The taser arrest of a Doordash driver in Collegedale, Tenn., highlights the abusive power of municipal corporations in Tennessee and their roving police officers.
A city police officer on March 10 tazes Delane Gordon for obeying his shouted commands too slowly, for insisting on conversation over a legal dispute, for delaying the officer by demanding to see the officer’s supervisor as the cop jabs an electric shock pistol at him.
Collegedale vice mayor Tim Johnson does not return a call requesting comment. A video of the arrest is at this link.
Arrest and assault by electric prongs are justified by cops across the U.S. on grounds that it is standard police procedure to goad members of the public into immediate compliance with their verbal orders.
Officer Evan Driskill is aiming three criminal charges against the man he tased, doing so in the name of State of Tennessee and without having had judicial sanction prior to Mr. Gordon’s arrest.
Mr. Gordon was arrested without a warrant in violation of Tenn. Code Ann. § 40-7-103. That law gives exceptions to the constitutional ban on unreasonable seizures, allowing arrest under warrant. The alleged crime of “speeding,” according to the narrative in the complaint, does meet the essential elements of “public offense” in 40-7-103.
The officer, in a misfire aiming in direction of that statute, charges Mr. Gordon with disorderly conduct (for affecting the movement of other cars). Disorderly conduct is a public offense because it is a wrong that intimidates other people, appears to threaten them with harm or injury.
Criminal case in civil court?
Officer Driskill files criminal charges. But the city ordinance at 15-604 (see p. 26 at https://www.mtas.tennessee.edu/system/files/codes/combined/Collegedale-code.pdf) says, “any violation of this title shall be a civil offense” punishable by “a civil penalty up to $50.” The city court is a corporation court, the authority of which under the city charter is to enforce corporation ordinances and settle disputes over ordinances. Its limits are clear. The court has “the power to issue warrants for the arrest of persons charged with violating municipal ordinances” (1977 Code, § 3-103), but otherwise no power upon alleged state or federal offenses.
Will the case be heard under an evidence standard harmful to Mr. Gordon? Civil cases are decided on the low standard of “preponderance of the evidence” rather than the much tougher “beyond a reasonable doubt” in a criminal case. Mr. Gordon’s defense against false conviction thus appears reduced in any action occurring in a city court.
Officer Driskill’s three complaints cite state law. Speeding. Disorderly conduct. Resisting arrest.
The prosecution appears to be an instance of police charge-stacking, a custom used to intimidate an accused person into submission via a plea bargain and also to smear him when the arrest is reported in the media, to increase the accused’s apparent villainy.
Shot with ‘sublethal’ weapon
If the officer’s accusation is a tort or civil wrong, how is it that police officers, who are charged with enforcing city ordinances (civil), can use aggressive military-style tactics and shoot a person in what the officer presents as an emergency in which haste on the part of his citizen-subject is required for reason unknown, and then a crime charged?
Mr. Gordon is shot with a sublethal gun ejecting electricity current into his body, and Officer Driskill knowingly and intentionally shoots him after threatening to shoot him with the weapon. Since no self-defense appears involved in the encounter, it appears to be a felony assault by Mr. Driskill upon Mr. Gordon, without provocation.
One of the charges, speeding, under Title 55, motor and other vehicles, is federal law for the taxable and regulable activity of transportation. Mr. Gordon is a commercial user of the road; but still he is subject to a traffic arrest only under probable cause and if arrested by a party bearing lawful authority. Since speeding is a violation of a license, and threatens a license, the accusation is administrative in nature, and a defendant can insist the state exhaust its administrative remedies by trying the claims first in a contested case hearing in the department of safety and homeland security, as Georgiana Gordon does in a Gallatin, Tenn., speeding case. See how dissenter Vladimir Bukovsky did it in Soviet Russia.
Two charges are subject to defeat in court:
➤ The charge of resisting arrest appears to be a false charge because resisting arrest requires the use of force. Not getting out of a car, or not lying on the pavement quickly enough is not resisting, and attorney Ryan Williams from the Speek, Turner & Newkirk law office in Chattanooga should offer that as a defense.
➤ The disorderly conduct statute also appears to be misapplied.
Disorderly conduct claim
Officer Driskill is to be commended for attempting to narrate the alleged offense in terms of the statute, attempting to make this charge sufficient in his complaint. A few officers attempt to make their complaints sufficient as to the essential elements of the offense, or the “essential facts constituting said offense,” in the words of the affidavit of the Collegedale complaint form. The rule is that the complaint must narrate the evidentiary facts in terms of the ultimate fact, which is the law, and so bring the defendant within the scope and claim of the criminal law, with its penalty.
