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Pending Council bill would make Nashville a Sanctuary City.

There is a proposal before the Council that would make Nashville a sanctuary city.  I know this will come as a surprise to those who think we are already a sanctuary city but we are not. There is a difference between mouthing sanctimonious platitudes about being an opening and welcoming city and actually doing the the things that make a city a sanctuary city. Even refusing to enforce federal law does not make a city a "sanctuary city."  The police are under no obligation to enforce federal law.  When the police stop a driver for a traffic violation and the discover the driver looks Hispanic, is driving without a license, and does not speak English, the police are under no obligation to ask the driver  his immigration status.  Failing to do so does not make the city a sanctuary city.

There is a difference between the city of Nashville officials not inquiring about the legal status of people who have encounters with the police or other public servants and refusing to cooperate with Immigration and Customs Enforcement (ICE) Agency.  While Nashville does not enforce immigration law we do not refuse cooperation with ICE.

In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). This act requires local governments to cooperate with Department of Homeland Security's Immigration and Customs Enforcement (ICE) Agency.  Cities that refuse are called "sanctuary cities."  President Obama did not enforce IIRIRA and allowed sanctuary cities to defy the law with impunity. President Trump has vowed to enforce IIRIRA and withhold money from Sanctuary cities. In January Trump signed an Executive Order to that effect.

Trumps effort to pull funding from Sanctuary cities has been blocked on grounds that he cannot withhold money already appropriated.  The ruling blocking Trumps Executive Order on sanctuary cities said, “The Constitution vests the spending powers in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds.” The ruling also said the Executive Order may violate both the Fifth Amendment and the Tenth Amendment.  

I think the Court may have ruled correctly.  While, I like the intent of the order, the principle is more important than the specific facts of the case.  I do not want the president, this president or a future president, to have the discretion to arbitrarily withhold federal funds. The condition to receive federal funds should clearly be stated upfront. If stated upfront in the legislation appropriating the funds, cities could be denied those funds. Federal funds often come with strings attached.

So what specifically makes a city a Sanctuary city?  Cities that refuse to hold jailed illegal immigrants so they can be picked up by federal immigration officials are sanctuary cities.  Sanctuary cites only hold them if there is warrant signed by a judge. 

The Metro Council Agenda for June is not yet available so I have not read the bill, but according to The Tennessean, the bill would do the following, unless specifically required by federal or state law or a court order:

• Metro Nashville would not be able to use local money, resources or facilities to assist in enforcing federal immigration laws, or to share information about a person's custody status or court dates. 
• Metro employees, including police, would be prohibited from requesting information about a person's immigration or citizenship status.
• The Davidson County Sheriff's Office would no longer be able to honor an immigration-related detention request unless it is accompanied by a warrant issued under the Federal Rules of Criminal Procedure.

The above would make Nashville a sanctuary city, if it is actually carried out. The Sheriff is not subject to policies dictated by the Metro Council or the Mayor. The sheriff  is a county Constitutional Officer elected by the people. The State constitution says every county will have a sheriff.  The Sheriff does not serve at the pleasure of the mayor. The Sheriff Department's budget is approved by Metro but the Sheriff's Department is not a "department" of Metro government the same way as is  the Police Department.  Even if the Council passes this bill which would attempt to make Nashville a sanctuary city, we will not be a sanctuary city if the Sheriff ignores the Council bill which I suspect he very well may do. The Davidson County Sheriff's Office has historically honored voluntary "detainer" requests issued by ICE.

The bill is sponsored by Councilmen Bob Mendes and Colby Sledge and The Tennessean says there will be about ten co-sponsors.  Back in January, Vice Mayor David Briley posted statements on Facebook that indicated he wanted Nashville to become a sanctuary city (link). The bill was drafted by the Tennessee Immigrant and Refugee Rights Coalition and has the support of various pro-illegal immigrant groups.  Mayor Barry has mouthed platitudes about being a welcoming city, etc, but has not made any move toward becoming a sanctuary city or advocated violating federal law.  While I don't doubt Megan Barry's liberal credentials she seems fairly rational and pragmatic. This bill may not pass or may be further watered down to be meaningless, the mayor may even veto it, and if passed the Sheriff may not honor it. Also, there is the question of State law which prohibits local governments from making policies that stop local governments from complying with federal immigration law and an even stronger version of such a prohibitions pending for consideration in 2018. Nashville is not a sanctuary city now, and I doubt it will become one. 

