BRAVE AMERICAN WRONGLY ARRESTED FOR ATTEMPT TO CITIZEN ARREST

From http://usgrandjury.org/


ATTENTION ALL PATRIOTS- TIME TO CALL ON ALL OFFICIALS IN MONROE COUNTY TENNESSEE!
There have been a lot of things happen in Monroe County Tennessee in the last week. This is a short recap of the events that have taken place. Lt Cmdr Walt Fitzpatrick is once again displaying his patriotism in an heroic effort to lead patriot’s in our struggle against the tyrannical oppressive actions our government is engaged in against the citizen’s of the United States of America. On Thursday of last week, Lt Cmdr Fitzpatrick attempted to exercise his right as a citizen, NO, his DUTY as a citizen and effect a citizen’s arrest against known criminals named in Monroe County Tennessee. He was met with opposition from the local law enforcement to include the Madisonville Police Department and the Monroe County Sheriff Department taking orders from one of the named criminals in his arrest complaint, Judge Carroll Ross. The unconstitutional acts that were committed that day and since, should be recorded and prosecuted by the judicial system AFTER the citizens have once again taken control of the corrupt system and arrested the criminals that now control the courts of Monroe County. This is nothing less than a travesty of justice an MUST be corrected if we are to ever take back control of the government and restore our constitutional republic to the great nation we once were. As of the publishing of this article, Lt Cmdr Fitzpatrick is still being held a political prisoner in the Monroe County jail and as far as we have been able to determine, there is no plan for his release. He has not even been charged with any crimes, yet he has been ILLEGALLY detained and held against his will by a few corrupt individuals that believe they can usurp the laws of the land and the will of the people. I urge everyone to make phone calls and email the people listed below and speak out against this injustice, demanding for Lt Cmdr Fitzpatrick’s release and the arrest of the criminals that have held him there for the past 96 hours and counting. This is a true turning point in our struggle, and if allowed to continue, we simply can not complain when these criminals take further rights and liberty from us. Although you may not live in Monroe County or even in Tennessee, make no mistake, this does affect you. If this action is not met with swift and certain justice, we will see similar scenes unfold all across this country. I have listed a few of the websites that should be reviewed and in my humble opinion, this will explain the legality of Lt Cmdr Fitzpatrick’s actions and the illegal actions of those who would try to silence him. Please take the time to read for yourself and if you agree, make the calls and emails flood the contacts below. Let’s start reclaiming our nation right here, RIGHT NOW!

Monroe County Sheriff Dept.
email info@monroetnsheriff.com
phone number 423-442-3911

Monroe County Courthouse
CIRCUIT COURT CLERK
Martha “Marty” Cook
105 College Street, Suite 3
Madisonville, TN 37354
Phone (423) 442-2396 (423) 442-2396
Fax (423) 442-9538

DISTRICT ATTORNEY GENERAL
Steve Bebb
P.O. Box 1351
Cleveland, TN 37364
Phone (423) 744-2830 (423) 744-2830
Fax (423) 479-4434

COUNTY MAYOR
J. Allan Watson
105 College Street, Suite 1 Madisonville, TN 37354
Phone (423) 442-3981 Fax (423) 442-7279
mayor@monroegovernment.org

Madisonville Chief of Police
Greg Breeden
423-442-2268

Representative John Duncan Jr.

423-745-4671

Judge Carrol Ross

423-744-2835

Here are some of the articles that were researched by Sgt. Tim Harrington to determine how we get legal precedence for Lt Cmdr Fitzpatrick to initiate a citizen’s arrest and the illegal activities of the legal system as it is continuing to hold Lt Cmdr Fitzpatrick as a political prisoner.

RULE 5. INITIAL APPEARANCE BEFORE MAGISTRATE

(a) In General.

(1) Appearance Upon an Arrest. Any person arrested–except upon a capias pursuant to an indictment or presentment–shall be taken without unnecessary delay before the nearest appropriate magistrate of:

(A) the county from which the arrest warrant issued; or

(B) the county in which the alleged offense occurred if the arrest was made without a warrant, unless a citation is issued pursuant to Rule 3.5.

