VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK

ROY PERRY-BEY and
RONALD M. GREEN,

Plaintiffs,
v. Docket N0.: 
CITY OF NORFOLK, et a1.

Defendants.

ORDER SUSTAINING DEMURRERS

This is a suit by two citizens seeking an order directing the City of Norfolk to relocate a
Confederate monument from Commercial Place in downtown Norfolk to a city cemetery. Plaintiffs
allege that they appeared before the Norfolk City Council in 2017 asking that it relocate the
monument and that the. Council in fact passed a unanimous resolution to do so. The City Council
has delayed acting on that resolution while legal issues involving Confederate monuments around
the state are resolved. The Amended Complaint before the Court seeks a wide variety of relief,
including money damages against each of the fourteen?individual government of?cials named as
defendants. The Court agrees with Defendants that the Amended Complaint fails to state any
claim upon-which relief can be granted and accordingly sustains the demurrers. I

Procedural Posture

The litigation began with a pro se Complaint by Mr. Perry-Bey and Mr. Green on March
22, 2019, against the Norfolk City Council. That litigation was nonsuited on April 29, 2019, and
immediately re?led in substantially similar form.

On June 3, 2019, Plaintiffs ?led an Amended Complaint with the Court adding fourteen
individual government of?cials as defendants and adding claims for money damages under 42

U.S.C. ?1983. On June 21, 2019, all Defendants except the Attorney General collectively ?led a

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Demurrer and Special Plea. On July 2019, the Attorney General, by. counsel, ?led a Special
Plea, Motion to Dismiss and Demurrer. On July 15, 2019, all parties presented their oral arguments
before the Court. 3

[Factual Background

Plaintiffs Roy L. Perry-Bey and Ronald M. Green are residents of the Cities of Newport
News and Norfolk, respectively. (Am. Compl. (2-3) Plaintiffs have named as Defendants the
City of Norfolk, the Norfolk City Council, the Attorney General of Virginia, the Mayor and Vice
Mayor of the City of Norfolk, each member of the Norfolk City Council, the Norfolk City
Manager, the Norfolk City Clerk, the Norfolk City Attorney, and two lawyers in the City
Attorney?s Of?ce. (Id. 

Plaintiffs allege that the display of the Confederate monument erected in 1898 (hereinafter
?Monument?) conveys and endorses a visual message of secession, representation of the
Confederacy, slavery, violence, racial segregation, political intimidation, white
supremacy, domestic terrorism, hate, crimes against humanity, the White League, Norfolk?s White
Citizens? counsel, and antisemitism. (Id. ?18, 21, 29) Plaintiffs assert that these messages not
only offend the Plaintiffs but represent a past and ?lture danger to both the Plaintiffs? and the
public?s safety. (Id)

Plaintiffs claim that they have to come into direct and unwelcome contact with the
Monument and white supremacist hate groups, which give them offense, during their ?equent
public protests to remove the Monument. (Id. 1H9) They claim that have experienced a ?special
burden? and have altered their behavior to avoid contact with the Monument during their ?business
or visits downtown.? (Id. 1120) They claim to have suffered and continue to suffer injury as a result

of the ?illegal display? of the Monument on public property and Defendants? maintenance of this

?unconstitutional display of government regulated private hate speech from 1998 until
present. . .for the express purpose to promote segregation and incite violence or prejudicial actions
against the Plaintiffs, to diSparage or intimidate, which also affects the public order and the peace
and dignity of the City of Norfolk.? (Id. 1] 21, 22, 24)

Plaintiffs assert claims pursuant to 42 U.S.C. ?1983. (Id. 1] 1) This statute creates liability
for any ?person who, under color of [law], citizen of the United the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws.? 42
U.S.C. 1983. Plaintiffs also seek declaratory and injunctive relief as well as compensatory and
punitive damages against each Defendant. (Id. 46-48)

I. Demurrer: Failure to Identify a Constitutional Violation

All Defendants except Attorney General Herring have demurred to the Amended
Complaint for failure to state any claim upon which relief could be granted. They argue that
Plaintiffs have failed to identify any right, privilege, or immunity secured by the Constitution and
laws which has been deprived to them by any action of a Defendant.

