3 reasons why CALEA should decertify Berke’s police department

Chattanooga police halt private users of Hixson Pike in spite of having been put on notice about the limits of their arrest powers. (Photo David Tulis)
From Left, Marie Mott, Ayla Clemons and Jasmine Townsend protest police violence prior to addressing a CALEA official in Chattanooga.
Nitza Velasco of Las Americas says Hispanic immigrants in Chattanooga are afraid of police. (Photo David Tulis)

Should CALEA certify agency that rejects state law, ignores own policy manual?

Chattanooga police are operating in disregard of a primary rule enunciated by CALEA, that against biased policing or any policy that brings about that result. 

By David Tulis / NoogaRadio 92.7 FM

In Chattanooga, violation of this policy puts officers in unnecessary danger, endangers citizens and disrupts their rights under the constitution and exposes city government to private litigation. 

CALEA’s rule 1.2.9 requires a rule forbidding biased policing. “Biased policing is the application of police authority based on a common trait of a group. This includes but is not limited to race, ethnicity, country of national origin, religion, age, gender, gender identity/expression, sexual orientation, immigration status, disability, housing status, occupation or language fluency.” 

The goal with this report is reform city practice so that Chattanooga will take full advantage of its CALEA certification and reduce the injury, abuse and violence imposed by its police department upon the people. Secondarily, its purpose is to reduce the prospects of City of Chattanooga being in the wrong and liable for damages in litigation. This report seeks to reduce danger to police officers forced to expose themselves to situations of potential physical violence in encounters that are outside the scope of police power under Tennessee law.

Mayor Andy Berke is a practicing attorney who knowingly and intentionally, as a member of his craft, pretends people in the city do not have a free right of movement and communication of their persons and effects by car. He ignores transportation administrative notice and keeps arresting people outside the scope of the Tennessee code. (Photo mayor’s office)

The primary bias which this member of the public has reported to the city corporation  is a police bias against private, noncommercial, pleasure users of the public right of way in the city limits. 

Mayor Andy Berke, city council and Chief David Roddy direct police officers to operate outside the scope of the body of state law that gives the Tennessee highway patrol authority to regulate transportation under state and federal departments of transportation, and also under the state department of safety and homeland security. These high officials seeking CALEA recertification perform these acts despite being subject to an administrative notice that lays out the limits of city legal authority.

The most notable victim category of police action are racial minorities and immigrants, the latter deserving protection because of their varied nations of origin.

This analysis, submitted to a CALEA auditor at a public meeting in Chattanooga on Oct. 23, looks at three problem areas at the Chattanooga police department.

➤ Ultra vires enforcement of the state freight, shipping and transportation law upon people not involved in freight, shipping and transportation. Enforcement of the law is limited to the law and the constitution, and officers who swear an oath must obey the black-letter statute, even though courts give them leave to continue their abuse. in contravention despite the grants and leaves from state courts of appeal that reject the constitution.

➤ Officers reject Tenn. Code Ann. § Title 40-7-07, arrest by officer without warrant. Though his law is dutifully restated in the department manual, officer practice pretends citizens have no protection against unwarranted arrest. The department claims vast powers outside the scope of the law, despite court cases that define “public offense” as a limiting concept as to what types of offenses are subject to arrest without warrant. Officers do not read the law, and so void, nullify and abrogate that statute and the offend the constitutional rights of the people. [My detailed analysis of this law is here. — David]

➤ The department arrest manual speaks about the Miranda warning, so it meets CALEA certification about having words on paper regarding Miranda. But Chief Roddy rejects Miranda. The rules on how officers should warn arrestees about speaking and confessing are ambiguous.

Misuse of trucker law rejects constitutional rights

The Chattanooga police department violates the CALEA prohibition of biased policing by imposing state transportation law upon people who are using the road as private citizens.

An effort to bring practice in line with law began more than a year ago. The problem was brought to Chief David Roddy’s attention Feb. 20, 2018, by legal service to city council of transportation administrative notice, a document that deals with Mayor Berke’s policy of imposing Tenn. Code Ann. § Title 55 upon people using their cars on the city’s roads, boulevards, lanes and avenues.

