CHARLOTTESVILLE — A circuit court judge said Wednesday that a state law protecting war memorials applies retroactively to Charlottesville’s statue of Confederate Gen. Robert E. Lee, but he wants more proof that the statue of a single historical figure counts as a military monument.
Finding no fatal flaw in a Virginia statute preserving war statues, Charlottesville Circuit Judge Richard Moore’s ruling upheld most of a lawsuit seeking to block Charlottesville from removing the Lee statue from a downtown park. The judge gave the plaintiffs — a pro-statue coalition that includes Confederate heritage groups — 21 days to present a stronger case that a statue honoring Lee has an inherent connection to war.
However, Moore denied a motion made by the coalition asking him to issue a preliminary injunction instructing the city to remove black plastic tarps from the Lee statue and a nearby statue of Confederate Gen. Stonewall Jackson. Charlottesville’s City Council voted to shroud the statues after a violent rally on Aug. 12 that left one dead and dozens injured.
The closely watched case has legal ramifications for cities throughout Virginia wrestling with the issue of Confederate statues. It could ultimately decide whether localities have the power to take down statues on their own or if they’ll have to ask the Republican-controlled General Assembly for permission.
“We are happy,” said Ralph E. Main Jr., an attorney for the coalition, as he left the court after the five-hour hearing.
Otherwise he deferred comment to Charles Weber, one of the plaintiffs who has been serving as a spokesman, who said he did not expect the group would have any difficulty proving the statue of Lee is indeed a war memorial.
“I think it’s just a matter of getting the right words in there. We asserted in our pleadings that they are war memorials, but he said we needed to include facts,” Weber said.
The city had moved to dismiss the case, arguing that the state law protecting war memorials does not apply retroactively to statues erected in cities before 1998. In his ruling, Moore said he could not conclude that the legislature intended to leave certain memorials unprotected based on when they were built and whether they were located in a city or a county.
The Charlottesville ruling differs from an earlier opinion from a judge in Danville, who ruled that quirks in the law’s wording meant that it applies only to memorials erected after the General Assembly amended the law in 1998 to cover more conflicts and to specify that it applied to all localities, not just counties.
City Attorney S. Craig Brown acknowledged the ruling was significant but said it didn’t come as a surprise.
“There are a number of issues, and retroactivity is one of them, and we definitely have an uphill battle on that one, but there are other issues to argue,” he said.
Moore said that a technical reading of the law could support that conclusion, but he said it “seems absurd” to believe the legislature expected a new wave of monuments to age-old conflicts.
“I find it impossible to believe that by including cities to expand the effect of this protective legislation, the General Assembly was really saying and intended to say to the cities: ‘You may finally now construct memorials to the Revolutionary War, Mexican War, Civil War, Spanish-American War, World War I, but such are protected (and you cannot move or damage or destroy them) only if you build them now and all of the statues that exist are not protected,’” Moore wrote. “I think such defies common sense and logic.”
The plaintiffs, which include the Virginia Chapter of the Sons of Confederate Veterans, argued that although language in the state code doesn’t specifically say the law is retroactive, it’s “common sense” that the law was intended to apply to every war memorial.
In an advisory opinion issued in August, Attorney General Mark R. Herring suggested the law did not apply retroactively because the General Assembly didn’t say explicitly that it did.
Moore’s ruling on retroactivity is a victory for the plaintiffs, but the judge said the legal challenge didn’t include enough facts establishing who Lee was and why a statue of him should be viewed as a war memorial. The judge said Lee may fall into the “category of individuals who are so well-known that people automatically know who they are and what they stand for,” but that does not mean a statue of Lee in any phase of his life automatically becomes a war memorial.
“Plaintiffs argue that it is ‘common knowledge’ who Robert E. Lee is,” Moore wrote. “That may be, but does not resolve the issue.”
Although Moore offered a lengthy, written opinion, addressing the issue of retroactivity at the beginning of the hearing, his decision on whether to require the city to remove the tarps came after nearly five hours of testimony on the subject.
The pro-statue coalition put forward six witnesses, who variously testified that covering the statues prevented them from enjoying the monuments and that the tarps might be damaging the statues by trapping moisture and causing mold or acting as a sail, making the statues vulnerable to damage in high winds.
A lawyer for the coalition, S. Braxton Puryear, repeatedly described the shroud, which the City Council said was intended to honor Heather Heyer, who was killed in a car attack at the Aug. 12 rally, as a trash bag.
In denying the motion, Moore said his primary concern was that the shrouds were not intended to be temporary. A temporary mourning shroud would be appropriate, he said, but a permanent covering would violate the law. And he said he agreed with Puryear’s assessment that, if the city was attempting to honor Heyer, the plastic covering was not an aesthetically pleasing choice.
“If the purported reason is to signify mourning, covering it with plastic and duct tape ... I just leave it with the city to think about that,” he said.