CHATTANOOGA, Tenn., Feb. 2, 2023 — The beating of Tyre Nichols fatal to the Memphis resident Jan. 10 is the fruit of two strongly maintained Jim Crow customs common in Tennessee — from poor Memphis, to middle-class Chattanooga and wealthy Franklin.
By David Tulis / NoogaRadio Network
A federal lawsuit against one of these municipal corporations shows how the abuse occurs and how citizens are denied the enjoyment of their rights by cops’ refusal to get an arrest warrant first.
First means beforehand, prior to, earlier than.
The main tree trunk of Jim Crow reconstruction-era “black social management” customs is the ultra vires, or outside-the-law, use of the state trucking statute at Tenn. Code Ann. § Title 55 to run a traffic stop roadblock system of social management. Mr. Nichols was ensared first in a traffic arrest, or “traffic stop,” for reckless driving, then in other netting laid out for him by five booted officers.
A giant root nourishing this trunk is widespread rejection of the arrest warrant requirement in the state constitution. Abrogation of the warrantless arrest law is how this official crime is discerned. Tenn. Code Ann. § 40-7-103 that gives the exceptions to the constitution’s ban on arrests. It says when an officer can make an arrest without a warrant.
Arrests in the constitution must be by a warrant — obtained beforehand by the officer or arresting party. The law gives the exceptions for misdemeanor suspected crimes. The key to understanding widespread police abuse across Tennessee is understanding the difference between “offense” and “public offense.”
A cop can arrest you for a “public offense” in his presence, but not just an “offense” in his presence. The difference is detailed elsewhere at TNtrafficticket. Generally, he can arrest you for a “public offense” because that is an act in the nature of a “breach of the peace” or public disturbance. Many crimes are not public in this sense; thus, they require a warrant first.
Today, I make this argument in defense of the law in a filing before Judge Waverly Crenshaw in federal court in Nashville. My arguments in my lawsuit on this very point against city of Franklin, whose officer William Orange arrested me covering a judicial conference Nov. 6, 2021, even though I warned him to get a warrant before touching me and binding me in wrist-cuffs in a tort that I suggest is really a crime for which he should be prosecuted criminally.
City of Franklin demurs against plaintiff’s claims by suggesting it is not responsible for its employee, that no coordination exists between Officer Orange’s arrest practices and city policy, that violation of Tennessee statute and constitution don’t create or establish a recognizable and actionable federal right.
Official false imprisonment policy, custom, usage
The complaint fails to state a claim, lacks sufficient factual allegations to withstand its motion to dismiss, presents no facts to warrant a § 1983 claim, the city claims, p. 5. It says the complaint is insufficiently factual and “completely conclusory” connecting Orange acts to city ordinance. “The instant complaint does not sufficiently plead that Plaintiff suffered any injury arising from an unconstitutional policy or custom of the City of Franklin” (p.5). It wants plaintiff to have provided more “sufficient factual allegations” regarding the city’s “misrepresentation” of the law, and makes other claims describing a complaint not filed.
Defendant city says the complaint is insufficient and that plaintiff fails to “put the municipality on notice of the plaintiff’s theory of liability” (brief, p. 4). The city says the complaint does not sufficiently plead that Plaintiff suffered any injury arising from an unconstitutional “policy or custom” of the city (brief, pp. 4, 5). The city says the complaint’s wording touching on its violation of T.C.A. § 40-7-103 to affect its federal rights breach is “completely conclusory and unbuttressed by any specific factual allegations” under Section 1983. Secondarily, the city says complaint’s claims about § 40-7-103 is “unbuttressed by sufficient actual allegations” (brief p. 5).
If any of these claims are true, plaintiff reserves the right to amend the complaint so as to give further notice as to its position. The brief cites a case that, it appears, supports plaintiff. “Plaintiffs seeking to impose § 1983 liability on local governments must prove that their injury was caused by ‘action pursuant to official municipal policy,’ which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 131 S. Ct. 1350, 1354, 179 L. Ed. 2d 417 (2011).