Transportation administrative notice is a public document that meets the rules for notorious publication. The city has acquiesced to its analysis. But it has not reformed transportation arrest (aka “traffic stop”) protocols. [Exhibit 1, transportation administrative notice, 21 pp.] https://nooganomics.com/wp-content/uploads/2019/06/Transportation-Administrative-Notice-Tennessee-3.pdf

Reports Tuesday in Chattanooga about the U.S. district court settlement of the Frederico Wolfe beating in a Title 55 transportation stop highlight the dangers of these arrests to members of the public. The settlement involves Ben Piazza, a young officer who remains employed on staff (“City settles with man punched by Chattanooga officer on body cam video,” Newschannel9.com, Oct. 21, 2019

https://newschannel9.com/news/local/city-settles-with-man-punched-by-chattanooga-officer-on-body-cam-video )

Traffic stops outside the scope of the statute pose extraordinary dangers to officers, as well. Traffic stops are the most dangerous forms of encounter with members of the public, even more so than domestic violence calls to 911. Data is compiled by the National Law Enforcement Officer Memorial Fund in its report, “Making It Safer: A Study of Law Enforcement Fatalities Between 2010-2016,” pp. 38-42.

State law assigns enforcement of the transportation statute at Title 55 to the department of safety and homeland security.

The state commissioner of safety and homeland security says the Tennessee highway patrol alone has power to enforce transportation regulations. This limit is averred annually to the federal government. “According to the Tennessee Code Annotated (TCA) Title 65 Chapter 15, the Tennessee Highway Patrol is the sole and lead agency in the State of Tennessee responsible for enforcing laws related to size, weight, and safety regulations for commercial motor vehicles and the Federal Motor Carrier Safety Assistance Program and it does not fund any sub-grantees.” (Tennessee Commercial Vehicle Safety Plan for the Federal Motor Carrier Safety Administration’s Motor Carrier Safety Assistance Program Fiscal Year 2018, 84pp, Page 4). https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/fastact/445276/fy18-cvsp-tennessee-final.pdf  

The highway patrol’s jurisdiction for traffic enforcement is in state law. 

Tenn. Code Ann. 4-7-104. Duties.    

It is the duty of the members of the Tennessee highway patrol, under the direction of the commissioner of safety, to:

(1)  Patrol the state highways and enforce all laws, and all rules and regulations of the department of transportation regulating traffic on and use of those highways; and

(2)  Assist the department of revenue and the county clerks of the state in the collection of all taxes and revenue going to the state, and in the enforcement of all laws relating to same.

In rejection of Title 55 constraints, police operate a bias against private users, individual men and women operating in their personal capacity and persona propria, on the road in their private chattel and in their private modes of self-locomotion. These individuals use the public right of way freely and outside any state privilege. These rights under no theory of law are taxable. These rights are protected under several provisions of the state constitution, such as the right of communication, religion and speech and the right to earn a living.

State government has authority to extend privileges, and it does so, often. To operate in commerce on the public right of way is a privilege, because the activity affects a public interest and touches on the state’s calling to protect the health, safety and welfare of the entire population. Driving a motor vehicle and operating a motor vehicle are activities of privilege and under privilege. To make a living on the road, one must apply to the state for the privilege. Those parties who make their living on the road are those involved in transportation, freight, shipping, hauling and trucking. 

They exercise a privilege.

Private people don’t exercise a privilege. They don’t have to, according to City of Chattanooga, having acquiesced to transportation administrative notice, laying out the particulars of the disabilities in state law, and the rights of the people under the constitution and under statute.

City government knows full well about the distinction the law makes between travel and transportation. It operates a department of transportation, authorize to regulate vehicles for hire.

To summarize: City police reject the CALEA ban on biased policing, despite myriad lines of type on departmental paper that comply with CALEA’s demand for words regarding high professional standards of conduct.

Rejection of warrant law injures the people

A second abuse by the department is connected with the first. Police routinely arrest people roadside without a warrant, despite clear law that prohibits such action. 

In connection with the refusal to make reforms to comply with the limits of the transportation law is the department’s clear misreading of a state law that guarantees the enforcement against police of the people’s right to be free from arrest without a warrant or probable cause.

