Dayton mayor Louallen debates journalist on limits of police authority

David Tulis gives a transportation administrative notice Feb. 23, 2018, to Gary Louallen, mayor of Dayton, Tenn., a town in which a few people use the public roadway without state permit but face arrest or citation is stopped. (Photo Facebook)

Dayton is the seat of Rhea County, Tenn., where a courthouse stands as a tourist attraction for the historic Scopes monkey trial. (Photo David Tulis)

DAYTON, Tenn. (Feb. 23, 2018) Mayor Gary Louallen of Dayton, Tenn., gives me an interview regarding the fruit of my legal research dressed up as “transportation administrative notice.” He’d had no advanced warning about the of my call. Ronnie Raper, a city housing inspector and municipal confidante, greatly enlivens the argument I make about the distinction between travel and transportation.

By David Tulis / 92.7 Noogaradio

For both men, the distinction is a brain twister, an almost humorous labor in legal hair-splitting. Both city officials are cordial and friendly. They don’t take offense at a summation of Tennessee law that is an implicit rebuke on current Dayton traffic stop practice.

The city’s legal position is that every soul on the road is there by state permission, and that no one is allowed to be moving behind the steering wheel in car or truck apart from permission of a driver license.

Tune in to the David Tulis show weekdays at 9 a.m.

Messrs. Louallen and Raper are not arguing anything outside the norm of municipal traffic practice in Tennessee.

In one sense, they are not on thin ice or shaky ground. They have the estimable Tennessee supreme court and the Tennessee court of criminal appeals to steady their wall of skepticism about their bow-tied visitor.

Even better, their rebuttal that 100 percent of roadway users must have driver licenses is supported by:

➤ Decades of unchallenged legal presumption by officers and deputies in their citations and arrest reports.

➤ General acceptance by the free citizenry of Rhea County.

➤ A universal habit of mind among regular Americans and others, even those who would stand to benefit from a shutdown of the skimming economy and the police-industrial and prison-industrial complex.

They can’t go wrong sticking with what is normal, familiar and just.

It is to the high credit of Mayor Louallen and Mr. Raper that they don’t throw me out of their office into the hallway and, after watching me bounce, toss me through the glass doors of city hall.

Administrative notice is a simple statement of laws and rulings. It works in the foreground as the basis for reform of police department practice to account for people’s constitutional rights, both substantive and procedural.

It works behind the scenes to eliminate “good faith” defenses following incidents of law enforcement abuse of anyone traveling privately who raises the defense of traveling non-commercially who sues for abuse and oppression.

‘Bow-Tie’ brings transportation administrative notice to Dayton

David Tulis: [Toward phone camera] This is George Louallen, who is the mayor of Dayton.

Mayor Louallen: — Gary.

David: Gary Louallen — excuse me.

Gary Louallen: — No problem, no problem.

David: — Gary Louallen, who is the mayor of Dayton. I’m a reporter and a journalist, Mayor Louallen, and I’ve done in the past couple months I’ve been doing a serious bit of reading about Tennessee law and when I found out that the law makes an important distinction that the law makes between two categories of people who are on the roads in Dayton — and of course in other cities.

And that would be: There are travelers, and then there’s a subcategory of person on the road — in truck, car, motorbike — who are involved in transportation.

Now the transportation law makes a distinction that transportation is regulable in the public interest. It is subject to regulation because heavy trucks on the roads damaging the roads, which belong to the people. And, also, that they raise the risk to travelers and others who are using the roads for profit — and because they’re making profit, they are subject to the state. They are subject to the department of safety and they’re subject to title 65 in the code and title 55.

Private users vs. commercial

So, what that means is that some some others are not. They are just private users.

Now, I’m a private user and most people are. They are not making a profit, so they have a right to be there.

Mayor Louallen. Mmmm.

David: And if you have a right, of course, it can’t be taxed. It can’t be regulated. It doesn’t have to be permitted. It doesn’t really have to be licensed.

So, what I’m saying is in my research — and I’ll give you a copy of it in just a minute — the free user, the free-range traveler, if you will, is there as a matter of right.

And yet, and yet in cities and counties across the state, they’re being prosecuted and these could include poor people, that would include immigrants — who are here, you would say, illegally; they are undocumented people — and there are also people who’re on the road who don’t have their papers in order, right? They’re on revoked, suspended, canceled, expired or none — and they are the road.

They are of special interest the police and sheriff deputies, generally speaking, and many of them are criminally prosecuted.

And so what I am concerned about is many of these people, and as a church deacon, many of them are prosecuted I would say unjustly, because they are in fact not involved in commerce. But they have a lack of knowledge of how to defend their position.

