We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.
— The Magna Carta @ 45
Daniel Wilkey is a deputy serving Hamilton County Sheriff Jim Hammond. Over a seven-month spell, he engaged in outrageous conduct in enforcement encounters ordained by the sheriff, according to an indictment and any of 11 civil lawsuits.
By David Tulis / NoogaRadio 92.7 FM
In one notorious “traffic stop,” Mr. Wilkey imposed a baptism-like ritual upon a young woman he forced to enter into a cold lake in the night while a fellow deputy looked on.
Is it true that Deputy Wilkey’s boss allowed him the authority to stop/arrest private travelers on the road? It appears that all of the alleged abuses that occurred on Deputy Wilkey’s watch as a result of traffic stops would not have happened in those circumstances had Sheriff Hammond respected Tennessee law rather than followed judicial policy in Tennessee.
On March 1, 2018, I served Sheriff Hammond Transportation Administrative Notice Tennessee. The notice implicitly warns him that despite supreme court policy abrogating the right of travel and free communication, these rights still exist. They still live and breathe in Tennessee among the people, and Sheriff Hammond does not have authority under the state freight and trucking law at Tenn. Code Ann. Title § 55 and § 65 to stop private users of the road not in the transportation industry.
That is the only conclusion one can reasonably draw after having read the notice, a 20-page legal analysis of Tennessee’s transportation law.
Sheriff Hammond ignored this notice. He thus appears to have slighted and disregarded the true state of the law and the constitution in Tennessee, adhering instead to court policy that allowed him to order Deputy Wilkey to stop travelers on the road under the freight and shipping law, the enforcement of which is reserved exclusively to the Tennessee highway patrol.
Perhaps Sheriff Hammond can take comfort in widespread violation of the people’s ancient but not quite forgotten rights across the state’s 95 counties. The Supreme Court’s latest ruling abrogating the right of communication fresh off the press — State of Tennessee v. Arthur Jay Hirsch, M2016-00321-CCA-R3-CD. https://www.tncourts.gov/sites/default/files/hirsch.opn_.pdf
Another Title 55 case under Sheriff Hammond’s authority is the July 10 anal cavity search and traffic arrest of James Myron Mitchell, the outrageous conduct against whom prompted protests among Christian clergy in Chattanooga.
Under the doctrines of notice, and under the protections of the constitution for the people, Sheriff Hammond has had a fiduciary duty that he has rejected. His duty includes responding to questions and responding to such citizen addresses and grievances as transportation administrative notice. In not responding, or in not complying, he appears to have engaged in what court rulings indicate is a fraud against the people.
The rightness of this notice has meant nothing to Sheriff Hammond, who rejected even reading the document hundreds of days past having received it from my hands before witnesses. I gave it to him 661 days ago as of the Sunday before Christmas 2019.
Sheriff Hammond remains today under duty to respond to this notice and either to rebut it or comply with it. The notice is simply a restatement of Tennessee law all relevant court cases and the principles of constitutional liberty that sheriff Hammond has sworn (more or less) to uphold.
The courts speak
I believe it might be useful for Sheriff Hammond to review the following court opinions that delve into the matter of his duty to answer an address to him on the point of the law he claims to be enforcing. Does he have a duty to speak — to the public, to his employees such as Deputy Wilkey?
➤ Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading. (Emphasis added.) United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977)
➤ Fraud in the common law sense of deceit is committed by deliberately misleading another by words, by acts, or, in some instances — notably where there is a fiduciary relationship, which creates a duty to disclose all material facts — by silence. See Prosser and Keeton on the Law of Torts §§ 105-06 (5th ed. 1984).