(2) Affidavit of Complaint When No Arrest Warrant. An affidavit of complaint shall be filed promptly when a person, arrested without a warrant, is brought before a magistrate.

(3) Governing Rules. The magistrate shall proceed in accordance with this rule when an arrested person initially appears before the magistrate.

(b) Small Offenses Triable by Magistrate.

(1) Advice and Plea Entry for Small Offense. When the offense charged is a small offense triable by the magistrate, without regard to the plea, the magistrate shall advise the defendant of the charge, and determine defendant’s plea.

(2) Judgment and Sentence Upon Plea. When the defendant pleads guilty to a small offense, the magistrate may hear relevant evidence and sentence the defendant to pay a fine.

(3) Trial. When the defendant pleads not guilty to a small offense, the case shall be set for trial at some future day and the defendant’s pretrial release dealt with under the provisions of applicable law, unless the defendant agrees to an immediate trial.

(4) Appeal. A defendant who is convicted of a small offense may appeal as a matter of right to the Circuit or Criminal Court for a trial de novo without a jury.

(c) Other Misdemeanors.

(1) Upon Plea of Guilty. If the offense charged is a misdemeanor, but of greater magnitude than a small offense, the magistrate shall inquire how the defendant pleads to the charge. If the plea is guilty, the plea shall be reduced to writing. The following rules shall then apply:

(A) Advice to Defendant. The magistrate shall advise the defendant of the right to a jury trial and to be prosecuted only on an indictment or presentment.

(B) Set Preliminary Examination Unless Not Required. The magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released from custody, unless:

(i) the defendant expressly waives the right to a jury trial and to a prosecution based only on an indictment or presentment; or

(ii) a preliminary examination is not required under Rule 5(e) below.

(C) Waiver.

(i) Of Preliminary Examination. The magistrate may bind the defendant over to the grand jury if the defendant waives a preliminary examination on a misdemeanor.

(ii) Of Preliminary Examination and Grand Jury. If the defendant offers to waive the right to a grand jury investigation and a trial by jury, the court may permit it if the district attorney general or the district attorney general’s representative does not then object. In the event of such waiver, the magistrate shall hear the misdemeanor case on the guilty plea and determine the sentence. The defendant may appeal judgment on a plea of guilty to a misdemeanor after waiver of a grand jury investigation and jury trial, but only as to the sentence imposed.

(2) Upon Plea of Not Guilty.

(A) Set Preliminary Examination. Unless the defendant expressly waives the right to a preliminary examination, when the defendant pleads not guilty the magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released.

(B) When Preliminary Examination Waived. The magistrate may bind the case over to the grand jury if the defendant waives in writing the preliminary examination.

(C) When Preliminary Examination, Grand Jury, and Jury Trial Waived; Appeal. If the defendant offers to waive in writing the right to a grand jury investigation and a trial by jury, and to submit the case to the general sessions court–and the district attorney general or the district attorney general’s representative does not object–the magistrate may accept the defendant’s written waiver and hear the misdemeanor case on the not guilty plea. The magistrate may enter judgment, including any fine or jail sentence prescribed by law for the misdemeanor. The state may not appeal from a judgment of acquittal. The defendant may appeal a guilty judgment or the sentence imposed, or both, to the circuit or criminal court for a trial de novo as provided by law.

(d) Felonies.

(1) Advice to Defendant. If the offense charged is a felony, the defendant shall not be called on to plead. The magistrate shall inform the defendant of:

(A) the charge and the contents of the affidavit of complaint;

(B) the right to counsel;

(C) the right to appointed counsel if indigent;

(D) the right to remain silent and give no statement;

(E) the fact that any statement given voluntarily may be used against the defendant;

(F) the general circumstances under which the defendant may obtain pretrial release; and

(G) the right to a preliminary examination.

(2) Preliminary Examination Waived. When the defendant waives preliminary examination, the magistrate shall promptly bind the defendant over to the grand jury.

