TN citation law requiring jailing prior to judicial overview is unconstitutional, journalist’s U.S. court filing says
It is a breach of constitutional government to accept citation law at TCA 40-7-118 that ‘requires’ pre-adjudication booking in lawsuit against state chief justice
If you are arrested in Tennessee, you will be “offered” a citation to save you a “trip to the jail.” If you know your rights, you probably will want to see immediately a magistrate. But most people sign the citation in lieu of going to the jail, a dreadful experience and trauma they avoid. The citation requires the person to go to the county jail for imprisonment and arrest for booking. Arrest, jailing and booking prior to judicial review of the case (warrant, or post-seizure probable cause hearing) is unconstitutional prima facie — on its face.
I am attending the Tennessee judicial conference in Franklin on Nov. 6, 2021, when officer William Orange and colleagues arrest me without a warrant (judicial approval beforehand, required under the Tennessee constitution art. 1, sect. 7) and without probable cause (which would have been established by a magistrate, had he applied for a warrant). In this filing, I am trying to keep my lawsuit alive against a recommendation by a federal magistrate that it be thrown out as untimely filed. I show that the timely filed clock is not set based on the date of my arrest, but from the date of booking Nov. 14, 2021, several days later. — David Tulis
Deconstruction of citation law
Plaintiff’s false arrest claims are, like those of the count above, premised on constitutionally secured legal guarantees above, incorporated here by reference.
The proposal misstates the sequence of events, implying that defendant Orange takes the aggrieved before a magistrate (plaintiff “was taken” for booking). Booking occurs days later. “Plaintiff alleges that Orange gave him a summons for committing criminal trespass in violation of Tenn. Code § 39-14-405, a Class C misdemeanor, required that he sign the citation, and refused to take Plaintiff before a state magistrate. Plaintiff alleges that he was taken to the Williamson County Jail for ‘booking,’ but he does not allege that he was held at the jail after being booked. He alleges that he was required to return to Franklin from Hamilton County on December 14, 2021, for a hearing in the General Session Court, at which time the charge was dismissed upon a finding that no probable cause existed” (doc. No. 52, p. 3, PageID # 327) (emphasis added).
In brief, plaintiff is unconstitutionally compelled to make a separate trip to Williamson County for booking and processing prior to his first judicial encounter. On Dec. 14, 2021, complainant appears before a Williamson County sessions court judge who determines the arrest is without probable cause whereupon the accused is released from arrest and fully restored in his liberties. Dismissal of T.C.A. §39-14-405 criminal trespass charges against plaintiff shows relator makes no mistake to insist upon his rights in the Atrium Hospitality hotel auditorium to attend the open-to-the-public conference as a matter of right.
The dismissal proposal wrongly insinuates that the “arrest” ends when relator is uncuffed and ordered to leave the property. Plaintiff objects to this reasoning and asserts to the contrary that the “arrest,” imprisonment, and deprivation of his liberties does not actually cease until the adjudication of “no probable cause” is determined by a neutral and detached magistrate at which point Tulis is fully released and emancipated from custody being only then fully restored in panoply of his rights and liberties as a free man. (doc. No. 52, p. 14, PageID # 338)
The undisputed facts upon the claim of false arrest are:
The relator/plaintiff possesses the right to be free from the unwarranted deprivation of protected fundamental rights, such as press and free speech.
On Nov. 6, 2021, defendants Orange and city of Franklin falsely arrest plaintiff under pretense, in retaliation for his exercise of a constitutionally protected liberty; thereby depriving him of a protected fundamental right without warrant or probable cause when, by law, he could only be subjected to jailing and booking upon: a duly executed arrest warrant, adjudication, presentment, or indictment.
From Nov. 6, 2021, to the present day, defendants Page and Crawford maintain a false arrest wall protective of the Tennessee judicial conference, in violation of the Tenn. const. Art. 1 sect. 19; Tenn. const. Art. XI sect. 16; the Tennessee open meetings act at T.C.A. § 8-44-101; the federal 1st amendment; the federal 4th amendment; and the seminal Tennessee case of Dorrier v. Dark, 537 S.W.2d 888 (Tenn. 1976).
