City ‘state of emergency’ for ‘safety‘ of party crowds debases already misused police power
Tim Kelly, mayor of Chattanooga, tests limit of disproportion in E.O. to "hit reset on Station Street" for "safe, thriving nightlife."
CHATTANOOGA, Tenn., Sunday, April 24 — Mayor Tim Kelly has stretched out his hand and touched the public enemy of violence with a temporary emergency order evoking the powers in law to deal real crises such as earthquakes and mass terror.
The “limited civil emergency” order takes control Friday just as the Team Kelly promotes Earth Day, that day heavily marketed as a rationale for government-by-emergency and intended to be enjoyed via concerts, cleanups and public events in the city of 182,000 souls.
“Chattanooga’s nightlife is an important part of our vibrant culture, but a thriving nightlife must also be safe,” Mayor Kelly says in a release. “I’m taking executive action to hit reset on Station Street” as part of a “long-term safety plan that allows our city to have a safe, thriving nightlife.”
Mayor Kelly cites as authority the emergency code’s grandiose language about public safety in times of crisis and a much narrower curfew-making authority in which mayors can call curfews and ban the sale of firearms, ammo, liquor and gasoline pumped into cans.
Trivial use of martial power
The order targets eight downtown businesses and commands them to close early. The mayor cites the emergency law’s “legislative intent” at T.C.A. § 58-2-102, including its citing of “a wide range of emergencies, including natural, technological, terrorist acts, and manmade disasters, all of which threaten the life, health, and safety of its people; damage and destroy property; disrupt services and everyday business and recreational activities; and impede economic growth and development.”
Gov. Bill Lee, in illegally resorting to an emergency for CV-19, cited this law in March 2020. The language, however, condemns him. His penal colony lockdown threatened health, life and safety of the people, damaged property, disrupted “services and everyday business and recreational activities” and “[impeded] economic growth and development.”
The power Kelly claims is useable “during the imminent pendency or happening of the occurrence.” The state of emergency protecting bar taverns is forward looking, to prevent shootings such as those that have occurred in the area.
Mayor Kelly, as evident dark storm clouds gather, cites T.C.A. § 58-2-110 that lets him plan emergency services programs, which power he does not create to protect evening diners.
He cites a law that says “The mayor of a municipality or the mayor or county executive of a county or metropolitan government may declare a local state of emergency affecting such official's jurisdiction by executive order consistent with and governed by § 58-2-110(3)(A)(v).”
This last reference is to a law that gives the mayor a seven-day emergency power. “The duration of each state of emergency declared locally is limited to seven (7) days; it may be extended, as necessary, in seven-day increments. Further, the political subdivision has the power and authority to waive the procedures and formalities otherwise required of the political subdivision by law.”
Ordinary police assignments are evidently not sufficient to keep public peace and order. The tavern E.O. deals with “civil emergency,” defined as a “riot or unlawful assembly characterized by the use of actual force or violence or a threat to use force, if accompanied by the immediate power to execute, by three (3) or more persons acting together without authority of law.” This is a manmade emergency, evidently, as opposed to a natural disaster.
Mayor Kelly invokes the curfew powers given him in Title 38, at T.C.A. § 38-9-103. Curfew, that says a mayor may make a “a general curfew applicable to the geographical areas of the municipality or to the municipality as a whole,” which rule is “necessary in the interest of the public safety and welfare” and “shall have the force and effect of law” up to 15 days and shall continue in effect until rescinded in writing by the chief administrative officer, but not to exceed fifteen (15) days.”
Another provision lets the state of emergency ban or limit sale of products liable to be misused in a riot, namely liquor, weapons and gasoline. Mayor Kelly, if he needs to, can order “discontinuance of selling, distribution, or giving away of gasoline or other liquid flammable or combustible products in any container other than a gasoline tank properly affixed to a motor vehicle.”
Top cop goes along
Police chief Celeste Murphy does not view the order as a rebuke for police work along the area’s sidewalks, favoring the EO so “the Station Street district can thrive in a way that’s safe for everyone.”
District attorney Coty Wamp refuses to shrink from use of emergency powers. “"The disorders and assaultive behavior typically happen late into the night and in the early morning hours, between 1:00 a.m. and 3:00 a.m.,” said Wamp. “My office is supportive and appreciative of the City’s efforts to curb the violence. The measures being taken, including temporarily closing the bars at 1:00 a.m. and no longer allowing open containers on the street, represent a really good start to fixing the problem.”