(3) Schedule Preliminary Examination. When the defendant does not waive preliminary examination and when a preliminary examination is not rendered unnecessary under Rule 5(e), the magistrate shall schedule a preliminary examination within ten days if the defendant remains in custody and within thirty days if released.

(e) Indictment Before Preliminary Examination.-Any defendant arrested prior to indictment or presentment for a misdemeanor or felony, except small offenses, is entitled to a preliminary hearing on request, whether or not the grand jury is in session. If the defendant is indicted or charged by presentment while the preliminary hearing is being continued (whether at the defendant’s or the prosecutor’s request) or at any time before he or she has been afforded a preliminary hearing on a warrant, the defendant may dismiss the indictment or presentment on motion filed not more than thirty days from the arraignment on the indictment or presentment. The dismissal shall be without prejudice to a subsequent indictment or presentment.

(f) Defendant’s Presence. The defendant’s presence at the initial appearance is governed by Rule 43.

Advisory Commission Comment. As far as the actions before a magistrate exercising the jurisdiction of a general sessions court are concerned, Rule 5 substantially embodies existing law as to jurisdiction and procedure. This rule is intended to provide comprehensive guidance for those exercising this jurisdiction. Small offenses are those which carry a maximum fine of fifty dollars and for which no imprisonment may be inflicted. T.C.A. § 40-408 [now repealed]. It should be noted in connection with subdivision (b), dealing with small offenses triable by a magistrate, that there is no appeal from the judgment in a case in which a guilty plea is entered. Where trial is held for a small offense upon a plea of not guilty and a conviction results, there is a right to a trial de novo upon appeal, but there is no right to a jury upon the new trial (there being no such right as to small offenses in the first instance). Further, where the defendant in serious misdemeanor cases waives the right to a jury trial, that waiver before the magistrate carries over into the criminal or circuit court and attaches to the trial de novo on appeal unless the defendant demands a jury as part of the appeal notice as required by § 27-5-108. See State v. Jarnigan, 958 S.W.2d 135 (Tenn. 1998). The rights in all (except small) offenses to be proceeded against only by indictment or presentment and to a trial by jury are grounded upon the provisions of Art. 1, Secs. 6 and 14, Constitution of Tennessee.

The preliminary examination referred to in this rule is the proceeding formerly called a preliminary hearing. It must be scheduled within ten days if the accused is in custody, and within thirty days if the accused is on bond. See Rule 45(a), dealing with the computation of time.

It is important to note that while the Constitution and the Rules vest the right to trial by jury in the accused, this right cannot be waived under this rule in the face of an objection by the district attorney general or his or her representative. This provision acts as a safeguard against the possibility that an accused might be permitted to enter a guilty plea to a lesser included offense and effectively bar prosecution for a more serious crime. Price v. Georgia, 398 U.S. 323 (1970); Waller v. Florida, 397 U.S. 387 (1970). Hence, in effect the state now has a right to a trial by jury, if the district attorney general or his or her representative asserts the right by objecting to the waiver by the defendant. Note that the rule does not require an affirmative act on behalf of the state before an accused can effectively waive the right, but simply provides that it cannot be done in the face of an objection. This wording by the commission was deliberate, because it is recognized that many general sessions courts must sometimes operate without the presence of the district attorney general or his or her representative. Nevertheless, in order to exercise an objection and thus protect the state’s position, the district attorney general personally or by representative will need to know of the proceeding and to enter an objection. The court should construe the words “or the district attorney general’s representative” to include anyone connected with law enforcement who reports to the court that the district attorney general or one of his or her assistants has requested that the objection be made.

Under Rule 5(d), covering a felony charge, it is extremely important that the magistrate inform the accused in substantial compliance with this rule.

Rule 5(e) simply carries over into the Rules the same conditional right to a preliminary hearing now embodied in T.C.A. § 40-1131 [repealed]. It was not the intention of the commission to enlarge or diminish that conditional right; therefore, the body of case law which has been developed in connection with the statute retains its precedential value. Waugh v. State, 564 S.W.2d 654 (Tenn. 1978).

