A response to my demand letter regarding my near arrest Friday misstates the Tennessee arrest without warrant statute.
The statements are made in a response by Sheriff Jim Hammond’s new counsel, Coty Wamp, an attorney.
By David Tulis / NoogaRadio 92.7 FM
Miss Wamp misstates the statute to describe it as if Tennessee were under a general warrants law — one that allows officers to operate a scheme of general warrants, which are outlaw in the state’s supreme law, the constitution.
She says the standard for arrest without a warrant is a “misdemeanor offense committed in the officer’s presence.” That is not what the statute says and that is not how the courts have understood the phrase public offense, the actual wording in the law.
This misstatement is perhaps not rising to the level of an ethical breach by an attorney. If such a statement had been made in front of a judge, it would have been a violation of her ethical standards and an attempt to mislead the court. Alas, it’s only me she is attempting to distract.
Miss Wamp says her officers could have arrested me on the spot without a warrant while meeting only one of two tests under the law. She cites the test of “in the officer’s presence” but fibs about the “misdemeanor offense.” The law has in view not misdemeanor offenses, but “public offenses,” which are different, a subcategory.
Her reading of the law violates a basic tenet of statutory construction. Her rendering of its meaning voids almost the entire statute, makes it useless and extraneous. Evidently, her answer to me came before she read the administrative notice under which I have placed county government.
Miss Wamp says the sheriff is merely an enforcer of orders and does not set policy. He will uniformly enforce the chin diaper rule in the courthouse, even in areas that are not the courts themselves. She says there is no condition or exception allowed, except for “ a bona fide medical condition which prevents you from safely wearing a mask” for which one must have proof.
No exceptions
She says that there are no exceptions to the Supreme Court’s edict regarding courthouses which is on his face unconstitutional on two grounds.
No. 1, the edict pretends to have authority that is not judicial in nature, pursuant to the constituiton’s delegation of power by the people to the state (Article 6, judicial power).‡ No. 2, if the power is to be understood as administrative, it can apply only to people who work in the judiciary, and is a rule and policy for them.
By no imaginative stretch can it be understood that any citizen or public official not subject to either these two streams of power are subject to the court in any general sense.
Hammond statement via Wamp
In the material from Miss Wamp, emphases are mine.
I received a copy of your email regarding the mandatory wearing of face masks in public courthouses. I understand your frustration surrounding this matter, as I believe many citizens of the county do as well. However, the Sheriff’s Office is required to follow any and all Orders issued by the Tennessee Supreme Court. On July 9, 2020 the Supreme Court filed an “Order Regarding Face Coverings” Order No. ADM2020-00428 that went into effect on July 13, 2020. I have attached a copy of the Order to this email, if you have not been able to read it. The Order requires that all persons entering a courthouse or other building in which court facilities are located shall wear a face covering over the nose and mouth. The exceptions to this requirement are as follows:
1) Children aged twelve years and under are not required to wear a face covering.
2) Persons who have trouble breathing due to an underlying health condition or who have another bona fide medical or health-related reason are not required to wear a face covering.
3) Situations in which a face covering poses a safety or security risk.
I see that in your email you cite a condition “that prevents [you] from wearing a chin diaper.” Your condition includes religious, legal, and personal reasons. Pursuant to the Supreme Court Order, there seems to be no exception for “religious, legal, [or] personal reasons.” Certainly, if you have a bona fide medical condition which prevents you from safely wearing a mask, you can bring documented medical proof with you to the courthouse for the deputies to review.
All individuals who come into the courthouse are subject to this Order… including attorneys, jurors, clerks, and judges. Everyone is doing their best to follow these Supreme Court requirements, despite what personal beliefs may be.
You also cite T.C.A. 40-7-103. However, you are mistaken as to the law on a misdemeanor arrests. 40-7-103 states that an officer may arrest an individual, without a warrant, who has committed a misdemeanor offense in the officer’s presence. This is made clear in 40-7-103(a)(1). Based on my knowledge of this incident, deputies would have witnessed you refusing to wear a mask. This qualifies as “in the officer’s presence.” You should also make yourself aware of the disorderly conduct statute (39-17-305), as it can be a reason in situations like this for law enforcement to make a lawful arrest.
You are always welcome to attend public proceedings in the courthouse, as the law gives you certain rights to do that. But the Supreme Court has put in place simple safety and public health requirements for these strange times. Also, remember that the Hamilton County Sheriff’s Office is simply the enforcing agency. The Sheriff’s Office has not created the rules or Orders, we are simply called to enforce them.
Her statement shows how far gone those who hold public office have strayed from the delegated authority given them by the people through the constitution. Officials hold lightly the constitution and those laws pursuant to it, laws that direct government agents in their actions.
The covenant seems to have been broken, with Sheriff Hammond and the courts appearing to have declined to be obliged under its terms. That means that the people are under little further obligation to such officials and their political economy, except insofar as it may be practical to notice them as necessary or pragmatically pay obeisance to them.
They, and their duopoly political parties — the Republicans and Democrats — are part of a larger problem of antinomianism (anti-law belief), and there is no fixing the disaster under which we live by them, or by replacing the names and faces of officeholders in balloting such as today’s across Hamilton County
‡ Judicial power is not described, but named this way: “The judicial power of this state shall be vested in one Supreme Court and in such Circuit, Chancery and other Inferior Courts as the Legislature shall from time to time, ordain and establish; in the judges thereof, and in justices of the peace.” Article 6, section 1, Tennessee constitution
Degringolade
