An attorney for Alamance County’s board of commissioners has asked North Carolina’s Court of Appeals to reject a request from the state’s branch of the NAACP to order the removal a 109-year-old Confederate monument from the grounds of the county’s historic courthouse.
The NAACP and its co-litigants had originally petitioned the state court of appeals in March after a superior court judge had dismissed their pleas to have the monument relocated due to the alleged public danger it posed as a flash point for competing groups of demonstrators.
In September of 2022, Donald Bridges, a visiting superior court judge who presided over this case in Alamance County, formally rejected the organization’s claims that the county’s decision makers were not merely allowed, but legally required, to eject the statue-topped obelisk from the grounds of the courthouse.
The plaintiffs had argued that the county is obligated to move the monument under a statutory exemption to a state law that generally forbids local authorities from tampering with “objects of remembrance” that are ensconced on public property.
Under this exemption, local officials are permitted to move protected structures to sites of equal prominence of they present “a threat” to “public safety because of an unsafe or dangerous condition.”
NAACP and its co-plaintiffs insisted that just such a threat to public safety was posed by the dueling demonstrations which had erupted in the monument’s shadow after the murder of George Floyd by a white Minneapolis police officer in 2020. But Bridges rejected this argument as a misconstruction of statutory language that, in his view, clearly referred to structural hazards.
In their petition to the state court of appeals, the NAACP and its co-litigants had argued that the lower court judge had failed to give proper weight to the monument’s apparent violation of North Carolina’s state constitution due to what they see as its discriminatory and racist associations with the Confederate cause.
In her subsequent response on the county’s behalf, attorney Natalia Isenberg of the Teague Campbell Law Firm contends that the plaintiffs had more or less forfeited this argument when they made the tactical decision not to challenge the state’s so-called “Monuments Law,” which may indeed protect all objects of remembrance, but was “enacted immediately after” a racially-motivated shooting in South Carolina “and at a time when Confederate monuments and memorials were being removed around the country.”
“The county’s alleged failure to move the monument despite the clearly applicable law cannot violate a statute that, according to [the] plaintiffs, is constitutional,” Isenberg adds in a legal brief dated August 23. “[The] plaintiffs are arguing that non-action by a county board in the face a constitutional statute that prohibits it from acting amounts to discriminatory intent.”
Isenberg goes on to challenge the plaintiffs’ assertions that the commissioners were “somehow doing something wrong” when they sought the advice of Alamance County’s attorney before choosing not to relocate the monument. She also shrugs off as “irrelevant” another claim that the county had never identified “any compelling interest served by the maintenance and protection of the monument.”
“The law itself provides the most compelling interest there is for a government to act or not act,” she proceeds to assert. “Adhering to the [Monuments] Law is a highly compelling interest.”
Isenberg proceeds to question the claim that the monument’s allegedly inflammatory implications are even a basis for challenging its constitutionality.
“[The] plaintiffs allege that the mere presence of the monument represents a part of North Carolina history that is so offensive to them and others that it constitutes an infringement of their constitutional rights. However, the monument means different things to different people. The fact that [the] plaintiffs view its presence as offensive is insufficient to raise a constitutional claim.”
In any event, Isenberg contends that the board of commissioners was protected by “legislative immunity” when a majority of its members chose to leave the monument in place when the first calls for removal were aired in 2015. She adds that, if the court of appeals should side with the plaintiffs, it would set “a troublesome precedent – one where unelected citizens who are ‘offended’ can limit government speech depending on the social trends of the time.”
“One can easily imagine monuments erected to political leaders of various backgrounds being challenged by litigants when political climates change,” she goes on to suggest. “Our country is made up of people from varied and diverse backgrounds…making it very difficult for a county not to become subject to lawsuits if the only legal requirement for bringing constitutional claims was that the plaintiff be ‘offended’ by government speech.”
Since Isenberg filed this brief on August 23, attorneys for the NAACP and its co-plaintiffs have asked the court of appeals for an additional two weeks to submit a response. The court has gone on to grant this requested extension, giving the plaintiffs until September 25 to reply.