This case is based on wrongdoing prompted by “official municipal policy” described in the Connick citation. False imprisonment and false arrest, in view in this lawsuit, are an ordinance-based practice, “persistent and widespread as to practically have the force of law.” The city codifies in ordinance tortious acts that deny people alleged to have committed a misdemeanor crime their right to have judicial review and a warrant before the officer touches the person.
Had Orange served a city with an accurate ordinance, he would not have laid a hand on plaintiff, and no false imprisonment or false arrest would have been committed. The complaint’s reference in ¶ 34 to “Defendant’s rejection of state law and ordering officers to make arrests without the required warrant is a harm” is factual, as ordinances are orders.
The public record of Franklin’s ordinance and its contradiction to Tennessee code is as follows.
The city establishes an arrest regime that the Tennessee constitution and state law prohibit by requiring many types of arrest to get a nod from an impartial judicial officer, i.e., before officers lay hands and shackle upon the citizen, issuance of an arrest warrant by judge or magistrate.
The city’s false imprisonment policy is at city municipal code Sec. 6-109. It contradicts Tennessee law at T.C.A. § 40-7-103. City code requires officers to perform one test for a warrantless misdemeanor arrest. State law requires two tests, as in the circumstance of this case.
The ordinance describes three sorts of arrest: (1) with a warrant in hand, (2) if the officer believes a felony has been committed, or (3) “Whenever an offense is committed or a breach of the peace is threatened in the officer’s presence by the person” (emphasis added). The ordinance omits the word “public” to describe offense. Omitting the word “public” voids the statute and creates a general warrants system where an officer can arrest a person in his presence at any time without a warrant.
State law § 40-7-103 gives two tests for warrantless arrest in a suspected misdemeanor offense. “An officer may, without a warrant, arrest a person: (1) For a public offense committed or a breach of the peace threatened in the officer’s presence[.]” The misdemeanor that is arrestable without a warrant is a “public offense,” not just any offense occurring within the officer’ presence. A public offense is one in the nature of a “breach of the peace.” EXHIBIT No. 2.
Plaintiff reserves the right to argue the nature of “public offense” as a matter of law by brief or oral arguments, if there is any dispute about public offense being a subcategory of “offense” or any dispute that omitting the word “public” means that city officers can arrest any person at any time for alleged misdemeanor offense without a warrant, creating a scheme of general warrants.
EXHIBIT NO. 3 is a link to the bodycam of defendant Orange. It depicts an encounter between press and police that does not rise to the level of a public offense, even admitted by one of the officers in Orange’s presence. State law requires that the officer obtain a warrant first, to avoid mistakenly falsely imprisoning the person before him. Probable cause is a judicial determination, and constitutional law takes interest in protecting innocent members of the citizenry, putting authority for arrest with impartial judges to be exercised prior to the citizen’s being apprehended. The video shows plaintiff putting the officer on notice about the claims of T.C.A. § 40-7-103, telling him to get a warrant because the plaintiff’s refusal to leave the conference room, where he is sitting by right of press and law, is not a “public offense” nor a “breach of the peace threatened,” per § 40-7-103, which otherwise requires judicial approval of the alleged wrong beforehand.
Officer Orange, evidence shows, follows his training and city ordinance. Standing near plaintiff, he voices his thoughts about the test required to affect an on-spot warrantless arrest. He concludes that since the offense is occurring in his presence, he can justly make an arrest. His conclusion follows city ordinance, training and policy. The harm of the step redounds on him, William Orange, and on his employer for breach of plaintiff’s federally guaranteed press and liberty rights.
- The city establishes an arrest regime that the Tennessee constitution and state law prohibit by requiring many types of arrest to get a nod from an impartial judicial officer, i.e., before officers lay hands and shackle upon the citizen, issuance of an arrest warrant by judge or magistrate.
- The city’s false imprisonment policy is at city municipal code Sec. 6-109. It contradicts Tennessee law at T.C.A. § 40-7-103. City code requires officers to perform one test for a warrantless misdemeanor arrest. State law requires two tests, as in the circumstance of this case.
