published Friday, December 30th, 2011

Lawsuit claims jailers’ immigration policy crafted in secret

NASHVILLE — A lawsuit filed in Nashville claims a new policy that instructs Tennessee jailers on how to investigate the immigration status of detainees is illegal because it was crafted in secret.

The lawsuit says the Peace Officers Standards and Training Commission deliberated by email and in meetings where public notice was not properly given, including an Oct. 15, 2010, meeting where the policy was adopted, according to The Tennessean.

Plaintiff William Geissler seeks an injunction to immediately stop enforcement of the policy, and a hearing on that request is scheduled for Wednesday in Davidson County Chancery Court.

In its response to the lawsuit, the Attorney General’s Office argues, “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 response does not address whether the commission violated the state’s open meetings law.

The POST Commission was required to draw up the policy by a state law that took effect this year requiring jailers for cities and counties across the state to contact U.S. Immigration and Customs Enforcement when they detain a suspected illegal immigrant.

The law gave the commission the responsibility of instructing jailers on how to carry out the law.

The policy the commission adopted requires jailers to ask detainees whether they are citizens 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,” according to the minutes from the commission’s meeting Oct. 15, 2010.

Frank Gibson, public policy director for the Tennessee Press Association, said the POST Commission is subject to the state’s open meetings laws. But even if Geissler and attorney Elliott Ozment win the case, it is likely the policy would only be invalidated temporarily. There is nothing to stop the POST Commission from re-establishing the same policy, this time following the state’s open meeting laws.

Ultimately, Ozment said, he would like to see the entire law declared unconstitutional by the courts. But he hopes an injunction invalidating the procedures will stop enforcement temporarily while he prepares a challenge in federal court.

Critics say the law requires local jailers to enforce federal laws without giving them the resources or training they need to do so and results in racial profiling.

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

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