From Nov. 6, 2021, through Dec. 14, 2021, the hearing date, plaintiff is under false arrest personally of defendant Orange, as he is not under authority of any judicial order, finding or determination.
On Dec. 14, 2021, judge M.T. Taylor, duly presiding over Williamson County sessions court criminal division, confirms in a lawful judgment defendants had no probable cause to arrest plaintiff.
Defendants at AOC and the city do not comply with longstanding well established law, hence persist with a continuing policy of false arrest abrogating plaintiff’s rights to come and go at liberty, to AOC conferences.
Citation law ‘requires’ pre-adjudication booking
Plaintiff is booked Nov. 11, 2021, under T.C.A. § 40-7-118 that requires him to appear at the county jail for booking. Tennessee public policy favors citation over arrest in the interest of judicial efficiency, economics, improving public safety and reserving jail space for criminals. In misdemeanor cases such as this one, “issuance of a citation in lieu of arrest” brings “cost savings and increased public safety by allowing the use of jail space for dangerous individuals and/or felons” and “[keeps] officers on patrol” Tenn. Code Ann. § 40-7-118. Such law unconstitutionally infringes upon his due process rights.
The citation allows a person under arrest to be physically uncuffed and released, or to not be touched by the officer and to be allowed to depart. This signature “in lieu of continued custody” saves the officer from the duty of taking the misdemeanor defendant “before a magistrate” at the jail.
A peace officer who has arrested a person for the commission of a misdemeanor committed in the peace officer's presence *** shall issue a citation to the arrested person to appear in court in lieu of the continued custody and the taking of the arrested person before a magistrate. If the peace officer is serving an arrest warrant or capias issued by a magistrate for the commission of a misdemeanor, it is in the discretion of the issuing magistrate whether the person is to be arrested and taken into custody or arrested and issued a citation in accordance with this section in lieu of continued custody.
Tenn. Code Ann. § 40-7-118(b)(1) (emphasis added)
Booking is an involuntary and compelled act under Tennessee law. By signing a citation, an accused unwittingly enters an “[agreement]” to yield a constitutional right, that being his liberty to not be imprisoned apart from a seizure OK’d by a magistrate or judge:
(f) By accepting the citation, the defendant agrees to appear at the arresting law enforcement agency prior to trial to be booked and processed. Failure to so appear is a Class A misdemeanor.
(g) If the person cited fails to appear in court on the date and time specified or fails to appear for booking and processing prior to the person's court date, the court shall issue a bench warrant for the person's arrest.
Tenn. Code Ann. § 40-7-118 (emphasis added)
An accused is not adequately informed, nor given notice, that he is yielding a constitutional right by signing his name upon the face of the citation. He is not asked to waive a right, nor asked to give consent to doing so. Pursuant to above, the plaintiff “agrees” to appear — under threat of “a Class A misdemeanor” charge — at the “arresting law enforcement agency” or, if instructed by the officer, at the jail. Defendant Orange’s employer does not run a jail. Williamson County sheriff’s department runs the county jail.
Defendant’s “agreement” could arguably be construed as the giving of consent. However, the agreement in this case is between an armed police officer violating 40-7-103, and appears not in view of contract law analysis of a bargain or agreement. In this cause, plaintiff is under a warrantless and false arrest, in violation of the law and demands an arrest warrant prior to his arrest and then, subsequently, demands to be taken immediately before a magistrate.
The law appears open-ended as to when “[p]rior to trial” occurs. Does that mean the plaintiff could’ve entered jail for booking after his Dec. 14, 2021, probable cause hearing in sessions court? Not according to Orange and city of Franklin. It means prior to a criminal defendant’s upcoming court date which may or may not be an actual trial. Defendant Orange gives plaintiff a written notice ordering him to appear for booking and processing prior to adjudication.
You have been charged with a state criminal offense and have received a citation in lieu of an arrest warrant. By accepting the citation, you agree to appear at the Williamson County Criminal Justice Center for booking and processing prior to your scheduled court date ***. Failure to appear for such booking and processing is a separate criminal offense. [bold in original]
Franklin Police Department Misdemeanor Citation Booking and Processing Notice EXHIBIT No. 1
Once the offender signs the citation, the officer “shall *** release the cited person from custody” Tenn. Code Ann. § 40-7-118(e)(1)(C) (emphasis added). A second penalty in the citation law attaches to failure to appear in court. That is an arrestable crime with jail up to 364 days.