- The ordinance describes three sorts of arrest: (1) with a warrant in hand, (2) if the officer believes a felony has been committed, or (3) “Whenever an offense is committed or a breach of the peace is threatened in the officer’s presence by the person” (emphasis added). The ordinance omits the word “public” to describe offense. Omitting the word “public” voids the statute and creates a general warrants system where an officer can arrest a person in his presence at any time without a warrant.
- State law § 40-7-103 gives two tests for warrantless arrest in a suspected misdemeanor offense. “An officer may, without a warrant, arrest a person: (1) For a public offense committed or a breach of the peace threatened in the officer’s presence[.]” The misdemeanor that is arrestable without a warrant is a “public offense,” not just any offense occurring within the officer’ presence. A public offense is one in the nature of a “breach of the peace.” EXHIBIT No. 2.
- Plaintiff reserves the right to argue the nature of “public offense” as a matter of law by brief or oral arguments, if there is any dispute about public offense being a subcategory of “offense” or any dispute that omitting the word “public” means that city officers can arrest any person at any time for alleged misdemeanor offense without a warrant, creating a scheme of general warrants.
- EXHIBIT NO. 3 is a link to the bodycam of defendant Orange. It depicts an encounter between press and police that does not rise to the level of a public offense, even admitted by one of the officers in Orange’s presence. State law requires that the officer obtain a warrant first, to avoid mistakenly falsely imprisoning the person before him. Probable cause is a judicial determination, and constitutional law takes interest in protecting innocent members of the citizenry, putting authority for arrest with impartial judges to be exercised prior to the citizen’s being apprehended. The video shows plaintiff putting the officer on notice about the claims of T.C.A. § 40-7-103, telling him to get a warrant because the plaintiff’s refusal to leave the conference room, where he is sitting by right of press and law, is not a “public offense” nor a “breach of the peace threatened,” per § 40-7-103, which otherwise requires judicial approval of the alleged wrong beforehand.
- Officer Orange, evidence shows, follows his training and city ordinance. Standing near plaintiff, he voices his thoughts about the test required to affect an on-spot warrantless arrest. He concludes that since the offense is occurring in his presence, he can justly make an arrest. His conclusion follows city ordinance, training and policy. The harm of the step redounds on him, William Orange, and on his employer for breach of plaintiff’s federally guaranteed press and liberty rights.
- Plaintiff is sitting in the Tennessee judicial conference rented room by right, as a matter of law, such right established by Williamson County sessions court judge M.T. Taylor. The court determines at a 70-minute Dec. 14, 2021, hearing with two witnesses (firstly, Orange, and, secondarily, radio station bureau chief Christopher Sapp), that there is no lawful basis for plaintiff’s having been imprisoned or arrested.
- The finding that plaintiff commits no criminal trespass means he had — and has — a right to be in the Embassy Suites conference venue at any future judicial conference for press and public purposes. The court’s determination of “no probable cause” shows the city by policy breaches federally guaranteed press rights in this case.
https://u.pcloud.link/publink/show?code=XZvKFuVZbvR6eKlxGFzPon3woShLFLJbjcay
Appendix at EXHIBIT NO. 4 shows the criminal citation for criminal trespass, the dismissal order Dec. 13, 2021, by Judge Taylor, and the expungement order. This documentation is a legal record of abuse and harm chargeable to city of Franklin and Orange. Had the officer disregarded and disobeyed the ordinance — had he consulted with a magistrate at the jail and been denied a warrant – Officer Orange would have seen he has no lawful authority to imprison plaintiff, seize him and arrest him for exercising federally protected and protectable press and other rights, and would not have done such act.
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Orange has a duty to investigate and lay out his case before a magistrate or judge before disturbing plaintiff’s enjoyment of his federally protected rights. That would have saved plaintiff his injury and harm, and spared Orange the grief of litigation.
