City attorney Phil Noblett and a second lawyer, Keith Reisman, today hear out my argument that Chattanooga is violating a plain-speaking law to oppress African-Americans and that it should halt traffic stops against all users of the road except commercial vehicles.
By David Tulis / 92.7 NoogaRadio
I insist in a cordial 45-minute meeting at the downtown annex on East 11th Street across from city hall that Mayor Andy Berke’s cops should apply the state transportation law should apply to only people involved in transportation.
This assertion may sound like a no-brainer.
But the two city employees are of one mind. Matters are not so clear. The transportation law in Tenn. Code Ann. § Title 55 has a broad scope, and brings into its maw all users of the city’s streets, even private people who are not involved in transportation. That is to say private travelers in cars and trucks who are not using the road for hire, gain or profit.
The attorneys say court opinions control the matter, and that from Sullins v. Butler (1940) to State v. Booher (1997) to State v. Hirsch (2017) the courts of appeal have consistently rejected claims such as mine.
Mr. Noblett is uneasy with my claim that there is “a disjointure” between these opinions on one hand and statute as written and the Tennessee constitution on the other, and implies that court opinion has been consistent from the beginning — and even if it hasn’t, what the court says today is controlling.
I indicate Title 55 has not been widened by the general assembly so that its scope includes private parties, insisting from the beginning of automobility that only the hauling for pay of coal, logs and passengers in pettycoats and derby hats was brought under police power.
Flashing blues — and limit on authority
I am a Chattanooga journalist with its CBS Radio News affiliate, covering abuse of this law but also advocate for African-Americans, Hispanic immigrants, the poor, orphans and widows. Because I am effectively a petitioner, I accept Mr. Noblett’s invitation to meet and stick no microphone under his nose.
Mr. Reisman asks what a police officer should do if he sees a car with an expired tag. Should he stop the car as a criminal lawbreaker, or just let it go?
I favor a question more to the point. What if a cop sees a person speeding 20 miles over a posted limit? This question implies danger to the public and whether I accept the neutering of cops. The officer may blue-light the motorist. But he must first inquire whether the city has subject matter jurisdiction in the transportation stop. He does that by asking if the person behind the wheel is operating for hire as a carrier.
If the speeder is private, the only authority the officer has is to give a warning and exhortation. He has no power to demand to inspect badges of commercial service. If the motorist is a for-profit capitalist, he is subject to requirements: Show a driver license (commercial), proof of insurance (commercial) and proof of registration (a metal stamp showing a tax has been paid to make a car a motor vehicle used for profit and gain).
Carol Berz, an attorney on the city council, rightly understands posted transportation signs to be advisory only, I tell Messrs. Noblett and Reisman.
The attorneys believe that Title 55 applies to all movement on the road because the Tennessee Supreme Court holds it so. They reject that there is a distinction between travel and transportation, the essential and implied argument in Transportation Administrative Notice Tennessee. But Mr. Reisman leaves a bit of wiggle room there that there may be a distinction. Transportation, at law, is a category of travel — the part subject to police power.
No liability statute for private users
Mr. Reisman holds forth that if I’m right, the law should contain a sentence among its 776 pages that it applies to transportation, or that it explicitly excludes private travelers.
This twice-made demand is unclear and troubling. I say it is unreasonable to expect a statute that breathes commercial in definitions and operation to go out of its way to say, “this law applies to commercial uses of the road only.” Nor is it reasonable for it to identify parties NOT subject. Under the rules of statutory construction, such poses are unnecessary, though they might be helpful to muddle-headed lawyers and judges.
I insist that Title 55 is administrative law subject to procedural rights under the uniform administrative procedures act. The attorneys suggest I am throwing up distracting material and trying to change the subject from the knotty question above.
➤ In lawyer world, statutory language is shifting and malleable, especially when the rights of the people are thown into view. The state cannot take a vague sentence in a statute, I declare, and leak out state authority so that it spills across the highway, as it were, to flood and absorb under its compulsions all private users. Occasional vague or nondirectional provisions are corralled in their meaning under the rules of statutory construction, similar to those at regulate the reading the Bible.
