Nashville Immigration Proposal Unenforceable, Metro's Top Lawyer Says

NASHVILLE, TN — A legal opinion from Metro's top lawyer and concerns from the police department may torpedo a controversial council proposal aimed at limiting Nashville's cooperation with federal immigration officials, as the proposal's sponsors have opted to delay the vote.

Metro Director of Law Jon Cooper writes that the proposal limits the powers and authority of the sheriff, violating the Tennessee Constitution and the Metro Charter. (For more updates on this story and free news alerts for your neighborhood, sign up for your local Middle Tennessee Patch morning newsletter.)

"Since the sheriff's core responsibility is custodial control over the jail, the council does not have the authority to direct how employees of the Sheriff's Office manage their time and resources in jail," the opinion states, in part.

In a statement issued after the opinion began circulating Tuesday, Metro Mayor Megan Barry urged the council to reconsider, which is up for its third and final reading — usually a pro forma vote — next month. Barry said Metro police officials have concerns the proposal may actually limit not only law enforcement efforts, but efforts at assisting immigrants through the U Visa program, a tool used more than 350 times by the MNPD and the District-Attorney's office in the last two years. Under the program, visas can be issued to "victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity."

“It is clear from this legal opinion that BL2017-739 does not apply to Sheriff Daron Hall, who has said he will continue to honor detainer requests from the federal government. Additionally, the Metro Nashville Police Department has concerns that the ordinance would prohibit them from recommending U visa applications for immigrants who are victims of crime and willing to help put dangerous criminals in jail. Losing that law enforcement tool could jeopardize public safety and would run counter to the intentions of the sponsors to make Nashville a more welcoming city for New Americans," Barry said in a statement.

The council proposal prohibit Metro from using local money or facilities — to include the jail, which is under the purview of the sheriff — to assist in federal immigration enforcement. Further, it bars Metro employees from requesting information about immigration or citizenship status. Finally, it says the sheriff cannot honor an immigration detention request unless accompanied by a warrant.

It's the limits to what the sheriff can and can't do that served as the legal sticking point for Cooper, because the powers of a county sheriff generally — including full oversight of a jail — and the post-Metro Davidson County Sheriff specifically cannot be abrogated simply by a vote of the council.

"If federal officials present the sheriff with lawfully committed persons for detention, he is authorized to receive and control their custody until they are discharged," Cooper wrote. "The council cannot by ordinance alter this duty that is established by state law and the charter."

The bill, which passed 25-8 on second reading, typically the most important of the three votes taken by the council on any ordinance, has drown fire from state Republicans who have indicated there would be some sort of legislative retribution if Nashville were to continue with the law.

The primary sponsor of the proposal, at-large councilmember Bob Mendes, initially told The Tennessean he'd yet to read the opinion but did not expect it would change his mind about the legislation, though he and primary co-sponsor Colby Sledge then spread the word with colleagues they would delay the July 6 vote.