The Knox County Law Department says that the sheriff’s immigration enforcement program complies with state law. But its arguments have varied — and have sometimes been incorrect.
by jesse fox mayshark, Compass
and tyler whetstone, knoxville news sentinel
June 9, 2021
(Photo courtesy of U.S. Immigration and customs enforcement)
This is a joint report of Compass and the Knoxville News Sentinel. It is a follow-up to a report the two outlets published in April examining the legal underpinnings of the 287(g) immigration enforcement agreement between the federal government and the Knox County Sheriff’s Office. You can read the earlier article here.
On April 19, when Knox County Commission held its first and only formal discussion of the immigration enforcement program known as 287(g), Law Director David Buuck told commissioners that everything about the county’s agreement with U.S. Immigrations and Customs Enforcement was completely legal.
County officials did not seem familiar with state laws about entering into federal agreements.
Among the assurances he gave them was that notification had been sent to the governor and Legislature of the county’s participation in the federal program, as required by a 2018 state law.
“Randy Nichols, the former attorney general who now works in the Sheriff's Office, has told me that yes, he has submitted that documentation,” Buuck told commissioners during their April work session.
A memo about the 287(g) program sent to commissioners three days earlier by Jessica Jernigan-Johnson, a deputy law director in Buuck’s office, also noted the state notification requirement and said, “This has been accomplished.”
In fact, both Buuck and Jernigan-Johnson were wrong. The notification of state officials required by the 2018 statute had not been sent in 2018 when the law was passed, even though Knox County had entered into its agreement in 2017 under former Sheriff Jimmy “J.J.” Jones.
It was not sent in 2019 when current Sheriff Tom Spangler renewed it, or in 2020 when Spangler renewed it again. And it had still not been sent in April at the time that the county Law Department was assuring commissioners that it had.
Copies of the notifications obtained through a records request show that they were actually sent to the state on April 21, 2021 — two days after the Commission work session.
In an interview, Nichols said there may have been miscommunication between him and the Law Department over who was going to send the formal notifications. In an email exchange, Buuck repeatedly evaded the question of whether the notification should have been sent three years ago, when the state law passed, rather than in April 2021.
Nichols freely acknowledged that the county had not even been aware of the requirements of the 2018 law until it was brought to officials’ attention by Knox News and Compass.
“It was pretty clear,” Nichols said of the state law.
The oversight is the latest example in a worrying trend of the Sheriff’s Office not following procedure, said Meghan Conley, a University of Tennessee professor and critic of the county’s 287(g) program who won a public records lawsuit against the department last year.
“It makes me wonder what else they’re not following properly,” she said. “It makes me wonder whether they are even interested in following all of the laws and procedures of this program ... if they’re not following all of the legal provisions precisely, what other violations are they making?”
It was also the latest example of shifting responses and explanations from both the Sheriff’s Office and the county Law Department about the legal underpinnings of the program.
In April, Knox News and Compass co-published a report that looked at the county’s 287(g) program, which empowers local law enforcement agencies to initiate immigration proceedings. According to a number of immigration attorneys, the program should have been approved by the County Commission back in 2017 when it was implemented, per state law. It never was.
The longer the county goes without properly approving the program, the more jeopardy it puts itself in, said local attorney Andrew Fels, who represented Conley in her successful records lawsuit against the Sheriff’s Office last year.
“Until the commission approves the 287(g) program, everyone detained under the (purview) of this program is a viable plaintiff,” he said. “Liability continues to accrue.”
Ever since Knox News and Compass began asking questions about the legal basis for the program, the Sheriff’s Office and county Law Department have provided varied and sometimes conflicting responses.
On more than one occasion after an excuse was proffered, another would take its place and the previous explanation never resurfaced.
The evolving responses and legal maneuvering, Conley said, show that the Commission, as the governing body, should have an outside attorney advising it on the best way to proceed.
At issue are two state laws. In 2007, the Tennessee Legislature passed legislation designed to disrupt illegal immigration. One clause, still in state code, allows local law enforcement to enter into federal immigration enforcement agreements “upon approval by the governing legislative body.” In Knox County that would be the County Commission.
One of Tennessee’s early adopters of the program was Nashville's Davidson County Sheriff’s Office, which signed on in 2007 with approval from the Metro Nashville Council that oversees city and county operations. The Council also approved a renewal of the agreement in 2009. Davidson County would later quit the program in 2012.
However, the Knox County Sheriff’s Office did not follow this playbook when they applied for the program in 2017. Then-Sheriff Jones told Knox News earlier this year no one ever suggested it needed to go to the Commission. He said then-Law Director Bud Armstrong, who was Buuck’s boss at the time, assured him it was OK.
