The long running debate about the fate of four Confederate monuments entered an endgame on Thursday (1.14) morning. U.S. District Judge Carl Barbier (of Deepwater Horizon fame) heard arguments in a case challenging the Council’s 6-1 vote to declare New Orleans’ monuments to Robert E. Lee, Jefferson Davis, P.T. Beauregard, and the Crescent City White Leage a nuisance meriting removal.
Lawyers for a coalition comprised Monumental Task Committee, the Louisiana Landmarks Society, Foundation for Historical Louisiana, and Beauregard Camp No. 130 (the local chapter of the Sons of Confederate Veterans) argued for an immediate injunction forbidding removal. They were opposed by lawyers representing defendants including the City, Mitch Landrieu, and the Department of Transportation.
Barbier appeared unimpressed and at times irritated by the plaintiffs’ arguments. The defense primarily issued simple rebuttals of the charges leveled against them.
The six months of debate leading up to the challenge was contentious, emotional, and loud to say the least. This fact clearly did not escape the District Court. In addition to the regular checkpoint at the building’s entrance, a second security screening was set up outside the courtroom. Judge Barbier warned the gallery about decorum as did a U.S. Marshall who declared, “This is a public hearing, not a public forum."
The suit was what some legal pundits call a spaghetti suit. In other words, one throws many arguments against the wall and sees what sticks. Barbier is, apparently, not a fan of that approach (but more on that later).
At the start of the hearing, Barbier explained that his role was not judge the ”wisdom or lack thereof" of monument removal. Rather he was tasked with gauging whether the criteria for the . He's here strictly to determine whether the criteria for the “extraordinary remedy” of granting a preliminary injunction were met. Those criteria are a likelihood of plaintiffs winning at a full trial; the likelihood of irreparable harm without an injunction; the harm to the defendants would be less than the harm to the plaintiffs in the event of an injunction; and a clear absence of disservice to the public in the event of an injunction.
Hearings of this type are more akin to Supreme Court cases than a traditional trial. That is to say, the lawyers file briefs in advance and the presiding judge peppers the attorneys with questions.
The plaintiffs led off the morning. Their lead counsel Franklin Hardy Jones began the debate by prefacing that his clients’ interests were strictly preservationist and not politically motivated. He described the monuments as “works of art” comparable to the Monal Lisa. He contended that the statues are fragile and moving them could damage them resulting in the irreparable harm criteria. To emphasize that point, the plaintiffs promised a report prepared by a crane operator demonstrating the risks.
After Jones concluded his rhetoric, Barbier quickly cut to the legal meat. The judge was skeptical about the harm argument and asked how many statue’s and been moved by the report’s author. Jones replied, “None.” The bench then did a little bit of the defense’s job noting that the statue atop the U.S. Capitol was recently moved without harm.
Barbier then questioned whether maintaining the monuments even allows the group to file the suit. He said that a garden club that beautifies the neutral ground does not own the neutral ground. Jones said that legally a group in charge of upkeep on property is entitled to compensation, but Barbier countered “that seems like a stretch to me” and demanded precedent. Taking it a step further, he suggested that an injunction counteracting a municipal law may do irreparable harm to the city’s legislative process.
Jennifer Fiore, co-counsel for the plaintiffs, was up next. Her arguments were centered around constitutionality and due process for comment. Barbier shut her down fast by pointing out the six months of public hearings. HAfter a few minutes, he interrupted the lawyer and suggested that she sit down and let her co-counsels speak on the next point.
James R. Logan then tried to argue that the monuments are part of the federally funded streetcar line and therefore protected. This position previously saved the Liberty Place Monument. The plaintiffs are now trying to extrapolate that precedent to the other three statues. NoDef’s reporters found the logic a bit confusing. So, did Barbier. He stated, "I have a hard time understanding your whole argument about how the removal of these statues would adversely affect the streetcar line.” A back-and-forth ensued despite the judge’s comment, “"I want to move past that argument. I hope you have another argument.”
The next argument revolved around first amendment rights. That point faded even faster than the previous lines attacks. In fact, the plaintiffs officially dropped the position during the hearing.
Finally, the defense took the floor. City Attorney Rebecca Dietz argued that not a single one of the opposition’s points held legal merit. The bench was far kinder to them and their time was far shorter. The major juicy but to emerge was the fact that the City’s original contractor for monument removal quit after receiving death threats.
Dietz along with co-counsel Adam Swensek focused on the four points necessary for an injunction. They argued that there is minimal likelihood of the monument supporters prevailing in a full trial. The defense laughed off the harm portion. As for the prospect of damaging the monuments, the team produced photos of the Robert E. Lee statue removed from the podium for cleaning in the past.
The best line of the day might have come from Swensek who compared the concept that the Monumental Task Committee owns the monuments to Saints backup QB Luke McCown. “It’s what you go to when you don’t have anything else.”
As for the federal portion of the case, Swansea said, ”To claim that monuments to white supremacy are an integral part of a streetcar line is a laughable notion,"
Peter Mansfield, assistant U.S. attorney for the Department of Transportation then elaborated on the fed’s portion of the case. Mansfield basically questioned why D.C. is involved at all. He stated that the streetcar lines were built years ago, and any concerns about them disrupting historic spots is no longer relevant. The government also stressed that the monument removal is the product of a local ordinance, not a federal project. Finally, he added a historic footnote, claiming that the Liberty Place case was centered around the Department of Housing and Urban Development, not HUD, paving a street.
John B. Dunlap then provided rebuttal on behalf of the plaintiffs. Again, the preservationists returned to the issue of due process and again Barbier referenced the six months of hearings and looked unimpressed with the litigators.
The hearing then came to a close. Barbier promised a judgement as quickly as he and his staff can prepare it.