The complaint appears to overstretch in Mr. Driskill’s effort to reach this charge, as follows:
[T]here were multiple motorists stopped in the roadway due to what was occuring. The incident had inhibited law abiding citizens from carrying out lawful activities. One of these motorists arrived on scene. One of these motorists stopped to offer assistance in taking Mr Gordon in to custody.
In other words, the slowing down or stopping of other motorists on the roadway by the flashing blues, and their stopping to assist the officer, constitutes one of the essential elements of disorderly conduct. But not really; the phrase “carrying out lawful activities” applies to the making of “unreasonable noise” in 39-17-305(b), disorderly conduct. And the officer’s actions upon the motorist cannot be construed as having an effect of disorder blameable upon Mr. Gordon.
39-17-305. Disorderly conduct.
(a) A person commits an offense who, in a public place and with intent to cause public annoyance or alarm:
(1) Engages in fighting or in violent or threatening behavior;
(2) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard or other emergency; or
(3) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.
(b) A person also violates this section who makes unreasonable noise that prevents others from carrying on lawful activities.
(c) A violation of this section is a Class C misdemeanor. [emphasis added]
Officer Driskill borrows from (a)(3), “A person also violates this section who makes unreasonable noise that prevents others from carrying on lawful activities” (emphasis added) by pretending that the traffic stop interfered with traffic. But it was the officer’s arrest of Mr. Gordon that might have done so, and not Mr. Gordon’s use of his car.
This journalist’s review of police complaints suggests officers rarely meet the standard, and can be defeated for falling short in the number of essential elements incorporated into the complaint.
Disorderly conduct is unconstitutionally vague, and has not been thrown out in Tennessee courts. Cops file that charge as a throwaway, as part of the bargaining process to get a plea and avoid a trial. About 3 percent of cases go to trial. Officers are certain that careless, erroneous or bad-faith charges will not come back to bite them.
Town’s rule deserves challenge
Collegedale’s city court makes illegal claims, at least one. Firstly, that its city court can impose a fine beyond 50 dollars. Secondly, that it can enforce state law merely by claiming to have adopted without specific reference the corpus of the criminal statute at Title 39.
Its claim of jurisdiction is impressive:
3-102. Jurisdiction. (1) Violation of municipal ordinances. The city judge shall have the authority to try persons charged with the violation of municipal ordinances, and to punish persons convicted of such violations by levying a civil penalty not to exceed $500.
(2) Violation of state laws. The city judge shall also have the authority to exercise jurisdiction concurrent with courts of general sessions in all cases involving the violation of the criminal laws of the state within the corporate limits of the city.
The case Davis v. Chattanooga settled in 2001 the limits of municipal fining authority to $50 (once respectable amount of money reduced today to F$50 in federal reserve system scrip, the price of a restaurant lunch for two). Davis enforced a unique constitutional ban. “No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars,” TN Const. Art. 6, § 14 (emphasis added).
If the district attorney does not prosecute Mr. Gordon, and Collegedale’s city attorney (generally, civil matters only) doesn’t prosecute this criminal matter — it may be left to Officer Driskill to prosecute on his own. That puts Mr. Driskill in the uncomfortable position of practicing law without a license. No corporation in Tennessee can be represented in court by a man or woman, but only by a lawyer.
State law gives city police officers arrest powers for ordinances and parts of state law that are lawfully adopted by the corporation. Collegedale appears to sorely lack in the area of statutory adoption.
When any person violates any traffic, or other ordinance, law or regulation of any municipal, metropolitan or city government in the presence of a *** Law enforcement officer of such government; *** such officer or inspector may issue, in lieu of arresting the offender and having a warrant issued for the offense, a citation or complaint for such offense. [emphasis added]
§ 7-63-101. Citations or complaints; issuance; copies; contents
Notice this gives the officer power to arrest or cite for violation of “any traffic, or other ordinance *** of any municipal *** government” (emphasis added). The phrase “of any municipal government” means such law belonging to that government or entity, not state law generally.
It’s not clear from the 314-page College ordinance book that the city adopted “speeding” in a motor vehicle as an ordinance. In Title 11, offenses, it has rules against smoking, spitting, camping; it forbids acts to “prevent, obstruct, or interfere with the free passage of pedestrian or vehicular traffic thereon,” 11-803 but no rule against speeding.
Observes 96.9 FM midstate bureau chief Christopher Sapp: “At no time does the officer state that he was in any had concerns for his personal safety or felt the need to pat the defendant down for weapons to ensure his personal safety. I don’t know all of the reasons that officers can order someone out of their vehicle but I’m pretty certain that all of this must be premised on the need for officer safety. This element should have probably been mentioned in the affidavit in order to substantiate the need for extracting the defendant from his vehicle. Most certainly, the use of a taser over a request for a supervisor and the lack of immediate compliance goes beyond the proper use of force.”