Nobody asked the feds if they want to join Elliott Ozment's 287(g) scrum — the city just assumed they would. Now the feds have made it clear they don't. 

The Blindside

The Blindside

Imagine Davidson County Chancellor Carol McCoy's surprise. During the opening salvos of a lawsuit that presents the most serious challenge that Sheriff Daron Hall's 287(g) program has ever faced, Lora Fox of the Metro Department of Law had claimed attorney Elliott Ozment's arcane argument should be dismissed because it failed to name the United States as a defendant. The federal government, she argued, was a major stakeholder: The program is a partnership between U.S. Immigration and Customs Enforcement and the sheriff, after all. If Ozment succeeded in winning an injunction against the sheriff's office over 287(g) — which allows certain deputies to screen any inmate in the jails for immigration violations — ICE's ability to enforce the law in Davidson County would be "affected." Stopping it, Fox added in a subsequent filing, would have "great consequences."

The U.S. Department of Justice was champing at the bit to storm into Chancery Court and brandish its biggest guns in defense of 287(g) in Nashville, right?

No, actually. In fact, according to U.S. Attorney Jerry Martin, nobody from Metro legal bothered to approach him before claiming the United States was an "indispensable party" to the lawsuit, and that its ability to enforce immigration law in Nashville would be fatally foiled.

"The first we heard about it was after it was filed [in court]," a nonplussed Martin tells the Scene.

In a letter sent to Ozment and Fox last month (and read aloud in court), Martin made the United States' position crystalline: The federal government is not an "indispensable party" to this lawsuit and, furthermore, will not be present at the hearing. The sheriff's troubled immigration program ("ICE Hazard," Jan. 13, 2011) would fend for itself in this brawl.

The problem for the U.S. attorney was that Ozment's challenge turned on violations of state and local law. The Metro Charter divested the Davidson County sheriff of his law enforcement power and gave it to the Metro police chief back in 1963. Aside from what is "necessary and incidental" to the administration of the jails, the sheriff's role as keeper of the peace had been stripped and the new division of labor decided. Enforcing federal immigration law, Ozment argues, is hardly a necessary and incidental duty like, say, investigating a suicide or stanching the flow of drugs into a jail. If that wasn't enough, there's a clause in the Immigration and Nationality Act that says 287(g) enforcement powers may only be applied "to the extent consistent with state and local law."

This is why Martin stayed on the sidelines. Our Metro Charter is unique, and as such, there's no broad legal precedent at stake here. This isn't the kind of broadsword that would take down ICE's entire program. Rather, it's a scalpel Ozment hopes to use to excise Nashville from 287(g)'s nationwide nexus — and he has taken great pains to keep from nicking the feds with it. Martin, for his part, seems to agree.

"I don't think it's going to be true that just because under the Metro Charter and Tennessee state law — if it turns out the court holds that the sheriff and ICE don't have the ability to enter into the contract — I don't think that's going to have any impact on 287(g)," Martin says.

It won't matter, though, because Chancellor McCoy effectively got rid of this political loser by forcing Ozment to name the United States as a defendant in an amended complaint filed March 2. Dollars to donuts, this hot potato will fly off her plate and into a federal court, where some unfortunate judge will have to puzzle over just what to do with a lawsuit that seeks no declaratory judgment against the federal government. In a footnote to Wednesday's filing, Ozment practically screams through a megaphone to accommodate Martin. "Plaintiffs challenge the legality of Metro Government's 287(g) Agreement, not the federal 287(g) program itself," the document declares.

In an interview with the Scene, the U.S. attorney was cagey about revealing his next move. But his posture was unmistakable.

"As long as the relief that's being sought sticks to that narrow question and it doesn't impact 287(g) more broadly, I think our opinion is likely to be that we simply want to know what the answer to that legal question is," Martin says.

Email editor@nashvillescene.com

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