How Berke could win all sides by restraining cops, ordering ’open’ city


Mayor Andy Berke speaks with members of the audience at a campaign debate at UTC in 2017. (Photo David Tulis)

I realize it will take a while for the policy and political implications of transportation administrative notice to take effect.

For busy men such as Mayor Andy Berke and city attorney Wade Hinton, it will take probably a week to give with a careful read and to take notice. Mr. Hinton and city council got copies only a week ago.

By David Tulis / 92.7 NoogaRadio

Rather then feel intimidated or resentful at this detailed review of state law and court cases, Mayor Berke, a Democrat with high political ambitions, should be quick to see the benefit to him in a bid for federal senator or governor by altering policy in light of the city transportation administrative notice, delivered to the corporation at a council meeting Feb. 20, 2018.

The benefit is that police traffic stop reform brings an important grace and respite not found in cities that have not had the benefit of the notice’s new-eyes analysis of old-time provisions in state law. It will allow him to improve the use of his 500 police officers. They will no longer intimidate and terrify strangers, the poor, racial minorities. They will instead work on solving crimes and improving community relations between the city and residents.

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In ordering policy changes implied as a legal requirement in the notice, Mr. Berke could become a hero to the left and a hero to the right. He could bring Democrats and traditional progressives to his side, as well as conservatives. He will show the prospective voter statewide that he is a careful attorney and practitioner of the law, serving the judicial branch of state government, but willing to part ways with the established paradigm set by high judges in both parties.

He will show himself a courageous chief executive who stands his ground against decades of extra-statutory but judicially approved policing practice that until the day of administrative notice have been hard to certify.

Mr. Berke will show that he is in charge of his bureaucracy, not bullied by those rows of faces peering at him across the table, some with looks of dismay and perturbation in their eyes and expressions as he tells them to reform protocols for traffic stops, and to do it now. And that these changes will happen for the benefit of the mayor’s office, the police department and the people of Chattanooga.

New questions streetside

Administrative notice makes clear that the procedures for arrest and traffic stop must change to comply with Tennessee law. Why? The state’s laws under the constitution and from the 1910s make a distinction between transportation and travel.

The law effectively requires cops to ask a different set of questions than the ones they pose today, ones that lead in a new direction, ones that open to a new set of actions.  the paramount question is whether the person behind the wheel is an employee of a for-profit corporate-commercial user of the road, or a private or pleasure traveler minding his own business.

Transportation administrative notice Tennessee

Rather than ask for driver license, registration and proof of insurance, the officer asks a startling and revolutionary question: “Are you involved in the commercial operation of this car/truck as a vehicle for hire or are you employed at this moment by a company or business carrying goods or people for hire today, ma’am?”

If the woman says “Yes,” the follow-up question is: “May I see your driver license, your proof of insurance and your vehicle registration, ma’am?”

If she says “No,” his authority is instantly dissipated. “Well, Ma’am, you were going faster than the speed limit that’s posted for everyone in transportation, and I’d suggest those signs are good advice for you, for your safety and the safety of others. Please use the roads carefully, and view these signs as a safety precaution for you. You are free to leave, and have a great day. Sorry to have delayed you.”

Notice what has happened under the new policy from Mr. Berke. The person in the car is not automatically suspected as being a criminal. The initial question establishes whether the officer has subject matter jurisdiction.

He doesn’t immediately assume he has arrest/seizure/stop authority there along the curb just because the person is in a car and on the road — and the car has a tag and is registered as a motor vehicle.

The traveler is not presumably a scofflaw, an escapee, a danger to society or a criminal. And, as it turns out under new policy, it doesn’t matter whether that person’s driver license is suspended, revoked, or expired if that person is not at that moment involved in commerce as a for-profit party using the public right-of-way for hire.

Once Mayor Berke’s policy takes effect, it doesn’t matter what the status of your license is in the city limits if you are a private and noncommercial user. If when stopped you are in private use, noncommercial, you are at liberty. State jurisdiction over you is a rebuttable presumption legally, and you have rebutted it by indicating your status, truthfully given the officer under protection of the false statements act.

Ma’am, you are free to leave. Suddenly, we have a city of refuge.

Suddenly, a libertarian and Christian city.

And all thanks to a mayor who sees opportunity in — and cover from — good ole administrative notice and the state of the law in Tennessee.

