If you have to deal with cops in Red Bank, be prepared

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Police officers in Red Bank, Tenn., criminally charge people driving without driver licenses even though the Tennessee Code Annotated says the charge called “failure to exhibit on demand” applies to licensees, not to nonlicensees. (Photo Aegis Law Enforcement Foundation of Greater Chattanooga)
A notebook containing the Red Bank, Tenn., police manual lies thickly on a table at which sits the town city manager Randall Smith and Allen DeBerry, a UTC college student abused by the department’s police and municipal court in the theft of his iPhone being used to record police abuse. Mr. Smith quit his job in mid-2018. (Photo David Tulis)

The City of Red Bank, Tenn., neighbor of Chattanooga, has long had a reputation of police violence and crookedness. I cannot repeat things I’ve heard about police officers’ selling drugs seized from motorists and others, unable to verify them. But such stories would not surprise me.

By David Tulis / 92.7 NoogaRadio

What I can show are several incidents upon which I have reported, plus a review of the city police policy manual, which is the basis of today’s post.

Red Bank city government and its police department have a poor reputation for respecting the rights of the people. Its cops sparked a riot at a graduation party of African-American UTC students. at which they stole the cellphones of students recording them. Allen DeBerry says when he questioned officers at his bench trial Jan. 7 that an officer admitted using the word “f–k” on the job but perjured himself despite Mr. DeBerry’s video evidence about his violent arrest. The department has refused to tell reporters its plans for holiday checkpoints. In August 2018 officers helped gun down an unarmed woman as they sought to enforce a commercial transportation rule on someone not involved in transportation.

The department has violated Tenn. Code Ann. § Title 55 with harassing transportation stops such as that against Jon Luman, a Red Bank resident who bears on the back of his Ford Explorer a plate that gives proper notice as to his status, namely: “Private Traveler[;] Not For Hire.”

This review of some of the police manual gives an idea of how high officers believe themselves to be over the rights of the ostensibly free people of Tennessee, whether inhabitants of Red Bank or of other towns and counties.

Chat with cop — friendly but pressing

Red Bank police use voluntary encounters with you in an attempt to obtain articulable suspicion or probable cause against you to conduct a search. A field interview is a contact with a citizen “for investigative purposes.”

“The Agency expects members to gather such information with proper observance of constitutional safeguards. *** Absent reasonable suspicion or probable cause, members may attempt to talk to an individual but must realize that the person is under no obligation to answer their questions or remain with the member(s).”

Transportation stops serve as pretexts for field interviews. “A field interview may be completed on a subject who is stopped for a traffic violation if the situation warrants, according to the member’s judgment.” GENERAL ORDER-NUMBER 4-021

Searching you & your property

“It is the policy of the Red Bank Police Department to conduct searches and seizures in compliance with both Statutory and Constitutional law. Illegally seized items of evidence will not be admitted in court and may be cause for a lost criminal case.” Red Bank cops will search you without a warrant if he gets “a voluntary, knowing and intelligent permission” from you or the owner of the property to be searched.

This is called a “consent search.” The other kind of probe of your person and effect is the “warranted search,” which is “a court-ordered search that directs members to search designated premises, vehicles, persons, or objects and to seize designated items.”

All niceties appear to go out the window during “exigent circumstances”– a  “situation under which probable cause is established by a suspect who is fleeing, hot pursuit, instrumentalities of a crime are being destroyed, public safety is endangered, or other situations in which speed is essential.”

If you’ve given consent to search, you can withdraw it, and the Red Bank cop is supposed to stop the search, but he will take control of the property until he can get a warrant.

What if an RB cop is a man but wants to search a woman? Ideally, he’ll get a woman officer. But he can cross the sex line and probe with the back of his hand the woman’s body “for a member’s safety.” A male officer probing a female suspect’s body should be done while a video camera is running, or should be witnessed by a second officer. (GENERAL ORDER-NUMBER 4-003)

Traffic stops outside the scope of law

Red Bank search and seizure rules bring into view the department’s authority in the “failure to yield” transportation encounter under Title 55 that led up to a high speed chase and the killing of Donna Lynn Allen in Soddy-Daisy. “A member may make an investigatory stop when there is a reasonable suspicion, supported by specific facts, that a criminal offense [Tenn. Code Ann. Title 39] has been, is, or is about to be committed.”

