Notice to Hammond: Reform required even though Haslam, judges, legislators opposed

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Sheriff Jim Hammond talks with Greg Luther, left, at a 2014 political event. Mr. Luther is defending the right of citizenry to photograph department officers in any public place. (Photo David Tulis)

The following is a letter sent to Jim Hammond, sheriff of Hamilton County, Tenn., regarding an interview about the laws he is charged with enforcing — among them, the transportation statutes in the Tennessee Code Ann. that regulate transportation. Mr. Hammond is reluctant to say much about either the law, nor his practice as sheriff.

In the law, transportation is a regulable activity, a lucrative use of the public right of way for private or corporate profit, subject to licensure, taxation and other controls because trucking and hauling people or goods for hire affect the health, safety and welfare of the people as a whole.

By David Tulis / 92.7 NoogaRadio

But the county and Chattanooga have been reminded of the limits to these laws. Thanks to a transportation administrative notice that I served upon them, they are under an obligation to review all relevant law and case law as it affects the individual deputy or officer, whose work and whose personal liability and immunities come into view following administrative notice.

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Since enforcement practice will not be ordered changed from the top (Gov. Haslam, the supreme court, the general assembly), it should be ordered changed on the ground, in each city and county individually, by those entrusted with enforcing and obeying state law. Lococentric and Noogacentric reform are called for personally and individually. Individual cops and deputies are responsible for doing the right thing at each traffic stop,, under their oaths of office, based on their knowledge of the law as written, and as re-presented under administrative notice.

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Perhaps my March 1 interview with you would have gone better had I turned off my recording equipment. So let me offer further discussion that may prove helpful to Hamilton County government.

I didn’t point out that administrative notice eliminates the standard “good faith” immunity of an officer who stands accused in chancery, circuit or U.S. district court of harassment, intimidation or oppression for actions done upon all citizen ostensibly under Tenn. Code Ann. titles 55 or 65.

With my notice, the ordinary “good faith” defense is removed for every deputy who has an aggressive enforcement encounter with a member of the public that goes against the liberties implied in the law, pursuant to administrative notice. The American people, and people here in Hamilton County, may become less forgiving of officer transgressions that involve the death or injury of a citizen who has done nothing worthy of capital punishment or jail. Arresting someone apart from lawful authority is an abuse. With my notice, the grounds for false arrest are more clearly recognizable if that probable cause is premised on a violation of either of those titles and imposed upon a noncommercial user of the road.

Personal safety of each officer

Herbert Slatery III, Tennessee attorney general (Photo WKNO FM)

If a deputy acts under rebuttable presumption to make a transportation arrest of someone not in transportation, your department has a Jerry Summers lawsuit on its hands; or the deputy has a plaintiff’s tort action against him personally to face with his family’s own resources.

I also suggest that standing for retributive legal action against individual departmental actors is possible in light of notice even though the courts of appeal take an opposite position — the position of the status quo. They pretend that there is no distinction between travel and transportation (most recently in State of Tennessee v. Arthur Jay Hirsch, petition for appeal denied). The courts pretend that, somehow, the 1937-38 driver license law destroyed, abrogated and nullified constitutionally guaranteed rights of free movement by car or truck — yet is constitutional.

The supreme court holds that travel is ONLY the change of domicile or residency. The high court protects your department’s presumed current practice. Gov. Haslam and his attorney general have defended current practice in court and fended off appeals demanding reform. Nothing is likely to happen the general assembly tending toward reform recognizing the freedom for millions of people under the travel-transportation distinction.

So you might think you are safe and don’t have to do anything toward policing reform.

State government’s position, however, is wicked, unjust and unconstitutional. It imposes a wrong on the people, an inequity. It works a fraud upon the people. It is a maxim in Gibson’s Suits in Chancery, that equity does not accept the use of statute as a means to defraud anyone. State government appears in its various high branches to be involved in an opportunistic commercial enterprise to skim the people of their wealth and liberty, and to be doing so ultra vires, or “beyond the powers.”

Local reforms required — forget Nashville

There is no political or legal constituency for top-down policy changes implied as requirement in administrative notice.

So transportation administrative notice works from the bottom-up.