Orange obeys city ordinance and acts under his employer’s orders in what the lawsuit exposes as a system of general warrants.
Given Williamson County has a magistrate on duty at the jail to issue warrants, plaintiff would not have been arrested but for the misrepresentation of T.C.A. § 40-7-103 rule in city ordinance that Orange obeys, an approved policy and plan for abuse of due process rights by false imprisonment without probable cause.
Sufficiency of complaint issue
The complaint states the employer is “responsible for [Orange’s] training in the assertion of police power and the claims of city ordinance,” that its “code, policies, rules, customs and usages are required to conform” with state and federal law and that the city “must abide by the criminal statutes and procedures” (complaint ¶ 32). The city must “train its agents and officers in conformity with the law” (¶ 32), specifically to secure just arrest and imprisonment by obeying T.C.A. § 40-7-193. Complaint ¶ 34 says the city “[rejects] state law and [orders] officers to make arrests without the required warrant” by, in ¶ 36, “allowing, under color, its agents to make all arrests without a warrant” in breach of the constitution. To say the city rejects and misrepresents the law may be conclusory. But the reference is to city arrest policy, based on published and widely known city ordinance, a point discernible in the complaint. A reference to T.C.A. § 40-7-104 and its claims upon the city is at complaint ¶ 46(c)(2), injunction.
Orange and the city would have avoided false imprisonment and false arrest had the city accurately copied § 40-7-103 in its ordinance. The court’s role protecting federal rights is a constitutional imperative to prevent such harm under color of law to innocent citizens.
Under a nonfraudulent and lawful ordinance, Orange would have acted differently Nov. 6, 2021, and likely would not have harmed plaintiff.
- Orange makes thorough investigation of plaintiff’s claim to be present by right.
- He reviews plaintiff’s legal position secured by copies of the constitution, open meetings act, a key Tennessee court case, correspondence with AOC, his legal notice to Page – documents plaintiff has on his person, ready to produce.
- Orange quits the scene, goes to the county jail where he gives legal documents and eyewitness testimony to a Williamson County judge or magistrate, soliciting an arrest warrant.
- He returns to the scene without a warrant, given that in this case there is no probable cause for ultimate arrest of journalist plaintiff, as judicially determined Dec. 14, 2021.
- Officer Orange tarries to exercise a peacekeeping role, helps the parties reach a settlement on plaintiff’s press rights and the judges’ interest in secrecy in violation of the federal 1st amendment and state law.
- Williamson County general sessions judge M.T. Taylor is spared a criminal trespass hearing Dec. 14, 2021, featuring plaintiff as criminal defendant in which actual case he finds no probable cause for Orange’s imprisonment and arrest of plaintiff.
Plaintiff’s cause for false imprisonment and false arrest doesn’t rely on the city’s ordinance being in violation of state law in this § 1983 action. This falsification of law by city ordinance is part of the lawsuit in plaintiff’s interest in injunctive relief to benefit himself and others in like station in future encounters with Franklin police.
The erroneous ordinance, which is a matter of public record and public knowledge, shows that TGTLA, cited above, gives no defense and that abuse in this case is part of a long pattern of abuse of the populace. Claimant’s federally protected rights are in view in past harm; future protectable rights are in view with his petition for injunction to protect him on return to Franklin. The city arrives at its breach of federal rights by misstating state law and preventing the arrest warrant due process from giving him protection from false imprisonment and false arrest. The city’s ordinance prohibits a federal rights safeguard from shielding plaintiff in guaranteed speech, press and other rights.
If the court deems the complaint’s grounds and notice regarding the city’s role in the case falling short, plaintiff reserves the right to amend for clarity or sufficiency, under direction.
Franklin 1985 conspiracy count
This section regarding § 1985 addresses defendants Page and Crawford, as well as the city, on account of the AOC defendants’ brief giving a sovereign immunity defense, saying little about the federal civil rights law except as to timely filing requirements.