(j) Any person who intentionally, knowingly or willfully fails to appear in court on the date and time specified on the citation *** commits a Class A misdemeanor, regardless of the disposition of the charge for which the person was originally arrested. Proof that the defendant failed to appear when required constitutes prima facie evidence that the failure to appear is willful.
Tenn. Code Ann. § 40-7-118
The problem for defendants Orange and City of Franklin in the citation proceedings is that state law forbids the peace officer from issuing a citation to a person insisting on the right for immediate adjudication before a neutral and detached judge or magistrate.
No citation shall be issued under this section if *** The person demands to be taken immediately before a magistrate or refuses to sign the citation.
T.C.A. § 40-7-118(d)(6) (emphasis added)
This ban on issuing a citation arises from a duty on the officer to “determine” that he cannot issue one and must take the person to a magistrate.
(k) Whenever an officer makes a physical arrest for a misdemeanor and the officer determines that a citation cannot be issued because of one (1) of the seven (7) reasons enumerated in subsection (d), [see immediately above] the officer shall note the reason for not issuing a citation on the arrest ticket. An officer who, on the basis of facts reasonably known or reasonably believed to exist, determines that a citation cannot be issued because of one (1) of the seven (7) reasons enumerated in subsection (d) shall not be subject to civil or criminal liability for false arrest, false imprisonment or unlawful detention.
Tenn. Code Ann. § 40-7-118 (emphasis added)
Orange violates T.C.A. § 40-7-103, by not obtaining a warrant for a misdemeanor offense that is not a public offense. Furthermore, officer Orange holds an affirmative duty to deliver the plaintiff immediately into the hands of a magistrate, as requested. Officer Orange is standing in an auditorium full of qualified magistrates, any of whom could have issued a proper warrant at the time in question pursuant with (T.C.A. § 40-5-102). Additionally, officer Orange could have taken the accused immediately before a Williamson County judicial commissioner to protect himself and the city from claims for “civil or criminal liability for false arrest, false imprisonment or unlawful detention,” pursuant with T.C.A. § 40-7-118(k).
This case is a civics class lesson on how abrogation of one law prompts abrogation of other laws downstream. If officers run an illegal general warrants scheme, as city of Franklin admits and defends, as targeted by this lawsuit, their departments and a permissive Tennessee legislature will need a pressure escape valve to deal with an arrest glut. That is the unconstitutional citation scheme. General warrants bring overpolicing; overpolicing requires a spreading out of the adjudicative process. If the jail is too crowded, let’s delay the finding of probable cause to the sessions court at a “probable cause” hearing. What by law must be done before arrest (the arrest warrant), now is done later – after false imprisonment and false arrest occur in this case, as no doubt in thousands of others. Adjudication is now ex post facto, looking backward to justify the officer’s action rather than a process before seizure to force him or her to justify a proposed arrest before the officer puts a finger on the citizen or person. Plaintiff details for the court elsewhere the public protections that require keeping the warrant requirement, and restoring warrants once again into general use in Tennessee.
Citations reduce a municipality’s economic pressures and resource management pressures. The efficiencies come at a cost of respect for constitutionally guaranteed, God-given, unalienable and inherent rights, and grief to the citizenry in their federally protected rights. The cite-and-release laws permit municipalities to profiteer handsomely off the backs of the citizenry absent due process of law. Indeed, the system abrogates and repudiates constitutional due process.
The mandatory pre-adjudication imposition of “booking and processing” is unconstitutional on its face. The system in Tennessee improperly subjects otherwise law-abiding citizens to the scorn, ridicule, defamation and humiliation of hearsay accusations being leveled in a public forum prior to judicial review or a finding of probable cause for an arrest. Furthermore, these same “innocent until proven guilty” individuals are unconstitutionally subjected to the anxiety and concern due to unresolved criminal charges absent a finding of probable cause. The citation system allows for booking before a “judicial finding of probable cause” before “notice of the charge which must be answered” State v. Utley, 956 S.W.2d 489, 494.
