The Lt. Gen. Nathan Bedford Forrest Monument

Charles E. Yow
Attorney at Law

February 10, 2001

To: Friends of Forrest
Selma, Alabama

The Boston Real Estate Reporter is a publication distributed to members of the legal profession practicing real estate law. The week following Mayor Perkins election victory I wrote an article about the hope the election brought, and how his election was a sign that people can and should work together for positive growth, development and the future of a new era of cooperation and understanding for and by peoples of all races and ethnic groups.

In the article I wrote for the Boston Real Estate Reporter, immediately following Mayor Perkin's election I discussed racial animosity, hatred and how we should strive to develop avenues to greater and deeper understanding to benefit all peoples. In the article I pointed out if Selma Alabama had grown and developed to a place where Mayor Perkins was elected, the City of Boston could and should do not less than follow Selma's example.

Even knowing what I know now I would probably still write the same article, and hope what I wrote would become true. What bothers me most is the current controversy is the hopes inspired by Mayor Perkin's election have fallen to the wayside, however the hope placed in the newly elected mayor and his ability is not lost, a legacy can be developed making the Perkins' administration one that makes Selma the example of how society should act, and how our history and future can and should co-exist because if we do not understand and accept our past and our role in paving a way to the future we have failed those who walked the road before and after our lives have passed.

As an attorney with a practice with a primary focus on Civil Rights I see people hurt on a far too often basis as a result of racial hostility, but the worst cases I have seen are where people are hurt by the actions of government entities and officials. In this light, the matter regarding the Forrest Monument is particularly serious because those in positions of authority, on the basis of racially motivated mistrust and fears, have attempted to incite citizens into taking the law into their own hands.

Additionally the reports and other descriptions and accounts of people in positions of authority, and their closest supporters making reference to people of other races and ethnic groups as "the enemy", as well as making other hostile remarks or statements with the intent to cause racial animosity, represents the worst of human behavior. If we have learned anything from the example of Dr. Martin Luther King we should understand Dr. King stood for racial understanding and treating all people the same, regardless their color. I was horrified when I read the reports of the tragic turn of events when the march to honor Dr. King was redirected into a march for racial hatred culminating in a well documented attack on the Forrest monument. While the attack on the Forrest Monument is regrettable, more regrettable is how this event was used to dishonor the memory of Dr. King.

Regardless if the matters surrounding the Forrest Monument controversy are based on a misunderstanding of events or they are they are the result of an intentional act, the results are the same. Following is a review of the events to date.

When "The Resolution", validity of which is discussed herein, was discussed by the mayor the representation was made that the United Daughters of the Confederacy (U.D.C.) Chapter 53 did not support the Forrest Monument project, and their support as noted on the Forrest Monument was without their permission and they had expressed displeasure in this regard. Without knowing with specificity, who misinformed Mayor Perkins of the foregoing, suffice it to say U.D.C. Chapter 53, and their official records, as well as the National U.D.C. office emphatically dispute this contention. The person misleading the mayor regarding U.D.C. Chapter 53's support and involvement caused the mayor to make statements based on an erroneous understanding of the events that occurred months prior to the start of his administration.

The false and/or erroneous information provided Mayor Perkins resulted in casting his statements as a perceived effort to discredit, humiliate and otherwise defame Friends of Forrest and create greater division within the community. While a person making a statement has a legal obligation to verify that which they repeat, the person providing the information should also bear some legal, moral and ethical responsibility. To Selma's discredit the information was used in a manner that was repeated on radio and television programs that resulted in an increase in racial tension and hostility based on the aforementioned erroneous information.

It is well established the long standing policy of the City of Selma is to allow placement of privately funded monuments, on public property upon approval by the mayor, following mayoral approval the process is legally complete. Additionally, the City of Selma lacks any formal policies or procedures in this regard. Until such time as policies and procedures are adopted the long standing policy prevails. It is clear the Forrest Monument was erected following the same practice as all other privately funded monuments residing on public property. In this light the monuments to Dr. Martin Luther King, Rev. James Reeb, General Forrest and other monuments are similarly situated having been erected in the same manner and following the same procedures, what is done to one must be done to all.

In accordance with long standing precedent for the erection of privately funded monuments residing on public property the Forrest Monument was given official approval by the prior administration making it one member of a larger class of private monuments residing on public property. The efforts to remove the legally placed Forrest Monument are best described as racially motivated. With few exceptions, actions which are racially motivated, especially actions which are hostile in nature are violative of the U.S. Constitution, in particular the Equal Protection and related constitutional provisions. Additionally there are solid Due Process arguments as well as contractual arguments based on detrimental reliance that could be advanced if the Forrest Monument is moved as threatened.

While Mayor Perkins is currently demanding the removal of the Forrest Monument it is not unimportant that the matter of the erection of the Forrest Monument was disclosed by the prior mayor, to incoming Mayor Perkins. It is well established that the Forrest Monument was erected with the full knowledge, and without any objection from Mayor Perkins. Further, had Mayor Perkins expressed any concern regarding the placement of the Forrest Monument prior to its erection the Friends of Forrest Committee could have placed the monument in a different location thereby avoiding any controversy or inconvenience.

Based on my prior opinion of Mayor Perkins we expected the matter to be resolved with a phone call to Mayor Perkins to clear up the misunderstanding. Our first attempt to reach Mayor Perkins was to call his office, while speaking with the mayor's assistant at length was pleasant and highly informative, our call to Mayor Perkins was never returned. Following this non-response we sent a letter, to which we have not received a response.

