A Chattanooga police officer is filing a false criminal charge against a 14 year old girl whom he bullied and dragged from her family car under “significant safety concerns” and because she was slow to obey conflicting sets of commands.
By David Tulis / 92.7 NoogaRadio
So strong did public anger in Chattanooga emerge in a single day that the police department defensively posted its cop-camera file on YouTube and claims it would keep the officer anonymous because of threats to his health.
Among the charges facing daughter of Avery Gray, one of two children of a Christian homeschooling family, is resisting stop, frisk, halt, arrest or search, according to a Chattanooga police department statement Wednesday.
But charging Miss Gray with “resisting stop, frisk, halt etc.” is out of order, because the officer must allege she acted “intentionally” in the use of “force against the law enforcement officer or another” pursuant to Tenn. Code Ann. 39-16-602. In law, there must be factual sufficiency for each element of the charge (from intentionality, to preventing and obstructing, to the use of farce) or the cop faces criminal or civil sanction for false arrest, false imprisonment and perjured affidavit.
Perjury is a problem in the department that district attorney Neal Pinkston has declined to address in earlier cases, one of which ended in the firing of officer David Campbell. By filing criminal charges offhandedly, the officer and the elected Mr. Pinkston pretend that any officer’s verbal commands are law and that not obeying discretionary personal directives is an act of violence.
That’s what the officer whose bodycam is posted on YouTube apparently believes. He is angry that the girl does not comply quickly with imperatives about gathering her personal effects together and getting out of the car in which her mother, Avery Gary, 40, told her to wait.
Parked in front of the county jail, and surrounded by female and other cops, the girl is in the seat behind the steering wheel, with the engine running and her window mistakenly rolled down.
A male officer addresses her, telling her to get her belongings together.
Imperial personal commands
Sweetheart, go ahead and shut it off for me. I’m not talking to myself. Shut off the car. “
“Well, not really, because the keys [indecipherable]. Shut it off or I’ll get you out of the car and shut it off for you. Shut the car off. *** It don’t matter, you don’t get to break the law. Shut the car off. Now!” In seconds he says she is “being stupid about it,” and he opens her door, “Get out of the car! Get out of the car! I’m not playing. Get out of the car — now. Lady, if I’ve gotta put handcuffs on you — Get out of the car. Get out of the car. ” He reaches for her body.
”I’ve got your shirt — get real. *** Get out of the car, now! One foot, out of the car, now. Get out of the car.” He is grabbing the girl, pulling on her arm, and she is screaming and weeping. “Are out of your mind?” he says. He is cuffing her, so painfully that she has to have a hospital put splints and bandages on her wrists. “I’m telling you to get out of the car. Follow instructions. *** You need to learn how to follow instructions.”
The motivation for this slab of dialogue is the cop’s “increasing concern for public safety” according to the department.
When he encounters Mrs. Gray in the lobby of the county jail, the cop says, “Ma’am, is that your car, this Lexus over there? Well, your daughter is going to jail. She doesn’t follow instructions. *** It don’t matter [that the girl is only 14]; then I guess she should act like she’s 14 and get out when authorities tell her to get out of the car. Your car is being repossessed. I asked her four times, nicely, to get out of the car. She refused. I opened the door, told her to get out. She refused.”
The mother now is in the street with several cops, her daughter cuffed, the repo man done with his work,and a voice says something about getting property out of the car.
“That’s what we were trying to do, when your daughter decided not to follow instructions,” the officer says.
Girl is complying, city employee is testy
Mrs. Gray is attending to personal business nearby the encounter occurs, one with the added element of a car lot repo man on the scene with a flatbed truck, intending to take the car away from its occupants.
Mrs. Gray, 40, in an interview Wednesday night, says the police video deletes at least two scenes caught by others, including the officer’s use of the word, in the presence of a minor, “f–k,” defined as “to cheat, trick, take advantage of, deceive *** from the old standard but taboo ‘f–k,’ sexual intercourse or, specif., manual intercourse.” Chattanooga police, like those in Red Bank, are known for obscenities such as f–k and m—-rf–k in routine misdemeanor encounters such as that with Hanson Melvin, who is suing for F$500,000 for conspiracy, perjury and false arrest.
Mrs. Gray’s husband is a truck driver, and the family is originally from St. Louis. Miss Gray has been homeschooled all her life. The family is poor; Mrs. Gray says having to pay a bondsman F$60 depleted the family reserves as she was inundated Wednesday with social media contacts and calls from the media.
The officer appears to dealing with someone in a police training barracks, barking at someone whom he expects to jump at his command. He first tells the daughter to get her things, then changes course and barks for her to get out of the car. That the girl is slow to register the conflicting orders gives the officer occasion to escalate for his temper to be roused. Slow compliance = resisting, obstructing and force.
Female offers are hanging about the scene, but are on the sidelines. None step up to use persuasion and conversation to attain a police goal, but stand by as the male officer takes charge and acts decisively and with finality against the girl. The arrest causes a storm of outrage on social media, some people calling the girl noncompliant and headstrong, others offended at her harsh treatment and the painful bite of his wrist-cuffs.
