April 23rd, 2012

Tennessee Waking Up To NDAA 2012


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A rather remarkable bill is now introduced into the Tennessee legislature. The bill, HB 2619 and Senate version SB 2669, carries some punch. Enjoy reading the synopsis from Tennessee’s legislative website, here:

http://wapp.capitol.tn.gov/apps/billinfo/BillSummaryArchive.aspx?BillNumber=HB2619&ga=107

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Bill Summary:

*HB 2619 by *Dunn, Sexton, Faison. (SB 2669 by *Campfield.)

Criminal Procedure – As introduced, provides that a federal employee who is not designated as a Tennessee peace officer may not make an arrest or conduct a search and seizure in this state without the written permission of the sheriff of the county in which the arrest, search and seizure will take place except under certain circumstances. – Amends TCA Title 8, Chapter 7 and Title 38, Chapter 3, Part 1.

Fiscal Summary

Increase State Expenditures – $27,400/Incarceration*

Bill Summary

This bill removes the present law provisions authorizing a federal officer to make arrests for nonfederal offenses in this state under certain circumstances and instead prohibits a federal employee from making an arrest or conducting a search and seizure in this state without the written permission of the local law enforcement agency, except under certain circumstances.

PRESENT LAW

Under present law, when a sworn federal law enforcement officer who is authorized by law to make arrests is making an arrest in this state for a nonfederal offense, such officer has the same legal status and immunity from suit as a state or local law enforcement officer if the arrest is made under the following circumstances:

(1) The officer reasonably believes that the person arrested has committed a felony in the officer’s presence;
(2) The officer reasonably believes the person arrested has committed a misdemeanor that amounts to a breach of the peace in the officer’s presence; or
(3) The officer is rendering assistance to a law enforcement officer of this state in an emergency or at the request of the officer.

THE BILL

This bill removes the above provisions. This bill declares that any federal law purporting to require local or state law enforcement agencies to act at the direction of the federal government or the United States military is beyond the authority granted to the federal government pursuant to the United States Constitution, is not recognized by this state, is specifically rejected by this state and is declared to be invalid in this state. This bill further declares that any federal law purporting to give federal agents or employees, including any members of the United States military, the authority of any state or local law enforcement agency of this state, without the express permission of this state, is beyond the authority granted to the federal government pursuant to the United States Constitution, is not recognized by this state, is specifically rejected by this state, and is declared to be invalid in this state.

This bill requires any federal employee who intends to conduct an arrest, seizure or search in the process of enforcing a federal statute, regulation or court order within this state to first notify the local law enforcement agency. This notice would serve to obviate any inappropriate response by local law enforcement to suppress any reported disturbance of the peace that might result from the federal action. However, such notice would not be required for any federal action to be taken:

(1) Within a federal enclave for which jurisdiction has been expressly ceded to the United States by state law;
(2) If the federal employee witnesses the commission of a crime the nature of which requires an immediate arrest;
(3) If the intended subject of the arrest, search, or seizure is an employee of the local law enforcement agency or is an elected county or state officer; or
(4) The federal employee has probable cause to believe that the subject of the arrest, search, or seizure has close connections with the local law enforcement agency and such connections are likely to result in the subject being informed of the impending arrest, search, or seizure.

A federal employee who desires to make an arrest or conduct a search or seizure as described above in (3) or (4) must notify the attorney general and reporter of the planned arrest, search, or seizure unless the resulting delay would probably cause serious harm to an individual or a community or would probably allow time for flight of the subject of the arrest, search, or seizure in order to avoid prosecution.

The notice must be served to the highest ranking officer of the local law enforcement agency, or previously designated lower ranking officer, sufficiently in advance of the planned federal action to allow the local law enforcement agency’s personnel to be prepared to respond appropriately. The bill details the minimum information that the notice must contain, such as a clear statement of probable cause and of the constitutional power and federal statute or regulation authorizing the federal action. The local law enforcement agency receiving such notice must review the notice and ascertain to its satisfaction the time and location of the planned federal action, the nature of the action and likely local effects, and the constitutional and legal validity of the planned action. If the local law enforcement agency finds the federal action to be valid, then the local law enforcement agency must issue orders to its department to avoid any conflict or inappropriate response to public alarm or calls for intervention and must accumulate and retain such notices and any reports of action resulting therefrom.

If the local law enforcement agency questions any operational aspect of the planned federal action, the agency must inquire immediately with the federal person or agency giving the notice to ascertain such additional facts as necessary to avoid operational conflicts. If the local law enforcement agency questions the constitutional or legal authority for the federal action, the agency must immediately notify the district attorney general of:

(1) All materials contained in the notice given the agency;
(2) Any additional information available to the local law enforcement agency regarding the location, or persons involved, or other relevant factors; and
(3) The agency’s questions regarding the validity of the federal authority asserted in the notice.

The district attorney general must immediately review any notice by a local law enforcement agency of a pending federal arrest, seizure, or search to ascertain whether the action is authorized by the enumerated powers cited by the federal persons or agency taking action as granted in the United States Constitution and the statutes and regulations under it. If the district attorney general reviews such a notice and finds that the foundation for the action is questionable for either failure to cite a proper power granted or as inappropriate under the statutes or regulations cited, the district attorney general must file an injunction with a court of proper jurisdiction, asking for an immediate temporary restraining order. Upon adjudication of the request for an injunction, the district attorney general must immediately notify the local law enforcement agency who submitted the notice for review of the action required.

This bill makes it a Class E felony for any official, agent, or employee of the United States government to enforce or attempt to enforce any federal law, order, rule or regulation that is beyond the authority granted to the federal government pursuant to the United States Constitution. Any person who violates this offense may additionally be prosecuted for kidnapping if an arrest or attempted arrest occurred, for trespass if a search or attempted search occurred, for theft if a seizure or attempted seizure occurred, for any applicable homicide offense if loss of life occurred in connection with the violation, and for any other applicable criminal offense. Any local law enforcement agency or person acting under authority of the local law enforcement agency who is enforcing or attempting to enforce the above offense, upon a showing of good faith reliance upon the above offense, would be immune from criminal prosecution and civil liability for any actions taken to enforce or attempt to enforce this offense.




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2 Responses to “Tennessee Waking Up To NDAA 2012”

  1. 1
    Ron Kearns Says:

    Go for it, that is an awesome bill!!!! Please keep it going.

  2. 2
    Linda Says:

    Would this bill include not allowing any foreign military, or non-citizen groups ordered to implement NDAA?

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