Official must ‘level’ with public
➤ “But if someone asks you to break a $10 bill, and you give him two $1 bills instead of two $5’s because you know he cannot read and won’t know the difference, that is fraud. Even more clearly is it fraud to fail to ‘level’ with one to whom one owes fiduciary duties. The essence of a fiduciary relationship is that the fiduciary agrees to act as his principal’s alter ego rather than to assume the standard arm’s length stance of traders in a market. Hence the principal is not armed with the usual wariness that one has in dealing with strangers; he trusts the fiduciary to deal with him as frankly as he would deal with himself — he has bought candor. United States v. Dial757 F.2d 163, 168 (7th Cir. 1985) (Emphasis added.)
➤ “Fraud in its elementary common law sense of deceit — and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) — includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. When a judge is busily soliciting loans from counsel to one party, and not telling the opposing counsel (let alone the public), he is concealing material information in violation of his fiduciary obligations. **** When, in addition, the judge conceals what he is doing, he commits fraud; for what he is concealing is clearly material information to his employer, the state. ***” U.S. v. Holzer, 816 F.2d 304, 307-309 (7th Cir. 1987) (Emphasis added.)
Unanswered inquiry ‘misleading’
➤ “The legal meaning of ‘fraud’ is not limited to deceit or misrepresentation; it includes overreaching, undue influence, and other forms of misconduct.” U.S. v. Holzer, 816 F.2d 304, 309 (7th Cir. 1987) (Emphasis added.)
➤ “Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading.” United States v. Prudden, 424 F.2d 1021, 1032 (5th Cir. 1970). (Emphasis added.)
➤ “While we might follow the construction of the state courts in this matter, where those statutes governed the case, in construing this statute of limitation passed by the Congress of the United States as part of the law of bankruptcy, we hold that when there has been no negligence or laches on the part of a plaintiff in coming to the knowledge of the fraud which is the foundation of the suit, and when the fraud has been concealed or is of such character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to, the party suing or those in privity with him.” Bailey v. Glover, 21 Wall. 342, 349, 350. See also Traer v. Clews, 115 U.S. 528.
➤ “An intentional misrepresentation, made through a statement or silence, can easily amount to fraud’ sufficient to warrant punitive damages. See § 6-11-20(b)(1) (“Fraud” includes “intentional … concealment of a material fact the concealing party had a duty to disclose, which was gross, oppressive, or malicious and committed with the intention … of thereby depriving a person or entity of property”) (emphasis added); § 6-1120(b)(2) (“Malice” includes any “wrongful act without just cause or excuse … [w]ith an intent to injure the … property of another”) (emphasis added); § 6-11-20(b)(5) (“Oppression” includes “[s]ubjecting a person to … unjust hardship in conscious disregard of that person’s rights”). The statute thereby authorizes punitive damages for the most serious kinds of misrepresentations, say, tricking the elderly out of their life savings, for much less serious conduct, such as the failure to disclose repainting a car, at issue here, and for a vast range of conduct in between.” BMW of North America Inc. v. Gore, 517 U.S. 559, 588-589 (1996) (Emphasis added.)
➤ “Estoppel by silence. Estoppel by silence arises were a person who by force of circumstances is under a duty to another to speak refrains from doing so and thereby leads the other to believe in the existence of a state of facts in reliance upon which he acts to his prejudice.” 21 C.J.
➤ “When silence becomes a fraud, it will operate as an estoppel.” Staton v. Bryant, 55 Miss. 261, 272 (1877) (Emphasis added.) LENOIR v. ANDERSON, 2008-CA-00148-COA (Miss.App. 2009) (Emphasis added.)
➤ “Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” La.Civ. Code art. 1953. (Emphasis added.) Jensonne v. New York LIfe Ins. 08-932 (La.App. 3 Cir. 5/20/09) at page 23, 31
Maxims on fraud
➤ Fraud vitiates everything it touches. (common law maxim) Nudd v. Burrows (1875) 91 U.S. 416.
➤ Fraud destroys the validity of everything into which it enters. Boyce’s Executors v. Grundy (1830) 28 U.S. 210.
➤ Fraud vitiates the most solemn contracts, documents and even judgments. United States v. Throckmorton (1878) 98 JU.S. 61, 70.