A citation has the effect of a civil notice, but the law requires judicial notice of a probable cause determination before jailing or incarceration. Jailing of plaintiff is an injury. Jailing is an undeserved punishment for an innocent man arrested without probable cause. Plaintiff is not a flight risk, he is not a danger to himself or the public, he is not convicted of any crime, booked and processed into jail as though he were; this type of abuse has a chilling effect on those who might otherwise wish to freely exercise their constitutional rights and liberties, especially when done in retaliation for just such exercises. Having to go to jail for even 60 seconds is involuntary servitude. Under Tennessee’s system, the release hour, day or month is in the hands of men, not in the hands of law. In primitive rural areas in the South, or in California, people are locked in jail without cause or relief.
The booking-before-adjudication process at T.C.A. § 40-7-118 is repugnant to both U.S. and Tennessee constitutions, and plaintiff hereby challenges its constitutionality as he is thereby injured on Nov. 11, 2021.
Citation = prolonged custodial arrest = harm
As a matter of law, plaintiff remained under the personal custody and “arrest” of defendants Orange and City of Franklin through the Dec 14th, 2021 probable cause hearing in sessions court. Because plaintiff is not actually “released” by a magistrate until Dec. 14, 2021 (the probable cause hearing date), the harms of false arrest, false imprisonment, and deprivation of civil liberties continued through that date.
Even if the Tennessee “cite-and-release” statute were deemed to be constitutional, provisions requiring pre-booking confinement for intake processing would constitute an extra-judicial civil injury accruing as a continuing harm as demonstrated by the Williamson County Corrections Booking Report, given plaintiff by defendant Orange. EXHIBIT No. 2.
The arrest and booking report refers to “misdemeanor detainee” “confined date” and “released date” — these being Nov. 11, 2021. Williamson County is the “confinement facility” and Nov. 11, 2021, is the “confined date/time.” Danielle Cohen is “releasing officer” and Joseph Degati, among various roles, is “fingerprint officer.” The day plaintiff enters the lockup is “incident date” and “arrest date/time.” Entry into the jail is given as an “arrest” and a “confinement.” Plaintiff’s subsequent automobile trips to Franklin — 157 miles one way — are coercive and actionable as continuing harm. Significantly, the judicially signed expungement order of the case indicates the actual “date of arrest” as occurring on Nov. 11, 2021 rather than Nov. 6, 2021 as alleged in the magistrate’s proposed dismissal. EXHIBIT No. 3 (See doc. No. 24-1, p 4, PageID # 132).
The proposed dismissal incompletely asserts that plaintiff “was released that day shortly after his arrest and was not further detained or held in custody” and thusly that plaintiff’s harm accrues on that day (doc No. 52, Page ID # 334). The magistrate’s position goes on to wrongly assert that the ending of Orange’s physical custody equates to the end of the seizure and arrest of plaintiff’s person and liberties; however, plaintiff asserts that the seizure and arrest continue until he is fully emancipated and released by Judge M.T. Taylor with a finding of “no probable cause” of the arrest. Until that point of adjudication, plaintiff is not free to come and go as he pleases in the full exercise of his liberties. “We have held that a Fourth Amendment seizure ‘continues throughout the time the person remains in the custody of the arresting officers,’ McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir.1988), but we have not yet addressed whether the seizure could continue past this point.” Johnson v. City of Cincinnati, 310 F.3d 484, 492 (6th Cir. 2002).
This citation in the proposal does not bear on instant case, and plaintiff objects. A citation in lieu of continued arrest ends defendant Orange’s physical custody of plaintiff, however the citation does not bring an end to the non-custodial arrest of his person or the deprivation of his liberties.
