City’s cop wolf packs an ‘authorized’ use of power; free market built elsewhere

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Chattanooga police keep the peace, arrest criminals and enforce contracts between commercial government and the citizenry. (Photo policecararchives.org)

Chattanooga police keep the peace, arrest criminals and enforce contracts between commercial government and the citizenry. (Photo policecararchives.org)

By David Tulis

City police in wolf packs swarmed the ramps along Highway 153 in Chattanooga, seizing speeders. Over every hill along the stretch of highway between Chickamauga Dam and Hamilton Place mall, travelers came upon flashing blue lights and an angled cruiser, parked behind a halted car. A son and I saw a dozen traffic stops as we ran errands mid-morning today.

Police mass along highways to raise revenue, impress the public about the authority of speed signs and enhance public safety. Public safety is boosted if risk is reduced by people’s driving more slowly and minding their lanes.

To consider the lawful use of force along a city thoroughfare, consider its unlawful use. The general assembly has an oppression statute that refers to “a public servant” who uses his power “with intent to obtain a benefit or to harm another, intentionally or knowingly *** commits an act *** that constitutes an unauthorized exercise of official power.” He commits a crime if he “[c]ommits an act under color of office *** that exceeds the servant’s official power” or if he “refrains” from doing a duty “imposed by law.” The oppression statute not only protects citizens from open abuse, but prevents a public servant from using inside knowledge to profit financially from a transaction.

Brooding mystery behind auto infractions

How, you ask, is the exercise of police power on the public highway in any way abusive? The answer lies in a confusion that crept into the civil magistracy. Let’s briefly explore the confusion, and see in it not the horizontal society of liberty and a free market, but bureaucratized vertical society, shaped like a pyramid. The confusion is between criminal law and the law of equity, between crime and civil tort, if you will. The insoluble problem is highlighted in a question: How can a person be arrested, charged criminally and jailed in a contract dispute? It is the license by which the state claims authority of those traveling by car (they are, in its conception, operating motor vehicles in commerce).

Chattanooga police are contract enforcers for the state, which insists its licensees (drivers) abide within terms of the contract. Those terms are the rules of the road that every applicant for a driver’s license agrees to obey. Travelers sign the dotted line, and become drivers. Because motoring infractions are not evils within themselves (malum in se, in Latin) but evils by declaration or prohibition (mala prohibitum), they are not real evils, not real crimes. They are paper crimes, if you will, violations of custom and agreement. They are prosecuted by the offended party (the state) in courts of equity, under contract law, but as if the other party (the motorist) were a criminal. Licensees face criminal treatment, not civil treatment. No one is arrested in a business dispute, a boundary spat or a trademark fisticuff. A criminal is someone not who has done an evil necessarily, but is allegedly in violation of a contract with commercial government.

You wonder perhaps if I am stretching the free market argument too far and if this arcane area is valuable in a defense of liberty. The issue is brought to light by a small group of people in the U.S. who insist on the right to travel by car. They are purposeful and troublemaking minority exercising constitutional rights self-consciously, though the modern state seems pass them by. Oppression seems all they face when confronted by a frustrated — often hostile — policeman.

The Tennessee Code Annotated says official oppression occurs when a state actor

intentionally subjects another to mistreatment or to arrest, detention, stop, frisk, halt, search, seizure, dispossession, assessment or lien when the public servant knows the conduct is unlawful; or (2) Intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity, when the public servant knows the conduct is unlawful.

*** A public servant acting under color of office or employment commits an offense who: (1) Intentionally subjects another to mistreatment or to arrest, detention, stop, frisk, halt, search, seizure, dispossession, assessment or lien when the public servant knows the conduct is unlawful. (TCA 39-16 at 402 and 403)

Oppression occurs not when the state actor is ignorant, uninformed or acting without the intention to oppress his victim. Oppression is a crime when the state actor “intentionally” acts and “knows the conduct is unlawful.” His level of guilt in oppressing the citizenry, then, is determined by his administration and training. A guilty mind, or mens rea, is required. His acts of oppression are to be subjectively viewed by what he knows; it is not seen so much from the viewpoint of a prospective victim.‡

Horizontal society vs. vertical

Local economy in my city and yours is highly pro-government. The most helpful conception of local economy recognizes origins in Christianity, in which the most crucial form of government is of the self — self-government under God. Christian doctrine holds there is no neutral zone free from God’s requirements, there exists no area of lawlessness outside his jurisdiction.

Local economy is richer in Chattanooga if more people govern themselves. It is poorer in many ways if it has fewer people who govern themselves in terms of God’s law, which we should understand to be perfect equity. If more thousands act equitably and in terms of God’s commandments, more horizontality comes to the city’s culture, into its law and establishment. If fewer people are self-governing, verticality enters into the picture. The pyramid of command economy begins to rise over the city. Rather than culture and economy left to right among people of equal stature, we have up-and-down relationships. Rather than free markets, we have power. Rejecting rationality based on price and the dynamic of supply and demand, we have irrationality that emerges in planned economy and its inability to know the value of anything, since pricing intelligence is disregarded. Power, political connection, the state, favor become controlling factors under centralization.

Merit and service lose their place. Local economy fades.

In a book that discusses alternatives to erstwhile means of salvation through the state, Gary North considers the ziggurats of modern statism and longs for their demise. “The central government is not to issue endless regulations so complex that even specialized lawyers cannot decipher them. The idea is to issue laws that all men can understand and then hold each man responsible for obeying them. The Bible teaches us that self-government is the only way any civil government can expect to retain order and freedom at the same time. When central governments become too powerful when they attempt to redeem every area of life by means of complex formal laws, then they produce a combination of paralysis and anarchy. The central government cannot understand the society nor can the members of that society understand the State’s legislation. Both order and freedom are destroyed, for the State becomes tyrannical, unpredictable, and arbitrary while its citizens become hostile, lawless, and rebellious to all constituted authorities.”

The goal of politics should be disestablishment of all civil authority that is commercial and abusive of individual rights and local economy. Its goal should be universally proclaimed law and universally understood law, not the rule of incomprehensible regulation. That law, the church suggests, be that of the Creator as revealed in the holy scriptures and given in summary form in the 10 commandments.

‡ The solution to the problem of the state actor’s claims of good faith ignorance is the administrative notice, a means of informing individuals exercising potentially oppressive authority of the bounds of their authority and of the facts in a particular case. Essays about the denying state actors “good faith immunity” by administrative notice were published in the AntiShyster law reform magazine in the 1990s. A harassing official who cannot claim good faith immunity faces the terrific vulnerability of accusations of official oppression in bad faith.

Sources: TCA 39-16-402. Official misconduct, TCA 39-16-403.  Official oppression.

Dr. Gary North, Unconditional Surrender; God’s Program for Victory (Tyler, Texas: Institute for Christian Economics, 1988) p. 254. See also Dr. North’s excellent history and economic analysis pertaining the enslavement of Israel in Egypt, Moses and Pharaoh, 1985, 426 pp. Both books are free online. Dr. North’s commentaries often appear at lewrockwell.com. His website is garynorth.com.

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