➤ Abuse of law by the city is widespread, I say. Police, DAs and attorneys ignorantly and willfully abuse immigrants using a statute that doesn’t apply to them, the so-called “exhibit on demand” law. It’s at Tenn. Code Ann. § 55–50–315 and intones, “Every licensee shall have the licensee’s license in immediate possession at all times when operating a motor vehicle.” There is no law requiring a private person to have a license. So cops use this statute against Guatemala grape pickers and bricklayers in Chattanooga to justify dragging them to sessions or city court. But its vocabulary limits its scope. The law applies to licensees (hey, not nonlicensees). But all parties in the police growth industry play along with the clear abuse that disregards legislative intent of the statute by not creating a general liability statute for private users to get licenses. A private person gets a license voluntarily, and at his own hazard.
➤ We discuss the ChattyWagon issue in Chattanooga, the electric minibuses haul tourists around town. The rides are free because the payment for this service is by hotels and restaurants whose ads on the side of the cart. I insist these young owners are not involved in transportation because the people in the seats are not paying and are not passengers. They are riders. A passenger is someone who pays for his ride. Definitions matter, I say. This innovative company is not subject to regulation by the state or the city’s transportation department as a carrier because rides are free. Mr. Reisman (I think) agrees it’s a matter of free speech.
➤ The attorneys ask if Uber is subject to police power. I say that a family on an outing or going to church or going to vote is not subject to regulation whatsoever in private auto. But the state regulates Uber because the use of the private car is commercial, with people in the right-hand seat or rear seats called passengers. The man behind the wheel is, legally, a driver or operator. When an Uber driver is not working, he’s not a driver. He’s merely a traveler exercising his private rights.
Mr. Reisman ‘drives’ to the law office?
Transportation Administrative Notice Tennessee indicates Title 55 can be evoked only against activity affecting the public interest — the health, safety, welfare and morals of the people (see city charter and its reference to morals). Dump trucks, cement mixers, ambulances, 18-wheelers, wreckers, ambulance services and movers affect the public interest because they raise the risk to all other users of the road and because they make a private profit from a collective asset. By implication, if there are uses of McCallie Ave. or Gunbarrel Road that affect the public interest, there must activities that are of private interest onl y— not subject to police power, outside the scope of Title 55. Would not the city attorney’s office agree?
I repeatedly cite the early Shannon’s code as establishing the rationale for regulation just before World War I and also the early rulings indicating towns and state have no authority to regulate the people’s private pleasure. The pleasure user, whose private interests control him, is not accountable to anyone. He is not anyone’s subject on the people’s freeways and public rights of way. He’s free.
When Mr. Reisman goes to his law office, he is not subject to the police because he’s committed no crime and because his place of business is his office and the court. I suggest that even a man who uses the road in his business — let’s say a carpenter carrying tools — is not subject to regulation. Why? His principal place of business is not the road itself, but a worksite, maybe at one of the city’s new apartment blocks.
Frustrated, I conclude Mr. Reisman has not read transportation administrative notice, which he says he has. Cases cited in TAN are clear, and show that the body of law in Tennessee is constitutional and not to be misunderstood or caviled by lawyers in black robes.
TN attorney problem is national one
My hosts share the same denseness I’ve encountered many times here in Southeast Tennessee, even among noted barristers. They uphold the fable of judicial supremacy. They are officers of the court and serve the judicial branch of state government. They are trained to disregard the authority of the constitution as a good but very remote light. There is no constitution for these lawyers, there is no law. There is court opinion, “because the law is what the court says it is,” The court’s deliberate blindness (called judicial lawmaking and under the euphemism of policy) on the right to travel forces these decent and well-intentioned men to retroactively interpret clear language and see the law as hazy, vague, sloshing about all over the place without confinement — deactualized.
Mr. Noblett deals with corporations, contracts, deeds, purchases, work orders, real estate, easements, ordinances and abstract legal interests in his job. He and his colleague rarely deal with flesh and blood individuals. My visit breathes into their minds, perhaps for the first time, the interests and claims of working people and ordinary men and women in Chattanooga.
A near century of customs and usages, I declare, upheld by “the white legal and political establishment,” don’t make the courts’ position just or even fair, especially when the people of Tennessee by general assembly have written pretty clear.
Lawyers like these two men have brought us today’s police state, obscuring our rights and hiding them. Neither of Mr. Noblett nor Mr. Reismann is alarmed at the current state of things injurious to the poor and to aliens and strangers on the roads.
