Educating the confused – P&E and TN Arraignment

The P&E has been reporting on Arthur Hirsch, and they observe that he was arraigned in January without an indictment or arrest warrant.

Under TN law, there is also a Citation in Lieu of Arrest, which does not require an arrest warrant. While someone may be indicted by a Grand Jury before being arraigned, Hirsch’s violations were misdemeanors which means that the police officer often does not have the choice but to write a citation which is basically, when signed by the defendant, a promise to appear.

After being arraigned in January, it appears that Hirsch was also given a preliminary hearing to determine probable cause. It does not appear that such a hearing is required under TN Statutes, but the statutes do provide for such a hearing on the request of the defendant.

During the probable cause hearing, the Court has to decide if the case is to be bound over to a Grand Jury, or if there is no support for the charges. Hirsch’s complaint amounts to nothing more than that he was subjected to a humiliating hearing in April. From the limited data, I understand that Hirsch tried to file a motion to dismiss. I do not believe that such motions are allowed until the pretrial hearing, however I can understand why the Judge would dismiss the motion as the facts are relatively simple: Hirsch was stopped, and issued citations for several traffic violations and for possession of a firearm in his vehicle. For reasons as yet unknown, Hirsch was taken to jail while the arresting officer filed an affidavit of complaint with a magistrate/judge per TN Statute. The judge appears to have allowed Hirsch to be released with the citations, however she added a bail condition.

Hirsch has complained that his constitutional rights were violated when the officer, during the traffic stop, did not inform Hirsch of his rights to remain silent (Miranda). However, a simple traffic stop has been rejected as being a custodial arrest and therefore no Miranda warnings are necessary. When Hirsch answered the question “do you have any firearms in your vehicle” in a positive manner, he was placed under arrest while citations were written.

The only action which requires some explanation is the claim that the Judge called the bail provider and told him that he should not allow anyone to cosign for Hirsch.

The rest of Hirsch’s complaints deal with unfamiliarity with TN Statute. Note that for example, a warrantless arrest does not require the accused to be brought before a magistrate under Rule 5 when citations were issued.

Hirsch’s Federal Complaint will soon be resolved as I predict that it will be dismissed for failure to state a claim.

It is unfortunate that Hirsch went through having to take care of his ailing mother and deal with her death, during the time he was dealing with these legal issues, however, I looked at many of his claims, and as far as I can understand the TN Statutes, he was not entitled to be brought before a magistrate under Rule 5, nor was he guaranteed a preliminary hearing within 30 days. Those seem to apply to instances involving arrest warrants following warrantless arrests and under TN Statute most misdemeanor offenses are resolved via a citation.

What makes Hirsch’s case somewhat more complex is that even though he was issued citations, the officer took him to jail, and Hirsch was released later that day on bail.