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VOL. 10 | NO. 42 | Saturday, October 14, 2017

Process vs. Protest: Opinions Differ On How to Remove Monuments

By Bill Dries

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Protest and the legal process live in the same neighborhood. Sometimes they are next-door neighbors with borders that may be in dispute. At others times they are allies. But there is almost always a tension between the two.

Memphis chief legal officer and city attorney Bruce McMullen and Take Them Down 901 leader Tami Sawyer debate legal strategies for the removal of Confederate monuments at a recent University of Memphis law school forum. (Memphis News/Houston Cofield)

So when the University of Memphis Cecil C. Humphreys School of Law recently called together the City Hall attorneys behind Memphis Mayor Jim Strickland’s legal strategy to remove the city’s Confederate monuments in city parks, it also included the leader of recent protests aimed at the immediate removal of the statues and a state senator and law professor with a view of the political middle ground and a foot in each camp.

The statue of Confederacy president Jefferson Davis can be seen in Memphis Park from the law school’s northern windows.

“It’s not every day that we see these kinds of controversial issues discussed in a controlled, moderated environment,” said Demetria Frank, assistant professor of law, at the outset of a forum sponsored by the law school and the Black Law Students Association.

Bruce McMullen, the city’s chief legal officer and city attorney, and Allan Wade, the attorney for the Memphis City Council, argued for the legal process Strickland is pursuing, which runs through the Tennessee Historical Commission and likely into Chancery Court beyond that, as well as back to the Tennessee Legislature.

“We can be radical. We can be all the way radical to the ground,” Wade said. “But when you go before a judge, an appeals court, some of whom have sympathies for the other side, we have to be reasonable. We have to make sure we have all of our bases covered. And that is what we are doing.”

Tami Sawyer, the leader of the grass roots Take Them Down 901 effort, said City Hall’s way isn’t moving fast enough and might be moving even slower if it weren’t for protests her group and others have held, some of which have resulted in arrests.

“The protests and the actions were to make a public push for removal and to bring this to the forefront,” she said. “The people are saying that this is what they want. The people that they have asked to represent them have the power and the right to be radical in making this change.”

State Sen. and law school professor Lee Harris thinks the Strickland administration is being too grim in its analysis of why it has to rigidly adhere to a process of hearings, filings and other legal procedures – all while police guard the statues of Davis and Confederate general, slave trader and Ku Klux Klan grand wizard Nathan Bedford Forest.

“We need to at some point have a serious look at what the legal repercussions are,” Harris said. “I think we have run wild on all of the downside consequences.”

But Harris joined Wade and McMullen in his belief that Strickland is “on our side.”

“But I do think we have exaggerated some of the penalties,” he said, adding he doesn’t believe an ouster suit against city officials for violating state law would get very far, despite the precedent of that happening a century ago when then-Mayor E.H. Crump refused to enforce the state’s Prohibition law.

Harris challenged the idea that city workers told by the administration to take down a Confederate statue could be found guilty of violating the state law on such monuments.

“If we destroy city property, obviously we are guilty of something,” Harris said of citizens who don’t work for the city. “I can’t imagine how city workers that destroy city property could be guilty of something. They own the property. … A city act is not the same thing as a private citizen’s act.”

Wade didn’t argue the point. But he said the legal issue includes what happens to a statue that the city removes.

“We can take them down. We can fight in court,” he said. “But I think the court will look unfavorably if we don’t follow the process. I believe that we cannot move that statue or get it relocated or get it repositioned … unless we can demonstrate to them that we can pass that title.”

Wade said that doesn’t mean other options aren’t nearby or that the technical issues override questions like civil rights considerations.

“There are other alternatives that we will pursue, but in the litany of options that we have, we have to go with the priority that we believe we have the most likelihood of success with,” Wade said. “But we have not ignored anything. Trust me.”

Sawyer might have been willing to trust Wade more than McMullen.

“The mayor has not yet responded to our petition,” she said after McMullen said the city welcomes the efforts of her and other citizens as a way to illustrate to the state how the community feels about the statues.

Wade said the protests and a petition with 5,000 signatures that Sawyer and others delivered to City Hall this summer go toward the legal effort to show community sentiment in the quest for a waiver from the Tennessee Historical Commission and beyond.

“What we are finding is that the Confederates and a lot of the Confederate members of the (historical) commission – they are fearful, partly because of your petition,” he told her. “But 5,000 signatures is not going to get it. We have to have total – we have to have a lot more than that behind our movement. … Your petition is a start. We have to have more than that.

Sawyer and McMullen clashed several times, even after the forum. Sawyer, the only non-attorney on the panel, acknowledged she’s a “law school dropout,” and McMullen offered to educate her further on the law.

Sawyer didn’t care for the tone of that exchange in particular.

As that was happening, a group of 28 law students and others from the forum walked from the law school across Court Avenue to the Jefferson Davis statue for a brief prayer and statement of resolve to see the statue removed.

Strickland’s efforts toward a historical commission waiver have included a letter signed by 153 local religious leaders and a similar call from the Greater Memphis Chamber.

But Sawyer says it ignores her and others from a younger generation who believe more fervently in the power of protest and whose activism is more visible to the historical commission and others resistant to the idea of removing the monuments.

“If our city is going to arrest people who are engaging in public action … that’s going to be a consequence and people are going to be afraid to participate,” she said, referring to the Memphis Police Department’s arrest of six people Sept. 19 during a protest at the Forrest statue in Health Sciences Park.

“The people who were arrested were arrested for violating the law,” McMullen replied. “We who are governing, we have a different responsibility then when you are not governing. We chose to follow the process. We chose to follow the law.”

But the legal process isn’t as buttoned-down and text-bound as that might indicate, at least according to Wade, who fielded a question from law school professor and moderator Daniel Kiel about when it might be time for the city to move toward its goal of taking down or moving the monuments.

“I think what we are debating is whether to take action and seek forgiveness, or to take action but asking permission first,” he said. “As lawyers we evaluate both. We evaluate the likelihood of success. That’s our job. That’s why we are hired. We are not hired to debate the evidence. We are hired to evaluate the likelihood of success.”

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