Brad Kutner, Courthouse News, August 19, 2109
The coastal city of Norfolk filed a federal lawsuit Monday against the state of Virginia in hopes of removing a Confederate statue and rolling back a state law banning the removal of war monuments.
The lawsuit, filed in Norfolk federal court by city attorney Adam Melita, says its purpose is to “unbuckle the straitjacket that the commonwealth has placed the city and the city council in.”
It cites a specific monument built in 1907, at the behest of and with money from the Norfolk City Council. It is because of the city’s original role in its construction and funding that city officials believe the monument counts as speech under the First Amendment and they have the right to alter that speech by removing it.
Standing in the city’s way is a state law barring the removal of war monuments. Passed in 1904, the so-called protection statute allows localities to erect “monuments or memorials for any war or conflict, or for any engagement of such war or conflict,” and forbids authorities or citizens to “disturb or interfere with any monuments or memorials so erected.”
The law was updated in the late 1990s to specifically include cities as authorities prohibited from removing the memorials.
The city asks the court to grant it authority to move the statue to a place where it won’t be damaged at the expense of taxpayers.
“Because these statutes are inherently vague as to what constitutes an ‘unlawful removal’ and — by implication — whether the statute can be used to impose civil liability or criminal punishment for a lawful removal, the City is unwilling or unable to relocate the Monument to a public cemetery where it would be less likely to be vandalized,” the complaint states.
The lawsuit names as defendants the commonwealth and Virginia Attorney General Mark Herring, a Democrat who could actually help the city’s case. Herring wrote a legal opinion in 2017 that said cities sometimes have the right to remove such statues.
Herring also has a history of not defending state laws he thinks are unjust, as was the case when he chose not to defend Virginia’s ban on same-sex marriage in 2014.
The lawsuit seeks an injunction blocking the state from enforcing the monument protection statute and a declaration that it is unconstitutional.