There cannot be the act resisting arrest unless there is an underlying charge that is an arrestable offense. His word is not law, and that she does not instantly comply is not a crime.
Public danger alleged
The police statement pretends that a car with a running engine is dangerous and unusual. Cops leave cars running, especially when running air conditioning. The tow truck, as it hoists the Gray sedan onto its bed, also is idling — potentially a greater danger, as it is four times larger than the car.
The police statement highlights details that imply danger — an “unlicensed” girl, “behind the wheel” of a “running vehicle” in a “heavily trafficked area” of town causing is a “significant concern.”
“The officer then approached the female and politely asked her to turn off the vehicle. The female did not comply with any of the multiple requests made by the officer. The officer determined at that time that an unlicensed, 14-year-old behind the wheel of a running vehicle in a heavily trafficked area of town created a significant concern for the safety of that juvenile, others in the vicinity, and the public at-large. Based on the juvenile’s continued lack of compliance and the officer’s increasing concern for public safety, the officer shut off the vehicle and removed the female from behind the wheel.”
Nothing in the story indicates any imminent public danger caused by the car, or that any witness alleged such a danger. Had there been, the officers would instead be charging Mrs. Gray or the daughter with a public nuisance. No extenuating circumstance. No aggravating circumstance. No matter of impending harm or threat is evident to justify an that would have provoked its own criminal charge had it occurred, as might a domestic dispute in a neighborhood driveway.
Where is de-escalation?
The arrest of K. Gray is a picture of American policing, typical of events that cause the rising disrepute of police in a nation weary of police slayings of citizens ( 526 as of May 31), their aggressive military culture, their legal immunities that make them almost impossible to hold legally accountable for crimes.
The officer escalates his use of force quickly, rather than waiting for the girl’s mother or father to return. No female officer is directly involved. The officer indicates he is willing to wait to deal with the mom when she returns, but escalates the use of threat and physical conflict the moment of his first command.
Command begets command, and without instant obedience, the citizen shows seeming contempt, and so must be forced to recognize that she has no discretion or liberty, and that obedience to an earlier command is disobedience to a new one.
The officer “followed proper protocol,” the local chief says. “’The use of force used by the officer in this situation is in compliance with the Chattanooga Police Department’s Use of Force policy and training,’ said Chief David Roddy. ‘”Force used by officers can be controversial, but it is also needed in certain situations when safety of the individuals involved and the public at-large are at stake.’”
The departmental rule requiring the reading of Miranda rights (OPS-42 – arrest procedures, p. 6) is ignored in the seizure of Miss Gray. This rejection of Miranda is policy, as this member of the press has repeatedly pointed out its rejection, particularly as police arrest people for violations under the commercial transportation statute.
Pretending there’s a law
Police in Southeast Tennessee and attorney general Pinkston routinely disobey state law. For example, the police-DA nexus has no law to charge any private person criminally who is using the road without a driver license, as there exists a right to travel in statute and case law despite supreme court policy rejecting that fundamental right.
So what does this“fellowship of the finger” do to support the legal fiction that the only thing one can do in a car is “operate a motor vehicle”?
Cops charge people under TCA 55-50-351, the exhibit on demand statute: “Every licensee shall have the licensee’s license in immediate possession at all times when operating a motor vehicle and shall display it upon demand of any officer *** ” (italics added). Mark O’Shaughnessy and one or two other lawyers in Chattanooga understand that such a law cannot apply to anyone who is not a licensee.
Yet Mr. Pinkston, Mr. Roddy, officers and local judges ignore the law and pretend that police power is exerciseable under the transportation law against private people in cars such as Mrs. Gray, and it’s not. But her husband, a truck driver, is.
Also not available is the “Obedience to police officers” law in TCA 55-8-104, which says “no person shall willfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control or regulate traffic.” This statute cannot be evoked outside the transportation jurisdiction, and no hint has been offered that the arrest of Miss Gray was a matter of transportation.
The story in pictures
Irrelevant law (no violence by accused)
Tenn. Code Ann. 39-16-602. Resisting stop, frisk, halt, arrest or search Prevention or obstruction of service of legal writ or process.
(a) It is an offense for a person to intentionally prevent or obstruct anyone known to the person to be a law enforcement officer, or anyone acting in a law enforcement officer’s presence and at the officer’s direction, from effecting a stop, frisk, halt, arrest or search of any person, including the defendant, by using force against the law enforcement officer or another.
(b) Except as provided in § 39-11-611, it is no defense to prosecution under this section that the stop, frisk, halt, arrest or search was unlawful.
(c) It is an offense for a person to intentionally prevent or obstruct an officer of the state or any other person known to be a civil process server in serving, or attempting to serve or execute, any legal writ or process.
(d) A violation of this section is a Class B misdemeanor unless the defendant uses a deadly weapon to resist the stop, frisk, halt, arrest, search or process server, in which event the violation is a Class A misdemeanor.