A repo man checks the VIN of a car he is about to seize in a noisy confrontation with the daughter of the debtor, who is dragged from the car by a city police officer in the sort of “breach of the peace” forbidden under Tennessee’s collateral repossession statute. (Photo police YouTube video)

Dear Neal Pinkston, district attorney, Hamilton County — I’m writing about the limits of the statute under which your office plans to prosecute K*** Gray in her arrest June 25 by police officer Wright.

The statue on resisting arrest stop frisk etc, can’t be brought into operation against someone unless that person uses force.

By David Tulis / 92.7 FM NoogaRadio

“It is an offense for a person to intentionally prevent or obstruct anyone known to the person to be a law enforcement officer, or anyone acting in a law enforcement officer’s presence and at the officer’s direction, from effecting a stop, frisk, halt, arrest or search of any person, including the defendant, by using force against the law enforcement officer or another.” TCA 39-16-602

As a state attorney with an ethical obligation to read statutes before enforcing them as written, you have a duty to invoke a statue only under the authority of the facts, or to use a statute reasonably proximate to the facts of a case. Here, there appears to be a major gap between the “resisting” statute and the facts emanating from the two videos available to the public, that of the accused and that of the officer.

[Note, this post is correspondence sent via district attorney Melydia Clewell on July 6, 2018]

K*** Gray did not use force against Officer Wright. She was in handcuffs very painfully moments after her seizure. She may have groaned about it, she may have whined in pain at her wrists, she may have had a non-compliant facial and vocal attitude, she may have been visibly unhappy at the officer’s actions against her. But she does not appear to have had any force or used any force against him.

Violence, force absent

The synonym of force is violence. Force is defined as “power dynamically considered, that is, in motion or in action; constraining power, compulsion; strength directed to an end. Usually the word occurs in such connections as to show that unlawful or wrongful action is meant.” Black’s Law, 4th edition. In the Gray case, force would refer to violence less than that implied in the concept of deadly force, which latter is defined as “the use of force intended or likely to cause death or serious bodily injury.” TCA 39-11-611.

You think that your use of state power as against the citizenry has no cost or damage to particular members of the citizenry whom you accuse. I would suggest that there is a human cost in prosecuting daughter of a hard-pressed working family. The dragging action against K*** Gray caused so much anger in Chattanooga that Chief David Roddy initially withheld the name of Officer Wright from publication.

K*** Gray was complying with orders and officer Wright was huffy and testy. He acted summarily and with a proprietary claim upon Miss Gray’s person; he should have made better use of his de-escalation training to avoid using force or evoking the claim of force by flapping his gums. Female officers were nearby, but Officer Wright took charge.

Legally, there appears to have been no reason for Officer Wright to evoke his personal authority as against this young woman and to declare that she is resisting arrest.

What is antecedent crime preceding ‘resisting’?

For her to have resisted arrest, there needs to have being an antecedent crime which is the cause of the arrest. How can someone be charged with resisting arrest when there is no cause for the arrest in the first place?

This may seem like a common man’s question. But it is a question that I would ask you not to overlook. There has to be an underlying charge upon which to base the resisting charge.

So, there are two problems thus far with this prosecution. The girl does not use force. There is no underlying charge upon which to premise the resisting charge.

The third problem with the case, Mr. Pinkston, is that the peace and tranquility of the state, if you will, were disturbed by the activity of the state actor, officer Wright. He was the primary cause, not the citizen minor.

Repo man lacked court order; cop lacked authority to create Gray girl arrest uproar

The officer acted outside of his authority in assisting a private interest without a judicial order of repossession. The officer assisted in the creation of a public uproar on Cherry Street. The repo man has a duty under TCA 47-9-609 to avoid making a repossession act a “breach of the peace.”

There is no way the officer can claim he created his public disturbance separately and distinctly from the repossession effort. The two actions are distinguishable, but I wouldn’t call them parallel or separable. The Gray girl arrest is a confluence of purposes in a single disturbing act.

Officer Wright was implicitly supportive of private corporate activity bringing about a violation of state law. The only law enforcement authority that could have assisted the repo man is the Hamilton County Sheriff’s Office, under an order that would have been created by an affidavit of detinue. ‡

I urge that the prosecution of this girl — daughter of a truck driver and a forklift operator — be terminated in light of limits in the statue and your good and just sense about human affairs in Hamilton County.  Respectfully yours, etc.

‡ A second provision of the “resisting” statute says. “(c) It is an offense for a person to intentionally prevent or obstruct an officer of the state or any other person known to be a civil process server in serving, or attempting to serve or execute, any legal writ or process.” The repo man is not an officer of the state or a process server, and Officer Wright is not the sheriff’s office officer designated by law to have authority to assist in a repossession.

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