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Mayor Barry sides with the DA's Office, throws Police Chief Anderson under the bus.

May 21, 2017 - When on May 11 District Attorney General Glenn Funk announced that his office would not be bringing charges against police officer Josh Lippert for the shooting of  Jocques Clemmons, the Black man killed by White police officer Lippert during a police stop in James C. Casey Homes, I expected riots to break out.  I expected to see news clips of Black rioters carrying big screen TV's out of window-smashed stores and looted liquor stores with bare shelves.  I expected to see Black rioters burn down the businesses that serve their community. That has been the pattern time and time again in other cities when a police officer has been exonerated for shooting a Black man. I was pleased that my expectations were wrong. When the announcement was made, three prominent Black ministers called for calm and the established civil right leaders did not inflame the situation.

District Attorney Glenn Funk

When DA Gleen Funk announced he was not bringing charges against officer Lippert, he did so in a hour-long news conference in which he took the opportunity to say that while the officer would not be charged with a crime, the way the Police conducted the investigation was biased.

The criticism of the police looks like nitpicking to me. The Assistant District Attorney Amy Hunter criticized the Police report on the shooting for using the term "suspect" to describe Clemmons.   The DA's office also claimed the Police Department completing their investigation of the shooting within five hours and criticized them for it.

In a letter the Chief wrote to the Assistant DA, he explained why the term "suspect" was used and gave her a copy of the departments report writing manual. Chief Anderson says that it simply is not so that the investigation was completed in five hours. While a report of the incident was issued within five hours, the investigation continued for days.  "You are well aware that the MNPD continued this investigation for a number of days after the event," wrote Anderson. "Second, you are aware, or should be aware, through your day to day duties that investigations are almost never 'completed."'

More "war of words" ensued and then the Mayor stepped into the fray. The Tennessean reported it as, "Mayor Barry scolded the city's top law enforcement officials at a news conference, telling Nashville Police Chief Steve Anderson and District Attorney Glen Funk to 'stop the war of words."'

Police Chief Steve Anderson

The article says she held "mediation" between Anderson and Funk. The way it is reported it looks like the Mayor took charge and resolved a conflict.  From the accounts you may think of it as a school principle calling two boys into her office and saying, "now, I want you to cut it out."'  There is something wrong with this picture.

While the Police Chief answers to the Mayor and serves at her pleasure, not so with the DA. The DA is a Constitutional Officer elected by the people.  He does not answer to the Mayor.  If the mayor tells the Police Chief, "I want to see you in my office," he goes.  If she tells another elected officials, it is really an invitation which he may or may not accept. One can not think of the Mayor at the top of a pyramid with two department heads below her who are having a conflict.

In addition to "mediating" the conflict, Mayor Barry also established some new rules for situations like this. "Now and in the future the Metro Nashville Police Department’s Office of Professional Accountability should refrain from issuing any reports or recommendations on an officer involved use of force until any criminal investigation into the officer’s actions is closed, and we will take the necessary steps to make sure that’s going to happen," she said. She also said that she had told Chief Anderson that in the future before he writes a letter like the one he wrote to the assistant DA, that he discuss it with her first.

If it looks like the Mayor determined most of the fought for the conflict lay with Anderson and she let Funk off the hook. That may be because that is the way she perceives it or it may be because she has leverage with Anderson and absolutely no leverage with Funk.

I believe the whole attack on Anderson was a public relations ploy to placate angry Black citizens so they would not riot.  In effect the DA said, "We have to let the White cop who killed a Black man off because it was a justified shooting, but we do agree with you that the Police Department is biased against Blacks."

In an article in today's Tennessean an attorney who has been involved in civil cases brought against cities in police shooting cases says the DA's comments alleging  bias on the part of the police could be helpful to the Clemmons family if they bring a civil case. He also said he could be helpful in any future shooting incident. He said in civil cases, the plaintiff does not have to focus on the actions of the officer involved but show that he "acted within a system that caters to bias."  The DA may have handed the Clemmons family a big win in a civil case.  I don't know if this was intentional or by accident.

