August 19, 1991
Your question is whether an alderman is authorized to make traffic and other stops in a vehicle equipped with flashing blue lights. You pointed out that an alderman is engaged in such conduct, in reliance on Tennessee Code Annotated, section 38-3-103, a statutory citation which he obtained from MTAS's Municipal Handbook.
The alderman's reliance on that statute for such authority is misplaced; it must be read in the context of Tennessee Code Annotated, title 38, chapter 3 in its entirely, particularly the first three sections. Under Tennessee Code Annotated, section 38-3-101 public offenses may be prevented by the officers of justice (1) by requiring security to keep the peace, and (2) by suppressing riots, unlawful assemblies, and breaches of the peace. Tennessee Code Annotated, section 38-3-102 follows and provides that the sheriff is the "principal conservator of the peace in the county," with the duty to "suppress all affrays, riots, routs, unlawful assemblies, insurrections, or other breaches of the peace..." Tennessee Code Annotated, section 38-3-103, upon which the alderman relies, appoints a number of offices "conservators of the peace," with the authority to "aid in the prevention and suppression of public offenses,...". [Emphasis is mine.] It seems clear that read in their totality, the term "public offense" within the meaning of those statutes refers to particular offenses arising from uncontrolled masses of people or offenses involving breaches of the peace. For example, Tennessee Code Annotated, section 38-3-109 imposes a duty on peace officers who have reason to suspect any person of "being armed with the intention of committing a riot or affray, or of assaulting, wounding, or killing another person, or of otherwise breaking the peace, to arrest that person." It is stretching those statutes beyond their breaking point for an alderman to use them as authority to stop motorists for traffic violations; rarely, if ever, is there a breach of the peace or any of the offenses contemplated in those statutes involved in such violations.
In fact, it is easy to imagine a breach of the peace precipitated by the alderman himself when the motorist discovers that he has been stopped not by an authorized officer, but an alderman. The possibilities for trouble beyond that point are endless.
There are other limitations on an aldermen functioning as a police officer. Under Tennessee Code Annotated, section 55-8-1-1(2)(A) an:
"Authorized emergency vehicle" means vehicles of the fire department, fire patrol, police vehicles and such ambulances and emergency vehicles as are designated or authorized by the commissioner or the chief of police of an incorporated city.
The operators of emergency vehicles have certain privileges (and significant responsibilities!) under Tennessee Code Annotated, section 55-8-108. However, the operator of a vehicle which does not qualify as an emergency vehicle within the meaning of that statute is denied any protection under it even if the vehicle is obviously an emergency vehicle operating with full emergency equipment. An ambulance driver discovered that in Nash-Wilson Funeral Home, Inc. v. Greer, 57 Tenn. App. 191, 417 S.W.2d 562 (1966).
An alderman operating an unauthorized emergency vehicle with lights which suggest that it is a police vehicle might also find himself in violation of Tennessee Code Annotated, sections 55-9-202 and/or 55-9-402, which prescribe and restrict the lights that may be used on vehicles, including "authorized" emergency vehicles, in Tennessee.
An alderman would be foolish to use his personal vehicle as a police car if he understood the breathtaking personal liability involved in its use in that fashion. In fact, I have no doubt that if his insurance company knew that the vehicle was being used for that purpose, he would find himself faced either with skyrocketing insurance rates or no insurance at all.
But the principal liability issue in the alderman's use of his vehicle as a law enforcement vehicle is the one involving the city. There is more than a good possibility that if the alderman either injures someone or violates their constitutional rights in the process of acting as a police officer, the city would be liable for those injuries or violations under the Tennessee Tort Liability Act or 42 U.S.C., Section 1983, respectively.
Under the Tennessee Tort Liability Act (Tennessee Code Annotated, section 29-20-101 et seq.), a municipality is liable for the operation of a motor vehicle or other equipment by an employee acting within the scope of his employment (Tennessee Code Annotated, section 29-20-202) and for the negligent acts and omissions of its employees within the scope of their employment. (Tennessee Code Annotated, section 29-20-205). An alderman qualifies as an employee within the meaning of that Act (Tennessee Code Annotated, section 29-20-102), and with respect to the negligent operation of a motor vehicle, the motor vehicle does not have to be a city vehicle. One could argue that an aldermen functioning as a police officer is not acting within the scope of his employment. However, if a party injured either by the alderman's negligent operation of a motor vehicle or his negligent acts and omissions while he is acting as a police officer show a court that the city knew the aldermen was functioning as a police officer and took no affirmative steps to stop him, the court would find that the alderman was acting within the scope of his employment.
The city has a similar and potentially more serious problem under 42 U.S.C., Section 1983. Boiled down to its essence, that federal statute makes municipalities liable for the violations of constitutional rights committed by their employees (and sometimes other non-employees) "acting under the color of law" where it can be shown that there was a policy or custom on the part of the municipality that permitted or encouraged such violations. I suspect that an alderman conducting himself as a police officer on behalf the City, claiming the authority to do so under Tennessee Code Annotated, section 38-3-102, constitutes the necessary action under color of law, and that if the City knew the alderman, untrained in law enforcement, was functioning in that manner and took no affirmative steps to stop him, the city would have adopted a custom that was certain to lead to a violation of somebody's constitutional rights. The question of whether he was acting within the scope of his employment would not even enter the picture.
An alderman has no business whatever operating either his or a municipal vehicle as a police car, stopping citizens and otherwise functioning as a police officer. Sooner than later, such conduct will put both he and the city in hot water.
If I can help you further in this or any other matter, please let me know.
Sidney D. Hemsley
Senior Law Consultant