Then, in 2018 the Legislature passed another law aimed at further strengthening efforts to limit illegal immigration. It again granted local agencies the power to enter into ICE agreements, this time without mentioning local legislative approval — but it did require the Sheriff’s Office to provide notice to the governor and Legislature upon entering into them. This is the law Knox County failed to follow until those April 21 notifications.
Explanation 1: It’s Only About Employment
Knox County officials did not seem aware of those provisions of either law when first asked about them. As an initial response, Mike Ruble, chief counsel for the Sheriff’s Office, said that the 2007 law did not apply when Jones first entered into the 287(g) agreement in 2017.
In an email in January, Ruble said the law applied only to agreements “relating to the employment of illegal aliens.” He added, “Knox County has no such agreement.”
But while that statute sits under the employment law section of state code, it clearly states that it applies to immigration enforcement agreements in general — “including, if applicable, federal laws relating to the employment of illegal aliens” (emphasis added).
After a follow-up question pointing out that the law was broader in nature, the Sheriff’s Office dropped that argument and referred further questions to Nichols.
Explanation 2: It’s Not "Enforcement"
Following some further study and consultation, Nichols offered an alternate defense: The law applies to enforcement agreements, and what Knox County is doing is not immigration enforcement.
That is at odds with ICE’s own descriptions of the program. Knox County is one of just 72 local agencies in the country with what it calls a “Jail Enforcement Model” agreement, according to ICE. Seventy-six agencies have less intensive “Warrant Services Officer” agreements.
Even though the word “enforcement” is literally in the name of the program, county officials including Nichols and Spangler said it doesn’t qualify as enforcement because deputies do not go door-to-door looking for immigrants.
But the original memorandum of agreement — the contract between Knox County and ICE — authorizes the Knox County Sheriff’s Office “to perform certain immigration enforcement functions” which include interrogating detainees about their immigration status, serving warrants for arrest for immigration violations, and preparing documents (fingerprints, photographs, interviews and affidavits) used to initiate deportation proceedings. The agency can also issue immigration detainers to process immigrants through the system.
More simply, though, ICE’s own website says 287(g) agreements “permit designated officers to perform limited immigration law enforcement functions.”
In March, Buuck said he agreed with Nichols’ interpretation that the agreement is not really enforcement.
But by the time immigrant rights advocates showed up at the April 19 Commission meeting to argue the point during public forum, the county had again shifted its rationale. Jernagin-Johnson’s April 16 memo to commissioners did not even raise the enforcement argument, which had been the core of the county’s defense of the program just weeks earlier.
Explanation 3: The 2007 law Was Superseded by the 2018 Law
Instead, Jernagin-Johnson focused her arguments to commissioners on two separate defenses. The first was that the 2007 law was superseded by the 2018 law, which does not mention approval by the local legislative body before an ICE agreement can be signed.
“[T]o the extent the two statutes are in conflict,” Jernagin-Johnson wrote, quoting from a 2018 Tennessee court case, “‘well settled principles of statutory construction make it clear that the most recently issued statute repeals by implication any irreconcilable provisions of the former act.’ Thus, if one statute does indeed require approval and one does not, the most recent statute prevails.”
But she also acknowledged that the 2018 law “does require the law enforcement agency to submit notice of the agreement to the governor, the office of the lieutenant governor and the speaker of the House of Representatives.”
Those were the notices the Law Department assured commissioners had been sent, which was not true.
By focusing on the 2018 law, Jernagin-Johnson also elided another fact: The Sheriff’s Office entered into its 287(g) agreement in 2017, a year before that law took effect — while the 2007 law was on the books and was uncontradicted by any other statute.
Explanation 4: The Supremacy Clause
That comes to the Law Department’s final argument, used both in Jernagin-Johnson’s memo and by Buuck at the April 19 commission meeting: that the U.S. Constitution's Supremacy Clause overrules the requirements of state or local laws.
At the April 19 meeting, Buuck read from federal statute. “[T]he commissioner, that's the Commissioner of the Department of Homeland Security — (which oversees) ICE — may enter into cooperative agreements with state and local law enforcement agencies with the purpose of assisting in the enforcement of the immigration laws of the United States,” Buuck said. “That is straight from statute."
Not everyone agrees that that has any bearing on Tennessee’s ability to set regulations for its own law enforcement agencies. The Supremacy Clause comes into play only in cases of direct conflict between state and federal legislation. But nothing in the federal law lays out a specific process for entering into 287(g) agreements or says that local police departments are exempt from state or local laws governing such agreements.
County Commission routinely has to sign off on federal contracts and agreements for agencies, including the Sheriff’s Office. Moreover, nobody has ever challenged the 2007 law as unconstitutional in a Tennessee courtroom, even though it has been cited in a state Supreme Court decision.
Nashville immigration attorney Andrew Free said Buuck’s position is completely without merit. “The Sheriff's Office doesn't become immune from state law just because it's entering a federal contract,” Free said.
