VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF NORFOLK

ROY L. PERRY-BEY,
RONALD M. GREEN,

Plaintiffs, Case No: CL1900281600

v.

NORFOLK CITY COUNCIL,

Defendant.

Plaintiffs’ Brief: Grounds for Mandatory Injunction

Introduction
The applicable statutory provisions are straightforward: the Circuit Court has
jurisdiction to grant an injunction under Va Code § 8.01-620. The court must
be satisfied by a verified Complaint to disturbs the status quo. A mandatory
injunction requires a Defendant to perform a certain act or acts. See Morrison
v. Work, 266 US 481 (1925) North Michigan Ry. Co. v. Penna. Ry. Co., 54
Fed. 746, (1893). Joy v. St. Louis , 138 U. S. 1 (1891).

As such, Virginia law specifically provides for mandatory injunctive relief to

Plaintiffs in order to disturb the status quo and protect against injury from the
city’s unreasonable delay, failure and/or refusal to exercise of city power for
the removal and relocation of the (“Confederate Monument”), for the purpose
mandated in the city charter, and there are no individual laws or restrictions
governing the city owned property, that implicate Code § 15-2-1812, the
removal or relocation of Monuments and through its predecessor statutes
Code § 18.2-137 (the statute imposing criminal penalties for removal, etc.
of war monuments). Beadel v. Perry, L. R. 3 Eq. Cas. 465 (1866).
 Facts

The verified Complaint avers that the Norfolk City council voted on 22 August
2017 to remove and relocate its Confederate Monument to the City’s Elmwood
Cemetery. Council further ask the Attorney General for an opinion to clarify the
meaning of those state code provisions relating to the removal of war memorials.
Attorney General Mark R. Herring issued an advisory opinion saying cities can
remove or relocate Confederate monuments as long as there are no individual
laws or restrictions governing those particular monuments. The opinion is
appended. (Exhibit E).

The only restrictions on local governments removal that are applicable to the
pre-1997 law to protect the monuments are those found within the original grant
of authority, those imposed by localities on themselves, or the deeds associated
with it not Va. Code § 15.2-1812.

Plaintiffs’ verified Complaint avers a specific cause of action, a challenge to the

City council's failure after a unanimous public vote on or after August 22, 2017,
to exercise its authority under the provisions of § 2 et seq., of the City’s Charter,
to remove, and relocate the City’s Confederate monument that sits on East Main
Street in downtown Norfolk.

Norfolk’s Confederate Monument was re-erected early in 1971 near its original
site downtown adjacent to today's Bank of America building, that became a reality
early in 1898 sufficient funds had been raised to make it possible. On January 28,
1898, permission was granted by the City of Norfolk to use the space at the head of
Commercial Place (earlier known as Market Square) on which it was erected. And
on February 22, 1899, the cornerstone was laid on the thirty-second anniversary of
the inauguration of treasonous Jefferson Davis as president of the Confederacy.
The monument was designed by the Couper Marble Works of Norfolk. The
original plan called for it to be topped with a heroic bronze figure of Peace, while
four life-sized bronze figures representing a Confederate sailor, infantryman,
cavalryman, and artilleryman were intended to adorn the base. But money was
scarce, and the committee finally settled for a handsome fifteen-foot bronze statue
of a defiant white supremacists Johnny Reb by Norfolk-born sculptor William
Couper as the crowning feature of the monument that was unveiled on May 16,
1907. Originally a focal point in the downtown area, the monument was a political
symbol in bronze and stone of the Lost Cause of the Confederacy (“Slavery”). But
eventually the tides of progress abandoned it, and in 1924 a proposal was made to
move it to another location. This caused a resounding chorus of white supremacists
yells, notable among them the hue and cry raised by the late Mrs. Frank Anthony
Walke, popularly known as "Mrs. Confederacy." Mrs. Walke defied the city
fathers so effectively that they dropped the matter like a hot potato, or rather a
hot minie ball.

