It’s been a month since I sent a letter to city attorney Wade Hinton asking him by what statutory authority city cops exercise state power and enforce title 39, the criminal code.
Having read City of Chattanooga v. Davis, and City of Chattanooga v. Myers, I have come to understand municipal authority as civil, not criminal. These cases argue that cities have no punitive authority. They cannot punish, only fine — which legally is distinct from punishment. Their fines are limited to 50 dollars. How does a city police department operate if a city does not have punitive authority nor criminal jurisdiction?
More than 30 days out, Mr. Hinton has not answered me in writing. At a recent city council meeting, I asked him about my inquiry, which a staffer had said in an email was being researched.
He apologized for not having responded, and said the authority for cops to enforce the criminal statute is in Title 38. A hint is all I need. Today I look a few minutes to open that volume, and found I had already read and marked the provisions.
The sheriff is the leading authority in Hamilton County, the “principal conservator of the peace. *** It is the sheriff’s duty to suppress all affrays, riots, routs, unlawful assemblies, insurrections, or other breaches of the peace, to do which the sheriff may summon to such sheriff’s aid as many of the inhabitants of the county as such sheriff thinks proper.” Tenn. Code Ann. § 38-3-102.
The sheriff’s duties are given in a second provision.
“It shall be the duty of the sheriffs, in their respective counties, by themselves or deputies, to patrol the roads of the county, to ferret out crimes, to secure evidence of crimes, and to apprehend and arrest criminals.”
Crime vs. commercial infractions
Notice that this duty excludes the use of the department to enforce the transportation statute against private people in cars and trucks who are not in transportation. They are not tasked with the management and regulation of businesses that prosper on the state’s magnificent highways and myriad roads.
Crime. That is what Mr. Hammond’s deputies are to ferret out and to secure evidence about crime.
Given my great leniency about the conduct of government officials in their “oversight” of local economy and free markets, I have not yet decried abuse of Title 55 — the transportation law — as loudly as I might. If I were to do that, I would be calling police’s and sheriff department’s overstepping that statute a crime worth bringing to the attention of the Hamilton County grand jury. Is official rejection of law such as Title 55 a crime? What think ye?
Another provision regarding the duties of the sheriff suggest that if he knows of a crime being committed — but says nothing — he’s liable to be charged with a misdemeanor.
“Any magistrate or officer, having notice of any unlawful act provided against in this chapter, who neglects or refuses to do the magistrate’s or officer’s duty in the prevention of the public offense commits a Class C misdemeanor.” (TCA 38-3-107. Neglect of duty by officer)
Here I am asking about a clear legal authority for city police to enforce Title 39. The question stands even though I am well aware of the general concept of police power, which is the attribute of sovereignty by which the public policy is preserved and promoted, with “public policy” being the “present concept of public welfare or general good” (police power, Tennessee Jurisprudence). My question about city police power is apart from this general conception and aims at a real provision in the written law.
Law that lets power flow to municipal corporations
Is the power that inheres in the sheriff — clearly a military and peacekeeping power — shared with others? “The judicial and ministerial officers of justice in the state, and the mayor, aldermen, marshals and police of cities and towns, and the director, commissioner, or similar head of any metropolitan or municipal police department, whether elected or appointed, are also conservators of the peace, and are required to aid in the prevention and suppression of public offenses, and for this purpose may act with all the power of the sheriff.” (Tenn. Code Ann. § 38-3-103. Other conservators of the peace.)
OK, now to the cop
Does the cop flashing his blue lights behind you on the highway act with legal authority? If the “head of any metropolitan or municipal police department, whether elected or appointed” has this authority, so, too, his agents and subordinates.
These authorities have duties to enforce the law, but also to obey it themselves. This statement perhaps seems needless.
But both Hamilton County’s Mr. Hammond and Chattanooga’s Mayor Andy Berke and Chief David Roddy have been given administrative notice about the scope of the transportation law. And they have not altered transportation stop protocols, nor have they rebutted the well-publicized notice about Tennessee law.
Their military authority is in view in the sheriff’s power to create a posse. Also, here: “If it appears to the governor that the power of any county is not sufficient to enable the sheriff to execute process delivered to that sheriff, the governor may, on the application of the sheriff, order a posse or military force as is necessary from any other county or counties.” (Tenn. Code Ann. §38-3-112. Power of governor to order posse or military force from other county)
The governor, if he needs help keep public order in a riotous time (or during a spell imagined as a “zombie apocalypse”), calls upon the sheriff to order a posse or military force.
What is the truth about police departments? Do they exercise genuine authority under statute, or is it mere professional courtesy? Sheriff Jim Hammond suggests that courtesy may provide the larger part of authority as it’s used in practice in the Chattanooga area.
Hammond defers to police as professional courtesy
Here’s part of an interview (see roughly 7:45 at the Facebook link below) in which this question comes up before Sheriff Jim Hammond of Hamilton County, Tenn.
JIM HAMMOND. I support my brothers, fellow brothers and sisters, in law enforcement, whatever jurisdiction they’re in. They all, as far as I’m concerned, they’re well-trained, they do their best to protect the rights of all individuals. The city municipalities, as you know, work under statutes, whereas the sheriff must work under state law. I cannot enforce statutes [ordinances]. I have to enforce state law. There are statues [ordinances] that are created that do not apply to the sheriff’s ability. It’s a common thing, like don’t spit on the sidewalk. We don’t have such a law, don’t spit on the sidewalk. I can’t go down and arrest someone for spitting on the sidewalk. [Mr. Hammond clearly means to say city cops enforce ordinances while he enforces statute.]
DAVID TULIS. So you enforce statutes and the police enforce ordinances.
JIM HAMMOND. That’s it. That’s it. State law that’s what sheriffs. He has jurisdiction anywhere in this county. I’m the sheriff of Lookout Mountain in Chattanooga, wherever it is. I’m not going to disrespect my fellow officers of these municipalities. I know how hard they’re working. I know what a good job they do. I would prefer you call the jurisdiction that you’re in for this reason: I would be overwhelmed supplying officer through every call if someone had me on speed dial. I just couldn’t do it. Don’t have the manpower. Don’t have the budget. So, it is what it is. *** but I do want to make it very clear. I support my fellow officers in municipalities.
DAVID. So then, Sheriff Hammond, you defer to those departments. You’re not staying out of there hair by statute, but by deference to their professional —
JIM HAMMOND. — Right. I will give them assistance where they ask for it I regularly back them up, they regularly back us up.
StarStart listening at Minute No. 7 to this discussion.
Sheriff Hammond suggests that he agrees with my suggestion, that somehow city cops operate not by law, but by his consent, his respect for the fine persons of former Chattanooga chief Fred Fletcher and, since August, Chattanooga police chief David Roddy. The statute indicates city cops can enforce statute in Title 39.
So, where do we stand?
But the Davis and Myers opinions leave me uneasy with that prospect, because these cases speak largely of the impotence of city government to punish anyone under their ordinances. And if their teeth are in their ordinances, how do they enforce statutes, which are teeth bigger than their mouths? Perhaps we should go through these cases in detail, because they are perhaps a final word on what cities can do to fight crime and enforce statute.