CALEA standards require rules for arrest by officer without warrant.

“1.2.4 (LE1), Search and Seizure. A written directive governs search and seizure without a warrant by agency personnel.” 

https://www.tntrafficticket.us/2019/10/city-misuses-arrest-limits-to-create-system-of-general-warrants/

In commentary, CALEA says such a directive gives “general guidelines and procedures for agency law enforcement personnel to follow in conducting searches that have not been reviewed and authorized by judicial personnel. The written directive should include such issues as consent, stop-and-frisk, movable vehicle, and exigent circumstance searches, as well as other situations impacting law enforcement personnel conducting searches and seizures without a warrant.”

The department’s arrest manual OPS-42 – ARREST PROCEDURES, September 2011 copies the entirety of  the state law that recognizes the constitutional ban on warrantless arrests, but lists exceptions. These exceptions to the constitutional standard are at Tenn. Code Ann. § Title 40-7-103, grounds for arrest by officer without a warrant.

By this law the people of the state of Tennessee, through their general assembly and its code, allow exceptions to the general ban on warrantless arrest. A limiting concept in this law is that the crime that is arrestable must be in the nature of a “public offense,” which is in the nature of a “breach of the peace.”

The controlling material in this law is in its first provision.

Tenn. Code Ann. § Title 40-7-103. Grounds for arrest by officer without warrant

(a)  An officer may, without a warrant, arrest a person:

(1)  For a public offense committed or a breach of the peace threatened in the officer’s presence;  [Emphasis added]

The discussion in the arrest manual is misleading and ambiguous. It says that “Any arrest without a warrant must be based upon probable cause” and goes on in a second paragraph to describe probable cause. [See Exhibit, OPS-42 – ARREST PROCEDURES, pp. 1, 3, 4]

But probable cause is off the mark. The test for arrest power is whether the offense is a “public offense,” and many crimes and offenses are not a “public offense.”

My analysis of court rulings on this statute makes clear that the department is abusing its authority to arrest people without a warrant, and that it must comply with the plain language of the law and with the courts’ description of “public offense.” In brief, a public offense is the type of crime that disturbs the public tranquility, and emits elements of threat, violence, riot, affray and disturbance. The statute itself makes it plain. He has arrest power for “public offense committed” or a “breach of the peace [a public offense] threatened.” 

The department’s illegal enforcement of Title 55 against non-truckers brings up the question of whether charges such as “driving on revoked” or “driving on suspended” or “driving without a license” (no such statute actually exists in Tennessee law) can lead to on the spot arrest of a person on the road.

The answer is: No. “Driving on revoked” can NEVER lead to an on-the-spot arrest, unless other conditions are met.

The statute at Tenn. Code Ann. § Title 40-7-103 requires that every roadside or highway-related arrest be preceded by a traffic accident. No arrest is possible without a warrant unless there is a crash. The statute lays out four instances of roadway encounters between police and citizens. In each of them, allowing for arrest without warrant, there must be a crash, if other conditions in the statute are not met.

If CALEA cares about the substance of the Chattanooga police department’s activity, rather than just with its formulas and manuals, it will demand an investigation into this matter prior to recertification.

Department ignores own Miranda rules

Chattanooga police routinely ignore their own manual by refusing to Mirandize people under arrest, according to reports and affidavits of residents who’ve had to deal with these city employees.

 Its rules are described at OPS-42 – ARREST PROCEDURES, September 2011.

Two Tennessee cases indicate that arrest occurs when the blue lights come on, or when a person is not free to depart the officer’s presence. State v. Raspberry 875 S.W.2d 678 (1993) https://scholar.google.com/scholar_case?case=15799915153585242909&hl=en&as_sdt=6&as_vis=1&oi=scholarr

State v. Gonzalez, 52 S.W.3d 90, 95 (Tenn. Crim. App. 2000) https://caselaw.findlaw.com/tn-court-of-criminal-appeals/1011976.html

CALEA’s standards allow for a great deal of wiggle room, and suggest the rules are written not for the benefit of the public and the liberties of the people, but for other interests.