They are — they don’t say it well, “Look I’m not in commerce. I’m not carrying anybody or carrying goods for hire. I’m just a private user, I’m just going to church, I’m taking my kids to soccer practice.”

So, that is a group of probably more than half of the individuals on the road are private users, but they are subject to arrest by the police department if they don’t have a license or if they have license that has some kind of blot on it — it’s expired or what have you. It’s important to know this distinction in the law.

A startling admission

Now the high court, Mayor Louallen, has pretended that there’s no distinction between travelers and people involved in transportation. It pretends it doesn’t exist. It says that traveling effectively is just changing your domicile and does not, and there’s no other form of travel than that.

But I want to hand you this notice — this is an administrative notice — to Dayton about this distinction in the law and it is my analysis, I’ve spent some time on this.

I’m the former newspaperman, Mayor Louallen, who got the legislature to rewrite a law back in the early 2000s, the law that was law for social security numbers and driver’s licenses. I didn’t have a Social Security number at the time and I demanded to have a driver’s license. I was involved in litigation and the general assembly rewrote the law to account for my arguments and now in Tennessee if you don’t have one — if you never been issued a Social Security number — you just file an affidavit with the department of safety and and it accepts your application without the number.

I’ve studied this issue for some time, and I’m fairly confident that that review which I give as a notice does speak to your government and to your employee, the chief of police, and his agents.

Transportation administrative notice Tennessee

They do represent the people of Dayton, and they represent this government, and I think it’s important to understand what the problem is that they’re not seeing.

Insert new question in police traffic stop

The reform I propose, Mayor Louallen, is that there would be a question inserted at the very beginning of the traffic stop.

Y’know, the first question is “Do you know why I stopped you?” And the second question is not “Could you please show me your license, proof of insurance and registration?”

The second question should be, “Ma’am, are you involved in the for-hire operation of this car as a motor vehicle in commerce and for-profit?”

That’s the question.

Because if that person is not and that person is not subject to title 55, that’s the conclusion of that document: People who are involved in commerce are subject, and others —

Mayor Louallen: [speaking to man in hallway) Ronnie, Ron, sit down here just a minute.

David: [Rising] I’m David Tulis.

Ronnie Raper: David?

David: David Tulis.

Ronnie Rapier: Hot News Talk Radio.

David: Yessir.

Mayor Louallen: What he’s basically doing — and I hadn’t said anything — basically for you he’s going through and I didn’t really know what what he wanted when he got here.

He’s just giving his administrative notice and I’d like you just kinda catch up to — because I really want to flag you down when I saw you.

David: And what is your name, please.

Ronnie: Ronnie Raper.

David: — And who are you?

Ronnie Raper: A city employee.

David: OK.

Ronnie Raper: Building inspector.

Mayor Louallen: I’m just listening and I don’t really have any comment to it. He’s giving us this, but as this continues I wanted you hear it, too.

David: Well, I think I’ve taken enough of your time. [To Mr. Raper] I’m a reporter at NoogaRadio in Chattanooga, and I’ve done some research that I’m trying to benefit public officials with the reading of. It’s going to take a little consideration to read it.

But what I’m arguing for is that the statutes and U.S. code at title 49 and the Tennessee title 55 and 65 which control transportation don’t make everybody subject to the police department, effectively.

Mayor Louallen: What he’s just saying is like a typical stop, what I am asking *** what is really talking about as far as whether he should be — or should not be — operating a vehicle. What you just said to me.

No right to drive on public roadway

David: Right, right. Well well legally, driving — there is no right to drive, right, Mr. Raper? There’s no right to drive a motor vehicle on the public roadway. It doesn’t exist. You have a privilege of operating a motor vehicle. Driving is regulable. A driver is a person who is employed in commerce to carry goods or people for hire. That’s what a driver is. An operator is the same thing.

However, there are people in this county and there are people who live in this city — and that’s why I’m here — who are not drivers, but they are on the public right of way. They are using a car or truck at liberty without permission, but they have —

Ronnie: But they have a license.

David: No, they don’t.

Ronnie: They have a Tennessee state driver’s license.

David: No, they don’t.

Ronnie: If they don’t, they’re illegal.

David: Well, that what I’m suggesting is if they’re not. Now, this notice —

Ronnie Raper: But they’re illegal, right?

David: You mean, like Mexicans?

Ronnie Raper: No, no, no, I’m talking about people driving on the city streets of Dayton, Tennessee, without a valid driver’s license are driving illegally.

Mayor Louallen: — People not having a driver license.

