Charter amendment would clarify sheriff's disputed 287(g) authority

Friday, August 17, 2012 at 4:37pm

Metro Department of Law Director Saul Solomon acknowledges that a proposed Metro Charter amendment addresses a pending legal question on whether the Davidson County Sheriff’s Office has the authority to enforce the federal 287(g) deportation program.

“Would this make it clearer that the sheriff has 287(g) authority?” Solomon told The City Paper Thursday. “Yes, it would. But that’s again not the driver.”

The Tennessee Supreme Court is weighing whether or not Sheriff Daron Hall has the legal power under the 1963-era Metro Charter to enforce the controversial federal immigrant detention program known as 287(g). Metro attorneys contend he does, but immigrant advocates have challenged the city’s interpretation in federal court, arguing the sheriff’s role is confined to overseeing jails.

The proposed tweak to the charter, if approved by voters in November, would settle that question –– and grant the sheriff the authority, upon its passage, even if the court were to rule against Metro’s position.

Solomon said he agreed with this analysis but that this isn’t the intent of the proposal.

He stressed Metro is confident it will win its case before the Supreme Court and that 287(g) is not the impetus behind the amendment. The measure is aimed at addressing other administrative duties, he said.

“The real concern here is that the Supreme Court could, for broad language, make it impossible for the sheriff’s department to do certain of these other things that clearly we want to see the sheriff do,” Solomon said, functions the sheriff’s office is already overseeing that “save the taxpayer money.”

The 287(g) question arrived before the state Supreme Court following a suit in federal court from immigration attorney Elliot Ozment challenging the sheriff office’s agreement with the U.S. Immigration and Customs Enforcement agency to carry out the immigration program.

Parties are waiting on a ruling after the court heard oral arguments in June.

Last week, Solomon told The City Paper he planned to file legislation for a charter amendment to clarify three sheriff’s powers: booking arrestees, providing security at courts and taking DNA tests of inmates. If the measure were to clear the Metro Council, it would go before Davidson County voters on a referendum Election Day Nov. 6.

“We’re just trying to preserve, as between the sheriff and the police, what the sheriff can do and what the police can do to make it clearer under the charter,” he said.

Hall earlier this week said the amendment addressed “non-287(g)” matters –– duties that the Metro Nashville Police Department years ago transferred to his office to oversee.

But the amendment, now filed, would also authorize the sheriff to perform duties related to the “questioning and interrogation of arrestees, detainees and prisoners ... ,” as the Nashville Scene reported earlier this week.

The language overlaps with the 287(g) provision, which grants officials the ability to “interrogate any person believed to be alien as to his or her right to be in the United States.”

Ozment have challenged this very point, arguing the sheriff is unlawfully carrying out what are “quintessential law enforcement functions” that fall under the police department not sheriff, under the Metro Charter.

Solomon responded that the police department could lawfully enforce 287(g) even if a court were to rule the sheriff could not, though he said that would be a policy decision for the Metro Council to decide.

“To me, the whole power question is a weird kind of question because even if the sheriff doesn’t have the power to do it doesn’t mean 287(g) is unlawful,” Solomon said.

A resolution outlining the charter amendment is set to go before the council on Aug. 21. To make it on the November ballot, the measure needs 27 council votes at the council’s Sept. 18 meeting.

A three-year renewal of the sheriff’s 287(g) agreement with ICE is set to go before the council in October.

5 Comments on this post:

By: govskeptic on 8/18/12 at 8:28

Are we sure the council hasn't slipped in a new benefit for themselves
within this charter change? Change sounds fine on the cover, but
this reader is weary on their self-interest on all matters.

By: Ask01 on 8/19/12 at 10:01

I am not a lawyer, having too many ethics to be effective, but I would think the duties of the several law enforcement agencies within a municipal area are designated at the council level, with, of course, the blessings of the electorate, (as if they ever listen to their bosses,) and according to the resources and needs of the community as a whole.

If Metro Council empowers the sheriff's department with the responsibility to determine the residency status of those delivered into their care for detention following arrest, that seems the most logical course of action, and should be perfectly legal.

The patrol cops likely don't have access to the resources needed to determine immigration status, and considering the time such an inquiry could require, this would take resources off the street to fight serious crimes.

That said, I do support the amendment if adopting this would silence the critics opposing the sheriff's department confirming status.

I believe govskeptic makes an excellent observation. We should carefully examine the amendment in detail as, I for one, would not totally disregard the possibility this body could insert some self serving items as riders, hoping to bamboozle the voters.

By: Specter47 on 8/20/12 at 8:21

The only reason this comes up at all is the fact that there are those who don't mind Nashville devolving into a semblance of a third world country. When we have busloads of illegals emptying onto the streets of our city, with encouragement from those who believe in open borders, we have a real problem.

By: GUARDIAN on 8/21/12 at 1:58

This is so funny....Metro better worry that this doesn't make the sheriff learn what Sheriff Joe Arpaio and a few sheriffs across the country already know.....since the beginning of America and going back to England even to the Roman Empire the Sheriff has more power than most people know...I'm tempted to call and tell Davidson County's Sheriff just to watch Metro flip out.....GUARDIAN-GOD, COUNTRY, FAMILY and FRIENDS. The American Way.

By: Vuenbelvue on 8/21/12 at 10:40

Wasn't the 287 (g) program installed in Mayor Dean's first term and actually took a act of Congress to be approved. Now the Mayor's office doesn't want anything to do with it so word goes down to the city council that this is how the vote should be. More waste of money. It is interesting Sheriff Hall remains quiet so obviously he doesn't care but he maybe should be presenting Council with a budget rebate since he won't be using the money or need the extra deputies. Computers and computer programs may also need to be dismantled and return any grant money from the State and Federal government in order to be ethical. Next on the wish list "A few Drone's and the staff to operate them. There may be naked people running around in those unused city parks.