The commission’s rationale, which was presented to the Supreme Court prior to the approval of these rules, is that the court has jurisdiction to enter a judgment calling for a fine in excess of fifty dollars, where provided by law and set by a jury. If the accused waives the right to have a jury set the fine and agrees that the judge set it, this act confers upon the court jurisdiction to set such a fine. An analogous situation arises each time a defendant waives a jury and permits a trial before a judge. In either instance the judge can exercise the full jurisdiction of the court because there has been a valid waiver of the right to have jury participation. Thus, under these rules, a judge can set a fine to the full limit of the appropriate penal statute, when a jury has been waived.

Rule 5(c)(1) and (2) conform the rule to T.C.A. § 40-4-112, which allows an appeal of the sentence even upon a plea of guilty.

This rule allows a de novo appeal “as provided by law” which contemplates a jury trial as provided by T.C.A. Section 27-3-131(a). Attorneys should be aware, however, that T.C.A. § 27-3-131(b) requires that the demand for a jury must be made at the time of filing an appeal.

These rules permit general sessions courts to use audio-visual technology to conduct initial appearances where a plea of not guilty is entered by the defendant. Nothing in paragraph (d) prohibits the prosecutor or defense counsel from being present and heard. In addition, paragraph (d) does not apply to preliminary examinations pursuant to Rule 5.1 nor misdemeanor trials. These amendments are substantially similar to Rule 5-303 of the New Mexico Rules of Criminal Procedure and Rule 10 of Hawaii Rules of Penal Procedure and reflect the growing need for the use of technology to expedite the processing of initial criminal proceedings and reduce the cost of such processing. The purposes for the Rules, which these amendments are intended to achieve, are set forth in Rule 2: “…to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”

Advisory Commission Comments [2007]. Tenn. Code Ann. §40-1-109 requires a written guilty plea for misdemeanors. The amendment to subsection (c) conforms the rule to the statute.

Advisory Commission Comments [2009]. The former rule prohibited the government from indicting a defendant while a preliminary hearing was pending. To preserve the right of a preliminary hearing in all instances the rule has been amended to include presentments. The remedy of the dismissal without prejudice is to afford the defendant the right to a preliminary hearing. Finally, to have a uniform time for filing a motion to dismiss, the rule requires that the motion be filed no more than thirty days from the arraignment.

RULE 5.1. PRELIMINARY EXAMINATION

(a) Procedures. The following rules apply to a preliminary examination:

(1) Evidence. The finding that an offense has been committed and that there is probable cause to believe that the defendant committed it shall be based on evidence which may not be inadmissible hearsay except documentary proof of ownership and written reports of expert witnesses. Rules excluding evidence acquired by unlawful means are applicable.

(2) Defendant’s Right to Present Evidence and Cross-Examine. The defendant may cross-examine witnesses against him or her and may introduce evidence.

(3) Content and Access to Record of Proceeding. The evidence of the witnesses does not have to be reduced to writing by the magistrate, or under the magistrate’s direction, and signed by the respective witnesses; but the proceedings shall be preserved by electronic recording or its equivalent. If the defendant is subsequently indicted, such recording shall be made available to the defendant or defense counsel so they may listen to the recording in order to be apprised of the evidence introduced in the preliminary examination. Where the recording is no longer available or is substantially inaudible, the trial court shall order a new preliminary hearing upon motion of the defendant filed not more than 60 days following arraignment. The indictment shall not be dismissed while the new preliminary hearing is pending. If the magistrate conducting the new preliminary hearing determines that probable cause does not exist, the magistrate shall certify such finding to the trial court and the trial court shall then dismiss the indictment. The discharge of the defendant by the dismissal of the indictment in such circumstances does not preclude the state from instituting a subsequent prosecution for the same offense.

(b) When Probable Cause Found. When the magistrate at a preliminary examination determines from the evidence that an offense has been committed and there is probable cause to believe that the defendant committed it, the magistrate shall bind the defendant over to the grand jury and either release the defendant pursuant to applicable law or commit the defendant to jail by a written order.

