RICHMOND, Va. – Since the events in Charlottesville, there’s been much debate over the issue of whether to keep or remove Confederate monuments. Virginia Attorney General Mark Herring issued a statement Friday saying some monuments may be removed if there are no individual laws or restrictions on doing so.
A number of factors may impact a locality’s ability to remove or relocate a war or veterans monument, and each likely presents a unique circumstance that would require careful analysis to determine which, if any, might limit local authority. Without regard to their application in an individual case, there are three categories of legal restrictions that may affect the authority of a local government.
- First, discussed more fully below, is the application of § 15.2-1812 of the Code of Virginia to the particular monument.
- Second, a number of monuments are subject to individual Acts of Assembly governing their construction and maintenance.
- Finally, some monuments may be subject to restrictions found in instruments transferring ownership of the monument to the locality or local governmental entity or restrictions imposed as a result of subsequent actions of the locality.
A careful investigation of the circumstances surrounding the individual monument must be completed by the locality to determine which legal restrictions may apply.
Herring is currently reviewing a request to remove a Confederate monument in Norfolk following continuous demonstrations and input from local government officials.
He concludes the statement with the following:
In my opinion, 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 such as those imposed upon the donation or conveyance of the monument or limitations arising from participation in a preservation or funding program by action of the locality. Depending on when the monument was erected and where it is located, § 15.2-1812 of the Code of Virginia may or may not prohibit the locality from such actions. Careful investigation of the history and facts concerning a particular monument in a given locality should be completed to determine what, if any, restrictions might apply.
Much of the debate is over a 1998 Virginia law that prohibits localities from removing war memorials. In his statement, Herring said the law is not retroactive and cities may remove monuments built before 1998.