CALEA defines arrest by citing Black’s Law Dictionary. “To deprive a person of his/her liberty by legal authority.” It defines “In Custody” as “Being under the full control of a law enforcement officer.” Custody is “Legal or physical control of a person in an area or facility or while in transit; legal, supervisory, or physical responsibility for a person.”  The CALEA rules make distinctions where there really are none. If a citizen is not free to leave, he is under arrest and in custody, because at every point he is under “the full control of” an officer. At the moment one is not free to leave, the Miranda rule applies, and Miranda should be read at the beginning of the arrest, the department’s rules say. The shadings of meaning as to detention – arrest – custody are not authentic and not real. If one is not free to leave, one is in custody, whether one is still by the roadside in a Title 55 action, or being taken in a police cruiser to the jail.

That means, at every roadside encounter for a “traffic infraction,” Miranda comes into play because it is an arrest, and the man (or woman) seized from behind the steering wheel is not free to leave, and should be made to understand he is in custody, under arrest and not free to leave. If anything the citizen states or produces can be used against him, he or she should be warned, under the Miranda rule.

The disregard of the Miranda rule mirrors more significant decisions to ignore state law and administrative notice, and to operate as if police power is universal and without limit or restraint. 

City police operate under a system of general warrants, which are not allowed under the constitution.

City police operate under the concept of bill of attainder because they disallow the proper rules of probable cause or warrant to limit their actions, in “traffic stops” and many other circumstances, 

Here’s a part of the police manual on arrest procedures:

1. The power of a police officer to make an arrest by virtue of his or her office is subject to constitutional and statutory limits.

2. Limitations on police authority are derived from federal, state and local laws, judicial opinions, and department policies and procedures.

3. Courts constantly interpret laws on the authority of police officers and constantly consider constitutional limitations on the authority of police officers. Many such cases involve rulings on Miranda warnings, searches, seizures, eyewitness identifications, etc.

4. Police officers are sometimes in doubt as to when Miranda warnings should be given. While Miranda deals with in-custody interrogations, the question of when “custody” applies is a common question. Escobedo v. Illinois mandates that Miranda warnings be given when the investigation begins to focus on a suspect or suspects, and the interrogation reaches an accusatory state. Since these two cases may appear to contradict each other, a police officer should read a suspect the Miranda  warnings whenever a suspect is in custody and the officer intends to interrogate the suspect. [Emphasis added]

This passage refers to laws. Then it refers to courts “interpreting” the laws. Then it gives a muddled discussion about when an arrest occurs.

It mentions that an arrest occurs when a police encounter “reaches an accustory state.” When is a police encounter not an in an “accusatory state”? On the roadway, when the blue lights go on, the encounter is always “an accusatory state,” and the CALEA admonition about Miranda warnings applies. The traveler should under Miranda be duly warned. The first word that falls from the mouth of the traveler, the first detail, will be used against him in court.

Courts may continually courts constantly interpret laws and rules, as the passage in the city manual suggests, but they do not in any way reduce God-given, constitutionally guaranteed inherent and unalienable rights of the person.

Should CALEA recertify city?

Should CALEA recertify the Chattanooga police department? The answer is “yes” if CALEA cares solely about the administrative paper trail that its process entails, if its main concern is the adoption and adherence of written formulas describing a bureaucratic administration. 

The answer should be no if CALEA cares about the ethics of its certified agencies, about their accountability, their respect for law, their regard for constitutional liberty. A department that cedes to transportation administrative notice but makes no changes in transportation stop protocols is a department that acts in bad faith, both before the people, before the courts and before accrediting companies such as CALEA. To agree to the stipulations in administrative notice but to continue harassing private users of the road with the courts’ permission is two-faced and dishonest. Chief David Roddy and his supervisor, Mayor Andy Berke, appear to care little for the people who use the roads in Chattanooga. 

They ordain that they be arrested without warrant for offenses that require a warrant, and to be charged criminally for administrative automobile infractions that are not crimes at all, and for which mens rea is not even alleged, as required in Tenn. Code Ann. § 39-11-301, requirement of culpable mental state. The department is not under proper control, and is disturbing the peace and tranquility of the state, and of its people.

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