Cops pretend that under Title 55, “failure to yield” is a criminal offense, though it is an offense in administrative law pursuant to the uniform administrative procedures act subject to a contested case hearing by a commercial user (operator or driver of a motor vehicle).

If the officer stops and frisks the person, he must be able to cite “specific factors of the reasonable suspicion that existed for a frisk” and supply the proper words to justify it. For officer safety, “If the outer clothing is too bulky to allow the member to determine if a weapon or dangerous instrument is concealed underneath such as overcoats and jackets, it may be opened to allow a pat down directly on the inner clothing.”

Title 55, when applied to private users protected by the constitution, routinely gives the officer probable cause for an stop, arrest and seizure for acts that are not common law crimes (rape, assault, murder, robbery in Title 39) but violations of commercial motor vehicle rules. In other words, the crimes under Title 55 are not crimes, but offenses against contract and in equity (in business, in other words). (GENERAL ORDER-NUMBER 4-003)

Executing search warrant

“In preparing for the execution of a warrant, the case member shall utilize the risk assessment matrix form to assess any threats created by the execution of the warrant. In the event the threat assessment indicates a high-risk entry, the SWAT team commander or his designee shall be notified.”

Red Bank cops may cry out their presence, “Police! Police!” and “break and enter any premises when necessary *** if the executing member has announced his identity and purpose and reasonably believes admittance is being denied, unreasonably delayed, or that the premises is unoccupied; or delay would result in the wanton destruction of evidence of a serious crime.” The cops cannot wreck the apartment or house they have searched, and are to have the whole process recorded by photos and video. GENERAL ORDER-NUMBER 4-004

Searching your anus, vagina

Red Bank police, for their own safety, have a plan for probing the private parts of members of the public.

Strip searches peel the clothes from a man or woman in the interest of public safety, but not all men and women. “No person arrested for traffic, regulatory, or misdemeanor offenses (except in cases involving weapons or controlled substances) shall be strip searched unless there is a reasonable belief that the individual is concealing a weapon, controlled substance, or other contraband.”

A man cannot strip search a woman, and vice versa, “unless extreme exigent circumstances exist and all other possible solutions have been exhausted.” No doubt there could be created a long list when these “circumstances” might be attained, especially when the officer feels, under the press of time, that “all other possible solutions have been exhausted.”  End of shift?

More invasive is the searching within one’s private parts, and this sort of invasion is allowed only by a “licensed physician or a licensed nurse.” A “‘body cavity search’ means an inspection, probing or examination of the inside of a person’s anus, vagina, or genitals” to see if a person is “concealing evidence of a criminal offense, a weapon, a controlled substances or other contraband.”

The citizen can give consent, but only by signing a form that says:

I knowingly and voluntarily consent to have my body cavities searched immediately by law enforcement personally in the manner provided by the laws of Tennessee. By signing this consent form, I knowingly and voluntarily waive my right to require that a warrant be obtained from an appropriate judge or magistrate before my body cavities are searched.

I understand that a body cavity search may involve both visual and physical probing into my genitals and anus.

I understand that I would not be prejudiced or penalized by declining to give my consent to be searched in this manner. (GENERAL ORDER-NUMBER 4-006)

Will you be Mirandized?

The question of how your statements, offerings of documents and other admissions will be used against you is important. Generally, if Red Bank obtains information from you, it is considered to be by consent.

At a transportation stop people routinely testify against themselves and their legally reduced status (under Title 55, through which they obtained a license and permission to use the road) by giving up crucial identifying information about themselves and their doings.

These confessions are license, registration and proof of insurance, all commercial requirements routinely obeyed by people who are not using the roadways as a primary place of business but who think they are subject to the officer through Title 55.

No citizen is required to yield one right to exercise another. Any law that presumes guilt or defines you as guilty is called a bill of attainder. Such laws are outlawed Article I, Section 9, Clause 3 of the federal constitution.

Red Bank police chief Robert Simpson, who recently retired, says an arrestee will be read his Miranda rights “as required in custodial interrogation situations.”

Police interpret that phrase “custodial interrogation” loosely. The Miranda court interprets it tightly. When a question flies from the lips of the cop and an answer is returned, is that a “custodial interrogation”? Miranda would say yes. It would insist (for your benefit) that you should put the burden of proof entirely on the Red Bank officer by saying nothing and remitting nothing, as it will be used against you.

What is “custodial interrogation”? Chief Simpson, who refused to return my calls and refused to give an interview about city police conduct, probably interpreted this phrase as a sit-down inside the police department where the officer develops a conversation and inquiry, perhaps in league with a second officer in an official Q&A.