Dayton, Tenn., mayor Gary Louallen asks highly intelligent questions about his visitor’s claims about the legal distinction between travel and transportation. (Photo NoogaRadio page Facebook)

David: Well, you can’t, I agree with that. If you’re a driver and you’re driving or operating a motor vehicle without a license, it’s illegal. But, Mr. Raper, if you’re traveling in a car without a license and you’re not in commerce, that is lawful.

Ronnie Raper: Not in the state of Tennessee. Well — I’m not arguing —

David: I understand.

Ronnie Raper: I’m not arguing your point.

Arguing travel vs. transportation

David: Well, please, DO argue. I understand that.

But what you are expressing is the common understanding of the law and everybody understands it that way. Everybody. This is the majority report.

However, however — I’m just saying, however, I’ve gone into this I’ve studied this in more detail than the high court judges when they write about this matter — and the appellate court judges. They have written some pretty bad opinions.

You have a right to travel. Travel is a property right. I’m a journalist. I go to church. The right of worship and the right of journalism is possible only freely. If I have to have permission to go to church or permission to go to an interview as a member of the press, then I’m not free. There is no free press.

So the right of travel is a property right that it inheres in everybody who is old enough to get inside of their car.

A car and a motor vehicle are not the same thing. Traveling and driving are not the same thing legally — and that’s in this notice.

They are different.

Operating a motor vehicle without a license is a crime. Operating a car, driving a car or motor vehicle without a license is a crime. You have to have a Class D or other type license — if you don’t have that, you’re committing crime under title 55, subject to department of safety, subject to prosecutors, subject to chief of police.

But, there are people who don’t have them. I mean, you have immigrants. You have all kinds of people who are are too poor to have insurance. They have a car, they’re carefully getting a car on the road to go somewhere out of necessity. They have a right do do their pleasure, to do what they need to do and to fulfill their necessaries without permission.

‘Outside the scope’

I’m just telling you that’s what the law says. The law is clear.

And yet everybody says that that’s not true. But it is true. I say this even though cases in which the high court rejects the claim that there is a distinction between travel and transportation. Even where the high court rejects it, even there,

The language that it uses, the language that it uses — I would say, false language — it admits there is a distinction between traveling and transportation.

Transportation is regulable in the public interest for the health, safety and welfare of the public. But traveling is outside the scope. Traveling, in a car or truck, if you’re not involved in commerce, is outside the scope of the statute, title 55 and title 65 and 49 in the U.S. code. I lay it all out here [indicating 20-page document]

If you give me your card, Mayor Louallen, I will send you a PDF version you can pass around. It might be easier for you.

Officers of the Dayton, Tenn., police department declare a high goal. “[T]o protect the rights of all persons within its jurisdictional limits.” The department’s duty is “to enforce the laws in a fair and impartial manner, recognizing both the statutory and judicial limitations of police authority and the constitutional right of all persons.” Strong words, indeed. (Photo

‘Legally drive without that license?’

Mayor Louallen: What I’ve heard, what I’ve heard, if I am understanding you correctly, is that some lady who doesn’t have a driver’s license has a child, and doesn’t have a driver’s license for whatever reason, and needed to go to the grocery store or the hospital, she can legally drive without that license. Is that what you’re saying?

David: No, she can’t legally drive. She can legally travel.

Mayor Louallen: Is she going to be walking?

David: No, I’m saying she can get in her car, because she is a traveler. She is not a driver nor an operator.

Mayor Louallen: If …

David: — It sounds like I’m splitting hairs, but —.

Mayor Louallen: It is. I mean, she gets in a car by herself, but she’s not a driver because she’s, I —

David: She just doesn’t have a license, y’know. She is an immigrant, OK? Or, she has a constitutional objection, or she has a religious objection to social security numbers or other things.

‘You’re the only one who really knows this?’

Ronnie Raper: One question. Why do they take ’em to jail if they’re driving without a driver’s license?

David: Because of custom that began in 1938.

Ronnie Raper: Why won’t the judge dismiss it when they go to court?

David: Because the defendant doesn’t raise the correct objection.

Ronnie Raper: Since 1939 no defendant has made the right objection? You’re telling me you’re the only one who really knows this?

David: No, no there have been others. There have been several, eight or nine defendants who raise this question of travel versus transportation in the courts and the courts shoots them down. The mid-level court, and then just a couple weeks ago in Nashville the high court rejected without a comment an appeal of a criminal defendant who made this argument.

Ronnie Raper: And you’re going to change it?

David: I can’t change it. I mean, the high court isn’t going to change it.

Ronnie Raper: So you are going to put us on notice that somebody is going to change it?

