Because the state has an interest in maintaining a policy denying the people their right of free communication and movement, it works to confuse the vocabulary and terminology its victims try to use in court to assert their due process rights.
By David Tulis / 92.7 NoogaRadio
Judges and prosecutors such as Neal Pinkston pretend that right and privilege are indistinguishable, and for a defendant to ask about the scope of a privilege in a transportation/traffic case (called “driving” or “operating” in traffic cases) is inadmissible, irrelevant, misguided and should be squashed.
In the May 6 sessions court hearing of Gregory Parker, a free-spirited American family man and welder ensnared in Hamilton County sessions court, the judge repeatedly recasts the issue so that Mr. Parker is made to appear to be fighting for the “right to drive” and even “the right to drive on an expired tag.”
That’s not what he’s doing at all. He is insisting on the right of travel, the right of free movement on the people’s roads apart from permission, in the exercise of God-given and constitutionally guaranteed rights as a citizen and a human being. And his defense is to demand of the cop what evidence he has that he, Mr. Parker, is exercising the privilege of commercial use of the road.
‘So, a driver’
The perfect example of the court’s complicity with policy is the following from his May 6 hearing.
Mr. Parker says, in asking questions of the witness, insists on his theory of the case. “A traveler is anyone using the roads or highways.” Judge Statom, ruminatingly, says, “So, a driver, basically.”
No, no, no, no. no. Not driver. A driver is a commercial traveler. The hearing is about whether Mr. Parker is a commercial traveler (driver) or a mere private person on the road, going about his private business, she Judge Statom is unwilling for this distinction to be able to emerge.
Several times in the hearing, she converts travel into driving, a shift reinforced in the objections of the DA to Mr. Parker’s pursuing his defense.
The word driver describes a traveler involved in a privileged use of the road, a special permitted privilege of operating a motor vehicle for hire, using the road as a CMV, or commercial motor vehicle. Mr. Parker is insisting that he is not a CMV, but a private citizen using the people’s roads or private or pleasure purposes. Despite her refusal to allow him to make that point, he does in examining the officer and arguing for the right to question his facts and evidence.
Mr. Pinkston’s attorney is full of objections. Does the cop understand the difference between rights and privileges? Hold on, buddy. That is too complicated to get into, he argues. Rights. Privileges. These are not what the case is about. He refuses to let that line of questioning go forward as to the officer’s training, which is to not offend rights but to enforce and regulate privileges.
Parker. Is it possible in your encounters in traffic stops that if a person is exercising a constitutional right, can you tell that apart from a state privilege or that right?
DA. Objection. Calls for a legal conclusion.
False. Mr. Parker’s question is sound, but the DA objects so that he may pretend there is no distinction between right and privilege, and that to ask the officer about his practices and training is “[calling] for a legal conclusion.”
The whole controversy is over whether Mr. Parker is exercising a privilege, or a right. If Mr. Pinkston let’s that get through, his edifice of enforcing state policy (and rejecting the constitution and the law) starts a-wobbling.
To see how far down in ignorance state actors have gone, Mr. Parker throws a trick question at the officer. He asks him if exercising a constitutional right is a privilege. It’s a dopey question, but also crafty. If everything is a privilege for the cop, the exercise of a constitutional right in the use of a private car is invisible to him as a right, and must be a privilege, the exercise of which gives him police power over the individual.
Judge Statom lets the DA shoot down this line of inquiry, too.
The officer knows by training in Chief David Roddy’s academy under Mayor Andy Berke that there exists no private right of free movement of the people, that they can go by car or truck from home to job to church to store to friend’s house to the pool only by state permission.
If you press any official, he’ll reframe your question into an answer like this, “That’s right. If you are driving a car to exercise these rights, you have to have a license.”
So the officer does not believe there are constitutional rights when it comes to using the people’s roads.
Right v. privilege
The judge insists that Mr. Parker’s question about whether it is a privilege to exercise a constitutional right is too broad. Actually is too narrow and too simple. Rights and privileges are distinct. A right is protected by the constitution. Privileges are grants a favor and benefit by the state, and are supervised and regulated in the public interest. Driving is a privilege. Free movement of the road and the free exercise of constitutional rights are rights. Believe it or not.
In the Parker case, the state continually denies Mr. Parker’s inquiries about the elements of the charge. The elements of the charge of driving are commercial contracts, bills of lading, bills of waylading, agreements, manifests, a passenger lists in the like. These are the elements of the charge that Judge Statom is denying him the right to draw from the officer on the stand.
Mr. Parker is correct in arguing that power of Title 55 is upon a certain kind of activity of the party using the road. The activity would be transportation. Whether he was involved in transportation is a matter of fact, and Mr. Parker is right to question the officer as to what facts and evidence he obtained showing Mr. Parker’s involvement in the activity of transportation.
Officer Andrew Doub of the Chattanooga police obtained none. But judge Statom holds for the official view of the conflict in refusing to dismiss. The activity was, hey, get this, the tag on the back of his car, and it’s being out of date. That is the regulable activity of which Mr. Parker is being accused — driving with an expired tag.