But rest assured, the officer is trained to get you to incriminate yourself from the first squeak of your window as you lower it for a conversation with him roadside.

For court purposes, ANYTHING you say or admit, from the first exchange of words, will be used against you in court. Anything. A birth certificate. A driver license. An auto registration. ANYTHING. Or ANY WORD.

The Red Bank cop will try to offload his responsibility to have probable cause, and make you think that you must begin making admissions he will use against you. Foolishly, you are tempted to think that by making small talk you can evade his probing questions and everything will be all right.

Most citizens give way on their constitutionally guaranteed rights because the officer’s attack is through Title 55, the driver license and transportation statute, which is entirely in the realm of administrative law, and is somehow disarming of the citizen. When Title 55 and rules of the road are brought to fore, there falls against you a presumption of an earlier legal submission, a claim to which it is assumed you have already submitted by entering into a commercial relationship with the state as an applicant for state privilige.

Under traffic law, you accept the Red Bank cop’s rebuttable presumptions against you, that you identify yourself and state numerous things about yourself of which he would otherwise be ignorant, though he is making a criminal charge against you. Again, his key rebuttable presumption is that you have all these connections of commerce with state government, are in a connection with him through commercial regulation, and that you already have agreed to submit to him in equity (in business, in other words), whatever rights you may once have had to be free of any contact with the officer. The wise and prudent person, especially if he has no license, or a revoked, suspended or expired license, stands firmly on his rights to the officer cannot in his inquiries squeeze from you a confession under Title 55.

Since Red Bank has been given transportation administrative administrative notice, I suggest that a person with a troubled license history refer to the notice and make no statement.

” Sir, I’m traveling under the notice and I make no statement without my lawyer present.” At this point, the victim should answer no questions about the notice, his lawyer nor anything else. “Sir, I don’t answer questions, and I am traveling under the [transportation administrative] notice.”

Commercial cars, trucks

Red Bank enforces the Tennessee commercial transportation code upon “traffic law violators” who are in “vehicles.”

“It is the policy of the Red Bank Police Department that members of the agency shall enforce traffic laws of this state and city by providing pro-active enforcement and relationships with motorists and the community at large.”

This claim is contradicted by the state’s commissioner of safety, who says only a state agency has that authority to enforce traffic laws.. “The Tennessee Highway Patrol of the Tennessee Department of Safety and Homeland Security is the sole agency in the State of Tennessee responsible for enforcing laws related to size, weight, and safety regulations for commercial motor vehicles. Tennessee Highway Patrol is the State’s lead agency for the Motor Carrier Safety Assistance Program, and does not fund any sub-grantees.”

“Members should avoid stops on hills, curves, and intersections. If this does occur, members should have the violator move to a safer location if possible. *** During the stop, members shall be continuously alert of any suspicious movement or activity of the occupants” to see if a person’s manner invites the sort of conversation that will elicit probable cause or reasonable suspicion to turn the encounter into a drug stop or other fruitful encounter.

Red Bank cops use foul language without apparent objection from Chief Simpson. But in traffic encounters, at least, “Members should refrain from arguing, berating, belittling, or otherwise verbally abusing the violator / occupants.” GENERAL ORDER-NUMBER 4-017.

Checkpoint Red Bank

Red Bank police were partners in defeat in a Tennessee supreme court opinion, State of Tennessee v. Robert Franklin, that overturned a checkpoint DUI conviction out of Red Bank.

Roadblocks are unconstitutional in Tennessee, but in two opinions the supreme court allows them because of its doctrine of compelling state interest, which in many areas reduces freedom and liberty in favor of the state. Under that doctrine, clear constitutionally guaranteed rights are made invisible and indefensible by the court. Police departments operate roadblocks not under authority of statute, but under court opinion, which is the de facto law in Tennessee.

That would be the ruling of State v. Hicks and an earlier text, State v. Downey, which put into the hands of unelected judges what is effectively a law about searches and seizures on the highway against people arrested without probable cause. These standards are applied in a 2018 Red Bank and highway patrol checkpoint case, State of Tennessee vs. Robert A. Franklin, overturned in appeal.

The rules are several, ostensibly to protect the constitutional rights of innocent people stopped by police. The stop must be organized by the top brass, must have a clearly stated purpose (from which there can be no fishing-expedition deviation), must not be selective (“Every vehicle entering the checkpoint will be stopped” in Red Bank) to avoid the checkpoint from being selective and bypassing the requirement for search warrants and probable cause.