It relies on each sheriff’s and each deputy’s oath of office to support the constitution and correctly enforce the law based on personal knowledge. No Hamilton County officer can knowingly enforce the law beyond his authority under statute. As you told me in our interviews, your job as sheriff is to enforce statute. All agree on this point.

Your deputy stops an immigrant, a member of a minority class, an impoverished person with an expired DL and no car insurance, or a devout Christian such as me with a conviction about his liberties. Will that person be arrested and charged if traveling without having or showing a valid driver license? If he has a revoked license, will he be charged if, at the time of the traffic stop, he is not involved in transportation, but traveling on private business?

Transportation administrative notice is my published report to your government about the definitions and the holdings of law and courts. I suggest that TAN be published within your department out of respect to men and women in your ranks. If you care about the personal and legal self-protection of each deputy, you should notify each one about what I believe is your department’s current status quo practice and how it may be at odds with state law as written and as it developed since 1915. Each deputy has a right under his employment with the county to receive the notice personally. If not, your deputies are legally stranded and vulnerable.

The deputy cannot today claim immunity to tort action because he didn’t know and didn’t intend to oppress a poor widow or a stranger in the land — traveling without title 55 paperwork. There is no good faith defense anymore, now that the sheriff’s office has received transportation administrative notice. Legally, what the sheriff knows, the deputy knows. Will you not tell each deputy the limits and scope of the law? Will you leave him hanging? Notice to the principal is notice to the agent, just as notice to any deputy is notice to the principal.

Justified arrests, not ‘ultra vires’ ones

My goal is to bring reform of police practice along the roadway, for the betterment and safety of the citizenry, for the blessing and safety of peace officers and deputies. Let our department use arrest powers only warranted and justified in law.

Johnthony Walker, driver, operator of motor vehicle, involved in commerce and transportation

The administrative notice itself contains no argument; it is a mere presentation of law. The law and the history of court cases make their own case. They imply a requirement for policy changes.

Reforms can go far to make the state’s operation less burdensome, less onerous, less painful upon ordinary people. It will save American lives by being stricter upon the Johnthany Walkers and Benjamin Brewers behind the wheel. It will reduce the tensions that occur at every transportation/traffic stop by your department upon private people who are using the roadways outside of transportation profit-seeking activity. It will avoid the encounters that African-Americans view as racial harassment and profiling and which often are the occasions of state-citizen violence. Deputies would much rather enforce laws upon trucking and shipping employees who are busy about the work of transportation that makes the American economy so magnificent and rich. Let traffic enforcement respect the rights of private parties and focus on heavy trucks and commercial operators.

Implied in the notice is the free movement of Tennesseans and other people in Tennessee pursuant to their own pleasure, private purposes and private means. They are protected by the constitution’s ban on unwarranted searches, by its requirement that arrest occur only under probable cause.

Restoring probable cause protections

Title 55 enforcement LOWERS the threshold of probable cause. No longer are criminal encounters under probable cause for real crimes (assault, rape), but are premised on technical faults (brakelight out) or traveling indiscretions (going 50 in 40 mph zone). These in fact are not real crimes, only offenses in equity and under agreement. These violations are wrongs under contracts inked between state government and people in transportation who signed application forms and paid fees under TCA titles 55 and 65 — folks involved in the regulable activity of transportation.

Please consult the law as to what transportation is. Or consult administrative notice, an effective restatement of the law controlling your department.

For my part, there is only Christian goodwill in this effort to question you and your department. As I told Chattanooga city council when I gave it notice Feb. 20: This reporting project is a work in personal racial reparations for the African-American, who even today suffers under burdens of slavery put upon him by the white man’s extralegal control of the roadway and other parts of the economy. Minorities and the poor are the most frequent victim of abusive transportation enforcement practice that overfills jails and prisons. The state’s traffic regime is a false claim upon private activity under the pretense that private travel is transportation. Private travel is not transportation.

My argument for this distinction is done with a spirit of repentance to God in the name of Christ Jesus, who warns me that “for everyone to whom much is given, from him much will be required; and to whom much has been committed, of him they will ask the more” (Luke 12:48).

In our March 1 interview you declined to answer my questions. I have sent them to Matt Lea in a separate email and will wait for your reply. Attached is a courtesy digital copy of TAN.

Transportation Administrative Notice as PDF

 

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