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VOL. 133 | NO. 7 | Tuesday, January 9, 2018

McMullen: Legislative Session Influenced Timing in Monuments Removal

By Bill Dries

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Several nonprofits approached the city administration about buying Health Sciences and Memphis parks before the Memphis City Council approved the sale of each to Memphis Greenspace last month for $1,000 each. And some of them said no.

Bruce McMullen

“There were some nonprofits that approached us,” city chief legal officer Bruce McMullen said on the WKNO/Channel 10 show “Behind The Headlines” as he talked about the Dec. 20 council vote to sell the parks to the nonprofit headed by Shelby County commissioner and attorney Van Turner. Greenspace then removed the Confederate monuments in the two parks.

“There were some nonprofits that approached us and said, ‘No, we don’t want any part of it,’” McMullen said. “I had some discussions early on with Van and he wanted to help.”

He did not name the other nonprofits.

McMullen said the city’s position remains that the sale of the parks and Greenspace’s decision to take down the monuments of Nathan Bedford Forrest and Jefferson Davis, which were included in the sale, was legal.

McMullen said one of the major concerns was to get the statues down before the Tennessee Legislature returned to session Monday, Jan. 8. The legislature passed a law in 2013 that made removing such monuments difficult for cities and local governments. It then passed a second law in 2016 that made the conditions for such an action even more restrictive.

“As the chief legal officer, that was a major concern of mine. … the trend showed that the state Legislature was progressively making it more and more difficult to move any of these war memorials or historic figures (statues),” he said. “So I knew that they would go into session in January and that was just a concern of mine. It was nothing anyone said. It was a logical concern.”

He said the statues presented a public safety concern for the city in the upcoming observances of the 50th anniversary of the 1968 sanitation workers strike and the assassination of Dr. Martin Luther King Jr.

“Having those statues there and the kind of incendiary effect of having protesters and counter protesters and then having MLK 50 –and I don’t need to remind people of what happened in Charlottesville,” he said of last August’s violent alt-right rally in the Virginia town. “It was important for us to handle those distractions, to have more of a smoother commemoration of MLK 50. The way it was done, a lot of it had to do with public safety – the timing of how it was done, the way it was done.”

“Behind The Headlines,” hosted by Eric Barnes, publisher of The Daily News, can be seen on The Daily News Video page, video.memphisdailynews.com.

The removal of the statues on Dec. 20 came hours after the city council approved on third and final reading an ordinance selling the parks to Memphis Greenspace. Council member Edmund Ford Jr. presented a substitute motion at the Dec. 20 council session that changed the terms of the ordinance from its first and second readings.

McMullen said the caption of the ordinance remained.

“I think what was really put into the ordinance was the specific entity in which the property would be sold to,” he said. “I don’t think it changed the spirit of the ordinance or what was going to be done or what was done on the first reading.”

The city set a Dec. 19 deadline for mediation recommended by state officials among the city, the Sons of Confederate Veterans and the descendants of Forrest after there were several delays in getting all sides around a table to talk about a compromise.

Ultimately, McMullen said the date for such sessions got delayed to January and there never was any mediation.

“I think initially the Sons of (Confederate Veterans) refused to mediate,” he said. “Their position was the statues should stay where they were undisturbed.”

Future moves in court by those contesting the removal of the statues could center on what part of the Forrest monument was a statue and what part of it was a grave. Forrest and his wife are buried at the base of the statue.

Removing the grave site is a different legal proceeding that the city has not moved forward on. McMullen said any move to disinter the Forrests, who were originally buried in Elmwood Cemetery before they were moved to the park in the early 20th century, would be the call of Memphis Greenspace.

But McMullen says his position is the monument and its base are separate from the graves.

“Legally those who opposed what we are doing have tried to make a legal argument that maybe the statue is in some way a tombstone, so to speak,” he said. “That’s a critical leap because when you remove a gravesite there’s a whole different body of law you must follow.”

Lee Millar of the Memphis Sons of Confederate Veterans and a spokesman for the Forrest family, contends the statue and its base are part of the grave. After the equestrian statue was removed, the Forrest family placed a wreath at the base, which in an email Millar referred to as “the base of the pedestal beneath which are the graves of General and Mrs. N.B. Forrest.”

McMullen said it is possible Memphis Greenspace could remove the granite base but leave the graves in place.

The city pursued other legal paths including a decision from an administrative law judge that the Forrest statue was not a war memorial under the 2013 state law and seeking a waiver from the Tennessee Historical Commission to remove the statues.

McMullen is currently determining whether the city should move to dismiss those actions.

“I’m confident what we did was legal and what we did will stand.”

McMullen said the city is also prepared for legal action contesting the removal of the statues.

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