I don’t give legal advice, don’t practice law, don’t have a law business or practice. But I’ve read enough law and thought long enough about our constitutionally guaranteed rights to provide people such as Charlie Bell of Chattanooga a remedy in his case.
By David Tulis / NoogaRadio 92.7 FM
If it were me, I would submit to the court the following demand for dismissal prior to an appearance in court. The grounds are lack of subject matter jurisdiction and misapplication of purported authority asserted upon an innocent man by city cop Joseph Ogg.
In this report, I put into judicially useful form the fruits of our long reporting in this area of traffic enforcement abuse — aka Jim Crow — in Tennessee, particularly Hamilton County. An attorney will not provide any such analysis, as he has to make a living in the law, and such remedies as this one will end the continuing oppression of the poor, minorities, immigrants and everyone else. And we can’t have that, can we?
In Hamilton County sessions court
Pre-plea remedy and avoidance
In the matter of State of Tennessee v. Charlie Bell, Docket no. 1814995.
- Comes now, accused, Charlie Bell, charged with evading arrest in a criminal prosecution lacking antecedent charge and case filed under color of law.
- Affiant states the following points at law prior to making any appearance before this tribunal in a matter in which the court’s subject matter jurisdiction has not been evoked.
Facts of the matter
- Officer Joseph Ogg of Chattanooga police department pulled over accused, Charlie Bell, Sept. 16 on Brainerd road. Accused feared for his life. He fled the encounter as the officer ordered him out of his car, drew his weapon and spoke in a threatening tone. Officer Ogg, in possession of accused’s driver license and car bill of sale, went to the magistrate and swore out an arrest warrant alleging evading arrest. Hearing of same, accused turned himself for booking.
- The ostensible probable cause for the arrest: A hand-inked placard taped inside the rear window by Red’s Cars, a car lot that two days prior had sold the car to accused.
Petition for pre-trial dismissal
- Accused demands court dismiss this case administratively, as it is not ripe for adjudication on the following grounds:
- — All matters pertaining to licenses and licensed activity are “purely administrative” and any claim against accused must pursue exhaustion of administrative remedies. Hoover Motor Exp. Co. v. R.R. & Pub. Utilities Comm’n, 195 Tenn. 593, 616, 261 S.W.2d 233, 243 (1953)
- — Given that any dispute over a registration tag is over the accused’s use of the roads (whether for commerce, or for private purposes as a matter of right), the matter is commercial, under Tenn. Code Ann. § Title 55, motor and other vehicles, and § Tile 65, carriers. The movant in a dispute must be the department of safety and homeland security or the department of revenue.
- — The department of safety has exclusive jurisdiction over all matters pertaining to driver licenses and privilege enforcement upon use of motor vehicles. This according to the two titles abovementioned, and under agreement with the U.S. department of transportation that holds the highway patrol is the “sole agency” for enforcement in equity.
- — City of Chattanooga and agents in its department of police do not have authority for enforcement of privilege between accused and State of Tennessee, a matter in equity in which city of Chattanooga lacks interest and standing.
- — The city has been under Tennessee Transportation Administrative Notice since Feb. 20, 2018, and is bound by state and federal law and all limits on state and municipal corporation action therein.
Analysis
- Accused asserts his right to be protected from any action at equity by State of Tennessee in this matter without the state and its agents being ordered to exhaust its administrative remedies under the Uniform Administrative Procedures Act.
- The operation of motor vehicles is in equity, with the state extending the privilege and applicants’ obtaining the privilege. “No question was raised by defendants as to the territorial jurisdiction of the case, or the trial court’s jurisdiction of the subject matter, and the court, considering the suit to be of an equitable nature, took jurisdiction to hear and determine the case upon the principles of equity under the authority of section 10329 of the Code” (emphasis added). Sullins v. Butler, 175 Tenn. 468, 135 S.W.2d 930, 933 (1940).
- Supervision and enforcement of the motor vehicle registration law belongs to the department of revenue. “Except as otherwise specifically provided by law, chapters 1-6 of this title shall be administered by the commissioner of revenue.” Tenn. Code Ann. § 55-2-10, The registration and licensing of motor vehicles is Chapter 4. The CPD is not a part of department of revenue.
- If a department of revenue officer sees a problem with a car registration, he cannot resort to arrest, but must give the registrant or the operator of a motor vehicle a notice about his known legal duty.
- The officer demanded to see accused’s driver license. Driver licenses are purely an administrative matter enforceable solely by the department of safety.
“[T]the Utilities Commission has never been held by this Court to be restricted by the technical common law rules of evidence in determining purely administrative questions, and we have held that the grant or refusal of a license to use public highways in commerce is purely an administrative question.
Hoover Motor Exp. Co. v. R.R. & Pub. Utilities Comm’n, 195 Tenn. 593, 616, 261 S.W.2d 233, 243 (1953)
- The Tennessee department of safety commissioner every two years signs a covenant with the U.S. government called, in its latest iteration, “TENNESSEE Commercial Vehicle Safety Plan for the Federal Motor Carrier Safety Administration’s Motor Carrier Safety Assistance Program Fiscal Years 2019 – 2021 Date of Approval: Jun 17, 2019.” https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-01/Tennessee%20CVSP%20Final%20FY19.pdf. On Page 4 of the commissioner of safety says the following:
The Tennessee Highway Patrol of the Tennessee Department of Safety and Homeland Security is the sole agency in the State of Tennessee responsible for enforcing laws related to size, weight, and safety regulations for commercial motor vehicles. The Tennessee Highway Patrol is the State’s lead agency for the Motor Carrier Safety Assistance Program and does not fund any sub-grantees (emphasis added).
