A Charlottesville circuit judge recently ruled that two statues of Confederate generals — Robert E. Lee and Thomas “Stonewall” Jackson — that sit in Charlottesville city parks are “war memorials” under a Virginia state statute that bars their removal. Those statues were the site of the white supremacist rally in the summer of 2017, in which a counter-protester, Heather Heyer, was murdered by a self-avowed white supremacist.

The city council had voted to remove both statues, which also sparked a lawsuit against the city that is still being litigated. While the judge’s recent decision is significant, two other issues are looming and they might be even more consequential.

The first issue still to be decided is whether the city councilors can be held personally liable for voting to remove the monuments in the first place. The judge has decided that the councilors do not enjoy so-called “common law” legislative immunity but has yet to consider whether they enjoy “statutory” immunity. If the former decision is allowed to stand, and the judge rules against the city councilors on the second, he could do great damage to local government in Virginia.

Recall that the city council is being sued for voting to remove the Lee and Jackson statues; the city never actually removed them.

Under general principles of law, legislators — including city councilors — normally enjoy absolute immunity for the votes they take on issues that come before them. The general rule is that parties can sue the city itself for violations of law or of constitutional rights, but cannot sue individual city councilors for damages for votes they take as councilors.

If the courts permitted councilors, members of Congress, or members of the General Assembly to be held personally liable for their votes, very few people would take the risk of becoming a city councilor or a member of a school board or a member of any local government body. By doing so, they’d expose themselves to costly lawsuits and possible personal liability. Constituents who disagree with legislators’ votes would harass them with endless lawsuits.

The Charlottesville case is exactly why immunity is needed. Whether the state statute barring the removal of war memorials applies to Charlottesville at all continues to be an unsettled legal question, as it was when the city councilors voted to remove the statues. The court’s decision will be contested on appeal; the Virginia Supreme Court could still rule that the statute does not apply.

But the city councilors now are forced to defend a costly and time-consuming lawsuit. If members of city councils, school boards and other local boards have to defend lawsuits for votes they take, with personal liability a possibility, it will be all but impossible to staff local government.

There is a second issue that looms as well, and it goes to the very constitutionality of the city councilors’ decision to remove the Confederate statues. Under settled constitutional principles, government officials may not undertake acts with the intent, purpose and effect of discriminating against a protected class.

As the city has argued repeatedly, the original decisions to erect the Lee and Jackson statues in the early 20th century were intended to and did send a message of white racial superiority. The Lee statue was erected in a whites-only park, and occurred against the backdrop of resurgent Ku Klux Klan activity, including parading Klansmen celebrating the “Lost Cause” on Charlottesville streets. Statues to Confederate generals were erected across the South and were meant to reinforce symbolically what Jim Crow segregation laws reinforced explicitly: that African Americans were second-class citizens.

The city councilors have raised this “equal protection” defense, which the judge has yet to rule on. They argue that the U.S. Constitution required them to obey a principle of equal treatment, and that their votes to remove the Lee and Jackson statues were an effort to comply with the Constitution, not to break Virginia law.

Lawyers often talk about how “bad cases make bad law.” If the judge declines the councilors’ statutory immunity and equal protection defenses, he will compound the tragedy of Charlottesville with two very dangerous precedents. The first decision would significantly undermine local government in Virginia. The second would significantly undermine the principle of equal treatment embodied in our Constitution.

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Richard Schragger is the Perre Bowen Professor of Law and Joseph C. Carter, Jr. Research Professor of Law at the University of Virginia School of Law. Contact him at schragger@law.virginia.edu.

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