In June of 1954, the matter was again broached, at which time white supremacist
Norfolk Mayor W. Fred Duckworth aroused the ire of the United Daughters of the
Confederacy when he referred to the monument as a "glorified pigeon roost." But it
was not until 1964-65 that the monument was finally taken down for fear that it
would be damaged by the pile drivers preparing the foundations for the Virginia
National Bank Building (now the Bank of America building). Cleaned and re-
erected six years later, the monument now provides an offensive nuisance and
symbol of political racial hate speech on behalf of the Confederacy in contrast
to the functional architecture that surrounds it.
 Argument

To establish the plaintiffs’ are entitled to a mandatory injunction in the exercise of

sound judicial discretion, Va Code § 8.01-620, the plaintiff must show "that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of the equities tips in his favor, and
that an injunction is in the public interest." Winter v. NRDC. Inc.. 555 U.S. 7, 20
(2008)("Winter") The Fourth Circuit expressly adopted the Winter test, concluding
Grounds for Injunction ( that the "balance-of-hardship test" in Blackwelder
Furniture Co. of Statesville v. Seilig Manufacturing Co.. 550 F.2d 189 (4th Cir.
1977) ("Blackwelder”) " stands in fatal tension" with Winter. Real Truth About
Obama. Inc, v. Fed. Election Comm'n. 575 F.3d 342, 346 (4th Cir. 2009); see also
Kalos v. Greenwich Ins. Co., 404 Fed. Appx. 792, 793 (4th Cir. 2010)("Real").

Plaintiffs are likely to succeed on the merits

1) The provisions of §2 et seq., of the City’s Charter explicitly authorizes the

action sought by the defendants. Even though there is case law interpreting and
applying the relevant Code provisions, the language of the law and its predecessor
statutes going back to 1904, are clear and unambiguous those restrictions do not
apply to monuments put up in municipalities, such as the City of Norfolk, prior to
1998. Both the facts in the verified Complaint, and evidence to be adduced at the
hearing on the mandatory injunction, indicate Norfolk’s Confederate Monument is
clearly a monument of secession to the Confederate States of America, outlawed
which the law explicitly does not protect.

Out of respect of the Court's time and for the sake of brevity, the Plaintiffs here
incorporate by reference the facts as already stated in their verified Complaint,
those facts to be adduced at the hearing on the mandatory injunction.
2) The injunction is also in the public interest because the government does not
have a free hand to regulate Confederacy speech on government property. The
City’s Confederate Monument is contrary to the “forum doctrine” by engaging in
an unconstitutional forum of expression (“HATE SPEECH”).

Therefore, the traditional public forum analysis under the Free Speech Clause does
apply to a city’s decision to except a privately donated Confederacy Monument
conveying terrorism, unconstitutional secession, segregation, discrimination,
disfranchisement, slavery, white supremacy and hate speech for a city street.
Texas v. White 74 U.S. (7 Wall.) 700, 19 L.Ed. 227 (1869), (Exhibit F).

3) The plaintiffs allege the government’s failure to maintain view point neutrality
is unconstitutional; that the monument pose an imminent threat to public health
and safety. That is indisputable that most citizens are “repulsed” by the monument.

4) The balance of equities favors an injunction After the Supreme Court's decision
in Winter, the balance of hardships and equities is no longer considered a material
factor for purposes of a temporary injunction. 555 U.S. 7, 20 (2008).

Conclusion

5) Plaintiffs will suffer irreparable harm If an injunction is not granted, the

defendants will be free to communicate hate speech directed toward them a
protected class of descendants, who parents were subjected to segregation,
lynching, discrimination, slavery, imprisonment, terrorism, starvation, crimes
against humanity, etc., on the basis of race, sex and nationality. Any disruption
to the status quo would inherently result preventing irreparable harm, in that the
the city has no compelling justification that could serve any narrowly tailored
means to maintain its offensive Confederate Monument in the public square.
WHEREFORE, the Plaintiffs respectfully request that this Court enter an order
granting a mandatory injunction ordering the Defendants to remove and relocate
its Confederate Monument honoring the Unconstitutional Confederate States of
America, Radical Reconstruction, White Supremacy, Treason and Secession.

Respectfully submitted,

By_______________________________
MR. ROY L. PERRY- BEY, PLAINTIFF
89 LINCOLN STREET #1772
HAMPTON, VIRGINIA 23669

By_______________________________
MR. RONALD M. GREEN, PLAINTIFF
5540 BARNHOLLOW ROAD
NORFOLK, VA 23502
 CERTIFICATION OF SERVICE

I hereby certify that a true copy of the foregoing was mailed on this 24th day of
March, 2019, to the City of Norfolk, 810 Union St, Norfolk, VA 23510.

By_______________________________
MR. ROY L. PERRY- BEY, PLAINTIFF
89 LINCOLN STREET #1772
HAMPTON, VIRGINIA 23669

By_______________________________
MR. RONALD M. GREEN, PLAINTIFF
5540 BARNHOLLOW ROAD
NORFOLK, VA 23502