Plaintiff is a member of a class of people whom the city and co-conspirators intend to oppress as a group. The lead conspirators in this lawsuit are state government employees Page and Crawford, whose false imprisonment policy is directed specifically at members of the press as a constitutionally protected class. Plaintiff seeks to exercise federal 1st amendment rights piercing Tennessee courts’ secret doings outside of law and its educational program. The policy targets any member of the public who wants to attend a judicial conference by right. Press members are a leading element among citizens to want to attend these educational and policy conferences. The defendants know from the beginning of the confrontation plaintiff is a press member, bodycam evidence shows. Officer Orange (thusly, the city) discusses the situation as a press issue. Atrium manager Lisa Hegwood ignores warnings by plaintiff and radio mid-state bureau chief Sapp they are press members; Sapp urges her to obtain legal counsel before commanding arrests, video shows.
The § 1985-connected class-based animus in this case is against members of the press, the defendants of which make war on the laws protecting them. Regardless of the federal civil rights law, plaintiff’s calling as press members claims unique constitutional (see ¶ 67, below) if not statutory, protection. Tenn. const. art. 1, sect. 19 says “[t]hat the printing press shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof.” Without conflict, federal const. amendment 1 also gives this classification of citizen high protection, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”
The 14th amendment, applicable to the state, imposes obligation and constitutional waiver of immunity to violations of federal constitutional matters. Any immunity a court extends to the state would make U.S. and Tennessee constitutionally guaranteed protections to the press a nullity.
Defendants admit they do not intend to recognize the protected class in this case. Video evidence shows they falsely imprison plaintiff and his midstate bureau chief Christopher Sapp, both of and solely representing the press, the only protected class that day deprived, assaulted, and ousted by the defendants working in concert under color of law, or in some form of agreement.
Contrary to their misrepresentation, defendants Page and Crawford in violation of state laws, under color, injure enjoyment of federally protected rights of the protected class to thwart “the publication of papers investigating the official conduct of officers, or men in public capacity, the truth thereof may be given in evidence” (Tenn. const. art. 1, sect. 19) of special public interest.
The two AOC people in this case act with animus — with “mind; intention; disposition; design; will” (Black’s Law Dictionary, Rev. 4th ed.) — against the law. They are under oath or terms of state employment and they make deliberate war against the people and the law, in treason to it. Such acts are nothing less than animus and disposition. They took an oath, then they violate the law of the oath they took.
The city involves itself willingly and willfully, through its agent defendant Orange under color enforcing municipal policy contrary to state law to deprive protected class rights without warrant and never avoiding doing so.
Evidence will show Franklin and its agent know in their first encounter plaintiff is a reporter exercising his rights and agree with principals in the conspiracy to harm him, despite notice to city officers that they dare not tread on constitutionally guaranteed activities and ought to get a warrant before laying hand on plaintiff. False imprisonment is not known to require the plaintiff being physically touched to prevail, but evidences, in part, further willful intent.
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The only two people falsely imprisoned and/or arrested by defendants in this case are members of a constitutionally identified and protected class. One hundred percent of the people injured by defendant Page’s and defendant Crawford’s false imprisonment policy are press members. These two defendants are men who claim immunity while they violate their oath of office or terms of employment in conducting the six annual iterations of the annual Tennessee judicial conference, keeping them locked to the public, and arresting press members who attend.
Secrecy of educational and policy gatherings is a state employee-hoarded illicit treasure. AOC defendants guard this loot with the barking junkyard dog of a false imprisonment and false arrest policy, put into action Nov. 6, 2021, (complaint ¶ 46(c)(1)) against plaintiff and colleague with the aid of codefendant city of Franklin, Officer Orange and Atrium Hospitality, each with his or its own motives, none of which plaintiff has burden of arguing or proving at trial.
However they arrived to act in conspiracy, each party in this lawsuit did so in a meeting of the minds as to the offending radio reporters and the need to falsely imprison and/or arrest them, and each party with his or its own impelling internal necessity or interest in so doing, to plaintiff’s harm..
Plaintiff demands these three defendant motions to dismiss be denied.
