Nashville immigration lawsuit targets new state law

tennessean.com
Written by
Brandon Gee | The Tennessean

1:50 AM, Dec. 29, 2011

A lawsuit in Nashville is seeking to stop jailers across Tennessee from enforcing a state law that requires them to investigate the immigration status of any person who comes into a county or municipal detention facility.

Public Chapter No. 1112, which passed in 2010 and took effect this year, required the Tennessee Peace Officers Standards and Training, or POST, Commission to draw up procedures for jails to follow. The lawsuit, filed by Nashville immigration attorney Elliott Ozment in Davidson County Chancery Court, claims the POST Commission did not follow the state’s open meetings laws as it drew up a policy, and asks a judge for a temporary injunction that would halt its continued publication and implementation.

The policy ultimately adopted by the commission requires that people coming through a local jail be asked whether they are a citizen and whether they were born in the United States.

“The response to those questions will trigger an inquiry to (U.S. Immigration and Customs Enforcement) as to whether the individual needs to be held or not,” state the minutes from the commission’s Oct. 15, 2010, meeting.

Ozment says POST Commission members broke Tennessee sunshine laws by deliberating on the policy through emails. He also says that the commission’s October 2010 meeting, when the policy was adopted, was not properly noticed.

“It was just a secret process from start to finish,” Ozment said. “There was no meaningful opportunity for the sheriffs to have any input. Since these local law enforcement agencies have a financial stake in the enforcement of these POST Commission policies, we think it’s only fair that they have some notice and opportunity to be heard. They’ll get a chance to voice their objections if POST goes through the process it’s supposed to.”

In a response, Tennessee Assistant Attorney General Ben Whitehouse said that Ozment’s request, on behalf of plaintiff William Geissler, does not meet the criteria for a temporary injunction.

“Plaintiff makes no allegation that he will suffer immediate and irreparable injury, loss or damage,” the response states. “Plaintiff makes no allegation that a temporary injunction, now over one year after POST promulgated its written procedure, is immediately necessary and that waiting for a final judgment would be ineffective.”

The state also argues that an injunction would confuse law enforcement.

“Plaintiff, in essence, is asking POST to contact local law enforcement agencies and instruct them to not only disregard the specific written procedure promulgated by POST, but also to completely disregard (Public Chapter No. 1112), which makes it the public policy of this state that local jail officials should communicate with (U.S. Immigration and Customs Enforcement) about persons who are in their custody and possibly violating federal immigration laws,” a footnote reads. “Plaintiff’s proposed injunction would not prohibit local jailers from continuing to communicate with ICE about suspected immigration law violators. It would spread needless and unwarranted confusion.”

The response does not address whether the POST Commission did in fact violate the state’s open meetings laws.

Hoping to buy time for repeal

Frank Gibson, founding director of the Tennessee Coalition for Open Government and public policy director for the Tennessee Press Association, said the POST Commission is subject to the state’s open meetings laws and would have had to follow them in developing its policy. Even if Ozment wins his case, however, Gibson said there are no penalties for violating the state’s sunshine laws except the invalidation of any actions taken during meetings in which the rules weren’t followed.

If it loses, the POST Commission could simply establish a new policy to replace the invalidated one, making sure to adhere to the state’s open meetings laws. But Ozment said that could take months, and he’d still like to see the policy revoked for a period of time while he pursues challenges to the underlying state law in federal court.

“We’re hoping to slow that process down,” Ozment said. “We are hoping the judge will enter a temporary injunction and that will put a stop to all the counties from getting into the immigration business.”

Ozment’s larger goal is to see Public Chapter No. 1112 ruled unconstitutional. That battle will be fought in federal court, however, where Ozment has multiple pending lawsuits alleging that jail officials have violated his clients’ constitutional rights.

Ozment said jail officials across the state are violating some inmates’ due process rights and Fourth Amendment protection against unreasonable seizures by holding inmates, who would otherwise be released, until ICE officials respond to notifications that an inmate’s legal status cannot be verified.

“Our first argument is that local law enforcement doesn’t have any business enforcing federal immigration law unless the feds grant specific permission. The second argument is they don’t know what they’re doing,” Ozment said. “When they try to enforce immigration laws, they run roughshod over all kinds of rights that these people have.”

State Sen. Dolores Gresham, a sponsor of the bill that became Public Chapter No. 1112, said the legislation simply requires local law enforcement agencies to share info with federal authorities.

“It was just a simple bill for information sharing ... because it had to do with a person who might be in the country illegally, so all it called for was if they could not determine whether someone was in the country legally, to pass that information along to immigration authorities,” said Gresham, R-Somerville.

Law doesn't affect Nashville jail policy

The law does not apply in jurisdictions, such as Nashville, where the jail already has formal agreements in place with ICE to help enforce immigration laws.

While not as far-reaching as similar controversial immigration laws passed in Arizona and Alabama, Public Chapter No. 1112 was heavily criticized by immigrant and civil rights groups — and even some sheriffs — in Tennessee. Critics say the law requires local law enforcement to enforce federal laws without giving them any of the resources or training they need to do so and results in racial profiling.

“This legislation effectively creates a police state and takes us back to the days of apartheid in South Africa, where every person of color had to have a pass book or carry documentation at all times so that they could prove they were legal in case they were arrested,” NAACP Tennessee President Gloria J. Sweet-Love wrote in a June 2010 letter to former Gov. Phil Bredesen urging him to veto the law.

The law had passed by wide margins in the Tennessee General Assembly, and Bredesen ultimately signed it.

Contact Brandon Gee at 615-726-5982 or bgee@tennessean.com.

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