Confederate heroes Robert E. Lee, Jefferson Davis and P.G.T. Beauregard will soon be decamping from their prominent pedestals in New Orleans, more than a year after the City Council declared their statues to be public nuisances that should be taken down.
A three-judge panel of the 5th U.S. Circuit Court of Appeals unanimously cleared the way Monday evening for the monuments to be removed, issuing an opinion that criticized groups seeking to keep the statues in place for arguments that “wholly lack legal viability or support.”
With what is likely the last legal hurdle the city faces removed, the statues are expected to come down quickly. Tyronne Walker, a spokesman for Mayor Mitch Landrieu, said the city will start seeking bids Tuesday to remove the statues, and a contract will be awarded 25 days later.
The opinion by Judges Patrick Higginbotham, Jennifer Walker Elrod and Stephen Higginson lifted a temporary order they issued last year that had prevented the city from moving to take down the statues that have stood for many decades at Lee Circle, Jefferson Davis Parkway and the entrance to City Park.
The opinion upheld U.S. District Judge Carl Barbier’s ruling early last year that supporters of keeping the statues in full public view, led by a group called the Monumental Task Committee, had offered only a shaky legal ground for their lawsuit that did not justify an order to leave the monuments in place while a full trial plays out.
While “failing to show a constitutionally or otherwise legally protected interest in the monuments, (the plaintiffs) have also failed to show that any irreparable harm to the monuments — even assuming such evidence — would constitute harm” to the groups bringing the suit, the judges wrote.
The opinion also said that even though the groups sought to question the city’s ownership of the monuments, “we have exhaustively reviewed the record and can find no evidence in the record suggesting that any party other than the city has ownership.”
Higginbotham was appointed to the appeals court by President Ronald Reagan, Elrod by President George W. Bush and Higginson by President Barack Obama.
The city has said it will use money from an anonymous donor to pay for the removal of the statues, and Landrieu's administration said in a news release Monday evening that it still plans to follow that course.
“Today the 5th Circuit Court of Appeals affirmed the city’s ability to control its property," Landrieu said in a statement. "This win today will allow us to begin to turn a page on our divisive past and chart the course for a more inclusive future."
He said that "moving the location of these monuments — from prominent public places in our city where they are revered to a place where they can be remembered — changes only their geography, not our history. Symbols matter and should reflect who we are as a people. These monuments do not now, nor have they ever, reflected the history, the strength, the richness, the diversity or the soul of New Orleans."
In an emailed statement Monday night, the Monumental Task Committee said the groups that filed the suit “are weighing whether to ask for a rehearing en banc that will allow all the judges of the 5th Circuit to take part in this critically important decision.”
It added: “Despite this setback, the nonprofit organizations that filed the original suit will continue to argue that all the city's historic monuments and cultural sites should be preserved and protected, and that a more appropriate response to calls for the monuments' removal is a program to include explanatory plaques and markers to present these individuals in the context of their time.”
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The fierce debate over the three Confederate statues, as well as a fourth monument celebrating a Reconstruction-era white supremacist militia called the White League, has been raging since mid-2015, when Landrieu first called for their removal after Dylann Roof shot and killed nine people at a black church in Charleston, South Carolina.
Roof, a white supremacist who said he was seeking to start a race war, was found guilty and sentenced to death in December.
Landrieu’s call to take down the statues set off a six-month debate in the city, which ended with a 6-1 vote by the City Council in December 2015 to declare all four monuments to be nuisances that should be taken down. Councilwoman Stacy Head cast the only dissenting vote, saying she wanted to keep the Lee and Beauregard statues in place.
The appeals court's opinion specifically referenced the long debate over the monuments’ fate.
“We do not pass on the wisdom of this local legislature’s policy determination, nor do we suggest how states and their respective political subdivisions should or should not memorialize, preserve and acknowledge their distinct histories,” according to the opinion. “Wise or unwise, the ultimate determination made here, by all accounts, followed a robust democratic process.”
The Monumental Task Committee filed suit immediately after the council vote along with three other groups, though their request to Barbier to block the removal pending a full trial was immediately dismissed when the judge ruled their chances of success were slim.
The plaintiffs then asked the appeals court to issue the same order, resulting in the temporary block that was lifted by Monday’s opinion.
The fourth monument that the city plans to remove, which commemorates an unsuccessful rebellion against the state's biracial Reconstruction-era government in the so-called Battle of Liberty Place in 1874, was not covered by Monday's ruling because it is protected by a separate federal consent decree.
That decree dates back to a previous attempt to remove the marker during roadwork on Canal Street that involved federal funds. The city, arguing it has fulfilled the terms of that agreement by putting the marker back on public display on nearby Iberville Street and leaving it there for more than two decades, has asked Barbier to lift that order.