NORFOLK, Va. (CN) – 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.
While critics of Civil War statues link them to the preservation of archaic stances on race and equality, Norfolk has another reason to remove the monument: the issue of cleaning it.
The complaint points to three specific instances in which the statue was defaced in 2017.
“Each of the city’s cleaning activities undertaken after these three instances of vandalism appear to constitute an encroachment upon the monument which could expose the city to civil liability under the broad and vague provisions of the civil remedy statute,” the lawsuit states.
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.
”Local governments must consider a number of potential restrictions that may apply to removal or relocation of a war or veterans monument as a function of general law, special Act of Assembly, or other limitations,” Herring wrote in the opinion. “Depending on when the monument was erected and where it is located, facts concerning a particular monument may or may not prohibit the locality from such actions.”
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.
Michael Kelly, a spokesperson for Herring, said in an email they were still reviewing the lawsuit but were unsure why the attorney general was named as a defendant as his office “doesn’t really have any role in enforcing this law.”
But Kelly did confirm Herring’s past support for a city’s ability to remove monuments.
“Attorney General Herring has long called for the repeal of this law and removal or relocation of Confederate statues,” he wrote.
Melita, the Norfolk city attorney who authored the complaint, said in an email that the city does not comment on pending litigation.
The lawsuit seeks an injunction blocking the state from enforcing the monument protection statute and a declaration that it is unconstitutional.
Statue removal is a hot-button issue in Virginia, where a 2017 rally organized by neo-Nazis and white supremacists groups in support of a Confederate statue led to the death of counterprotestor Heather Heyer.
The Charlottesville City Council had voted to remove a statue of Confederate General Robert E. Lee in a local park, spurring the Unite the Right rally to protest its removal. The city is currently facing a lawsuit from local heritage groups who cite the protection statute as grounds for challenging the decision.
But the statue law does have loopholes. The city of Danville, located along the border with North Carolina, sued for the right to remove a Confederate flag hanging on city grounds.
The Virginia Supreme Court decided not to take up the case, leaving in place the lower court’s order allowing the flag’s removal. Herring cited this decision in his 2017 opinion as further grounds for legal statue removal.