- The uniform administrative procedures act for any state agency requires a contested case hearing of the kind outlined at Tenn. Code Ann. § 4-5-301 under an administrative judge. The agency is required to exhaust administrative remedies at Tenn. Code Ann. § 4-5-225.
- Only the THP has authority to stop a motor vehicle being operated or driven in commerce without probable cause or without a warrant.
(c) Unless a law enforcement officer has probable cause to believe that an offense has been committed, no officer, except members of the Tennessee highway patrol acting pursuant to § 4-7-104, shall have the authority to stop a motor vehicle for the sole purpose of examining or checking the license of the driver of the vehicle. [emphasis added]
Tenn. Code Ann. 40-7-103, arrest by officer without warrant
- The federal interest in interstate commerce is reflected throughout the Tennessee law regulating for-profit use of the people’s roads by carriers, common and private.
(a) The commissioner is authorized to establish administrative rules and regulations concerning the licensing of persons to operate motor vehicles, in this state, for the purpose of ensuring the safety and welfare of the traveling public. The commissioner is also authorized to adopt rules and regulations, exemptions and policies promulgated by the secretary. The commissioner is authorized to adopt the rules and regulations, exemptions and policies promulgated by the United States secretary of homeland security. The department is also authorized to utilize any verification process to comply with any rules and regulations, exemptions and policies promulgated by the United States secretary of homeland security.
(b) The commissioner is also authorized to promulgate rules and regulations to effectuate the purposes of chapter 819 of the Public Acts of 1990. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
Tenn. Code Ann. § 55-50-202 [emphasis added]
Argument
- The Chattanooga police department lacks authority to administer either the motor vehicle registration law or the driver license law. These are administered by the department of revenue and safety respectively, pursuant to federal law .
- The state’s enforcement of the transportation laws at Title 55 and 65 is entirely pursuant to federal law at U.S.C. § Title 49, transportation, “laws related to size, weight, and safety regulations for commercial motor vehicles,” quoting the Commercial Vehicle Safety Plan.
- Delegata potestas non potest delegari. A delegated authority cannot be again delegated. 2 Co. Inst. 597; 5 Bing. N. C. 310; 2 Bouv. Inst. n. 1300.
- Delegatus non potest delegare. A delegate or deputy cannot appoint another. 2 Bouv. Inst. n. 1936; Story, Ag. §33.
- Ubi non est condendi auctoritas, ibi non est parendi necessitas. Where there is no authority to enforce, there is no authority to obey. Dav. 69. Bouvier’s Maxims 1858
- The case State of Tennessee vs. Charlie Bell is non existent for other reasons, as well.
- ➤ How can a citizen by charged with resisting arrest when there is no antecedent lawful arrest in view upon which to base the charge?
- Flight from unlawful arrest is a defense from the charge of “evading arrest.” The law provides as follows:
(a)(1) Except as provided in subsection (b), it is unlawful for any person to intentionally conceal themselves or flee by any means of locomotion from anyone the person knows to be a law enforcement officer if the person:
(A) Knows the officer is attempting to arrest the person; or
(B) Has been arrested.
(2) It is a defense to prosecution under this subsection (a) that the attempted arrest was unlawful.
(3) A violation of subsection (a) is a Class A misdemeanor.
(b)(1) It is unlawful for any person, while operating a motor vehicle on any street, road, alley or highway in this state, to intentionally flee or attempt to elude any law enforcement officer, after having received any signal from the officer to bring the vehicle to a stop.
(2) It is a defense to prosecution under this subsection (b) that the attempted arrest was unlawful.
Tenn. Code Ann. § 39-16-603 (West)
- ➤ Officer Ogg violated his departmental policy twice.
- He failed to Mirandize the accused, pursuant to ADM-25, Police Authority and Discretion, page 2. “Police officers are sometimes in doubt as to when Miranda warnings should be given. While Miranda deals with in-custody interrogations, the question of when ‘custody’ applies is a common question. Escobedo v. Illinois mandates that Miranda warnings be given when the investigation begins to focus on a suspect or suspects, and the interrogation reaches an accusatory state. Since these two cases may appear to contradict each other, a police officer should read a suspect the Miranda warnings whenever a suspect is in custody and the officer intends to interrogate the suspect.” [emphasis added]
- Secondarily, he drew his weapon in an administrative encounter as if to threaten the life of the accused over his rights and duties in a jurisdiction outside the scope of the officer’s authority.
- Accused need not aver these details or speak of them except obliquely, in the alternative, which are in the realm of fact to be established by the court or a jury in the event this petition fails in its errand. But these averments are grounds for concern on the part of this man, Charlie Bell, aggrieved in the damage to his person, property and rights by a city of Chattanooga employee.
- Further affiant sayeth naught.
Charlie Bell
This is a fairly simple deal to comprehend. The officer had no evidence of a crime afoot, at the point he arrested Charlie Bell on his own authority as a citizen (rented to the Municipal Corporation in exchange for a paycheck). Causing the action to be assault, as opposed to a Lawful Warranted arrest.
Mr. Bell had every right to interrupt the assault by detaching himself from the threat of further violence.
Where there is no authority to enforce, there is no authority to obey. Dav. 69. Bouvier’s Maxims 1858.
The case State of Tennessee vs. Charlie Bell is non existent for other reasons, as well.
Actually, it is VOID ab initio, just like most traffic arrests here in River City.