Tennessee Court of Appeals will hear challenge to National Guard in Memphis

Oral arguments in a case challenging the deployment of Tennessee National Guard to Memphis are set for March 5. (Photo: John Partipilo/Tennessee Lookout)

The Tennessee Court of Appeals has agreed to hear the state’s appeal of a Nashville judge’s decision to temporarily block the Tennessee National Guard’s deployment to Memphis. 

The appeals court, setting an expedited timeline, has set a March 5 oral arguments date. 

The appellate court will review a Nov. 21 ruling by Davidson County Chancellor Patricia Head Moskal to grant a temporary injunction barring the Guard from patrolling the streets of Memphis. The Guard was deployed to Memphis by Gov. Bill Lee as part of the Memphis Safe Task Force convened in September by President Donald Trump. 

In Memphis, volunteers document Task Force arrests and provide aid to those left behind

Moskal’s order never took effect; anticipating the state would appeal, her ruling was conditioned on an appeal being filed. The case is now on hold pending a ruling from the higher court.

Shelby County Mayor Lee Harris and six other Democratic officials filed suit in October against Gov. Bill Lee, Tennessee Attorney General Jonathan Skrmetti and Major General Warner Ross III of the Tennessee National Guard,  challenging the deployment as contrary to Tennessee law and the state constitution. 

The suit cited a 2021 opinion by former Tennessee Attorney General Herbert Slatery III that concluded, under the Tennessee Constitution, “only circumstances amounting to a rebellion or invasion permit the governor to call out the militia, and even then, the legislature must declare, by law, that the public safety requires it.” 

Skrmetti’s revised the decision in April 2024, writing that the Tennessee National Guard is only a militia for the purposes of a federal deployment. It was Lee who deployed the guard to Memphis, unlike other cities across the country that currently have a National Guard presence, ordered by the federal government.

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The lawsuit also cited state law that entrusts local officials with determining whether there has been a breakdown in law and order requiring the presence of the guard. 

State lawyers have argued the Tennessee National Guard is an “army” and not a militia constrained by Tennessee law and the constitution.

“The Governor, the sole State official elected by the entire voting population of Tennessee, is established as commander-in-chief by both Constitution and statute,” they wrote. “Fettering the Governor’s authority to identify those rare occasions when the Guard is necessary and mobilize the Guard accordingly will put future Tennesseans at grave risk.”

Members of the Guard have been patrolling the streets of Memphis since October as part of the Memphis Safe Task Force convened by Trump to restore law and order to Memphis, whose violent crime rates have risen in recent years. Local officials have noted the rates had begun to fall before the Task Force was created. 

The number of National Guard in Memphis has fluctuated, but court filings last month said more than 700 are currently in the city. 

The appeals court asked both sides to weigh in on one additional question, beyond the arguments heard in Nashville: whether the case should have come before a three-judge panel instead of a single Chancery Court judge. Tennessee law requires certain challenges to state actions be heard in front of a panel of judges, one representing each geographic division of the state.
Court of Appeals Order – Harris v. Bill Lee