Joey Garrison

jgarrison@tennessean.com

Nashville police have more discretion to decide how to charge people caught with small amounts of marijuana following action by the Metro Council two weeks ago.

Now, council members and others are outlining efforts to track marijuana arrests and citations to try to prevent potential bias from playing out with the new law.

The concern: making sure that minorities, low-income residents and others aren’t disproportionately charged with harsher Class A misdemeanor penalties as opposed to lighter civil penalties.

The new Metro law gives police the option to issue a $50 civil fine for those found in possession of small amounts of marijuana. It allows people to avoid a criminal record. But police can still pursue a Class A misdemeanor charge that is punishable by up to one year in jail and a $2,500 fine.

“We can’t have a bunch of MBA kids getting civil citations and Pearl-Cohn kids getting busted,” said At-large Councilman Bob Mendes, referring to the predominantly white and affluent private school Montgomery Bell Academy and the mostly black Pearl-Cohn High School in North Nashville.

Mendes, who was speaking before a council committee that deals with legal issues, said he plans to file a resolution that would outline a mechanism to track the number of marijuana arrests versus citations by race, gender and other demographics. One option could call for the Metro Police Department to self-report on the cases. Another could be to monitor them through the court system.

His push comes after the the council voted 35-3 on Sept. 20 to take a step toward marijuana decriminalization by giving Nashville police the option of civil penalties for people in knowing possession of a half-ounce of marijuana or less.

Mayor Megan Barry signed the ordinance into law the next day, calling the measure a positive step to address the “overly punitive” treatment of marijuana possession in Tennessee that she said disproportionately impacts low-income and minority residents.

Blacks were arrested for marijuana possession at a rate of more than four times that of whites in Nashville in 2014, when adjusted for the size of each group's population, according to Federal Bureau of Investigation data.

Davidson County District Attorney Glenn Funk raised equity questions with Nashville's new marijuana ordinance at the same council committee meeting last week.

“My concern is we need to track the demographics,” Funk said. “If the Metro citations and people not getting arrested skew toward one component of our community, then that’s a real problem.”

Funk told council members the new ordinance actually means there are now three options for people caught with small amounts of marijuana: an arrest, a Metro civil citation and confiscating the marijuana and giving a verbal warning. He said this third option existed prior to passage of the new ordinance.

In addition to demographic data, Funk said the city needs to track whether the law ends up increasing the combined number of people receiving some sort of citation for simple marijuana possession — state, or civil.

Instead of having others track demographic information, Funk said he believes Davidson County Circuit Court Clerk Ricky Rooker should monitor civil citations and Nashville’s Criminal Justice Planning office should do the same for state misdemeanors.

Memphis on Tuesday is set to vote on similar marijuana legislation to the measure passed in Nashville.

On the day that Barry signed the new ordinance into law, Nashville police leaders distributed a memo to officers on simple marijuana possession titled, “What officers need to know.”

The memo advises officers to “continue to use their judgment and discretion, based upon training and law” to determine whether a person should be charged with simple possession under state law or a Metro citation. It also relayed a “stated desire of the council” that first-time offenders of possession of small amount or marijuana be issued a Metro citation.

Leading up to the council’s vote on the marijuana bill, the police department flipped its stance from opposition to neutral after the ordinance was amended to give officers more discretion. An original version of the bill would have made a civil penalty mandatory.

In an email to Mendes, Metro Police Chief Steve Anderson said that his department is already in the process of gathering data to create a “baseline” for comparisons before and after the ordinance. He said police had already made plans to track the information.

Anderson said his department also plans to identify persons who had a pervious criminal arrest prior to getting caught with small amounts marijuana and those who did not.

“This will allow a meaningful demographic comparison of persons being routed to state or Metro court,” Anderson said. "Certainly, that data is a public record and would be available to any person."

Amid a national debate over race and policing, Metro police recently started requiring new recruits to take bias and deescalation training.

Supporters of Nashville’s marijuana ordinance, which included the Tennessee Black Caucus of State Legislators, have argued that minority communities are hit harder by low-level drug offenses. A civil citation for simple possession of marijuana would prevent an offender from developing a criminal record, which backers say can reduce chances of employment, housing and education.

Equity concerns with the new law were discussed during a committee meeting prior to the council’s vote, but it was not a dominant theme in the debate.

“We need to really keep a tab on that because there could be inequities,” said Councilman Ed Kindall, who voted for the ordinance. “We’ve seen it elsewhere. And just generally speaking, there has been a disproportionate number of African-Americans arrested on drug charges already.

“It’s going to take some proactive measures to ensure that’s not something that happens,” he said. “We don’t want (people on) West End and affluent neighborhoods getting citations and the ones in the inner city, especially African-American communities, getting criminal warrants.”

Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee, said giving the addition discretion to law enforcement officers does raise concerns about a “selective use of the ordinance.

“So, the best way to ensure accountability and to ensure that we’re doing what the council and what the public wants is to track those numbers,” she said.

Councilman Dave Rosenberg, the lead sponsor of the marijuana ordinance, said he’s confident in the Nashville police department's ability to enforce the ordinance. He also said cities with similar measures have not experienced problems with it being used selectively.

“However, we definitely do want to keep an eye on that to ensure that everybody is confident that it’s being enforced fairly” he said.

Reach Joey Garrison at 615-259-8236 and on Twitter @joeygarrison.