Pleasing the left, reducing us. v. them

To liberals and progressives in Chattanooga, and around the state, Mr. Berke can hold up his reform as one that is favorable to solving many problems.

With dozens of times fewer paper-crime traffic arrests, pressure is off for space in the county jail and city court. With fewer fruitful stops, the poor whom are most often caught up in the problem of having their papers out of order, are given relief from what they rightly see is harassment and injury and inconvenience by the cops. Since the traffic scheme and policing have long been state management tools for blacks, it is a terrific anti-racist and pro-African-American shift in city-resident relations.

Changing enforcement rules will make Chattanooga effectively a sanctuary city, inviting and accepting people who are independent minded, fearful of police and courts, who are in poverty and out of step with the three-part rule under commercial government (the license, registration, insurance requirements).

People who have had repeated evil encounters with cops and courts here and elsewhere will find Chattanooga a place of grace and forgiveness where the judicial industrial complex seems slightly less menacing than anywhere else in the United States.

Chattanooga already is blessed with many graces. Christian charity and educational endeavors are strong. Christians shut down its baby killing Center May 17, 1993, an act of God’s grace upon its residents.

And here now, with Andy Berke’s police reform, a new grace.

I say grace because people with blots on driver licenses will find that these administrative threats and revocations irrelevant if they are not involved in commerce. Mr. Berke could end the state’s most effective form of warfare against the people and usher in a spell of peace. Generally, leftists don’t view the state as having a war against the people, but liberals and collectivists in Chattanooga such as Ash-Lee Woodard Henderson are correct in their objection to surveillance and police abuse that inspired the Black Lives Matter group. In 2016 American cops killed 1,169 people. In 2017 cops killed 1,189 people, disproportionately descendants of former slaves.

Winning conservatives to his standard

How might Mr. Berke’s policy update make him attractive to conservatives and Republicans, even to libertarians and informed Christians who identify as conservative or pro-Trump?

By respecting private travelers and reigning in his cops, Mr. Berke is willing to save money by reducing his police force to a level that is necessary, but not more. Cops will focus their attention on heavy vehicles with big loads, such as the truck driven by Benjamin Brewer, whose crash killed 6 in Ooltewah in 2015. Police will pay much more close attention to the operation of for-profit bus services such as the vehicle driven by driver and employed operator Jonathany Walker, whose 2016 accident killed six children and whose criminal trial ended this week.

Mr. Berke’s move will please libertarians and conservatives because it loosens tens of thousands of ordinary private people from commercial travel obligation under Tenn. Code Ann. title 55 and under title 65 promiscuously enforced for decades. With reform, Mr. Berke reduces unilaterally a mighty imposition of the police state, one that irritates even pro-police conservatives.

If cops are required to enforce the transportation laws only upon bus drivers, semi-tractor operators, cab drivers, dump truck operators, and fleet truck operators, they will have fewer encounters likely to end in their injury or death.

Cops will deal mostly with professionals and employees, not hot-headed private citizens who may have a grudge. This reduction in threats to cops will please conservatives such as state Rep. Gerald McCormick, who introduced a police “bill of rights” to honor a powerful progressive-statist lobby, the police union.

Journalist gives city administrative notice on limits to police power

Traffic enforcement reform will save people from having police encounters that are not intended for public health, safety and welfare. The conservative is sure to appreciate a more focused use of taxpayer resources on enforcement. Mayor Berke is already making progress in this direction, having reduced traffic citations every year he has been in office, according to the Times Free Press.

In being the first Tennessee city to receive and respond to transportation administrative notice Tennessee, Mr. Berke could theoretically beat conservative political figures such as former senator and one-time governor candidate Mae Beavers. The leading liberty-minded Mrs. Beavers has a strong record of helping Tennessee stand up to abusive power and threat from Washington under the theory of state sovereignty and self-determination in the 10th amendment.

With police reform as implied in administrative notice, Mayor Berke would be doing exactly that: Standing up to an unjust status quo out of Gov. Bill Haslam’s department of safety and Tennessee’s courts of appeal. He makes himself an extraordinarily viable candidate for libertarians and freedom-loving Christians, even if on other issues such as abortion he is out of step with their views.

’Sanctuary city’

Surely black activists such as Cameron Williams will appreciate Mr. Berke’s having created a sanctuary city.