In this battle between the Police Chief and the DA, my sympathies are with the Chief.  And while the press may be selling Mayor Barry as the great arbitrator and peace maker, I'm not buying it.

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Below are the prepared remarks of  Mayor Megan Barry following her meeting with the DA and Police Chief.

Thank you for being here today.

The Metro Nashville Police Department and District Attorney’s Office we know are critical components to the safety of our city and the safety of the public in general. From time to time there may be areas of disagreement, and that is true of many components of government, but we need to be able to work together to make sure our citizens are safe, which is always the highest priority. I want all parties to stop the war of words as they need to communicate and cooperate.

On Thursday of last week, General Funk held a press conference to announce his decision not to seek an indictment against Officer Joshua Lippert in the shooting death of Jocques Clemmons. During that press conference, General Funk and members of his staff criticized the methodology and terminology used in portions of the investigation by the MNPD. The concerns raised by General Funk during that were not germane to his ultimate decision not to indict the Officer. It would have been more appropriate to sit down and discuss this report with the MNPD in advance of the press conference so they would have the opportunity to discuss the findings and explain any possible misunderstandings.

Following the press conference, Chief Anderson issued a very harsh letter directed towards Deputy District Attorney Amy Hunter who had been assigned by General Funk to deliver that portion of the report during the event. It was inappropriate of Chief Anderson to do that, and I have told him as much. Those issues should have been directed towards me. So on behalf of Metro Nashville, I want to apologize to General Hunter. I have directed Chief Anderson to discuss any correspondence of this nature with me in the future.

After having had the opportunity to review the observations from General Funk at his press conference last Thursday, and after reading Chief Anderson’s letter to Deputy District Attorney Amy Hunter refuting the observations, I believe there are some next steps to move forward and they need to be done together.

• Now and in the future the Metro Nashville Police Department’s Office of Professional Accountability should refrain from issuing any reports or recommendations on an officer involved use of force until any criminal investigation into the officer’s actions is closed, and we will take the necessary steps to make sure that’s going to happen.
• The Metro Nashville Police Department and District Attorney’s Office will work together on a joint training program to create a better understanding of policies and procedures on both sides.
• While the TBI has not released guidance to local law enforcement organizations on how to investigate officer-involved shootings, we have received their own internal Standard Operating Procedure manual and I have asked the MNPD to review and adopt best practices locally for use of force investigations to enhance community trust when we have those findings.
• As for the MOU between the MNPD, TBI, and DA – it was discussed and negotiated over the course of several weeks. All parties had reviewed and read the document they signed, and there is no indication that the MNPD has deviated from those guidelines in the incident that occurred in Antioch. However, it is apparent that issues have arisen that may need to be addressed through amendments or revisions to the MOU in order to further clarify each agency’s role in the future and we will be working to do that.

I believe these steps will help to resolve some lingering questions of fact and opinion, while enhancing trust and cooperation between these two organizations.

So, let me close with this. Public safety is the foundational role of government – it is quite literally, the most important thing we do: to making sure the public is safe.

I believe that every Nashvillian deserves to live in a safe community.

I believe that every Nashvillian deserves to feel safe in his or her community, regardless of economic status, skin color or what country he or she may have come from.

I want us all to work together to ensure that we are doing what we need to do – whether that is by protecting victims of crime by arresting and prosecuting dangerous criminals, or ensuring that community members feel they are being treated fairly and equitably throughout all facets of the criminal justice system – and I have spoken with both Chief Anderson and General Funk and they will work with me to do just that.

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For more on this story see the following news accounts:
The Tennessean: Nashville police chief blasts DA's accusation of bias during Jocques Clemmons investigation 
Nashville Patch: Nashville Mayor Chides Police Chief, DA
The Tennessean: Mayor Megan Barry: 'War of words' between DA, police chief must stop 
The Tennessean:  Experts: DA's comments on bias open Nashville to lawsuits in deadly police shooting investigations

To read the DA's 32-page report which includes the reference to bias in the Police Department, follow this link.

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