Travel as a defense of rebuttable presumption

David: Well, no, I’m just saying that in the law, there is this defense. The law makes it very clear between travel and transportation. It’s in the code, the way the code is written. The federal code is all about transportation. This notice defines what transportation is, defines what driving is, defines what operating a motor vehicle is. Motor vehicles are beyond car. A car is a metal object. To convert it into a motor vehicle is to convert it into an instrumentality of commerce. If it’s used that way on the night of the stop —

Ronnie Raper: You are splitting hairs. You are splitting hairs — you are splitting them.

David: [Laughter] Hair-splitter, OK.

Ronnie Raper: You are splitting ’em.

David: I’m just saying — I understand that’s what it looks like. But there is a legal basis for this position. ***

Mayor Louallen: Have you ever interviewed June Griffin?

David: I have interviewed June Griffin. I have, yes, sir, so June Griffin does not have a position on this but —

Ronnie: Don’t tell me that. Don’t you tell me that. Don’t you tell me that.

Mayor Louallen: [Laughing] Correct me if I’m wrong. He did say he didn’t have a Social Security number on his license and couldn’t get a license —

David: Well, that was back in 2000.

Ronnie: Do you got a license now?

David: I do. I’m a licensee.

Ronnie Raper: Well, the only reason to ask questions is, June doesn’t.

David: I don’t know.

Ronnie Raper: She doesn’t. She makes a big play of it. I’m telling you — she doesn’t.

David: I’m not here to talk about June Griffin. But that makes two people in the county who don’t have driver’s licenses.

Brain twisting theory

Ronnie Raper: But she can’t drive and I don’t want her driving.

Mayor Louallen: But you’re saying there’s a legal way she can drive her vehicle?

David: — No, she can’t drive. She can’t legally drive her vehicle. If what she’s doing is driving a vehicle, that’s regulable. In other words, if that’s what she’s doing, driving a vehicle, that is subject to regulation. It’s subject to the police power. But if she’s simply traveling in her car, or anybody else is simply traveling in their car, that’s a defensible legal position.

And this notice explains how that is.

Dayton mayor Gary Louallen listens to my summary of an administrative notice served on the city about the limits of state law in enforcement action against people using the roadways privately as a matter of right. (Photo NoogaRadio page on Facebook)

Mayor Louallen: You keep going back to illegals, people who don’t have licenses, or whatever. I’m trying to hook up to what you’re trying to say. What you’re saying is that if she doesn’t have a license — you’re saying she can’t be approachable in that vehicle because she has a right to travel?

David: If the officer stops her, he presumes she’s involved in commerce because there’s a tag on her car.

Mayor Louallen: If there’s a tag on her car, but she’s not driving it, who’s driving it? You said there’s a tag on her car that she’s not driving. Well, who’s driving her car if she’s not driving it?

David: She’s got a tag on her car which suggests it’s in commerce. The officer has authority under the transportation statute to pull that person over for a violation of the traffic rules, you know — you’re not using an indicator.

Mayor Louallen: — The driver — the driver.

David: — Yeah, the person

Mayor Louallen: In her car with the sticker that she’s riding in, so… but where are you headed with her? That’s what I don’t understand.

David: — I’m not going to talk about June Griffin.

Mayor Louallen: — No, no, we’re not talking about June Griffin. No, no, no! I’m talking about the lady that doesn’t have a license that’s in the car and what are you saying is the that the officer can’t —

David: — The officer has authority under presumption to stop the car from let’s say going too fast, OK? Running a stop light, or a stop sign. There’s a presumption of authority under title 55 and he pulls over that car. But if the person inside says I’m not a licensee, I’m a traveler, then that’s the defensible position and legally he has to accept that. Because if she says I’m not carrying goods or people for hire, that’s legally defensible as being not under transportation statute, title 55 or 65. Most people don’t know how to do that. I’m just saying that that is a defensible position in city court or in criminal court. The notice — the notice, I want to suggest, I didn’t mean to take this much of your time — the notice suggests that you really have to ask the question — the officer has to ask the question: “Ma’am, are you for hire and is your car a vehicle that is being used in commerce for hire, or carrying goods or people?”

David Tulis summarizes an administrative notice about the limits of Tenn. Code Ann. titles 55 and 65 in forcing commercial statutes upon private citizens. Mayor Gary Louallen graciously listens to the visitor give his report. (Photo NoogaRadio page on Facebook)

If she says “Yes,” then she’s involved in commerce and she’s subject title 55.

If she says “No,” all he can do is say, “Ma’am those stop signs are meant for your benefit, and I just urge you to obey them because you will avoid an accident and avoid problems. Have a nice day.” And that is all I’m saying.

The way the law is written and even the court cases — some of which are against this position —  even they have that language of the division of the traveling activity of the regulated part and transportation and the unregulated part, which is free use by a free people.

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