The right will shriek at Mr. Berke for having created one. But Mr. Berke will argue that a narrower enforcement of Tenn. Code Ann. Title 55 and Title 65 away from the private traveling public is nothing less than a rediscovery of constitutional protections, a new respect for God-given, constitutionally guaranteed, unalienable and inherent rights. Proudly, he will declare that he favors lawful restraints on state action against innocent people and a lawful limit on the practice of power in local economy. There’s nothing more conservative than that. There’s nothing more American than being left alone, and an elected official’s recognizing a limit of state authority. There’s no one more electable statewide than a Democrat who understands liberty.

By taking advantage of administrative notice on the matter of transportation, Mr. Berke seizes the Hispanic and “undocumented American” vote, the black vote, the liberal vote, and the conservative vote on a matter that is subject to universal public inspection and concern.

He is upholding the rule of law for the benefit of the citizen. He abolishes what for many poor people is a civil death sentence, since not having a valid license sends many to jail or keeps them needlessly off the road and stymies their pursuit of their own livelihoods and pleasures.

The new localism

Another important area for Mr. Berke’s political future is the concept of localism described by Bruce Katz in his book The New Localism. Mr. Berke has probably read most that book, and his staffers are familiar with it.

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One argument it makes about the future of cities is that with the geopolitical devolution in evidence everywhere, cities will have to become more independent and self-directed, given the sclerosis (pending bankruptcy) of the Washington government and the long-term trend toward political devolution and a digital, diversified economy.

If Mr. Berke comes to a right understanding of state law on the matter of transportation and travel, he will be able to bring a local solution to a problem that cannot be solved in Nashville. Without a local intervention, commercial government’s long-standing abuse of Tennesseans will continue without abatement.

A bill in the New Hampshire general assembly fixes the identical problem in that state. But in Tennessee neither general assembly nor the supreme court are in any mood for reform. Police state conduct has the support of Jeffrey S. Bivens, chief justice, and his colleagues. They are refusing to consider the most important case on the matter in 80 years, State v. Hirsch.

Among senators and representatives, the political will to end abuses by rewriting laws does not exist. The transportation/travel distinction is hard to understand and almost impossible to peddle as a negotiable political instrument. Free travel on the public right-of-way has no political constituency anywhere, even among African-American activists such as Ash-Lee Woodard Henderson and clergy such as Rev. David Banks.

Trying to change enforcement by politicking in Nashville would provoke the establishment of Republicans and Democrats, police unions, and associations of sheriffs and police chiefs and commissioners of safety such as David Purkey and others. This claque would block any bill. 

Since reform is impossible at the state level, a local reform allows Mayor Berke to show his considerable leadership gifts. It would show that he will act in favor of residents despite opposition and that he will act locally while thinking nationally, confident that a local reform will be evangelized elsewhere, perhaps with the pen of Mr. Katz scribbling a chapter in yet another public policy volume with a chapter about Chattanooga.

Independence of mind

To reform policy as outlined in administrative notice would be an act of courage and independence of mind. It would show Mr. Berke to be right on several important points, a local genius acting defiantly despite the plodding bureaucracy trolls at bureaus such as the U.S. department of transportation and the Tennessee department of safety and homeland security.

The status quo in transportation and travel is 80 years old and has not been even slightly damaged since the passage of the driver’s license act in the 1938. It would be highly refreshing and a great blessing to find in Tennessee a political figure willing to ignore that practice which gives police easy probable cause to create for their books tens of thousands of adverse public encounters and continued generous tax funding.

In ordering a change in policy, Mr. Berke restores an orphaned right. That unalienable right is a free travel on the people’s right of way, free because the party is not involved in the for-profit use of the people’s asset, namely the roadways. Free use of the roads is implied in the exercise of all constitutional liberties, whether that of the press or the exercise of religion.

If you have to have state permission to go from point A to point B to practice a religious custom such as Lord’s day churchgoing, you are not a free person and the government that enforces any rule against your free use of car, truck or motorcycle is, well, despotic?

A fresh understanding of the liberality of Tennessee law is a great start for a bright political future that seeks the well-being of the common person, defies moldy legal and political practices, and promises to bring new people and new prosperity to the River City. May Mr. Berke by God’s grace consider his obligations — and his opportunities.

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