Citation nonjudicial, not a sufficient charging instrument
“Because an arrest warrant may or may not issue upon the affidavit of complaint, the ‘affidavit of complaint will not necessarily provide a defendant with notice that he is being charged with an offense, and an affidavit of complaint, with nothing more to provide a defendant with notice, is not a charging instrument.’” State v. McCloud, 310 S.W.3d 851, 860 (Tenn. Crim. App. 2009). “Having found that the State must charge a defendant with the offense, we note that the trial court in the instant case determined that the affidavit of complaint was itself the charging instrument, noting that “the affidavit of complaint was filed in this court jacket. It's filed. It's part of our court system.” The appellant argued to the trial court that the affidavit of complaint, standing alone, did not provide him with formal notice that he was being charged with the offense. We agree.” State v. Gastineau, No. W2004-02428-CCA-R3CD, 2005 WL 3447678, at *3 (Tenn. Crim. App. Dec. 14, 2005). “[T]he preliminary hearing must proceed on some sort of warrant or formal charge lodged against the defendant. Rule 5(a) further supplies support for this requirement. That rule covers two possible situations: first, in cases in which a defendant is arrested upon a warrant, he is to be taken to the nearest appropriate magistrate “from which the warrant for arrest issued” in order to enter his initial plea and for appropriate disposition under Rules 5(b) and (c); and second, in those situations where an arrest has taken place without a warrant, the defendant is to be brought before the magistrate so that an affidavit of complaint can be filed against him or her.” State v. Best, 614 S.W.2d 791, 794 (Tenn. 1981)
The Orange “state of Tennessee uniform citation” standing alone is at best hearsay, but has no adjudicative authority. It is sworn, but only as to the accuracy of the copy and the alleged facts. (doc. No. 37, p. 17, PageID # 238). The claims thereon had not been put to the test before a magistrate, required to “examine” the allegations and put them to writing. “Before ruling on a request for a warrant, the magistrate or clerk may examine under oath the complainant and any witnesses the complainant produces.” “Before ruling on a request for a warrant, the magistrate or clerk may examine under oath the complainant and any witnesses the complainant produces,” Tenn. R. Crim. P. 4 (emphasis added).
“No person can be committed to prison for any criminal matter until examination thereof is first had before some magistrate” Tenn. Code Ann. § 40-5-103. No affidavit of complaint exists in this case to have sufficiently “committed” the plaintiff to prison or jail. No one has sworn particulars of a crime before an unbiased, neutral judge, which act by law must occur before seizure, no less so than if the plaintiff were a piece of contraband or evidence sought and seized under a search warrant.
The magistrate’s recommendation denies that plaintiff’s arrest is ongoing until heard by a neutral and detached trier of fact capable of making a probable cause determination, plaintiff objects.
The speedy trial act seeks to reduce pretrial incarceration and harm, promising “to protect the accused against oppressive pretrial incarceration, the anxiety and concern due to unresolved criminal charges, and the risk that evidence will be lost or memories diminished” State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997). The speedy trial trigger is “formal indictment or information or else the actual restraint imposed by arrest and holding to answer a criminal charge. *** Until this event [arrest] occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusations” State v. Utley at 492. Speedy trial claims are not raised in this case, however the trigger of arrest that restrains liberty and subjects the accused to public accusation is. The law recognizes the status of an arrestee of being under lien or shadow of arrest with his rights encumbered no differently than having a cloud upon the title to property .
In this case, the plaintiff was encumbered by arrest to include booking and processing without having faced a formal accusation. The speedy trial rights start with indictment or arrest. State v. Wood 924 S.W.2D 342, 345 (Tennessee 1996). Speedy trial rights are invoked against “oppressive pre-trial incarceration and the reduction of anxiety and concern caused by unresolved charges.” The continued noncustodial arrest in this case is a continued harm on three levels. (1) It is a false arrest and false imprisonment lacking probable cause. (2) It is such a breach done without a warrant, in violation of T.C.A. § 40-7-103, a due process violation. And, (3), the citation “agreement” forces the plaintiff to accept the injury of jailing and booking prior to adjudication coercively, on grounds he presumptuously “agreed” to it under § 40-7-118(f). By signing the release citation, accused citizens are arguably duped into the waiver of constitutional rights without being placed on notice that any such waiver exists or is being waived knowingly, intentionally, and intelligently. “[C]onstitutional rights may be relinquished only by a valid written waiver. See Rule 5(c)(2), Tenn.R.Crim.P.” State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979).
False arrest twice over is ongoing deprivation
The constitutional authorities and the ongoing deprivation of the protected interests should prohibit dismissal for the false arrest claimed, as enumerated in the filings, for the equity relief demanded and those at law, including a jury trial for any facts shown disputed, and separately, so as not to render the constitutional protections a nullity, for the false imprisonment claimed warranting immediate equity relief as demanded or as the court sees fit pursuant to applicable equity principles.
