on revoked” or “driving on suspended” are not public offenses because they do not affect the public. They require a warrant be issued before an arrest made, according to my analysis submitted the department’s private certifying agency, CALEA. https://tnt23.wpengine.com/2019/10/3-reasons-why-calea-should-decertify-berkes-police-department/

Police power is derivative, but is it delegated? Is there a delegated order, or contract or covenant between the sheriff’s department and CPD? Worth looking into. In an interview, Sheriff Hammond indicates this arrangement is personal and professional, a grant from one professional law enforcement officer to another.

Before going any further, let’s look first at the authorities that let Chattanooga police act upon members of the public.

Sheriff target: Common law crimes

Sheriff Hammond’s authority is described at Tenn. Code Ann. 38-3-102 as, chiefly, suppressing a common law offense called “public offense,” which is the sort of offense that affects the public peace and tranquility.

38-3-102. Duties of sheriff.

(a)  The sheriff is the principal conservator of the peace in the sheriff’s county. It is the sheriff’s duty to suppress all affrays, riots, routs, unlawful assemblies, insurrections, or other breaches of the peace, to do which the sheriff may summon to such sheriff’s aid as many of the inhabitants of the county as such sheriff thinks proper.

(b)  It shall be the duty of the sheriffs, in their respective counties, by themselves or deputies, to patrol the roads of the county, to ferret out crimes, to secure evidence of crimes, and to apprehend and arrest criminals.  [Emphasis added]

City gives 2 sources for authority

A Chattanooga policeman shows off his specially trained dog. (Photo Chattanooga police department)

The city department’s authority emerges as follows in the next provision of the law, “conservators of the peace.”

38-3-103. Other conservators of the peace.

The judicial and ministerial officers of justice in the state, and the mayor, aldermen, marshals and police of cities and towns, and the director, commissioner, or similar head of any metropolitan or municipal police department, whether elected or appointed, are also conservators of the peace, and are required to aid in the prevention and suppression of public offenses, and for this purpose may act with all the power of the sheriff. [Emphasis added]

The police department, in its manual, cites the above statute as its authority to operate. The second citation is the law, as follows:

38-3-108. Duty to arrest.

It is the duty of all peace officers who know, or have reason to suspect, any person of being armed with the intention of committing a riot or affray, or of assaulting, wounding, or killing another person, or of otherwise breaking the peace, to arrest such person immediately, and take such person before the court of general sessions. [Emphasis added]

Several points come into view. They suggest limits on the operation of police — legal strictures — and that police routinely operate privately against citizens and outside the scope of their legal authority. That means that officers are acting in their personal capacity, rather than under authority.

‘Public offense’ as limiter of power

➤ The department has no authority to enforce Tennessee Code Ann. § Title 55, motor and other vehicles, because these infractions do not meet the courts’ definition of public offense. In the law granting police officers power to arrest without a warrant, four instances exist in which a cop can arrest a citizen in a roadway/highway/travel/auto-related instance. Four types of incident — each involving a traffic accident. A crash makes these incidents public offenses. They involved DUI or fleeing the scene.

➤ The authorizing law has peacekeeping in view, not law enforcement. Cops today enforce laws in addition to keeping the peace. It is in this overage that Jim Crow operates against African-Americans on the roadways. It is in this operation of warrantless arrest (aka “general warrants”) that the use of cars and trucks puts the black, poor and immigrant population in view of police at their most vulnerable point, that of travel on the public right of way.

➤ CPD and departments in Red Bank and East Ridge are under transportation administrative notice, giving leverage or false arrest litigation against officers and defense against criminal charges. Notice makes clear the broad extent of police power abuse, and invites — it requires — traffic arrest protocol reform.

➤ This review suggests the disability of Chattanooga police department power is greater than I had suspected. An earlier analysis of municipal authority suggests that police have authority to enforce ordinances, but not necessarily the criminal code at Tenn. Code Ann. § Title 39.

We need to get to the absolute bottom of the power police. Police use of the shipping and freight law at Title 55 is mostly outside the scope of that statute, particularly since the highway patrol is given exclusive jurisdiction as “the sole agency” for enforcement of traffic regulations. What is the source of police power in general? Is it magical? Is it assumed? Is it legally delegated? 

A big problem in pushing it back into its proper legal sphere is that of custom and usage. Does its custom and usage make it right and unstoppable, even if it is destructive of the people’s peace and tranquility? That is going to be a real problem — custom and usage. Once practice becomes widely accepted and unquestioned, it takes the force of law.

The David Tulis show is 1 p.m. weekdays, live and lococentric.

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