Notice means officials must reform traffic stops or face personal bad faith tort lawsuits

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Recruits to Chattanooga police department take oaths in January. Under the doctrine of notice, they are personally liable for wrongs they commit under Tenn. Code Ann. § Title 55 after their employer, the City of Chattanooga, is notified Feb. 20 of the limits of that statute, which is routinely enforced by ultra vires (aka illegal) activity. Mayor Andy Berke, a licensed Tennessee attorney, is distinctly aware of the peril facing these men and women if he fails to order a simple reform.(Photo CPD on Twitter)

The local officials who have received administrative notice about the scope of the Tennessee transportation law are bound with especial duty to obey the law’s plain meaning, pursuant to ordinary rules of statutory construction.

My transportation administrative notice intends to help them comply with the law in good faith. It also lays the groundwork for future tort claims against law enforcement actors who misread the law and, shall we delicately say it, over-apply it. Cops, troopers and deputies do so by pretending it applies to private individuals using the roads in the exercise of their constitutional rights and personal necessities (not taxable or regulable under any legal theory).

By David Tulis / 92.7 FM NoogaRadio

If they enforce the statute overbroadly after having received the notice, they do so in bad faith, and oppressively, subjecting their taxpayer-funded activities to rights violation civil lawsuits and tort claims or even investigations by the federal justice department or the U.S. department of transportation. A simple reform would eliminate the problem and allow traffic enforcement to be sharply scaled back, stanching the flow to cities’ and counties’ overflowing jails. By adding a single question at the beginning of every traffic stop, officers would avoid oppressing anyone, and would bring relief, grace and mercy to thousands of car and truck users across Chattanooga and the rest of the state.

Since the transportation statue at Tenn. Code Ann. § Title 55 is administrative law, all violations are handled not criminally, but administratively, under the uniform administrative procedures act at Tenn. Code Ann. § 4-5-101 under what are called contested case hearings.

The doctrine of notice is established clearly in Tennessee law. Court cases cases indicate the great power of notice to shake up the legal and political establishment in Nashville and Chattanooga — and in towns and among the state’s 95 counties — and bring reform to law enforcement practices that abuse blacks, immigrants, poor, widows and orphans.

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Legal knowledge, or personal knowledge

The object of my project is the individual officer — to make him personally liable, and to evoke in his heart his oath of office, made before God, to uphold the constitution and defend the rights of the people he supposedly serves. The individual cop has a duty to obey the law, and not abuse anyone under the color of or pretense of law.

But how will notice work if he is not personally notified? Well, because of two doctrines: that of notice, and that of agency.

Though notice is not exactly the same as actual knowledge, the court declares, in a university student handbook case, that “We hold that ‘actual knowledge’ of the rules in the handbook was shown by proof that a copy thereof was handed to the appellees.” The 1978 court in State Board of Regents of University v. Gray, 561 S.W.2d 140 relies on precedents half a century and more old.

“The rule upon the question of notice is that whatever is sufficient to put a person upon inquiry is notice of all the facts to which that inquiry will lead when prosecuted with reasonable diligence and in good faith. . . . Means of knowledge with the duty of using them are deemed equivalent to knowledge itself, and passive good faith will not serve to excuse willful ignorance.” Covington v. Anderson, 84 Tenn. 310 (1886). See also Reusche v. Berling, 87 Cal.App. 559, 262 P. 392 (1927).

So, giving of notice of a handbook makes the student liable, even if he doesn’t read it.

Notice is either actual or implied. When anything appears which would put a man of ordinary prudence upon inquiry, the law presumes that such inquiry was actually made, and therefore fixes the notice upon him as to all legal consequences. 4 Tenn. 146 *; 1816 Tenn. LEXIS 43 **; 1 Hayw. 147 WOODFOLK v. BLOUNT, (1816).

Blocked from denying knowledge of law

The law allows notice to a man or woman who acts as agent to serve as notice to the principal. In the matter of transportation administrative notice I have been careful to start with the principal first — the main guy. That may be Sheriff Jim Hammond, district attorney Neal Pinkston, City of Chattanooga council with chairman Ken Smith and attorney Wade Hinton (now departed), East Ridge Mayor Brent Lambert and that town’s council, Tennessee Gov. Bill Haslam and his department of safety and homeland security commissioner David Purkey.

These are principals.They have a duty to act pursuant to transportation administrative notice, which highlights the plainspeaking and good Tennessee law that gives them clear power to exercise police power in the economy — but also limits any abusive use of power. If confronted over an abuse of the law against which they have received notice, they are prevented — or estopped — from claiming ignorance maintained by a lack of their own inquiry into whether the notice is accurate and binding.