The activity that is alleged to have caused injury to Plaintiffs is the continuous display of
the visual message expressed by the Monument at its downtown location. Plaintiffs interpret the
Monument to communicate a message of reverence for the Confederate cause, which they consider
odious and offensive. These allegations regarding the nature of the Monument fully re?ect the
Monument?s legal status as an instrument for government speech. As the United States Supreme
Court held in Pleasant Grove City, Utah v. Summum, 555 US. 460 (2009):

Governments have long used monuments to speak to the public. Since ancient

times, kings, emperors, and other rulers have erected statues of themselves to

remind their subjects of their authority and power. Triumphal arches, columns, and

other monuments have been built to commemorate military victories and sacri?ces

and other events of civic importance. A monument, by de?nition, is a structure that
is designed as a means of expression. When a government entity arranges for the

construction of a monument, it does so because it wishes to convey some thought
or instill some feeling in those who see the A monument that is
commissioned and ?nanced by a government body for placement on public land
constitutes government speech.

Id at 470.

As offended as Plaintiffs undoubtedly are by this prominent reminder of a long history of
racial oppression, they nonetheless have no First Amendment right to challenge the Monument
based on any message that it conveys because the Free Speech clause does not regulate government
speech. ?The Free Speech Clause restricts government regulation of private speech; it does not
regulate government speech.? Id. at 467.

The Free Speech Clause restricts government regulation of private speech; it does not
regulate government speech. See Johanns v. Livestock Marketing Assn, 544 US. 550, 553
(2005) Government's own speech is exempt from First Amendment
scrutiny?); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 US. 94,
139, n. 7 (1973) (Stewart, ., concurring) (?Government is not restrained by the First Amendment
from controlling its own expression?). A government entity has the right to ?speak for
itself.? Board of Regents of Univ. of Wis. System v. Southworth, 529 US. 217, 229
(2000); National Endowment for Arts v. Finley, 524 US. 569, 598 (1998) (Scalia, ., concurring
in judgment) (?It is the very business of government to favor and disfavor points of View?). Based
on all this controlling precedent, the Court rejects Plaintiffs? assertions about a legal right to
freedom from an unwelcome government message. Am. Compl. 11 28) Such a right may be
protected not by a lawsuit but by the political process and the ballot box: ?If the voters do not like
those in governance or their government speech, they may vote them out of of?ce or limit the
conduct of those officials by law, regulation, or practice.? Sutliffe v. Epping, 584 F.3d 314, 332

n.9 (lSt Cir. 2009)(citing Bd. of Regents v. Southworth, 529 US. 217, 235 (1999)).

Next, Plaintiffs assert claims that their Fourteenth Amendment rights have been violated,
as follows:

The continued governments [sic] sponsorship and maintenance of the Confederate

monument, the Seal of the Confederate States of American Monument, Confederate

Standard-Bearer and engraved Confederate ?ag Display, constitutes white

supremacy, segregation, religious bigotry, hate speech, antisemitism, and political

or religious white supremacy practices in violation of the Supremacy Clause of the

First Amendment and Fourteenth Amendment of the Constitution of the Virginia

and of the Constitution of the United States of America and laws.

(Am. Compl. 29)

The procedural due prOcess right guaranteed by the Fourteenth Amendment provides that
no person shall be deprived of life, liberty or property without due process of law. Plaintiffs have
failed to allege a deprivation of any liberty or property interest within the meaning of the Due
Process clause. Plaintiffs have alleged that each of them has ?altered their behavior to avoid direct
and unwelcome contact? with the Monument but allege no facts detailing that they have had a life,
liberty or property interest that has been impaired by actions of any of Defendants. (Am. Compl.
'll2-3)

The Fourteenth Amendment also prohibits states from denying any person the equal
protection of laws. The Equal Protection Clause ?is essentially a direction that all persons similarly
situated should be treated alike.? City of Cleburne v. Cleburne Living Ctr., Inc, 473 US. 432, 439
(1985). Under the Equal Protection Clause, in order to state a race-based claim, Plaintiffs must
allege that a government actor intentionally discriminated against them on the basis of their race.
See Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir.1999).

Plaintiffs have not alleged that the display of the Monument has subjected them to unequal

protection of laws. LikeWise, they have not alleged conduct by any Defendant that could be

interpreted as intentional discrimination based on race. As a result, Plaintiffs have not alleged

that anything about the display of the Monument deprives the Plaintiffs of any right protected by
the Due Process or Equal Protection clauses of the Fourteenth Amendment.

