Court to consider whether to halt National Guard in Memphis

About 40 people gathered outside the outside the John Sevier State Office Building in Nashville on Sept. 27 to oppose the the National guard presence in Memphis. A Nashville judge on Monday will consider a request to temporarily halt the Guard’s presence. (Photo: John Partipilo/Tennessee Lookout)

A court hearing in Nashville Monday could decide whether members of the Tennessee National Guard can continue patrolling the streets of Memphis as part of the Trump administration’s anti-crime task force. 

Shelby County Mayor Lee Harris and other public officials filed suit in October alleging Gov. Bill Lee’s deployment of National Guard members to Memphis violates state law and the Tennessee Constitution.

The officials are asking Davidson County Chancellor Patricia Head Moskal to issue a temporary injunction to end the Guard’s presence in Memphis. 

“The Court should not stand by while the Governor asserts military power to run roughshod over Tennessee law,” the lawsuit said.

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Attorneys defending Lee argued the governor was acting within his legal authority to deploy the Guard to Memphis as “to combat unbridled criminal activity.”

Memphis is among a handful of American cities — Los Angeles, Portland and Chicago — that have seen a surge in federal law enforcement, including members of the National Guard, ostensibly to combat crime and apprehend immigrants without lawful status.  

Tennessee is the only affected state with its governor welcoming the federal presence. 

The legal fight centers, in part, on whether the Tennessee National Guard is a “militia” or an “army.”

A Tennessee governor’s use of a militia is restricted under the state law and the state constitution. 

“The Militia shall not be called into service except in case of rebellion or invasion, and then only when the General Assembly shall declare, by law, that the public safety requires it,” the Tennessee Constitution says.

State law constrains the governor’s use of a militia for civilian enforcement and requires cities and counties to request the governor’s deployment of the Guard. 

Shelby County Mayor, elected officials sue Gov. Bill Lee over National Guard deployment

Neither Memphis city officials nor Shelby County officials have requested the National Guard. 

Tennessee Attorney General Jonathan Skrmetti argued that the National Guard is an “army,” not a militia, and therefore unrestrained by the restrictions set out in state law and the constitution.

Skrmetti warned that a decision that deems the Guard a “militia” in this case could have grave consequences in the future.

“If Plaintiffs’ foundationless assertion that the Guard is the Militia takes root in Tennessee law, Governors yet unborn will be deprived of legitimate and important tools to address some of our State’s most consequential crises,” Skrmetti wrote.

The lawsuit was brought by Harris, state Rep. Gabby Salinas and Rep. G.A. Hardaway, both Memphis Democrats, Sen. Jeff Yarbro, a Nashville Democrat, two members of the Shelby County Board of Commissioners and a Memphis City Council member.

Before the lawsuit, Yarbro accused Skrmetti of an “improper revision” to a 2021 legal opinion from a previous state Attorney General, which cast doubt on the governor’s ability to use the National Guard for police activity.

The opinion was deleted from the state Attorney General’s site shortly before the National Guard’s deployment in Memphis.

In addition to Lee, the lawsuit names Skrmetti and Major General Warner Ross III of the Tennessee National Guard. 

On Friday, ACLU Tennessee and a Memphis area community organization filed an amicus brief in support of an injunction.