The rule for notice is openly violated by Red Bank’s Chief Simpson. “Written notification of the sobriety/safety checkpoint will be submitted to the local news media by the Chief of Police or designated representative. Notification will clearly describe the reason for the checkpoint, agency or agencies involved, date and county. The notification will not identify the locations or times. Notification will be submitted not earlier than (2) weeks prior but no later than three (3) days prior to the actual operation of the checkpoint” ( Italics added).

The Red Bank rules openly contradict the Supreme Court’s dictates. The court requires notification, to reduce the sense of threat or fear among innocent travelers. It also requires that notice be sufficient so that a traveler or driver can avoid the roadblock. Red Bank explicitly denies sufficient details to avoid roadblock.

But its rules state that a person who moves to avoid a checkpoint cannot be chased. “A motorist who chooses to avoid a checkpoint should be allowed to proceed unless a traffic violation is observed or probable cause exists to take other action.” GENERAL ORDER-NUMBER 4-020

On streets, roads

Red Bank police enforce Title 55 of Tennessee code annotated, but their general order does not cite the statute. Its terminology is commercial: traffic, driver, vehicle, operate, vehicular. “A traffic citation may be issued to a violator who jeopardizes the safe and efficient flow of vehicular and/or pedestrian traffic, including hazardous moving violations or operating unsafe and improperly equipped vehicles.” In encounters with people in cars and trucks, officers are barred from using foul language. “Members should refrain from arguing, berating, belittling, or otherwise verbally abusing the violator / occupants.” (GENERAL ORDER-NUMBER 4-017)

When Red Bank cops arrest you

The most valuable thing to draw from Red Bank’s arrest protocol is the legitimate causes that empower an officer to arrest you. These causes are for crimes, though in traffic his intention to stop/seize/arrest you is grounded in much weaker basis.

He can arrest you for “a public offense committed or a breach of the peace threatened, in the member’s presence.”

He can also arrest you “[w]hen the subject has committed a felony, though not in the member’s presence. When a felony has in fact been committed and the member has reasonable cause for believing the subject arrested has committed the felony; On a charge made, upon reasonable cause, of the commission of a felony by the person arrested.”

These are real crimes — assault and battery, robbery, theft, rape, arson.

The Red Bank manual appears to give the officer no authority to arrest anyone for a traffic offense unless there is a crash in which the traveler or driver is involved. There are 11 causes for arrest listed. Two deal with automobile use specifically, but the context for each is a collision. One pertains to a wreck after a suspected DUI, the other to a collision where “the driver of a vehicle involved in the crash” is suspected of having violated a rule of the road.

Evidently, unless the department manual intends non-crash-related traffic infractions to fall under the general provisions “public offense committed” or “breach of the peace threatened,” the rules appear not to allow Red Bank police officers authority to stop anyone for alleged travel or transportation infractions. (GENERAL ORDER-NUMBER 5-001, 5pp)

Caged in Red Bank, stripped of shoe laces

Now that you’ve had the misfortune of being arrested in Red Bank, you face routinely the use of “The use of restraint devices and cages Vehicles.” The manual for arrests says an arrestee is “a person who has been arrested and charged with a criminal offense.” A detainee, on the other hand, is one “who is being held temporarily for investigative purpose and who has not been charged with a criminal offense,” but whose conversation, admissions and confessions no doubt are used to shift him into the category of arrestee.

The manual admits that detainee and arrestee are the same, despite elsewhere in policy the fiction is upheld that they are different. “Prior to arrestees or detainees being placed in a holding cell, all personal belongings must be taken and documented.” Arrestees are ordered to remove “all belts, shoes or laces, or other loose clothing items that could be used to harm them or someone else.”

Red Bank lets you make “a reasonable number of telephone calls” to contact family members or an attorney. One should be grateful.

City rejects state law on judicial review

Red Bank is so confident in the work of its officers that it rejects an important citizen protection in state’s criminal procedure statute. In Tennessee, you cannot be put into a prison or jail cell until a member of the judiciary has reviewed your arrest BEFORE commitment. The party giving the judicial review is the magistrate, who must hear from the officer and defendant.

No person can be committed to prison for any criminal matter until examination thereof is first had before some magistrate. Tenn. Code Ann. § 40-5-103  Examination required before commitment.

