The city of Red Bank and the Tennessee Highway Patrol have rejected the Tennessee Supreme Court’s rules for roadblocks by refusing to give public notice of their time and location.
On Friday the office of Red Bank police chief Tim Christol refused to reveal where the town plans roadblocks over the 2016 Labor Day weekend that ends Monday.
By David Tulis
His aide, Tracey Massey, changed her statement in a second call and said she would not reveal whether there would be roadblocks in the town. In a third phone call seeking comment and clarification she hung up on this reporter.
Also on Friday in an interview with AM 1240 Hot News Talk Radio, Lt. Bill Miller of the Tennessee Highway Patrol said his department is obeying the rules outlined in key court cases even though the information he publishes is too vague to allow motorists to avoid the blockade.
The Tennessee supreme court in two opinions arising from Chattanooga-area roadblocks says that public notice is an essential element in a roadblock to avoid making the roadblocks overly intrusive upon constitutionally protected rights to travel and the right to be stopped without probable cause or a warrant.
The court calls a roadblock a “seizure” and accepts that they are an affront to constitutionally protected liberties, noting “a warrantless seizure ‘is presumed unreasonable ***.” But the judges use a balancing test in the 1997 Hixson Pike roadblock case, State v. Downey. Constitutional rights lose in that test and their rulings come out in favor of what they call “a compelling state interest” or a “significant state interest.”
To mitigate the damage against the free people of the state, they outline a series of rules that minimize the intrusiveness of roadblocks and limit officer discretion. Among these rules is what the judges call advance notice or publicity. The purpose of publicity is to allow travellers and operators of motor vehicles to avoid the roadblock, to save themselves from having to have their rights offended.
Included in such notice are requisite signs alongside the road, bright lights for night operations, reflective clothing, a means of escape so that the roadblock is not “a closed box,” to use Lt. Miller’s terms. Advance notice also is publication in newspapers and other media. Publication serves the state interest of deterrence, the rulings say, but also allow citizens vigilant about their rights a means to protect them from unwanted intrusion.
The Tennessee Highway Patrol publishes information about roadblocks that is legally inadequate, according to Downey and a second local high court case, State v. Hicks, 2001.
The only THP roadblock faced in Chattanooga this Labor Day weekend was at Highway 41 at Raccoon Mountain. For the state to respect the rights of the traveling public, it must publish the time of the roadblock and a location. Highway 41 is not a location. Friday is not a time.
‘Met the requirements of the law’
In an interview, Lt. Bill Miller, a highway patrol spokesman, insists his agency is under no obligation to publish times and locations.
Lt. Bill Miller. We don’t give out times, and locations are all listed on our website.
Tulis. That’s not exact. Sorry. That’s not exact.
Lt. Miller. What’s missing?
Tulis. It just says Highway 41. Do you know how long Highway 41 is?
Lt. Miller. I do, yes. I list out what the district gives. Does it not tell you a cross street?
Tulis. No, sir. *** Hicks and Downey require public notice. Otherwise, how can people avoid them? The duty of public notice, Lt. —
Lt. Miller. — You don’t need to start preaching to me about the law. I understand the law very clearly. Does it specify a county?
Lt. Miller. Does it specify a date? OK. So it specifies a date. It specifies a county. Does it specify a road? OK, does it specify the type of checkpoint that it is? — Sobriety, or —
Tulis. Yes, it does. It’s a driver license checkpoint.
Lt. Miller. Then we have met the requirements of the law. And also by the supreme court decision. We are not required to specify the time that we hold those.
Tulis. Well, should not the department in good faith specify the time so that my listener — [can avoid having his rights intruded upon]
Lt. Miller. No, sir. No, sir. No, sir. No, sir. ***
Not giving time and location is as worthless has announcing a lecture and saying it’s on McCallie Avenue on a Saturday, or announcing a legislative assembly public gab session on Monday on Broad Street. No one can act apart from the essential detail.
Rejecting rights of citizenry
Red Bank holds roadblocks and refuses to give what the court calls “advance publicity.” The highway patrol, a division of the department of safety and homeland security, based in Nashville, refuses to publish information in sufficient detail as to allow a motorist to avoid its roadblock.
The effect of not giving the public specifics effectively bans an innocent user of the roadways and public rights of way the use of Highway 41 all day on Friday. That is an unreasonable infringement, and is effectively a state ban of the use of that road by anyone who doesn’t want to go through a blockade.
The Downey opinion and the later one, State v. Hicks, in 2001, put a premium on publicity and warning, ranging from lit batons and bright lights at night to checkpoint warning signs to other forms of advance notice. Further contrary to Downey, the officers placed no advanced warning signs along the side of the road.
“Not only is this requirement [of signs, lights, safety measures] especially important to ensure the safety of motorists, but the presence of advanced warning signs also ‘reassure[s] motorists that the stop is duly authorized,’ thereby diminishing the possibility of surprise, concern, or fright.”
Advance publicity of the kind rejected by Lt. Miller’s department is essential for a roadblock to be minimally intrusive.
In the Hicks ruling, which overturned a conviction of a Suck Creek Road blockade, we read the following: “[W]e find that no advance publicity was given to the public at large that the highway patrol intended to conduct a roadblock in this area. We emphasize that the advance publicity requirement of Downey was not merely an afterthought or a constitutionally needless restriction upon otherwise legitimate law enforcement activity. Apart from the important deterrence aspects discussed earlier, advanced publicity also gives citizens the important choice of not exposing themselves to state intrusion without prior suspicion of wrongdoing. Moreover, citizens who are aware that they may be subject to roadblocks have more of a basis to ‘anticipate and understand the circumstances’ of the stop.*** Although the absence of publicity will not invariably render a checkpoint invalid if other measures satisfy these concerns, the advanced publicity requirement of Downey must nevertheless be regarded as a key aspect of a minimally intrusive roadblock.” [Italics added]
The Hicks roadblock was poorly run; “many of the attributes necessary to minimize the risk of arbitrary interference with the liberty and privacy of motorists weighs heavily against finding this roadblock to be constitutionally reasonable.”
The requirement to give advance notice in detail implies high level planning the court requires for constitutionality. A roadblock for which there is no notice is one set up whimsically at a certain hour at a certain bend in the road. Its operation suggests the lack of oversight required to make the blockade’s breach of the constitution legal.
“‘[A] police procedure constitutes less of an imposition on [constitutional] interests if that procedure has an appearance of regularity to it and is undertaken with sufficient advance notice’ not only to the public but also to the approaching motorist.” the court says in Downey, quoting another case.
Depriving citizens of choice
In rejecting Hicks and Downey, the department of safety is depriving the people a way out of its dragnet. “Apart from the important deterrence aspect,” Hicks says, “advance publicity also gives citizens the important choice of not exposing themselves to state intrusion without prior suspicion of wrongdoing. Moreover, citizens who are aware that they might be subject to roadblocks have more of the bases to ‘anticipate and understand the circumstances’ of the stop.”
Hicks and Downey, for all their sturdy talk about respecting rights of the innocent traveling public, are a blow to the liberties of the people in Tennessee. Downey makes roadblocks constitutional, and Hicks brings refinements. Both try to remediate the damage to constitutional liberty by limiting officer discretion and requiring public notice and warnings.
But they are pitiful and sneering. Their authors will not be overthrown in their office until the people residing in the state become more self-conscious of the nature of the affront such opinions represent.
In case you missed it, Soddy-Daisy, Hamilton County sheriff’s department and the Chattanooga police department are not imposing checkpoints this four-day weekend. But all are committed to “saturation patrols.”