That is not the regulable activity. That is a restatement of the charge.
The regulable activity is — or would be —transportation — what the person in the car or truck is doing at the time of the police encounter. Travel or transportation? One or the other.
‘Compound question’ objection
The court also errs in confusing compound questions with compound phrases. A compound question is two questions in one sentence. A compound phrase is something like “What do you do when you encounter a traveler in a car who is asserting a constitutional right to be there apart from any state privilege?” This is a question with a compound phrase. But such questions are ignorantly a compound question — goofy.
This objection is mere flak to confuse the pro se or in persona defendant.
Judge Statom appears to have predecided the case, and the nature and scope of the law. She has decided it handily within state policy, which is highlighted in transportation administrative notice as ultra vires (which means, outside the scope). Such a position, if operating outside of the law, is potentially criminal under racketeering statutes or U.S.C. Title 42 federal oppression law involving the intentional deprivation of a citizen’s rights under color of law.
In her mind, she is being gracious to let the hearing be a probable cause hearing and to bounce the matter to the grand jury. In her mind, she’s being very lenient with Mr. Parker and one may suppose she feels he owes her a debt of gratitude.
Thoughts about tactics
➤ Always give proper notice about your activity if it stands apart from what “ordinary” people do. Recent Chattanooga-area defendants Jon Luman and Mr. Parker have personal copies of notice for the cop. Even better, they have given notice to city and county police administration about their status and intentions to live according to their protected rights.
➤ Strictly obey all laws to which you are subject. If you are bound by a law, make every effort to obey it to the letter, to avoid offense. The issue for Messrs. Parker, Luman and others is that they say, correctly, Title 55 does not make subject their travel activity.
➤ Take advantage of TAN. My general transportation administrative notice about the limits of Title 55 is available online. I always have a courtesy copy for my use in my car or truck when I travel. Area parties properly notified to date are city corporations of Chattanooga, Red Bank, East Ridge and the county of Hamilton via its sheriff, Jim Hammond. Also, I notified by registered mail in 2018 the Tennessee governor (Bill Haslam at the time) and his department of safety, whose troopers have sole authority to enforce Title 55, according to the state’s filings with the federal government.
➤ Avoid expired tags. Do not show expired, revoked, suspended or canceled licenses in a traffic stop. Since the cops come at the encounter as a criminal arrest, your best policy is to say, “I am traveling under the notice and I make no statement and answer no questions without my lawyer present.” You have a right to be innocent, and cops routinely use a victim’s verbiage to obtain concessions used later in court. You cannot be arrested if you have not committed a crime (Title 39), and an arrest of someone under Title 55 not involved in commercial activity is an actionable false arrest subject to a tort claim against the officer personally and his employer.
➤ Junk title, no insurance? Purist free travelers across the country insist on obeying the “clean hands” doctrine at every point. They say you cannot travel by car unless it has a junk title, no registration and no insurance, that you cannot be a current licensee by application and that one must have rescinded and revoked signatures of earlier licenses under an affidavit of mistake.
I believe that if we take travel liberties from a due process perspective, these steps are not necessary, but may be helpful. One defeats false charges of “driving” by insisting on due process rights at the time of the stop, and that it matters not what status one’s license is in, whether one has insurance or whether the car is “commerce-ready” by having been entered into the state registration program (so that one may buy and sell, with the mark of the beast upon him, as it were).
If a registered car controlled by a licensed driver is stopped by an officer, the traveler must rebut the presumption that the car is a motor vehicle the use of which at the time is commercial and under Title 55. His car may look commercial, with the tag, but is may be just commerce-ready.
➤ Interrogate the officer at the preliminary hearing or sessions court trial. I have developed questions that are appropriate to ask the accuser and officer. These show he has no evidence that you were involved in transportation. These questions, clearly, will take flak from the DA and the judge.
➤ Sessions court, or “waive the court” and await indictment? I believe one should try these charges summarily in sessions court, but demand a full hearing and a trial by the judge. If found guilty, you have a few days to petition for a real trial (trial de novo, which means “new trial.”) This trial is not an appeal, but a new trial. Sessions is not a court of record, so no record goes up and the new trial is not a trial on the facts presented earlier.
➤ Prepare a motion to dismiss, with a supporting brief. I have several lines of argument for motion for dismissal. In the end, if you cannot afford a lawyer or want to use a public defender smartly, know the legal issues yourself and be prepared for battle.
Angles of attack
➤ Inadequate charging instruments.
➤ Lack of officer authority and court subject matter jurisdiction.
➤ Transportation Administrative Notice Tennessee. It has legal standing after more than one year with no rebuttal, correction or reply, implying its validity. This document can be used to ask dismissal because of officer error.
➤ The rules of statutory construction pursuant to the “exhibit on demand” charge. I have yet to publish this analysis.
➤ THP filings with U.S. government. Lack of authority of the officer’s department to enforce Title 55, which belongs solely to the highway patrol, according to state filings with the feds.
➤ The Aleta Trauger ruling in summer 2018 regarding the unconstitutional statute that let court clerks revoke driver licenses for unpaid fines.