Additionally, in paragraphs 30-34 of the Amended Complaint, Plaintiffs include certain
references to religion that the Court interprets as invoking a claim under the Establishment Clause
of the First Arnendment. They allege, ?[t]he Display fosters an excessive entanglement between
government religion and private hate speech.? (Am. Compl. 1[ 34) The use of the phrase ?excessive
entanglement between . . .religion? quotes the third prong of the three-part test articulated in Lemon
v. Kurthan, 403 US. 602 (1971) for determining whether a challenged government action
violates the Establishment Clause: ?[T]he statute must not foster ?an excessive entanglement with
religion.? Id at 613 (citing Walz v. Tax Commission, 397 -U.S. 664, 668 (1970)).

Plaintiffs characterize the Monument as a religious display promoting the religion of
?White supremacy.? (Am. Compl. 1] 32?22) The Court does recognize that Confederate symbols
have been embraced by proponents of white supremacy. The horrifying events of Charlottesville
2017 and Charleston 2015 represent two recent examples of violence by white supremacists who
displayed Confederate battle ?ags. The Court would not, however, conclude that belief in the
supremacy of white people is a ?religion? within the meaning of the Establishment Clause.
Admittedly, courts have struggled to de?ne which beliefs are ?religious? beliefs for purposes of
the Establishment Clause. See, e. United States v. Seeger, 380 US. 163, 176 (1965) sincere I i
and meaningful belief which occupies in the life of its possessor a place parallel to that ?lled by
the God?); Welsh v. United States, 398 US. 333, 339 (1970) (?sincere and meaningful beliefs that

need not be confined in either source or content to traditional or parochial concepts-of

religion?).

The Court need not resolve whether white supremacy constitutes a religion to consider
whether the Monument violates the Establishment Clause. In the recent decision of Am. Liegion
v. Am. Humanist Assn, 139 2067 (2019), the Plaintiffs argued that a granite cross erected in
1925 that has served as a memorial to forty-nine Maryland citizens killed in the First World War,
represented a religious display that, violated the Establishment Clause. The plaintiffs had sued the
Maryland National Capital Park and Plamiing Commission eighty-nine years after the Bladensburg
Peace Cross was dedicated, claiming that they are offended by the sight of its presence on public

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land and that the expenditure of public funds to maintain it violated the Establishment Clause. Id.

Ruling that the display and maintenance of the cross did not offend the Constitution, the
Court retreated ?'om the Lemon test for cases that involve the use of religiously-associated words
or symbols for ceremonial, celebratory, or commemorative purposes. The Court instead suggested
favoring a ?presumption of constitutionality for longstanding monuments, symbols, and
practices.? Id. at 2082.

The Court reasoned that ?these cases often concern monuments, symbols, or practices that
were ?rst established long ago, and in such cases, identifying their original purpose or purposes
may be eSpecially difficult.? Id. The Court noted that ?as time goes by, the purposes associated
with an established monument, symbol, or practice often multiply . . . even if the original purpose
of a monument was infused with religion, the passage of time may obscure that sentiment.? Id at
2083. The Court concluded:

These considerations show that retaining established, religiously expressive

monuments, symbols, and practices is quite different from erecting or adopting new

ones. The passage of time gives rise to a strong presumption of constitutionality.

Id. at 2085.

The association between a cross and Christianity is much closer than any association
between a Confederate symbol and a religion, yet the Supreme Court determined that the display
of a cross as a historical war m?morial did not offend the Establishment Clause. Therefore, this
Court rules that the City?s maintenance and display of the Monument, whether it has religious
connotations or not, likewise does not offend the Establishment Clause.

II. Additional Grounds for Dismissing Section 1983 Claims

Defendant Herring raises additional and different grounds in support of his demurrer. In
the style of the case, Plaintiffs list: each of D-efendants? names and at the end of the list state ?In
Their Of?cial Capacities.? (Am. Comp]. Also, in paragraphs 2-10 of the Amended
Complaint, Plaintiffs detail the of?cial capacities of each of the named Defendants. The Amended
Complaint includes no allegation of any individual or personal act or omission by any Defendant
that caused harm to Plaintiffs. 

