Joey Garrison

jgarrison@tennessean.com

Laws passed this year by Nashville and Memphis that gave police discretion to hand out lighter civil citations for possession of small amounts of marijuana violate state statute and therefore can't stand, according to Tennessee Attorney General Herbert Slatery.

Slatery issued that opinion on Wednesday, arguing that Tennessee’s two largest cities are pre-empted by multiple state laws on the issue — one that addresses drug control and another on the powers of district attorneys — making the ordinances unenforceable.

“A municipal ordinance that attempts to regulate a field that is regulated by state statute cannot stand if it is contradictory to state law,” he wrote.

His opinion comes after the Metro Council in September passed an ordinance — signed into law by Mayor Megan Barry — that gave Nashville police the option of reducing the penalty for people who are found in knowing possession or casual exchange of a half-ounce of marijuana or less to a $50 fine or 10 hours of community service. Police retained the option of charging a state misdemeanor.

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The city of Memphis later passed a similar ordinance, which was modeled after legislation in other states that outlined partial decriminalization of marijuana.

Barry’s administration plans to continue enforcing Nashville's marijuana ordinance until further legal guidance. In Memphis, the city is suspending enforcement of civil marijuana fines in light of the attorney general's opinion.

Barry spokesman Sean Braisted said Metro attorneys are reviewing the attorney general’s opinion to determine whether Metro agrees with Slatery’s interpretation. He declined to comment further.

Metro Police Chief Steve Anderson cited the city’s ongoing legal review as well.

“For the time being, as we await additional information, I will continue to defer to the wisdom of the Metropolitan Council in regard to the marijuana ordinance it passed in September,” Anderson said by email.

Concerns over state law had always been at the forefront of the debate over policies that moved Nashville and Memphis toward a list of growing cities that have decriminalized marijuana.

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Under Tennessee law, violators of possession of small amounts of marijuana face a Class A misdemeanor charge that is punishable by up to one year in jail and a $2,500 fine.

But supporters of Nashville’s marijuana legislation have argued the local ordinance works within the confines of state law, likening the measure to Metro’s laws for litter and seat belts, both of which have penalties that are not as severe as those outlined in state law.

Slatery disagreed.

He argues the ordinance is pre-empted by state law, citing the Tennessee Drug Control Act of 1989, which makes “simple possession or casual exchange” of a controlled substance unlawful. He also cites the state statutes concerning both possession and distribution of small amounts of marijuana, which outline they are Class A misdemeanors.

Slatery goes further by arguing the local ordinances interfere with the discretion of a district attorney general to prosecute violations under the state’s Drug Control Act. He said the Tennessee Supreme Court has held that police officers lack the authority “to bind prosecutors to nonprosecution agreements between police officers and defendants.”

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“If a police officer is allowed to issue a municipal civil citation, in lieu of a criminal warrant, for the offense of marijuana possession, a district attorney general is unable to exercise his or her discretion to prosecute the offense as a state law offense under the Drug Control Act,” Slatery wrote.

Shelby County lawmakers state Sen. Brian Kelsey, R-Germantown, and Rep. Ron Lollar, R-Bartlett, requested the AG opinion. Kelsey was in attendance at the Metro Council meeting in September when Nashville passed its ordinance.

In pushing for the new civil penalty option, backers said it would allow violators to avoid a criminal record, which they said can hurt people’s chances to find employment, housing and schooling. They argued low-income and minority residents are disproportionately affected by simple marijuana possession arrests.

“We passed a sound ordinance that stakeholders found to be sound policy and attorneys agreed didn’t conflict with state law,” said Metro Councilman Dave Rosenberg, lead sponsor of Nashville’s marijuana ordinance. “Metro Legal is going to analyze the attorney general’s opinion and we’ll go from there.”

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Before its approval, Nashville’s ordinance had drawn criticism from Rep. William Lamberth, R-Cottonwood, who has floated legislation that would seek to halt state highway funds from cities that do not enforce criminal penalties outlined in state law.

Lamberth, chairman of the House Criminal Justice Committee, has argued that Nashville's pot ordinance would create “two standards of justice” whereby one person caught with small amounts of pot could face a $50 fine and another could face 11 months and 29 days in jail. He's likened it to a "Russian roulette situation.”

Metro Law Director Jon Cooper never gave a formal opinion on Nashville’s marijuana ordinance. But in an email to The Tennessean, he said the council acted within its authority in enacting the ordinance.

In a legal analysis before the council’s approval of the bill, council attorney Mike Jameson cited several cities that have adopted marijuana ordinances where corresponding state law applies a more severe penalty.

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He said they include Philadelphia, New Orleans, Milwaukee, Tampa, Fla., and St. Louis. Jameson agreed that there are already instances in which Metro grants citations for actions deemed criminal offenses in state law.

“Municipalities in Tennessee may not adopt ordinances that contravene state law,” Jameson’s analysis reads. “However, proponents of this ordinance may reasonably contend that it does not contravene Tennessee’s current prohibition against marijuana possession.

“There are other instances wherein the Metro Code authorizes the issuance of citations for actions deemed criminal offenses under state law,” he wrote, pointing to laws regarding drug paraphernalia and littering.

Nashville's marijuana bill was originally drafted in a way that would have moved closer to universal decriminalization — and perhaps an indisputable conflict with state law — because it would have made a civil penalty automatic.

But after concerns of the Metro Nashville Police Department, the council approved an amended version to simply give police the option of handing out a civil penalty instead of a misdemeanor charge. As a result, Nashville police went from being opposed to the bill to being neutral.

Ryan Poe contributed to this report.

Reach Joey Garrison at 615-259-8263 and on Twitter @joeygarrison.