NORFOLK- Attorneys for Norfolk have announced plans to file a challenge to the state law they argue is holding the city back from moving a Confederate monument out of downtown.
This comes as lawsuit filed by two men seeking to force the city to remove the monument was delayed Thursday.
That lawsuit, filed by activists Roy Perry-Bey and Ronald Green against Norfolk’s City Council in late March, asks the court to force the city to follow through on a resolution the council passed in August 2017 to move the 80-foot-tall monument from its current location on East Main Street.
The resolution, passed in the wake of the Charlottesville Unite The Right demonstration that drew thousands and resulted in the death of couterprotester Heather Heyer, expressed the council’s desire to move the monument to Elmwood Cemetery. That summer, Norfolk and other Hampton Roads cities saw their own demonstrations, with hundreds protesting against Confederate monuments throughout the region.
The resolution, however, noted the city would proceed “as soon as the governing state law clearly permits it.”
The state code at issue makes it illegal to move war monuments, including those dedicated to the Confederacy, and Norfolk officials have said conflicting rulings in recent cases on the issue gave them pause.
In Danville, a court ruled in 2015 that anything installed in a Virginia city before 1998 was not protected by the law, which applied only to counties until state legislators expanded it to cover cities in 1997.
The Virginia Supreme Court declined to review the case, which Perry-Bey points to as one of several precedents giving Norfolk all the legal clearance it needs to move ahead with the removal of the monument.
Norfolk’s monument was completed in 1907.
In 2017, Norfolk officials said they wanted to wait for the Virginia Supreme Court to weigh in on the dispute over two statues of Confederate generals in Charlottesville. But that case has turned into a protracted and thorny legal battle.
As the Charlottesville case has dragged on and the new lawsuit against the city has cropped up, Norfolk’s city attorney says he will move forward within the next couple of weeks with a court petition challenging the state law directly.
“The statute being the impediment, we’re going to attack the constitutionality of the statute and urge the interpretation of the Danville court, not the Charlottesville court,” said City Attorney Bernard Pishko.
The law violates the 1st Amendment’s freedom of speech clause, Pishko said, because the restriction is based on the content of the monument. He also said it also violates the 5th Amendment because it deprives the city of the right to use its property how it wants.
What the court decides could inform how the controversial monuments are dealt with in other Virginia cities.
During a hearing in Norfolk Circuit Court on Thursday, Perry-Bey said that all sounded like a delay tactic from a city that has had two years to challenge the law.
“For them to waltz into court and say, ‘We’re looking at this,’ it’s hogwash,” Perry-Bey said after the hearing. “For the city to play this game, it’s offensive, it’s hurtful and it’s too painful to live under.”
For the moment, Perry-Bey and Green’s suit against the city is on hold. Norfolk Circuit Court Judge Mary Jane Hall continued the motion for an injunction against Norfolk on Thursday, saying the city hadn’t been served with the suit in time to adequately respond.
Perry-Bey said they expect to be back in the courtroom in a few weeks.