On September 21, 2016, after a 35-3 vote by the Nashville Metro Council, Mayor Megan Barry approved Substitute Ordinance No. BL2016-378 instituting a civil penalty for possession of one-half ounce (14.175 grams) of marijuana or less. The ordinance states that although it is still a misdemeanor for individuals to possess knowingly or casually exchange up to one-half ounce of marijuana if an individual’s only offense is possession of marijuana, law enforcement shall be afforded the discretion to determine whether criminal penalties and criminal records are disproportionate to the severity of the offense. Therefore, civil penalties and community service may be appropriate when possession of less than one-half ounce of marijuana is the only chargeable offense.
Before this ordinance, under Tennessee Law, individuals caught with a one-half ounce of marijuana or less faced a misdemeanor charge punishable by up to one year in jail and a $2,500 fine. With the approval of this landmark bill, residents of Davidson County may be afforded a lesser penalty for possession marijuana. I say “may be” afforded a lesser penalty because a cornerstone of the new ordinance is the discretion it affords police officers when enforcing simple possession of marijuana.
Initially, the Metro Nashville Police Department was opposed to the ordinance because the language originally said that violators “shall” be issued a citation for a civil penalty. By amending the ordinance to change the language from “shall” to “may,” officers were afforded discretion while still maintaining the flexibility city council sought to achieve by this measure. The new ordinance encourages officers to evaluate each case, by the totality of the circumstances, to determine the appropriate method of enforcement. In other words, depending on the situation, officers may enforce the criminal misdemeanor penalty, or in their discretion, may now pursue a second option; a $50 civil fine. Further, if an individual found guilty of possession agrees, the court may suspend the $50 penalty and instead impose up to 10 hours of community service. By imposing a civil fine rather than a criminal penalty, the individual does not come out with a criminal strike on their record. Essentially, possession of marijuana under a half-ounce could be more akin to a parking ticket and less like a criminal misdemeanor.
The outcome of the situation is entirely dependent on the officer’s understanding of the totality of the circumstances which may include but are not limited to:
- The location and timing of the incident,
- The amount of marijuana,
- The severity of the offense,
- The individual’s prior criminal record, and
- How proportional the punishment is to the crime.
In other words, whether you are charged with a civil penalty or a criminal fine is completely in the hands of the officer writing the citation.
After the removal of the mandatory language, Metro Police Chief Steve Anderson said, “I feel comfortable in moving my position to neutral . . . [and] I am comfortable that the wisdom of the council will prevail and a decision will be made that is in the best interest of Nashville.” Davidson County Sheriff Daron Hall, whose office presides over Nashville’s jails, announced that he supports the spirit of the ordinance by Metro Council, calling it a “step in the right direction” to reduce incarceration rates of young people who he says do not benefit from being in jail for the offense. Although there are still some looming questions surrounding the ordinance, the sense is that both the Davidson County Sheriff’s Office and Metro-Nashville Police Department will comply with the decisions made by Nashville Metro Council.
The Lawmakers Keeping Things Rolling
Councilman Dave Rosenberg, the lead sponsor of the bill, said, “All this bill does is give police the option of not treating someone with a little pot like a hardened criminal. Because when you start treating good members of our society like criminals they begin acting like criminals.” Rosenberg, along with other supporters of the bill, hope to reduce the number of Nashvillians falling into a cycle of criminality simply because of a simple marijuana possession charge. Mayor Megan Barry has echoed Councilman Rosenberg statements: “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.” However, Mayor Barry has cautioned that this ordinance “…is not a license to sell, possess, or use marijuana in Nashville.”
In addition to the support of the recently-elected mayor, Megan Barry, the bill has garnered support from other local authorities including the Davidson Country Sheriff Daron Hall, Davidson County Public Defender Dawn Deaner, the Tennessee state legislature’s Black Caucus, and the American Civil Liberties Union of Tennessee.
The Buzz Kill
State Representative William Lamberth leads the campaign opposing the bill, citing that the amendment creates a “Russian roulette situation” where “two standards of justice” apply. Representative Lamberth charges that individuals will be unsure if they will receive the minor civil penalty or the more severe criminal one. After the Republican-led state legislature reconvenes in January, Lamberth has indicated that he will consider sponsoring a state bill that would halt state highway funding to cities that do not enforce the same criminal penalties that the state does.
You Can’t Kill Our Vibe
In response to Representative Lamberth’s threats of action, Metro Council attorney, Mike Jameson, to cited several other cities that have adopted similar marijuana ordinances when corresponding state law applies a more severe penalty. Jameson pointed out 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.” In a statement, Mayor Megan Barry’s spokesman said the threat of state intervention does not give Barry any concern about the local proposal. As it stands in Nashville, the bill was passed, hopes are high, and there is quite a buzz surrounding the future of marijuana in Tennessee.If you have been arrested for a marijuana-related crime, contact our Nashville drug crime attorneys today and schedule a consultation with a member of our team