I have been waiting in a red zone for a response from Hamilton County sheriff’s department to an open records request regarding transportation administrative notice.
It’s a red zone for the county because it is lagging in response many times longer than allowed by law. Meanwhile, I have been speculating as to why Hamilton County might resist the reforms required pursuant to TAN.
By David Tulis / 92.7 NoogaRadio
It’s possible it will resist making a simple fix because the fix admits past errors and opens the county to a wave of lawsuits over abuse.
The reforms are not really going to be caused by the notice, but by the law itself as found in Tennessee code annotated. The notice simply is the prick or goad to make the changes occur now, as opposed to decades from now. The reform requires the sheriff’s department and all police departments in Tennessee to refocus enforcement activity, to impose traffic stops only upon parties involved in transportation, not to private parties exercising their rights.
When I say that sheriff’s department is in the red zone, I’m referring to the fact that the open records act requires service within seven business days. The department has taken 11 times longer than that, now past 80-plus days.
The request relates to whether Sheriff Jim Hammond and his staff are paying the slightest bit of attention to the law as outlined in my administrative notice.
Two Fridays ago Carole Miller, personnel director for the department, said county attorney Rheubin Taylor would take another week to review whether communications are privileged. Better than nothing, I suppose. Any documents not protected by the cloak of attorney-client secrecy are fair game for public review.
Agencies set selves up for oppression suits
Chattanooga city government is ignoring the notice, producing not a single letter, email, query or policy point for review in which the claims of Tenn. Code Ann. Title 55 is considered pursuant to administrative notice.
This neglect will block the city into a very bad legal position in future court action by defense or plaintiff’s attorneys. The city will be shown to have been acting in bad faith, harassing travelers and motorists under Title 55 without legal authority — and knowing it.
That’s called oppression, acting under color of law, tortious conduct in bad faith. Will Sheriff Hammond be doing the same? My guess is, that, yes, he will ignore the law as he has already for several years (though, without knowing it, I would graciously suppose).
Here I’d like to speculate about reasons for Hamilton County’s probable intention of ignoring my open records request and, probably, ignoring notice and hoping that I will go away, or that the TAN racial reconciliation project will sink into oblivion with my decease.
Transportation Administrative Notice creates cause of action vs. cop, gives new legal defense in court
What internal circumstance within the department and county government might prevent obedience to the law as written?
To say, “We’re going to obey the law starting today” should bring approval from several fronts, from newly re-elected NAACP chairman Elenora Woods to the Nashville ACLU and from constitution-minded conservatives, Christians and immigrants enlivened to the issue of police abuse and the need for obedience to the rule of law.
Backlash following reform?
But reform creates prospect for backlash against the department and the county for past abuse (that which today is its current ultra vires [outside the scope or view] activity harassing private travelers in cars and trucks as if they were involved in transportation.)
Reform and repentance and a change of course invites recriminatory and clawback lawsuits. That prospect is as wide as the space required for a semitractor trailer rig rushing down on an open highway at 65 mph.
Suddenly, all past transportation cases are subject to review, to lawsuits, to claims by past victims of the regime. The old regime is clearly illegal and unconstitutional. Imagine that for the next five years after Hamilton County does what’s right, it will be handling a backlog of cases and expungement requests, civil causes of action against it for its abuse of the statue.
Think of the legal lick-chopping among members of the bar who may be able to go back for years, for decades, and find cases where the county violated the statute by arresting someone for transportation offense who was not involved in transportation.
Imagine how many millions of dollars might be assessed against the county by people filing lawsuits in chancery, by people petitioning judges in their own names for relief, for former victims of the county demanding compensation for past jail sentences, past illegal fines, past harassment.
Power of status quo — and using it as a defense
The problem is in the nature of the status quo. A status quo builds around it many bad customs supporting a legal process which have all about them a legal veneer. For Hamilton County to suddenly say come we are gonna start obeying the law implies that previously it disobeyed the law. For disobedience prior to administrative notice March 1, it can claim ignorance, as no one saw the problem. No practicing attorney, no judge, no court of circuit of no court of appeal. No one knew. The law was there, but no one really understood it.
Here’s the county’s defense as time rolls on. It might be enough to allay the fears about which I am speculating.
“We just did what our predecessors did. No one corrected our action, inside our government, or outside our government. No attorney raised the point at the time of their client’s trial or conviction, so no attorney and no defendant has anything to complain about. Objections not made are waived. What’s settled is settled. We may have enforced the law too broadly, against people not subject to it. But no defense attorney, no citizen, made proper objection. So that’s water under the bridge, and we are absolved by these parties’ lack of discernment about the limits on the law. We fixed the problem with our new rules, and that is that.”
That will be the defense. It may just work.
“A common error makes law, i.e., what was at first illegal, being repeated many times, is presumed to have acquired the force of usage; and it would then be wrong to depart from it,” says a maxim at equity.
Wrong usages come to be accepted, even by judges. Still, Sheriff Hammond should straighten out his house in a fresh four-year term in office and not worry too much about clawback litigation, now that Hamilton County has honest government obedient to the law.