(c) When Probable Cause Not Found. When the magistrate determines from the evidence that there is not sufficient proof to establish that an offense has been committed or probable cause that the defendant committed it, the magistrate shall discharge the defendant. The discharge of the defendant does not preclude the state from instituting a subsequent prosecution for the same offense. The recording of the preliminary hearing shall be made available to the defendant in the event the defendant is subsequently prosecuted for the same offense by indictment or presentment. The remedy for the failure to preserve the recording in this circumstance shall be as set forth in subsection (a)(3).

(d) Transfer of Records. At the conclusion of a proceeding where probable cause is found, the magistrate shall promptly transmit to the criminal court clerk all papers and records in the proceedings. When probable cause is not found, the magistrate shall return the records and papers to the general sessions court clerk.

Advisory Commission Comment. The subject of the preliminary examination, or preliminary hearing, has been the focus of a considerable amount of litigation in recent years. The purpose, scope, and quality of evidence to be admitted upon a preliminary hearing have likewise been the subjects of intense debate. Despite the language in McKeldin v. State, 516 S.W.2d 82 (Tenn. 1974), suggesting that this stage of the proceeding is a discovery procedure for the accused, it is the commission’s position, to the contrary, that McKeldin does not convert the preliminary hearing into a “fishing expedition,” with unlimited potential for discovery. The case holds that the preliminary hearing is a probable cause hearing, which can result in providing discovery to the defendant, an important byproduct of its probable cause function.

Discovery is specifically addressed elsewhere in these rules, and the rights of the accused and of the state clearly spelled out. As stated above, the preliminary examination is a probable cause hearing, and the scope of the proceeding is under the control of the magistrate in the exercise of a sound discretion. It is unnecessary for the magistrate to hear more of the state’s proof than is necessary to establish probable cause, and the magistrate may terminate the hearing at any time that probable cause has been established and the accused has been afforded the opportunity to cross-examine the witnesses called by the state and to present defense proof reasonably tending to rebut probable cause. There is no right of the accused to call as witnesses all of the state’s witnesses and question them. The magistrate may permit the accused to call witnesses summoned by the state, if in the exercise of a sound discretion the magistrate determines such testimony to be of use to the magistrate in determining probable cause, or the absence thereof. To repeat, the scope of the hearing is under the control of the magistrate, in the exercise of a sound discretion and governed by principles of fundamental fairness. The purpose of the hearing is to adjudicate the existence or absence of probable cause, and not to discover the state’s case.

The quality of the evidence required is clear; it may not be inadmissible hearsay, except in those two instances deemed by the commission to be sufficient to warrant their being exceptions, i.e., documentary proof of ownership and written reports of expert witnesses.

Rule 5.1(a)(3) is drafted to make it clear that the constitutional right of the defendant to have access to a recording of the proceedings must be honored. See Britt v. North Carolina, 404 U.S. 226 (1971). There is no requirement that a written transcript of the proceedings be made; and certainly the requirement for an electronic recording can be waived, if knowingly and voluntarily done.

Advisory Commission Comments [2008]. The amendments provide remedies when the recording of a preliminary hearing is lost or damaged.

110 F3d 64 Sisk v. Shelby County Tennessee
110 F.3d 64

Jerry SISK, Plaintiff-Appellant,
v.
SHELBY COUNTY, TENNESSEE; Shelby County Sheriff’s
Department; and Steven Toarmina, Individually and
in his official capacity as agent for
Shelby County, Tennessee,
Defendants-Appellees.

No. 96-5379.

United States Court of Appeals, Sixth Circuit.

April 1, 1997.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before: JONES, SUHRHEINRICH, and SILER, Circuit Judges.

SILER, Circuit Judge.

1

Plaintiff, Jerry Sisk, appeals the district court’s dismissal of this action to recover for civil rights violations pursuant to 42 U.S.C. §§ 1983 and 1985. Specifically, Sisk argues that the defendants, Shelby County, Tennessee, Shelby County Sheriff’s Department, Sheriff A.C. Gilless, and Stephen Toarmina (collectively, the “Defendants”), violated and conspired to violate his Fourth Amendment right to be free from unreasonable searches and seizures.1 For the following reasons, the court AFFIRMS the decision of the district court.