One section of the federal law governing the 287(g) program even says that local officers operating under it are empowered “to the extent consistent with State and local law,” clearly recognizing a role for both of those. In an email exchange, Jernagin-Johnson argued that that section applied only to law enforcement functions after an agreement has been entered into.
“Once the agreement has been entered into, the law enforcement agency must carry out those functions in a manner consistent with state law,” Jernagin-Johnson said. “I do not interpret 1357(g) to require that the contract be entered into pursuant to state law, but that the actions of the law enforcement officials in fulfilling that agreement (i.e. the detention, investigation, or apprehension) must be completed in a manner that is consistent with state law.”
But Free said if the Supremacy Clause were a valid argument, it would have come up when the Tennessee Supreme Court decided ICE’s Memorandum of Agreement did not violate Nashville’s municipal charter in 2012 when the 287(g) program came before the court. Free argued that case.
“That case was hotly contested by the parties. Metro Legal would've made that argument,” he said. “It couldn't because it's not true.”
In that case, the state Supreme Court upheld the legality of the Davidson County 287(g) agreement under Metro Nashville’s charter. Part of its ruling hinged on the fact that the agreement had been approved by Nashville’s Metro Council under the 2007 law — the one that Buuck’s office claims is unconstitutional.
Far from invoking the Supremacy Clause, the Supreme Court noted that (emphasis added) “Metro was specifically authorized to enter into an agreement with ICE, and Metro authorized the Sheriff to execute the agreement on Metro's behalf.”
Free added, “It is pretty stunning that the person in charge of lawyering for a major American city (county) has no idea what pre-emption is ... (j)ust embarrassingly ill-informed.”
Fels, the attorney who represented Conley, agreed with Free.
"Knox County simply does not have a valid 287(g) agreement,” Fels said.” Tennessee law requires that a 287(g) agreement receive County Commission approval in order to take effect. No federal law contradicts this requirement. The Supremacy Clause does not apply."
The $490,000 Settlement
Buuck at the April 19 meeting also seemed unaware of a separate lawsuit involving Nashville’s 287(g) program, in which the city ultimately agreed to pay $490,000 to an undocumented immigrant, Juana Villegas, who had been detained while nine months pregnant. She was held under Nashville’s then-active 287(g) agreement and kept shackled before, during and after giving birth to her son.
County Commissioner Courtney Durrett referenced that case at the meeting, in asking about potential liability under the program. Buuck claimed it had never happened.
“I know of no case, no case anywhere in this country, where there has been a settlement for half a million dollars or even $1 to somebody who has been detained under 257(g),” Buuck said, misstating the name of the program.
In fact, Villegas’ case made national headlines when the settlement was announced in 2013, and she was also granted a legal visa as a result.
Where Is 287(g) Now?
Regardless of the legal foundation for the 287(g) program, Wendy Corcoran hopes it can be maintained. Corcoran and her husband, D.J., lost their son Pierce in a car accident in December 2018. He was killed when a car driven by an immigrant who was here illegally, Francisco Eduardo Franco-Cambrany, crossed into oncoming traffic and hit him head-on.
Wendy Corcoran said Knox County’s 287(g) program allowed the county to keep Franco-Cambrany in custody pending charges, when he might have otherwise been released.
“The problem I see with ending it would be that they’re released,” Corcoran said.
Corcoran was copied by Buuck into an email exchange with reporters asking about his office’s legal arguments, which she acknowledged that she was unfamiliar with. But she said she supports anything that provides more accountability for immigrants who are here illegally and break the law.
“The 287(g) made it possible to keep him,” Corcoran said of Franco-Cambrany. He was ultimately deported, although the Corcorans hope he can still be brought back to face charges of criminally negligent homicide.
Since becoming sheriff in 2018, Spangler has been steadfast in his support of the program. His department remains one of only two agencies in Tennessee that participates; the other is the Greene County Sheriff’s Office.
Few county commissioners have shown much interest in examining the program. Commission Chair Larsen Jay said he was concerned if any misinformation had been presented to the Commission about the program by Buuck’s office, even inadvertently.
“That causes me some concern,” he said, promising to follow up on it with Buuck. “I think that County Commission should always be provided with accurate and factual information from anyone within Knox County.”
President Joe Biden promised to end the 287(g) program while he was campaigning last year, but so far his administration has not. It has issued new guidelines restricting ICE priorities for deportation to violent criminals and national security threats, which means that Knox County is barely processing any 287(g) cases at all right now. Conley’s research showed that about 80 percent of immigrants put through 287(g) enforcement through Knox County’s program were initially cited on misdemeanor charges.
Buuck maintains that the Sheriff’s Office has been in complete compliance with the law all along.
“The sheriff has done nothing wrong, he has done nothing illegal,” he told commissioners on April 19. “Nor did the prior sheriff.”