NASHVILLE, Tenn. (CN) – As Memphis faces political fallout for using a loophole in state law to remove three Confederate statues from city parks, a state judge sided with the city Wednesday and declined to issue an injunction in favor of a Confederate heritage group.
Davidson County Chancellor Ellen Hobbs Lyle rejected a petition from the Memphis chapter of the Sons of Confederate Veterans asking the court to issue a temporary injunction “to freeze the status quo of the statues” until the Tennessee Historical Commission can determine if Memphis violated a state law that prevents the removal of historical statues, including ones remembering the Confederacy.
The Tennessee Historical Preservation Act, passed by the Legislature in 2016, protects memorials on public land unless the Tennessee Historical Commission approves a removal.
In the wake of a violent white nationalist rally in Charlottesville, Va., last summer that included the murder of a counterprotester, Southern cities and towns were left grappling with whether to remove the monuments to the Confederacy in their public spaces.
In December, majority-black Memphis transferred ownership of two city parks where three Confederate memorials stood to Memphis Greenspace Inc., which promptly removed the statues memorializing Confederate leaders Nathan Bedford Forrest, James Harvey Mathes and Jefferson Davis, president of the Confederacy. The statues sit in a secret location to this day.
In her 15-page ruling, Lyle said the law at issue never extended to memorials held in private hands, and that it is legal for the city to sell property and land to private groups – even at a low cost.
“If property is not covered by law, this court has no authority to issue an injunction,” Lyle wrote. “That is the case here. The statues here are not public property. By virtue of the December 2017 sale and the limitations at that time of the 2016 Act which did not prohibit sales, the statues are private property beyond the control of this court.”
State lawmakers have since passed an amendment to the Heritage Preservation Act to patch the loophole, prohibiting municipalities from selling statues and the land on which they sit to private groups. The bill currently sits unsigned on Tennessee Governor Bill Haslam’s desk.
The Legislature also cut $250,000 out of its spending bill that was earmarked for Memphis’ bicentennial celebration because the city removed the statues.
Chancellor Lyle issued a stay in Wednesday’s ruling, ordering Memphis Greenspace to keep the statues at least until July 27, when the stay expires. She also taxed court fees to the Sons of Confederate Veterans, which has 30 days to appeal the ruling.
Lyle said the Sons of Confederate Veterans and the city both had valid arguments for and against a possible injunction.
“The Legislature has decided that the Confederate history of this state should be protected and preserved and has passed the Act to accomplish that preservation,” Lyle wrote, noting that Forrest – who founded the Klu Klux Klan after the Civil War – accomplished “innovative and unparalleled military feats” as a Confederate commander.
Meanwhile, the city had equally valid public interest concerns, she wrote, because Forrest’s statue has been vandalized and was the site of several protest and arrests.
“The city has incurred tens of thousands of dollars to provide police monitoring of the Forest statue,” Lyle wrote. “The parks where the statues were located have declined in usage and are not places of recreation and enjoyment.”
Bruce McMullen, chief legal officer for Memphis, said that while the Sons of Confederate Veterans wanted the Tennessee Historical Commission to examine the issue and order the statues back up, decisions by that body are appealed to the chancery court.
“It just affirms what the city, we’ve said all along…that the land was sold and the statues were removed lawfully and properly,” McMullen said in an interview. “And we’ve always maintained that and this ruling affirms that. … The court has said the sale was not a sham, it was a legal sale.”
McMullen said the city anticipates the ruling will be appealed, and possibly resolved in the Tennessee Supreme Court.
Scott Hall, the Sons of Confederate Veterans’ judge advocate-in-chief, disputed that the transfer of the statues to private hands was legitimate.
“It is my opinion that the Heritage Protection Act, as originally enacted in 2016, prohibits sham, fraudulent, and fictitious transfers of public property,” Hall said in an email. “The 2018 Act expands the Heritage Protection Act to make this clear. An attempt at circumventing a law by alleging a transfer to a fictitious entity is violation of the law.”
While Memphis found a loophole in the 2016 law, it is unlikely that any other Tennessee municipalities will follow suit because of this year’s amendment sitting on the governor’s desk.
“The ruling should mean little to other monuments; the Legislature made it clear that the intent of the Heritage Protection Act was to prevent any alteration of memorials and monuments, as well as requiring preservation of the memorials or monuments,” Hall wrote.