The United States Supreme Court has held that ?a suit against a state of?cial in his or her
of?cial capacity is not a suit against the of?cial but rather is a suit against the of?cial?s of?ce. As
such, it is no different from a suit against the State itself.?_ Will v. Mich. Dep ?t of State Police, 491
US. 58, 71 (1989). A suit cannot, however, be brought against a state of?cial or a state itself
pursuant to 42 U.S.C. 1983 because ?a State is not a person within the meaning of 1983? and
a state has sovereign immunity from suit under 1983. Id. at 64, 67. A suit may only be brought
against a government of?cial pursuant to 42 U.S.C. 1983 when sued in his of?cial capacity, if
the of?cial has ?some degree of personal involvement in the alleged deprivation of rights.?
McDonald v. Dunning, 760 F. Supp. 1156, 1160 (ED. Va. 1991) (citing Vinnedge v. Gibbs, 550

F.2d 926, 928-29 (4th Cir. 1977)).

As the Court has detailed supra, Plaintiffs have not alleged any personal involvement of
any Defendant in depriving the Plaintiffs of any rights. The Amended Complaint lacks any
allegation describing any conduct by any individual Defendant that could be construed as harmful
to Plaintiffs. For this additional reason, the Plaintiffs? claim under 42 U.S.C. 1983 fail.

Plaintiffs have no individual standing

Defendant Herring additionally relies on his argument that Plaintiffs lack standing to assert
any alleged claims relating to the Monument. The Court has concluded that the Amended
Complaint fails to state a cause of action for which relief may be granted, as argued by the other
Defendants. To the extent, however, that it could be interpreted as including actionable claims,
the Court agrees with the Attorney General that Plaintiffs nonetheless have no standing to assert
such claims.

In determining whether a plaintiff has standing, which is a threshold issue and a question
of law, courts consider the factual allegations as true. Howell v. McAuliffe, 292 Va. 320, 330,
(2016)(citing Virginia Marine Res. Comm ?n v. Clark, 281 Va. 679, 686?87, (2011)). Thus, 
is incumbent on petitioners to allege facts sufficient to demonstrate standing.? Howell v. llchuliffe,
292 Va. 320, 330, (2016)(citing Friends of the Rappahannock v. Caroline Cty. Bd. of Supervisors,
286 Va. 38, 50, 743 132, 138 (2013)).

The concept of standing concerns itself with the characteristics of the person or

entity who ?les suit. The point of standing is to ensure that the person who asserts

a position has a substantial legal right to do so and that his rights will be affected

by the disposition of the case. In asking whether a person has standing, we ask, in

essence, whether he has a suf?cient interest in the subject matter of the case so that

the parties will be actual adversaries and the issues will be fully and faithfully
developed.

Cupp v. Board of Supervisors of Fairfax County, 227 Va. 580, 589 (1984) (internal citation
omitted); see also Grisso v. Nolen, 262 Va. 688, 693 (2001); Goldman v. Landsidle, 262 Va. 364,
371 (2001).

Under Virginia law, a party has standing if it can ?show an immediate, pecuniary, and
substantial interest in the litigation, and not a remote or indirect interest.? Harbor Cruises, Inc. v.
State Corp. Comm, 219 Va. 675, 676 (1979) (per curiam). In other words, without ?a statutory
right, a citizen or taxpayer does not have standing to unless he [or she] can
demonstrate a direct interest, pecuniary or otherwise, in the outcome of the controversy that is
separate and distinct from the interest of the public at large.? Goldman v. Landsidle, 262 Va. 364,
373 (2001). The Supreme Com't has ?rmly rejected the notion that offense alone quali?es as a.
?concrete and particularized? injury suf?cient to confer standing. Diamond v. Charles, 476 U.S.
54, 62 (1986). ?Offended observer standing is deeply inconsistent, too, with. . .the rule that
generalized grievances? about the conduct of Govemmen are insuf?cient to confer standing to
sue.? Am. Legion v. Am. Humanist Assn.,139 2067, 2100 (2019) (Gorsuch, ., concurring)
(citing Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 94 2925, 41
L.Ed.2d 706 (1974)). All of Plaintiffs? alleged injuries result from the mere existence of the
Monument and are not ?separate and distinct from the public at large.? Goldman, 262 Va. at 373.
The harms alleged could also be claimed by any member of the public who walks by the
Monument. I

CONCLUSION

The source of the injuries claimed by Plaintiffs is the continued display of the Monument,

which the Court rules is a form of government speech. Because government speech is not subject

to constitutional challenge under either the First or Fourteenth Amendments, the Amended

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The Foregoing Document Copy Teste:
George E. Schaefer, Clerk
Norfolk Circuit Court
BY
Tracey Staples, Deputy Clerk
Authorized to sign on behalf
of George E. Schaefer, Clerk
Date: July 23, 2019