Statue tarps

The (Charlottesville) Daily Progress

The Robert E. Lee statue in Charlottesville was temporarily covered with a tarp after the deadly Unite the Right gathering in 2017. Plaintiffs in a lawsuit say the city’s shrouding of the monument violated state code.

CHARLOTTESVILLE — After lengthy contention and strife, the legal case over two Charlottesville City Council votes to remove Confederate statues will go to trial this week, although the major issues have been mostly resolved.

The council’s votes caused an angry reaction among those who see the statues as representative of regional and family histories and groups that consider Confederate Gens. Robert E. Lee and Thomas “Stonewall” Jackson key figures in support of white supremacist viewpoints.

A lawsuit, led by area residents who called themselves the Monument Fund, was filed soon after council’s February 2017 vote to remove the Lee statue from a public park where it has been positioned for 95 years.

That vote also spurred a deadly white supremacist gathering in Charlottesville that sought to unite various far-right factions over two weekend days in Aug. 2017.

Soon after the rally, city council also voted to remove the circa-1921 statue of Jackson from another municipal park. Plaintiffs have argued that both council votes for removal were illegal because they violated state code, an argument the Charlottesville Circuit Court has largely upheld.

However, the defendants — the city of Charlottesville and city council as a body — say the statues cannot be divorced from the time that they were erected, amid Jim Crow segregationist era of the 1920s, and that they represent an attack on black residents.

On Wednesday, a scheduled three-day trial over the lawsuit will begin to decide whether damages were caused by the two separate votes and whether the plaintiffs’ attorneys are entitled to more than $500,000 in fees.

Soon after the lawsuit was filed in March 2017, it became more complicated. Charlottesville Circuit Court Judge Richard Moore, who is overseeing the case, has remarked on multiple occasions that more motions have been raised in this case than any other he’s overseen. The trial date has been delayed repeatedly as a result.

Despite the lengthy legal discourse, almost all the primary issues in the lawsuit have been ruled upon already.

What had at one point seemed like points of contention that would go to trial — such as whether the statues are considered monuments under state code and whether the city councilors could be held individually liable for their votes — have been laid to rest by judicial orders in the past six months.

The defendants have said that the statues are not war memorials and were therefore not protected by state law, an argument Moore rejected in April.

According to Code of Virginia section 15.2-1812, most recently modified by the General Assembly in 2010, localities are permitted to build monuments honoring “all persons who made the supreme sacrifice in giving their lives in defense of Virginia and the United States.”

For eligibility, the law lists “wars and engagements” from the 1622 through the 21st-century “Global War on Terrorism.” Included is the “War Between the States (1861-1865).”

“If such are erected, it shall be unlawful for the authorities of the locality, or any other person or persons, to disturb or interfere with any monuments or memorials,” the law states. “Disturb or interfere with includes removal of, damaging or defacing monuments or memorials.”

In his April order, Moore wrote that it was “plainly obvious” the Lee and Jackson statues were monuments to the Civil War and two veterans of it.

In July, Moore dismissed individual council members who cast the 2017 votes from the lawsuit. Because he could not find that their votes were “grossly negligent,” he wrote that they had legislative immunity.

However, Moore has yet to rule on a major point of contention between parties: whether the statues violate the equal protection clause of the 14th Amendment.

Defense attorneys have argued that the statues’ existence violates the Constitution by sending a message of racial intimidation .

Although Moore has indicated he will likely rule against that argument, two Charlottesville educators have continued to lead tours of the area around the park statues, contextualizing their installation.

On Friday, University of Virginia professor Jalane Schmidt and Andrea Douglas, executive director of the Jefferson School African American Heritage Center, spoke to a crowd of more than 50. Alongside UVa law professor Anne Coughlin, they discussed the time period when the statues were erected .

According to Schmidt, the public officials and financier of the statutes intended them to perpetuate white supremacy.

“It’s difficult to look at these statues and not think about why they were erected when they were, during Jim Crow, and that the placement wasn’t intended to send a message to black residents,” she said.

The Monument Fund’s lawsuit disagrees with that viewpoint. One of the plaintiffs also sued Schmidt, claiming he was defamed by comments she made about his family history in a locally published article.

Richard Schragger, a UVa law professor who focuses on constitutional and local government law, has argued that the equal protection argument is among the defense’s stronger points.

Although he said he is uncertain how the Charlottesville Circuit Court will rule on the issue, he expects that the lawsuit will be appealed by one of the parties, regardless of the outcome.

“In a lot of ways, this trial is the first of its kind, at least in Virginia, and I would expect it to be appealed all the way to the Supreme Court of Virginia,” he said.

Schragger said he is not clear on what is at issue, especially with regard to damages. Moore has previously ruled that no physical damage was caused to the statues — and the plaintiffs have agreed.

However, the plaintiffs say the city council violated the state code when it voted soon after the Unite the Right weekend to shroud the Lee and Jackson statues with tarps, surround them with fencing and rename the parks where they are located.

Moore has allowed the new park names to stand, and he let the shrouds stay for several months following the death of United the Right counterprotester Heather Heyer, who was fatally struck on Aug. 12, 2017, on a Charlottesville street by an car driven by James Alex Fields Jr.

Fields, who came from Ohio to Charlottesville to participate in the white supremacist gathering, has since been convicted of murder and sentenced to life in prison.

The fencing remains in place. However, Moore has been steadfast in his opinion that state code prevents removing the statues.

During the trial, the plaintiffs are expected to argue that the tarps were a form of encroachment, preventing the public from viewing the statues. Whether Moore will find merit to that argument and award damages remains to be seen.

“It’s somewhat ironic to seek damages considering all the pain, violence and death those statues have given this community in the last two years,” Schragger said.

However the lengthy legal case plays out this week in court, the issues will likely return during the 2020 General Assembly session.

In the last two sessions, Del. David Toscano, D-Charlottesville, has tried to amend the state code to allow war monuments and statues to be removed. Each session, the bill has died.

Yet with all seats in the Virginia House of Delegates and Senate up for election this year, and Republicans having slim majorities in both legislative chambers, a change in power could present a different outcome.

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