This protection has been codified since 1858. What does Red Bank say about “appearance before a Judge/Magistrate”?  Where does it place his review of the arrest? AFTER the commitment.

“Upon completion of the arrest and booking, an arrestee will be taken before a judge or magistrate consistent with the policy and practice of the Hamilton County Magistrate and Judicial authorities.

The powers of the American constabulary is great. Red Bank provides rules for keeping a person in jail three days (72 hours) for “investigatory purposes.”

“Temporary Holding for Investigative Purpose[;]  Whenever a person is detained for investigatory purposes up to seventy-two (72) hours, the following procedures should be followed. A) The person may be transported to the Hamilton County Jail and held during the Investigation. B) The person may be kept in a holding cell at the agency.” (GENERAL ORDER-NUMBER 5-002, 6 pp)

Red Bank police grant themselves lenity in putting people in a cell because the courts have for decades divided the right and granted authorities the authority of temporary holding.

The courts of Tennessee “exact scrupulous observance of this prohibition by its law officers,” State ex rel. Morris . National Sur.Co., 162 Tenn. 547 et al. This 1931 ruling is eaten away elsewhere in Tennessee jurisprudence by the expanded meaning of “temporary holding.” Cases violating due process and this statute are from 1955, 1966 (“Holding a prisoner two days prior to taking him before a committing magistrate or prior to arraignment did not violate this section or constitutional due process”) and 1969 (“The holding of a person in custody by state officers for 48 hours or more without preliminary examination by a magistrate did not violate either this section or constitutional due process”).

Red Bank appears in its police rules to share in this violation. But I would insist on the plain meaning of the statute if you are arrested in Red Bank or anywhere. The key words:

No person can be committed to prison for any criminal matter until examination thereof is first had before some magistrate.

T.C.A. 40-5-103. Examination required before commitment.

911 call to Red Bank, your son is slain

Calling 911 is increasingly a risky business, and police around the country have killed the people who called them, and destroyed the lives of sons and daughters and others suffering drug-related or psychotic episodes.

Red Bank’s order regarding what is euphemistically termed an “officer-involved shooting” focuses mostly on the psychological effect of a killing upon the officer’s mental health.  If a cop kills a citizen, the rules promise a “thorough jnvestigation.” The creation of an official narrative about the killing begins almost immediately after the officer returns to the police building. “The Agency shall contact a Critical Incident Debriefing Team to allow members involved in the shooting incident attend a confidential defusing and debriefing session(s). These defusing and debriefings shall be strictly confidential.”  (GENERAL ORDER-NUMBER 5-005, 2 pp)

Disobey ‘lawful order,’ get tased

Electric stun gun is on the hip of the Red Bank cop. The rules admit the electric arrows might hit “a sensitive area such as the eyes, head, genitals or female breasts,” in which case medical care is ordered. If the probe “has broken off and is still embedded in a subject’s skin, the subject shall be provided appropriate medical attention.”

It is not forbidden for a Red Bank cop to shoot an electric gun at a pregnant woman, a child, a person in a swimming pool or someone in the presence of flammable liquids/fumes or in an “explosive environment[].” Nor is it forbidden for a Red Bank police officer to shoot with an electric dart a senior citizen, a person using heavy machinery, a person who is fleeing or a “frail or infirm individual.”

Rather, these activities are allowed. But they “require elevated justification.”

The authority to use the weapon is virtually unlimited, protected by the “lawful order” concept that gives cops the authority to use violence to prod a citizen to do his will, whether it is to stop using his cellphone camera, step back while filming or to get out of a car. In other words, a cop in Red Bank can bark out a wide array of commands, none specifically in a statute, and they become “lawful orders” because he wears a badge and the person to whom he is speaking does not.

Unmarked cars

The Red Bank Police Department grants itself the authority to use unmarked cars despite inherent dangers  to female travelers and drivers on the road at night. The department engages in “motor vehicle stops” in unmarked cars that have that have “installed emergencylights and siren” on their dashboards.

However, a person’s dread at being pulled over by a man in an unmarked car with dashboard lights should not last too long. “Members employing unmarked vehicles during motor vehicle stops will immediately, upon encountering the operator of the motor vehicle, identify themselves as Red Bank Police Officers.” (GENERAL ORDER-NUMBER 4-002) The order operates on a rebuttable presumption that every person on the road is an operator, a commercial term from Title 55.

More on the wonderful town of Red Bank

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