Transportation Administrative Notice Tennessee  — new cause of action vs. cop

“It is considered that whatever is sufficient to put a person upon inquiry is equivalent to notice; and that when he has sufficient information to lead him to the knowledge of a fact, he shall be presumed to be cognizant of the fact.” Merritt v. Duncan, 54 Tenn. 156, 1872.

“Before a party can claim an estoppel, there must be on the part of the claiming party: (a) lack of knowledge without fault of the true facts, (b) reliance upon the untrue facts, and (c) action based on the untrue statement or misrepresentation. Inquiry notice embodies a concept of fault since failure to undertake diligent investigation will not preclude imputing the knowledge that such an inquiry would have revealed to a party sufficiently aware of any facts or circumstances from which inquiry notice would arise. If such notice does arise, then reliance on any other state of facts than those that would have been discovered by investigation cannot be justified and such a party will be estopped from asserting the existence of any other state of affairs than those that proper inquiry would have revealed.” Blevins v. Johnson County, 746 S.W.2d 678, 1988. [italics added]

‘Reasonably prudent person’

Andy Berke names David Roddy chief of police Aug. 4, 2017, and as of  Feb. 20 is being informed about the limits of police roadway authority via transportation administrative notice, which indicates state law does not allow policing of noncommercial/private users of the roads..

“Whatever puts a person on inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, and would lead to a knowledge of the facts by the exercise of ordinary intelligence and understanding,” says one case (italics added).

“A person who has sufficient information to lead him to a fact is deemed conversant with it, and a person who has notice of facts which would cause a reasonably prudent person to inquire as to further facts is chargeable with notice of the further facts discoverable by proper inquiry. No man can recover upon the theory of fraud or mistake with respect to any matter of fact about which he has actual knowledge or legally imputed knowledge.” Hill v. John Banks Buick, 875 S.W.2d 667.

So the sunshine of Tennessee law pursuant to TAN touches each deputy and police officer with its warmth, and in the law he “has actual knowledge or legally imputed knowledge.”

In other words, without their own review of the law pursuant to administrative notice, state actor defendants in future litigation will be estopped from declaring they didn’t know the law’s scope and purview. They cannot claim to be ignorant of TAN’s primary point of restatement: That transportation is distinct from travel, and is the regulable subcategory of free and private travel, subject to police power.

Mr. Berke of Chattanooga, Mayor Gary Louallen of Dayton, Tenn., et al are bound to act pursuant to law as restated in TAN. “It is a general rule that whatever puts a person on inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty, and would lead to a knowledge of the facts by the exercise of ordinary intelligence and understanding. A person who has sufficient information to lead him to a fact is deemed conversant with it, and a person who has notice of facts which would cause a reasonably prudent person to inquire as to further facts is chargeable with notice of the further facts discoverable by proper inquiry.” 66 C.J.S. Notice § 11 (1950).

“It is axiomatic that no man can recover upon the theory of fraud or mistake with respect to any matter of fact about which he has actual knowledge or legally imputed knowledge.” Blow Stave Co. v. Hattendorf, 7 Tenn. C.C.A. 415, 417 (1917). Cited in Hill v. John Banks Buick, 875 S.W.2d 667, 1993 (emphasis added).

Actual notice — can’t ignore it

Now here follows what might seem like a slight distinction. There exists notice of fact and notice of law. Transportation administrative is notice of law, and is categorized as actual notice (vs. constructive notice). In Tennessee, a variant of actual notice is called inquiry notice. Notice requires a good faith inquiry and makes reasonable and cautious people ask questions about their rules and practices.

Some authorities classify inquiry notice as a type of constructive notice, but in Tennessee, it has come to be considered as a variant of actual notice. “‘The words ‘actual notice’ do not always mean in law what in metaphysical strictness they import; they more often mean knowledge of facts and circumstances sufficiently pertinent in character to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.’” Texas Co. v. Aycock, 190 Tenn. 16, 27, 227 S.W.2d 41, 46 (1950) (citation omitted). Even a good faith failure to undertake the inquiry is no defense. Id., 190 Tenn. at 28, 227 S.W.2d at 46. Thus, “whatever is sufficient to put a person upon inquiry, is notice of all the facts to which that inquiry will lead, when prosecuted with reasonable diligence and good faith.'” City Finance Co. v. Perry, 195 Tenn. 81, 84, 257 S.W.2d 1, 2 (1953).” Blevins v. Johnson County, 746 S.W.2d 678

The language in City Finance v. Perry indicates that even the presence in a relationship of a warning that is something LESS THAN NOTICE has the power of notice. That is called an act “to put a person upon inquiry.” Actual notice, thus, might be seen as doubly compelling of an official to inquire as to his duties under the law — and its limits.