I. BACKGROUND

2

At approximately 1:00 a.m. on January 23, 1994, Sisk, returning home from a social engagement, was driving east on Knight Arnold Road in Memphis, Tennessee. Near the intersection of Knight Arnold and Hickory Hill, Sisk observed a carexiting a private driveway and attempting to cross Knight Arnold Road by driving south across all lanes of traffic. The car narrowly missed colliding with Sisk’s vehicle. Believing that he had the right-of-way and that the driver of the approaching car was operating his vehicle in a dangerous and erratic manner, Sisk flashed his bright lights at the driver, Toarmina.

3

Sisk subsequently proceeded to his home, which was a few blocks away from the near collision. As he turned onto his street, he noticed what he believed to be “a legitimate law enforcement vehicle with its emergency lights operating” quickly approaching him. Sisk assumed that the vehicle was pursuing someone else and continued driving down his street. Directly in front of Sisk’s house, Toarmina, the driver of the vehicle, forced Sisk to pull his car to the side of the road.

4

Toarmina exited the police car and, drawing and aiming his pistol at Sisk, ordered Sisk to step out of his car. Sisk complied. Toarmina handcuffed and “verbally abused” Sisk and informed him that he was going “downtown” for driving under the influence. Toarmina also called other “legitimate” law enforcement deputies to Sisk’s house. During the arrest, Sisk was twice sprayed with pepper spray and struck on the side of his head with a blunt instrument. Sisk does not allege in his complaint who committed these acts.

5

Sisk went to trial on the driving under the influence charge. Toarmina testified at the trial, holding himself out as a duly authorized law enforcement officer. On September 28, 1994, a jury found Sisk innocent of the charge.

6

During the first half of 1995, The Commercial Appeal, a Memphis newspaper, reported that Toarmina had been acting as a renegade police officer by exceeding the scope of his duties as a Special Deputy. Upon reading the article, Sisk began to suspect that something had been amiss with respect to his arrest. He subsequently learned that Toarmina was only a Special Deputy to Sheriff Gilless and that the purpose of the Special Deputy program was to assist and advise the Sheriff’s Department in a non-law enforcement capacity. Special Deputies were not duly commissioned law enforcement officers and did not have the authority to engage in actual law enforcement activities such as making arrests. Toarmina, however, had for several years been performing law enforcement duties as a Special Deputy and, on numerous occasions, had stopped and arrested persons whom he suspected of breaking the law. Sisk also learned that Toarmina had conducted these law enforcement activities with the knowledge, consent, and encouragement of his superiors, including Sheriff Gilless and Shelby County.

7

On September 28, 1995, Sisk filed the instant action, alleging his Fourth Amendment claim and state law claims of negligent or intentional infliction of emotional distress and assault and battery. The Defendants moved to dismiss Sisk’s claims under sections 1983 and 1985, arguing that the one-year statute of limitations expired on the anniversary of the challenged arrest, eight months prior to the filing of the complaint. The district court found that Sisk’s excessive force claim accrued on the date of his arrest and, thus, was untimely filed.2The court found that Sisk’s false arrest and conspiracy claims were timely because the statute of limitations on those claims did not begin to run until early 1995, when Sisk first discovered Toarmina’s status as a Special Deputy. The court, however, dismissed the suit, finding that Tennessee law authorized arrests made by private persons.

II. DISCUSSION

8

Assuming, without deciding, that Sisk has a right not to be arrested by a Special Deputy and accepting as true his allegations that he was unaware of Toarmina’s status as a Special Deputy until early 1995, the complaint alleges facts from which one could infer that Sisk was unaware of his injury until he read the article in The Commercial Appeal. However, we also assume, without deciding, that the Fourth Amendment and conspiracy claims were timely filed, as we can resolve this case on the claims made.

9

Tennessee law authorizes arrests by private persons. T.C.A. § 40-7-101(3). A private person may arrest another:

10

(1) For a public offense committed in his presence;

11

(2) When the person arrested has committed a felony, although not in his presence; or

12

(3) When a felony has been committed, and he has reasonable cause to believe that the person arrested committed it.

