RICHMOND, Va. (CN) — A state court judge in Richmond, Virginia, Monday night issued a temporary injunction blocking the removal of a Civil War monument just as George Floyd protests began to wind down in the former capital of the Confederacy.
Richmond Circuit Court Judge Bradley B. Cavedo ruled that plaintiff William Gregory has the right to block the removal due to an 1889 deed record that says the “Commonwealth accepted the conveyance and guaranteed to hold said statue and pedestal and circle of ground perpetually sacred” and “faithfully guard it and affectionately protect it.”
Gregory said in his Monday lawsuit that he is the great grandson of Roger and Bettie Gregory, parties to the 1890 deed was signed by then-Governor P.W. McKinney. He says removal of the statue would violate an entry in the state’s Acts of Assembly, also dated 1889. The document includes a copy of the handwritten deed.
Gregory sued Governor Ralph Northam and Joe Damico on Monday — director of the state’s Department of General Services — and Cavedo issued the temporary injunction later that day. A Facebook page called The Monument Avenue Preservation Group announced the injunction Monday evening. It said the groups seeks to “preserve, protect, maintain and celebrate the Civil War commemorative monuments on Richmond’s Monument Ave.”
The injunction orders the state to hold off on removing the statue for 10 days.
After several days of protests in the city over racism and police brutality, stemming from the death of George Floyd, Northam, a Democrat, said on June 4 that he would remove the Lee statue.
Northam spokeswoman Alena Yarmosky said the governor was reviewing the court order, but “remains committed to removing this divisive symbol from Virginia’s capital city.”
“We’re confident in his authority to do so,” she added.
The 21-foot, 12-ton Lee sculpture sits in the middle of the city’s Monument Avenue, which is lined with four other statues of Confederate leaders. Lee’s monument is unique because it is the only state-owned Confederate statue on the strip.
Thousands of protesters have taken over main roads in Richmond in recent days, joined by Mayor Levar Stoney. Removal of Civil War monuments, which are spread throughout the city, was among the protesters’ demands.
Other requests, including as a mental health crisis response system for police, were also granted after the massive public displays.
The events were initially rowdy with some looting and the burning of a city bus, and Richmond police struck back. They arrested more than 200 people on May 31, and the next day they tear-gassed protesters at the Lee statute 30 minutes before a newly implemented curfew took effect.
Police later apologized for using tear gas, and protesters, numbering in the thousands, have continued to demonstrate, using the base of the Lee monument as a meeting place.
Long an issue for civil rights-minded Virginians, last winter the state’s Democratic-controlled General Assembly rolled back a state law banning the removal of such monuments.
Cities including Richmond have already announced plans to use the new, 60-day process to remove the hulking monuments to the Confederacy when the law takes effect in July.
But that legislative effort applied only to statues on city land, and Richmond’s Lee statue is unique, according to Northam, because it is owned by the state. He says this allows him to work with the Virginia Department of Government Services to remove the statue “as soon as possible” and “put it in storage” until a decision is made about its future.
The rapid nature of the complaint and injunction is sure to raise questions considering the snail’s pace state courts — Richmond specifically — have been moving under restricted conditions during the coronavirus pandemic.
A spokesperson for Attorney General Mark Herring said the office had not been served with the complaint by 9 p.m. Monday.
Judge Cavedo has a history of connections to the state’s Republican Party, which has long sought to protect Civil War monuments, including passing a law that forbade their removal. In 2013 he was forced to recuse himself in a dispute between state attorney general candidates, one of them being state Sen. Mark Obenshain, R-Harrisonburg, now one of the leading members in the Republican Senate Caucus.
In that race Obenshain lost to then-state Sen. Mark Herring, now the attorney general.
Whether Northam has the authority to remove the statue is still up in the air. However, recent efforts to remove statues on state-owned land suggest legislation will be required.
The state’s adherence to Dillon’s Rule often forces courts to side with legislators when powers are not explicitly defined.
The 150-year-old ruling by Iowa Supreme Court Judge John Dillon is a legal theory of city authority that states no locality can establish powers not granted it by the Legislature. Dillon wrote: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the Legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.”
After seeing Democrats on the road to success with their efforts to remove Civil War monuments, freshman Delegate Wendell Walker, R-Lynchburg, whose district includes Liberty University, submitted a bill seeking Senator Harry Byrd’s statue from the Capitol grounds. Byrd, a Democrat, was a vehement opponent of desegregation of public schools.
Walker’s effort failed — for convoluted reasons — but it suggests the removal of statues from state land might necessitate approval of the General Assembly.
To that end, Delegate Jay Jones, D-Norfolk, has said he will submit legislation to remove Byrd’s statue during the 2021 session.
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