They accept the reigning paradigm of state judicially reinforced presumptive authority over the rights of the people, leaving very little indeed to the concept of travel. The high courts’ theory is laughable, I tell the two men. The only travel the judiciary recognizes is the change of domicile from one state to another. In Tennessee we have a right to kill a baby daughter at an abortion clinic, but not the right to put a right foot on a gas pedal? Screwy and false.
Since when are rights taxable?
Messrs. Noblett and Reisman discuss how rights are taxable. A right is not taxable. It’s a heresy in a constitutional state to say rights are subject to any official for any reason whatsover. But rights are routinely traded for privileges, and that is done in commerce, in equity, with the state as a merchant, seller, provider and source of security. People voluntarily trade them in.
It’s almost as if rights are dangerous and suspicious things, and that virtually no right is free and clear of state interest, but subject to regulation. We shouldexpect our rights to be leaned upon, each from several directions, by claims and rules, Mr. Noblett and Mr. Reisman seem to believe.
Transportation Administrative Notice creates new cause of action vs. cop, new legal defense in court
Look at all the restrictions. Voting? Mr. Reisman says one must be registered and show ID. (But voting is a privilege, not a right.) The right to bear arms? One cannot buy a gun at a store without federal paperwork and permissions, he says. But we do have a right to bear arms, he says. I point out that when one deals with a regulated entity like a store, a servant of the state, one expects state claims against the transaction. A private sale is totally private not subject to any tax or regulation. In lawyer world, there are really no rights, only municipal, state or federal claims, and we citizens slog our way through them, scraped and torn as we go, never free of the briers.
A man who does not invoke, assert and defend his rights does not have any. He must be a belligerent claimant in person. In that spirit, I defend the rights of the people before the lawyers, with Transportation Administrative Notice Tennessee giving substance to the claim.
Mr. Noblett has not read TAN but is familiar with my line of thinking from my public presentations at city council and from brief personal conversations. The issues I bring before these men is largely new.
The error made by Chattanooga and 100 percent of other cities in the state is the gateway for abuse by police, I tell them. So many traffic stops end in arrest, jailings, beating, killings and the like.
Federal judge rips state’s attack on poor
Travel is a personal property right by which all other rights are made to come alive. This point, I say, is brought out by Judge Alita Trauger in her Nashville U.S. district court rulings. Judge Trauger points out that the right of movement is an essential right and that people who are banned from using the roads by driver license revocation are effectively under a civil death sentence. They cannot hold jobs and cannot repay court debt.
Judge Trauger is making an important point about the absolutely human necessity served by using a car. I point out that she is halfway to my position. That is because she holds back, preserving the reigning paradigm of “travel = driving = transportation.”
Mr. Reisman rightly clucks. A federal judge affirms the city’s position on driving. These cases are filed by lawyers, I demur; so they contain the built-in defect that is the source of the controversy I am bringing to city government.
Making Chattanooga a good and just city
The goal I stated at the meeting is to make Chattanooga a good and just city, which is effectively a work in Christian reconstruction. For that to happen, its police department must end oppression of African-Americans and others. Title 55 reform goaded by Transportation Administrative Notice Tennessee is a personal racial reparations project that is based on a Christian desire to serve others. From one to whom much as been given, much is expected (Luke 12:4).
My analysis of policing in Chattanooga is often harsh. But in many ways the police problem in Chattanooga is mild compared to that in other cities. God has had favor on Chattanooga for the past 25 years as an act of grace, shutting Chattanooga Women’s Clinic in 1993. I make this comment a day after news reports about a Chattanooga police officer, Benjamin Dessalines, accused of felony kidnapping and felony sexual assault with a woman he’d seized in a shoplifting arrest.
That aside, abuses by officers of city police Chief David Roddy and Hamilton County Sheriff Jim Hammond could be much, much worse.
Mr. Noblett is a refined, gracious Southern gentleman. He has an excellent reputation with people like Dave Crockett, the city’s leading statesman, and seems a good and decent man. He is patient and nonjudgmental.
Chattanogans’ rights and legal immunities, I tell my interlocutors more than once, are God-given, constitutionally guaranteed, unalienable, inherent and personal. I am here to redress a grievance and challenge existing practice that offends those who possess these rights. I am here to help. Mr. Reisman says he is willing to talk further.