13

T.C.A. § 40-7-109(a)(1)-(3). When a private person makes an arrest, he or she must “inform the person arrested of the cause thereof, except when he is in the actual commission of the offense, or when arrested on pursuit.” T.C.A. § 40-7-111. The arresting citizen must also take the arrestee, without unnecessary delay, before a magistrate or deliver the arrestee to a police officer. T.C.A. § 40-7-113.

14

A police officer acting beyond his or her authority may use the citizen’s arrest statute to validate an otherwise unlawful arrest. In State of Tennessee v. Johnson, 661 S.W.2d 854 (Tenn.1983), cert. denied, 476 U.S. 1130 (1986), the Tennessee Supreme Court applied T.C.A. § 40-7-109 to the actions of a sheriff’s deputy who effected a warrantless arrest of a defendant outside his jurisdiction. Using the citizen’s arrest statute as a savings provision, the court upheld the arrest. Id. at 859. It found that, even if the deputy was limited to the authority of a private person, he was authorized to arrest the defendant under T.C.A. § 40-7-109(a). Id. In United States v. Layne, 6 F.3d 396, 398-99 (6th Cir.1993), cert. denied, 114 S.Ct. 1374 (1994), the court followed Johnson and held that an arrest made by Tennessee police officers outside their jurisdiction, when predicated on probable cause, did not violate the Fourth Amendment because the officer’s actions were authorized as a citizen’s arrest.

15

In the case at hand, Toarmina’s actions were authorized as a citizen’s arrest. First, driving under the influence is a public offense. See, e.g., State of Tennessee v. Durham, 1995 WL 678811, at * 2 (Tenn.Crim.App. Nov. 16, 1995) (unpublished opinion) (finding that citizen’s arrest statute authorized police officer to arrest defendant for DUI outside of officer’s jurisdiction).3Second, the incident occurred in Toarmina’s presence.4Third, Toarmina informed Sisk of the cause of the arrest when he told Sisk that he was “going ‘downtown’ for DUI.” Fourth, Toarmina delivered Sisk to sheriff’s deputies without unnecessary delay.

16

Although Sisk argues that Toarmina cannot use the citizen’s arrest provisions because he held himself out as an authorized deputy, Layne and Johnson allowed police officers acting under color of their police authority to later use the citizen’s arrest statute to validate otherwise unauthorized arrests. Moreover, the court in Durham expressly rejected this argument: “The Defendant also argues that the officer in the case sub judice was on duty and stated that he was acting as a police officer at the time. Again, we do not believe the distinction is meaningful.” 1995 WL 678811, at * 1.

17

The district court properly dismissed Sisk’s section 1983 claim because Toarmina’s actions did not violate the Fourth Amendment. Additionally, because Sisk cannot articulate a cognizable Fourth Amendment claim, the district court properly dismissed his section 1985 and respondeat superior claims and properly dismissed Sisk’s state law claims for lack of subject matter jurisdiction.5Because the court finds that Toarmina arrested Sisk under the citizen’s arrest statute, the court declines to address Sisk’s claim that he has a constitutional right to be arrested only by an authorized police officer.

18

AFFIRMED.

1

The complaint incorrectly lists Stephen Toarmina as “Steven” Toarmina

2

Sisk does not appeal the district court’s dismissal of his excessive force claim

3

Tennessee Court of Criminal Appeals Rule 19(4) allows for citation of unpublished opinions

4

Sisk does not allege that he was arrested without probable cause. To the extent that he does so allege, he was aware of any lack of probable cause on the date of his arrest. Consequently, any probable cause claim is untimely

5

Sisk’s § 1985 claim alleged that the Defendants conspired to violate his Fourth Amendment rights. An allegation of conspiracy without a proven constitutional deprivation is insufficient to support a § 1985 claim. See Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir.1994) (stating that to prove a violation of § 1985 plaintiff must show deprivation of constitutional right or privilege), cert. denied, 115 S.Ct. 1698 (1995)

110 F.3d
http://www.tennesseecriminallawyerblog.com/2009/08/inciting_a_riot_in_tennessee.html