Shelby County Looking to Violate Tennessee’s Anti-Sanctuary Law

By Shari Rendall | January 11, 2019

The ink has barely dried on Tennessee’s new law that put teeth into its anti-sanctuary policy (PL 973), and open borders advocates are already challenging it. Curiously, the Shelby County Attorney Marlinee Clark Iverson is claiming the law does not apply to Shelby County or the Shelby County Sheriff’s office. The new anti-sanctuary law expressly denies state economic and community development grants to state entities, and local jurisdictions that implement policies intended to interfere with federal immigration enforcement and provide “sanctuary” to illegal aliens. (See FAIR’s Legislative Update, Apr. 27, 2018)

County Attorney Iverson initially declared that Shelby County and the municipalities that comprise it do not have a sanctuary policy. (Daily Memphian, Jan. 4, 2019) She further maintained that the “statute’s prohibition applies only to state governmental entities or officials” and “neither Shelby County, the sheriff, nor the sheriff’s office qualifies as a state governmental entity or official.” (Id.) Importantly, the law does not require Shelby County to call itself a sanctuary jurisdiction.

Section 2 of PL 973 defines “sanctuary policy” as any directive, order, ordinance, resolution, practice, or policy, whether formally enacted, informally adopted, or otherwise effectuated, that ….restricts in any way, or imposes any conditions on a state or local governmental entity’s cooperation or compliance with detainers…requires the US Department of Homeland Security to obtain a warrant or demonstrate probable cause before complying with detainers.” (See Tennessee PL 973)

Section 3 of PL 973 says “a local governmental entity that adopts or enacts a sanctuary policy [as defined in Section 2], is ineligible to receive any state money until the sanctuary policy is repealed, rescinded, or otherwise no longer in effect.” (Id.)

Tennessee Lieutenant Governor Randy McNally said that PL 973 was passed specifically to prevent selective enforcement of immigration laws. (Memphis Flyer, Jan. 10, 2019) He added, “Cities, counties, and states cannot continue to pass the buck.”(Id.) “All government entities must cooperate in order to secure our borders and maintain the rule of law. Shelby County needs to reevaluate their position. As outlined in the law, continued refusal will result in the forfeit of state economic and community development grants which would negatively affect the local economy in Shelby County.” (Id.)

In addition to her initial arguments, County Attorney Iverson argued the unconstitutionality of the detainer due to vagueness on due process. (Daily Memphian, Jan. 4, 2019) The Fifth Circuit Court of Appeals, however, recently decided that immigration officers may seize aliens based on an administrative warrant issued by Immigrations and Customs Enforcement (ICE) attesting to the probable cause of removability. Moreover, the new ICE detainer forms require officer to certify that probable cause of removability exists. Finally, the Court also held that local law enforcement could rely on the probable cause determination made by ICE.

PL 973 Section 2 says that local governmental entities cannot restrict “cooperation or compliance with detainers or other requests from the US Department of Homeland Security (or a successor agency)” nor can they require “the US Department of Homeland Security (or successor agency) to obtain a warrant.” (See Tennessee PL 973) The Fifth Circuit Court of Appeals ruling on the Texas sanctuary law found that it was constitutional for law enforcement to comply with, honor, and fulfill detainer requests.

The Middle Tennessee District Court recently provided persuasive arguments on the constitutionality of detainers in Abriq v. Metropolitan Government of Nashville and Davidson County when it followed the Fifth Circuit Court of Appeals and determined that Metro Nashville could rely on the probable cause found by ICE meaning the detainer did not violate Abriq’s constitutional rights. (See Middle Tennessee District Court Decision, Sept. 2018)

The Abriq case has been appealed to the Sixth Circuit Court of Appeals and will be decided later this year.