City adopts state ‘driving with cellphone’ law

City council on Tuesday updates the ordinance pertaining to operators of motor vehicles who use their phones while driving. 

UTC photojournalism students snap pictures at city council as member Erskine Oglesby looks on. Photo David Tulis.
Nate Martin, a worker from Yates towing services, secures a vehicle on the back of his truck. Towing services are regulated by the state because they make their living on the public right of way..
City attorney Phil Noblett, right, knows full well that the transportation code affects only commercial users, but he maintains the judiciary’s legal fiction that the freight law applies to people not involved in freight.

The update proposed by councilmen Ken Smith and Darrin Ledford touches on the city’s early 20th century interest in regulating commercial users of its streets and boulevards. 

By David Tulis / NoogaRadio 92.7 FM

The ordinance passes on second reading, and reflects the Tennessee general assembly’s recent addition of this law to its “motor and other vehicles” statute at Tenn. Code Ann. § Title 55. The city already has a ban on use of cellphones by people under age 18 and an ordinance on the use of phones by drivers passing through school zones.

The city’s exploitation of Title 55 has long been the basis of police harassment of the descendants of black slaves across the South, the poor, aliens and strangers — and everybody else who has the misfortune of falling under officers’ notice while using car or truck on the public right of way.

City government has been under administrative notice since Feb. 20, 2018, of the illegality of its activity of imposing the state shipping and freight law against people not involved in shipping or freight

The city’s authority — and the limit thereto — follows that of state government. That is: Its power is directed upon motor vehicles and their drivers and operators. These men and women are defined and regulated by state police power because they use the public right of way for private gain and profit. That is to say, they are commercial users.

They are, under state law, subject to Title 55, the freight, shipping and transportation law. The city’s update of its ordinance in Chapter 24 of the city code is consistent with the limited scope of state law.

The entire city code is conveniently unveiled on the Internet at this link. https://library.municode.com/tn/chattanooga/codes/code_of_ordinances?nodeId=CH24MOVETR_ARTIINGE_S24-45DIREPL

The Chattanooga police department is limited in authority to ordinances. On bases not clear, it also enforces the state criminal code at Title 49 and Title 55 on motor vehicles, though apparently these provisions have not been explicitly adopted by a vote of the city council.

Yes, city ordinances upon commercial use

The code reflects city government’s interest in the commercial and for-profit use of streets and avenues by business operators. Evidence for this commercial jurisdiction is scattered across Chapter 24.

Driver licenses required of drivers. The city requires anyone operating a motor vehicle to have a driver license. This rule is in keeping with the state’s commercial statute. “No person may operate a motor vehicle of any kind on any street, road, highway, or public thoroughfare within the city unless such person has a valid driver’s license.” Sec. 24-43. – Driver’s license required for operation of a motor vehicle.

State definitions flow into the city’s code, with an equal effort to obscure the commercial flavor. A driver is one who “drives or is in actual physical control of a vehicle” and a vehicle is  

“[e]very device in, upon or by which any person or property is or may be transported or drawn upon a highway.” Transport is not defined in the code, but is well known to refer to commercial hauling. See Transportation Administrative Notice Tennessee for details. Some form of the word drive or driver appears 99 times in the code.

➤ City cops are allowed to enforce city traffic ordinances on the federal interstate highway because the city adopted an ordinance to that effect. Sec. 24-2. – Police jurisdiction over interstate highways. “There are hereby designated as city streets those portions of interstate highways I-24, I-75, I-124 and any other interstate highways which lie within the corporate boundaries of the city, for the purpose of exercising police jurisdiction and law enforcement functions only upon said highways.”

➤  The city seems to obtain power to enforce Title 55 from Sec. 24-3. – Enforcement of regulations. “It shall be the duty of the officers of the police department or such officers as are assigned by the chief of police to enforce all street traffic laws of this city and all of the state vehicle laws applicable to street traffic in this city.” [Italics added] Narrowly construed, the laws “of this city” are those belonging to, specific to the city, adopted by the city. That limited phrase is broadened by the next phrase, “state vehicle laws applicable to street traffic in this city.”

But again — commercial, pursuant to Title 55.

Privilege tax receipts required

The city code also requires operators of motor vehicles to have registration tags, or tax receipt plates, on their vehicles. Note — motor vehicles. One of the two uses of the word “auto” or “automobile” appears in a heading (headings generally lack legal significance): No vehicle may be operated upon the streets, highways, or public thoroughfares of the city unless such vehicle has been properly registered as required by state law” Sec. 24-44. – Automobile registration required. ‡

In this provision, it seems, the city, acts to presume all automobiles (private chattel, private property, car) are vehicles, liable for obedience under the state and city privilege rules.

“All motor vehicles operated within the city shall display registration plates issued by a state government.” Sec. 24-45. – Display of registration plates.

Yes, we may travel in Chattanooga

The rights of Chattanoogans and others in the city are long damaged by illegal traffic stops based on the courts’ pretended elimination of the difference between transportation and travel. The first is regulable, under privilege. The second, free movement for pleasure, for the exercise of rights.

The word travel appears 14 times in the city code. Many references are to “vehicular travel,” a term intended to be shorn of any power to make the travel-transportation distinction.

The people are free to travel, the code indicates, on highways. “Highway. The entire width between the boundary lines of every way when any part thereto is open to the use of the public for purposes of vehicular travel.” Sec. 24-1. – Definitions.

We feel the breeze on our faces on a device with three or fewer tires moving us as we travel. A motorcycle has a “seat or saddle for the use of the rider and designed to travel on not more than three (3) wheels.”

On a private road the city makes no claims, yet it describes private use by car or truck on private land as “vehicular travel.” In the definitions: “Private road or driveway. Every way or place in private ownership and used for vehicular travel by the owner” and others with permission.

Traffic at law is commercial. But Chattanooga brings in a whiff of country odors and barnyard smells into its definition of traffic. “Traffic. Pedestrians, ridden or herded animals, vehicles and other conveyances, either singly or together, while using any street for purposes of travel.”

The word travel in the city code refers often to movement on the road as a fact, rather than as a legal concept. All cars and trucks travel, but only some operate, are driven or transport people or goods on the roads. In right-to-travel cases, the district attorney’s office pretends the distinction between travel and transportation is frivilous.

One must not pass a car or truck on the road from the right if one leaves the main “traveled” part of the road, for example. Sec. 24-34. – When passing on right permitted.

People who steer ambulances and wreckers — such as Nate Martin of Yates Towing in Chattanooga — are operators. “This section shall not operate to relieve the driver of an authorized emergency vehicle, a recovery vehicle or a highway maintenance vehicle from the duty to operate such vehicle with due regard for the safety of all persons using the highway.” Sec. 24-12 (f). – Emergency vehicles; right of way; penalty. [Italics added]

Muzzy language in city code

The code shares state law’s tendency to obscure the travel-transportation distinction — travel being private use, transportation the regulable and privileged use. 

In definitions, motor vehicle is Every vehicle, including a low speed vehicle as defined in this section, that is self-propelled,” implying any car or truck moving on the road can be stopped by the cops. But in state law, vehicle is one used in transportation.

‡ The other use of automobile is in reference to car lot salesmen testing out a car for sale. “Salespersons or mechanics employed by an automobile dealer who, in the course of their employment, test-drive a motor vehicle, if such dealership customarily test-drives fifty (50) or more motor vehicles a day, and if such test-drives occur within one (1) mile of the location of the dealership.” Car lots take on automobiles, but the device leaves the lot as a “motor vehicle.” 

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