Statue tarps

Daily Progress file

The Robert E. Lee statue in Charlottesville was covered with a tarp and surrounded by fencing following the deadly Unite the Right rally in 2017. Plaintiffs in a lawsuit over City Council’s votes to remove two Confederate statues say the shrouding of the monuments violated state code.

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

The twin votes caused anger among those who see the statues as representative of their own family history and those who see Confederate Gens. Robert E. Lee and Thomas “Stonewall” Jackson as key figures in support of their white supremacist viewpoints.

A lawsuit, led by a group of area residents who dubbed themselves the Monument Fund, was filed soon after the council’s Feb. 6, 2017, vote to remove the Lee statue. But the vote also spurred a deadly white supremacist rally that tried to unite various far-right factions Aug. 12, 2017.

Soon after the rally, the City Council also voted to remove the statue of Jackson. Plaintiffs have argued the two council votes were illegal because they violate state code, an argument the Charlottesville Circuit Court has largely upheld.

Defendants, however, said the statues cannot be divorced from time they were erected, amid Jim Crow in the 1920s, and they represent an attack on black residents. The argument is echoed in a series of tours led by University of Virginia professor Jalane Schmidt and Andrea Douglas, executive director of the Jefferson School African American Heritage Center.

On Wednesday, a 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 quickly became more complicated. Charlottesville Circuit Court Judge Richard E. Moore, who is overseeing the case, has remarked more motions have been raised in this case than any other he’s overseen, and the trial date has been pushed back repeatedly.

Despite the lengthy legal discourse, almost all the primary issues in the lawsuit have been ruled on. 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 councilors could be held liable for their votes — have been laid to rest by judicial orders in the last six months.

The defendants have said the statues are not war memorials and were not protected by state law, an argument Moore rejected in April. According to Code of Virginia section 15.2-1812, localities are prevented from encroaching on monuments to most wars the U.S. has been involved in.

In his order, Moore wrote it was “plainly obvious” the statues were monuments to the Civil War and two Civil War veterans, a legal determination likely bringing them under protection.

In July, Moore dismissed the individual councilors from the lawsuit. Because he could not find their votes were “grossly negligent,” he wrote 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.

For the better part of the last year, defense attorneys have argued the statues’ very existence violates the Constitution by sending a message of racial intimidation to black residents.

The Jackson statue was unveiled in 1921 at ceremony that served as “the crowning event of the Confederate Reunion of the Grand Camp, United Confederate Veterans and the Virginia Division of Sons of Confederate Veterans,” according to a Daily Progress article at the time. That same year, the Progress reported that the Ku Klux Klan organized in Charlottesville.

“Hundreds of Charlottesville’s leading business and professional men met around the tomb of [Thomas] Jefferson at the midnight hour one night last week and sealed the pledge of chivalry and patriotism with the deepest crimson of red American blood,” as reported on June 28, 1921.

The Lee statue followed in 1924. Both were donated by philanthropist Paul Goodloe McIntire.

According to Schmidt, the public officials and financier of the statutes used the works to perpetuate white supremacy, erecting the statues near black and mixed-race neighborhoods.

“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.

Though the tour guides cite various sources to back up their claims, not everyone agrees — namely, the plaintiffs in the statues lawsuit. One of the plaintiffs also sued Schmidt, claiming he was defamed by comments she made about his family history in a C-Ville Weekly article.

The tours have continued, however, framing the statues’ history in a way similar to arguments made by defendants in the statues lawsuit.

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

Though he said he is uncertain how the Charlottesville Circuit Court will rule on the issue, he expects 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 entirely clear on what is at issue, especially with regard to damages. Moore previously has ruled no physical damage was caused to the statues — and the plaintiffs have agreed.

Plaintiffs, though, say City Council violated state code by encroaching on the monuments when they decided to shroud them with tarps, surround them with fencing and rename the parks in which they stand. Moore has allowed the new park names, and he let the shrouds stay for several months following the murder of Heather Heyer at the rally. The fencing remains to this day.

However, Moore has been steadfast in his opinion state code prevents removing the statues.

During the trial, the plaintiffs are expected to argue 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.

Though the trial may end this week, the issues considered by the court will likely return during the 2020 General Assembly session. In the last two sessions, Del. David J. 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.

However, with all the seats in the Virginia House of Delegates and Senate up for election this year, a change in power could present a different outcome.

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