In the latest court hearing on the lawsuit stemming from City Council’s vote a year ago to remove the statue of General Robert E. Lee, the tarps covering Lee and his Confederate general buddy, Thomas “Stonewall” Jackson, weren’t the main reason for the court date.
But the judge’s ruling that the shrouds must come down have set off a new round of outrage from anti-statue protesters and bolstered the plaintiffs assertion that council violated state law.
Outside Charlottesville Circuit Court February 27, dozens of protesters chanted, “If we don’t get it, shut it down.” Inside, Acting City Attorney Lisa Robertson argued the city’s demurrer, which is a motion to dismiss, and in legal circles, informally is defined as the defendant saying, even if the claims alleged in the suit are true, so what?
The big issue is whether the individual city councilors who voted to remove the Lee statue February 6, 2017, and the Jackson statue August 21—Wes Bellamy, Bob Fenwick, Kathy Galvin, Mike Signer and Kristin Szakos—are liable under Virginia’s war memorial protection statute that prohibits localities from removing or interfering with such monuments.
Robertson argued individual councilors have legislative immunity on issues that are matters of public concern on which they engaged in public deliberations and voted, and the plaintiffs can only sue the City of Charlottesville. Their vote did not constitute “willful misconduct,” she said. “Legislative immunity applies to individual members and City Council itself.”
Judge Richard Moore said he agreed with most of what Robertson said, but pointed to the statute that says a locality can’t move or damage a monument. “Clearly the General Assembly is waiving immunity for the locality,” he said.
The statute also allows for punitive damages from those who remove, damage or deface war memorials. Robertson pointed out the the judge had previously ruled there were no damages. An injunction has prevented the city from removing the statues until the court decides the lawsuit.
Plaintiffs attorney Ralph Main noted several times the statute allowed for an award of litigation costs and attorney fees, and said councilors were not protected by legislative immunity because they used city money for unauthorized purposes and “intentionally voted to remove the monuments.”
“Whether you agree or not,” said Moore, “all of them thought this was the right thing to do. This is clearly the city’s business.”
Moore issued rulings that will allow the lawsuit to go forward, and the lawyers agreed it could be handled in a one-day trial in October.
Two-and-a-half hours into the hearing, Moore took up an issue not on the docket and read a letter about his decision on the tarps City Council ordered August 21 to cover the statues in mourning for the deaths of Heather Heyer and two Virginia State Police pilots on August 12.
Last October, he denied an injunction to remove the tarps because the coverings were temporary. The deciding factor for Moore was that six months later, City Council has set no date for when the black plastic would be removed.
“I can only surmise that they have not set an end time because they never meant for the coverings to be temporary, but always wanted and intended them to be permanent or at least indefinite,” he said. “I do not believe that the statute allows that.”
At a February 5 hearing, Robertson suggested that the one-year anniversary of the August 12 Unite the Right rally is the appropriate time to end the mourning period.
“This seems to be an after-the-fact attempt to portray this as something other than originally intended,” said Moore. “The question is whether it is in fact a temporary covering. I find it is not.”
He also found that the “irreparable harm” from covering the statues is not physical damage, but the “obstructed right of the public, under the statute, to be able to view the statues,” including tourists and historians who’ve been unable to see them. The continued indefinite cover is “tantamount to ‘removal’ or building a fence around it, and has the same effect,” Moore wrote.
Outside the courthouse, Main said, “I think he made the right decision. It’s in accordance with the law.”
Protest organizer Ben Doherty with Showing Up for Social Justice said Take Them All Down is a national movement. While the judge said the tarps cause irreparable harm for people who can’t see the statues, “we would say the exact opposite,” said Doherty. “These statues being here on a daily basis causes irreparable harm.”
In a statement, new city spokesperson Brian Wheeler said, “From the beginning, the City Council’s intention for the shrouds was to mourn the loss of life and the severe injuries that members of our community suffered on August 12. In part, the judge’s ruling is based upon his opinion that the shrouds were not temporary in nature.”
While “disappointed by the ruling,” the city said it would respect the court’s decision. The tarps were removed the next morning.
Statue rulings so far
- They have standing.
- An injunction that prevents the city from removing the statues until the case is decided.
- An injunction to remove the tarps.
- A ruling that Virginia Code applies to statues in existence when the law passed in 1997 and could prevent removal of Lee and Jackson if they’re proved to be war memorials.
- Enough facts that the judge will consider whether the Lee statue is a war memorial.
- The city can rename Lee and Jackson parks.
- The city is not subject to punitive damages.
- Whether the city is liable for compensatory damages.
- Whether councilors have immunity.