A traffic stop strip search has shocked the people of Hamilton County and highlights a longstanding extra-legal but judicially approved pattern of abuse by a leading politician.
By David Tulis / 92.7 NoogaRadio
Sheriff Jim Hammond is using the state’s transportation and shipping law to regulate private people acting privately on the public right of way — people who are not involved in shipping or in any commercial activity subject to police power.
The stop by deputies Daniel Wilkey and Bobby Brewer of a man and woman in an automobile was in keeping with departmental policy and judicially approved custom statewide. But it is outside the scope of the statute that gives the Tennessee highway patrol authority to regulate shipping and transportation.
In the arrest, Myron Mitchell, 41, is beaten and stripped searched, with deputies prodding him and inflicting “physical anal injuries,” says attorney Robin Flores, and groping his private parts in public. Such a strip search violates state law on several points.
Sheriff Hammond is under transportation administrative notice as of March 1, 2018, giving notice about his duty under the statute and its constraints. The notice is a matter of public record, has been notoriously published, remains unrebutted, with no city corporation or other governmental entity caring to change practices or defend the status quo.
TAN delineates shipping and transportation as the major subcategory of travel by car and truck. The implications of the notice, which requires reform statewide, is that police power cannot be exercised against a private party apart from a warrant or apart from the commission of a felony. All parties who enforce transportation safety laws are subject to federal jurisdictional claims, and the U.S. code at Title 49, the shipping law.
The county’s easy arrest policy is based on a misreading of Tenn. Code Ann. 40-7-103, the “grounds for arrest by officer without warrant” law. Current practice in courts and among law enforcement agencies is to ignore the statute by overbroadening the definition of the term “public offense.” A public offense is a certain type of offense that is intimidative, a breach of the peace, dangerous, public and threatening. Police do not have authority to arrest without a warrant people who might be accused of administrative offenses in equity such as driving on revoked, driving on suspended or tinted windows.
The offense that gave possibly legitimate probable cause in the arrest of Mr. Mitchell is window tinting. However, the window tinting rule is in Tenn. Code Ann. § Title 55, the shipping statute. It applies to people involved in shipping, in the public interest and to enhance public safety.
City of Chattanooga and Hamilton County government had been apprised of the problem that is, to put it gently and euphemistically, overenforcement of the shipping statute. It is a foot-wide law, but it is enforced as if it were a yard wide. Only about 20 percent of cars and trucks on the road are commercial.
The statute covers people such as wrecker services, ambulances, logging trucks, movers cab operators, 18-wheel tractor-trailer rig operators and drivers and owners, bus operators and courier services.
The people arrested in the Hammond strip search were not evidently involved in that activity at the time of the stop. They are at least, in black-letter law, not subject to enforcement action if the officer did not see either of the two people commit a felony or a public offense.
Reaction to the arrest is strongly negative. The NAACP describes the arrest as “animalistic brutal behavior against people of color” and as rape. Kevin Muhammad, a local activist, lists his desiderata. “Sheriff – Immediate termination [of deputies]. DA – Prosecute beginning with aggravated rape. Judge – No bail. ‘Justice is fair dealing.'”
The attorney involved in the future civil claims likely to be made is Robin Flores. Mr. Flores has another chance to take advantage of transportation administrative notice and the onus of bad faith and malice that it brings into the picture of policing abuses in Hamilton County.
According to my analysis, notice removes from the county and from the individual deputies their normal routine defense of good faith. The good faith defense allows cops to say they were doing what they had been trained to do, and did not knowingly and intentionally violate the rights of their victim. The claim that they didn’t know and that they didn’t intend is disallowed by notice. The deputies knew the arrest under Title 55 was improper yet they did it anyway by custom, habit and training. I don’t believe a greater damning set of circumstances could pile up against Hamilton County than continued neglect of its duty under the statue with its clear limits.
Mr. Flores fails to recommend himself by disregarding the presence of notice in a notorious earlier case, that of the beating of Frederico Wolfe by officer Ben Piazza. His complaint monetary damages leaves up to F$1 million on the table as he declines to bring up the bad faith component of the claim.