Transportation administrative notice indicates that police power under Tenn. Code Ann. Title 55 can be lawfully applied only upon those parties involved in transportation, that is, carrying goods or people for hire, for profit, in vehicles for hire as carriers. The state’s commercial government, known as State of Tennessee, ignores the limits of the law and violates the rights of the people en masse, with blessings from the three branches. The executive, judicial and legislative divisions cooperate in what is effectively a racketeering enterprise.

As a general rule, “legal notices should be full and accurate enough to apprise those affected by it of the significance of the notice.” Holland v. King, 199 Tenn. 588, 1956.

What does ‘inquiry’ mean?

“While it is true that whatever puts a party on inquiry amounts to notice, provided knowledge of the requisite fact would be obtained by the exercise of ordinary diligence, nevertheless the party will not be charged with constructive notice unless the circumstances are such that the court can say that it was his duty to acquire the knowledge in question, and that his failure to obtain it was the result of culpable negligence. And a party put upon inquiry is not bound to do more than apply to the party in interest for information, and will not be responsible for not pushing his inquiries further, unless the answer he receives suggests it, or reveals the existence of other sources of information” Levins et al. v. W.O. Peeples Grocery Co. et al, 38 S.W. 733 *; 1896 Tenn. Ch. App. LEXIS 76  (italics added).

In other words, notice should prompt a person to make further inquiry to the source, beyond which he is not required to go if the source (in this case, the Tennessee code annotated) tells him everything he needs to know. In other words, everything he needs to know is at the source and upon the basis of the notice, the good ole Tennessee law itself.

One may ask how does my notice to City of Chattanooga extend to David Roddy and his traffic enforcers? It applies to them under the doctrine that notice to the principal is notice to the agent. The opposite is true, too; notice to the agent is legally notice to the principal.

LEAs not allowed to profit on ignorance

Neither the high official, nor his agent, can profit themselves by deliberate ignorance of fact or law.

Lord Brougham states the rule thus: ‘Policy and the safety of the public forbid a man to deny knowledge while he is so dealing as to keep himself ignorant, or so that he may keep [**43]  himself ignorant, and yet all the while let his agent know, and himself, perhaps, profit by that knowledge.’ Kennedy v. Green, 3 Mylne & K. 699. This rule of notice to an agent being notice to his principal will not be carried beyond its reason. It has its proper limitations. It has, therefore, been held in numerous cases that notice to an agent is not notice to the principal, unless it occurs in the course of the transaction in which he represents the principal.”  1. Kirklin v. Atlas S&L Ass’n, 60 S.W. 149, 1900.

Good faith required

David Tulis

Good faith response to the law itself is required of every law enforcement agency that receives it. Transportation administrative notice has not been rebutted, and questions that have been submitted to LEAs in the Chattanooga area have not been answered.

“Although the term ‘good faith is not subject to precise definition, a good-faith mistake is one characterized by simple, isolated oversight or inadvertence. A good-faith mistake does not include conduct that is deliberate, reckless, or grossly negligent, nor does it include multiple careless errors.”

I hope to report on the scope of Tennessee’s good transportation law to officials so that they have enough information to act in good faith in favor of proper regulation, rather than improper ultra vires (outside the scope) regulation. The TAN undertaking is done in fear of God and in respect for the God-given and constitutionally protected rights of the free people in this state. These rights deserve protection and not abuse by elected officials and hirelings in various police and sheriff’s departments. With administrative notice, the need for reform comes into view among all state actors, whose duty now is to act in good faith, pursuant to law.

Reform will bring a fresh breeze into Tennessee, an openness and freedom it hasn’t known since the mid-1930s. I pray that telling the truth about our law will serve these most vulnerable people first — the African-American, the Hispanic immigrant, the poor, the widow and the orphan, for God’s glory and man’s benefit.

Support this blog and my 1 – 3 p.m. weekday show on 92.7 NoogaRadio by going to GoFundMe and making a free gift. I am grateful for your interest in my ministry and your support of my effort to encourage godly reform and constitution-fearing government in Chattanooga, Hamilton County and places beyond.

For other essays on traffic stop reform, click here

 

One Response

  1. Cynthia Cox October 9, 2018 Reply

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