Joey Garrison

jgarrison@tennessean.com

Nashville’s Metro Council made history Tuesday by approving the city’s first measure to allow lesser civil penalties for people caught with small amounts of marijuana, but it may set the stage for a confrontation with the state.

Meanwhile, some Nashville judges are now raising concerns that moving minor marijuana possession cases from criminal to civil court may give people fewer options to later erase those encounters from the public record.

The council voted 35-3 to give final approval of legislation that will give Nashville police the option of reducing the penalty for people who are found in knowing possession of a half-ounce of marijuana or less to a $50 fine or 10 hours of community service.

Councilman Dave Rosenberg, lead sponsor of the bill, told his colleagues that efforts aimed at marijuana decriminalization have become commonplace across the country. He reeled off a long list of cities and states as examples, noting that even the conservative Deep South state of Mississippi has a law on the books.

Judges question Nashville marijuana decriminalization

"All this bill does is give police the option of not treating someone with a little pot like a hardened criminal," Rosenberg said. "Because when you start treating good members of our society like criminals they begin acting like criminals.

"As much as as I'd like to think we're cutting edge on this one, we're not," he added. "We're catching up."

Memphis is scheduled to take up a similar ordinance in two weeks.

Nashville’s pot legislation now heads to the desk of Mayor Megan Barry, who told The Tennessean this week she would sign the measure into law.

"This legislation is a positive step forward in addressing the overly punitive treatment of marijuana possession in our state that disproportionately impacts low-income and minority residents," Barry said in a statement after the council's vote.

The mayor had previously been noncommittal on the measure, but has said she is "generally supportive" of efforts to decriminalize marijuana.

“It is important to stress that this ordinance is not a license to sell, possess or use marijuana in Nashville," she said. "When this ordinance becomes law, police officers will still have the ability to make arrests or issue state criminal citations for marijuana possession as circumstances warrant, which is a Class A misdemeanor under state law.”

Council members Steve Glover, Sheri Weiner and Doug Pardue cast the lone votes against the proposal. Glover expressed concern about sending "mixed messages" by giving police two options for penalties for small marijuana possession.

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

Supporters of Nashville’s marijuana legislation have argued the ordinance would work within the confines of state law. They’ve likened 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.

Others disagree, however, and the bill may get attention from the Republican-controlled Tennessee legislature in 2017. State Rep. William Lamberth, R-Cottontown, 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."

The Sumner County lawmaker has said he is “strongly considering" filing a state bill next session that, as a penalty, would seek to halt state highway funds from cities that do not enforce criminal penalties outlined in state law. Funding would continue again if a violating city overturns its policy.

Asked about the threat of state intervention, Barry said Nashville shouldn’t govern “based on what the state may or may not do.”

On the council floor Tuesday, Councilman Russ Pulley, who helped push the proposal, took exception to Lamberth's legal arguments. Pulley also called on the state legislature to use "reason and common sense" when addressing the issue.

"That's a big government overreach," Pulley said about possible state action. "I would ask you, who is better able to understand the issues involving the city of Nashville than the members of this body who are in touch with our citizens on a daily basis?"

Nashville's marijuana bill was originally drafted in a way that would have moved closer to universal decriminalization 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 misdemeanor charge. As a result, Nashville police went from being opposed to the bill to being neutral.

The proposal has been touted by supporters as a way to allow people caught with small amounts of pot to avoid accumulating a criminal record, which they say can have lifelong consequences by making employment, housing and education harder to obtain. They say that young people of color are disproportionately affected.

Groups or people who have backed Nashville’s ordinance include Davidson County Sheriff Daron Hall, Public Defender Dawn Deaner, the Tennessee legislature’s black caucus and the American Civil Liberties Union of Tennessee.

But in recent days, some judges in Nashville have raised concerns that issuing civil penalties for possession of small amounts of marijuana might make it harder to expunge the records. In Metro, civil records can be expunged only when a matter is dismissed or is not prosecuted.

Davidson County General Sessions Judge William Higgins, during a recent meeting of judges, also raised the point that civil penalties, although not criminal convictions, are still easily accessible online.

Supporters of the ordinance counter by noting that criminal convictions can have more damaging repercussions than civil penalties. Those convicted also have to wait longer and pay a higher fee for the expungement.

Reporter Stacey Barchenger contributed to this report. Reach Joey Garrison at 615-714-0539 and on Twitter @joeygarrison.