The next person contacted was the City Attorney's, as with the mayor, our call was not returned, our next effort was to send a letter, followed by another call and letter before we finally were able to reach City Attorney Jimmie Nunn by phone. In our letters we have detailed the constitutional concerns, as well as the legal action(s) the City of Selma and selected officers and officials could face if the constitutionally prohibitive actions against the Forrest Monument continued.

Where a government entity takes action that is not "color blind" the action is constitutionally prohibited. Further, where one or more persons conspire to take action that violates the constitutional rights of another, or where there is a conspiracy to commit a violation of Federal laws the matter(s) can be prosecuted civilly in Federal Court under Civil RICO, Section 1983 and other similar causes of action to hold the person(s) legally and financially responsible for their actions, as well as the actions of those acting in concert or in accordance with inflammatory or other rhetoric that moves others to act in a prohibited manner. In this regard the City of Selma, and selected persons would face civil liability. In addition certain actions may constitute criminal violations.

In light of recent events regarding attacks on the Forrest Monument there are a number of concerning events. It is not insignificant that members of the Selma City Government and their supporters have participated in inflammatory rhetoric the official(s) knew, or should have known, could, or would, result in hate inspired action to be taken against the Forrest Monument. It is well settled that the result of the inflammatory action is actionable against the person(s) or persons inciting others to action.

In addition, by acts defined in the general category of "failure to act" the City of Selma, through its officials, allowed the inflammatory rhetoric that encouraged or generated attacks on the Forrest Monument. Following the inflammatory rhetoric and other hostile public statements by members of the Selma City Government, and other persons acting in support of the aforementioned inflammatory statements of a City official, officials of the City of Selma knew or should have known could, or would, generate actions designed to harm the Forrest Monument. In this regard the officials of the City of Selma failed to take reasonable measures to protect the Forrest Monument from the reasonably foreseeable result of the aforementioned official actions. It is well established that a government law enforcement department does not have a duty to protect a specific person or entity, however in this light, the actions of certain officials and their supporters may allow the aforementioned actions to fall within the narrow exception to the general rule allowing for a finding of civil liability against the City of Selma and the aforementioned persons.

Mayor Perkins claims authority to do as he pleases and move the Forrest Monument, to a place that is not in "The Resolution", based on his own authority. Consider, the Forrest Monument was placed pursuant to City of Selma precedent regarding placement of privately funded monuments on public property which was approval by the former mayor. Mayor Perkins now asserts this was not lawful, and at the same time he threatens to do the same by moving the Forrest Monument to another parcel of public property and place the monument at the new location based on his authority, the location not being listed as an alternative place for the Forrest Monument to reside in "The Resolution". The threatened actions of the mayor are no different than the actions of the prior administration, in that Mayor Perkins on his own authority is approving a location for the Forrest Monument to be placed, if one is unlawful, both are, if both are legal, the Forrest Monument can not be moved without approval of the Friends of Forrest Committee.

Mayor Perkins has proposed renaming Riverview Park to Heritage Park and moving the Forrest Monument as the first of the memorials and monuments to grace the new park. While the concept is a step in the right direction to bring unity and healing to Selma, Riverview Park is problematic.

Because the Riverview Park was developed utilizing Federal Funding the City has a legal obligation to meet all legal requirements regarding non-discrimination and access. Unless the City of Selma is willing to spend untold tens of thousands of dollars to make the necessary modifications required by the Americans with Disabilities Act (ADA), similar laws and associated regulations, the proposed site at Riverview Park does not meet the provisions of the ADA. Importantly, the current site of the Forrest Monument at the Smitherman Historic Building meets existing requirements of the Americans with Disabilities Act (ADA). Further, it is questionable that the current use of Riverview Park can be changed from its existing use to the new use as proposed by the mayor, especially given the flood plain issue.

An additional concern should be noted, based on prior racially motivated statements regarding the Monument as being offensive, regardless the validity, the existing scenario makes solid grounds for a Federal Civil Rights complaint under Title II if any person chooses to allege they are now being denied access as a result of finding the Monument offensive, thereby restricting their reasonable enjoyment of Riverview Park, this is especially true if the person can also allege they previously enjoyed access to Riverview Park. Because the Smitherman Building is the site of the former Confederate Hospital, and is a museum holding items of interest from the period of the War Between the States a Title II complaint would not survive. Further, it is important to note the site of Riverview Park is historic only because it is currently used as a re-enactment site. Based on the racial nature of the dialogue surrounding the Forrest Monument, in a strange legal twist, a Title II complaint could also be filed by a person whose access is limited, for any reason, if the Forrest Monument is moved to the proposed park.

Additionally after a preliminary review it appears the City of Selma does not own an adequate site at Riverview Park to place the Forrest Monument, in addition to the above Federal requirements, the City's property is in a flood plane or is currently in use with an existing structure or is above water mains. It is important that a large portion of the hillside is not owned by the City of Selma, it is owned by a private individual and its use by the City is conditional and not guaranteed.

There are considerable security considerations above the danger posed by floods because the proposed area is not patrol able, there is also a lack of lighting, which makes security issues a greater concern. The cost to upgrade to an adequate lighting format should be considered prohibitive. The use of city funds to create adequate lighting, meet provisions of the ADA and related laws, and provisions may best be used instead to assist the less fortunate in meeting food, housing, heating cooling, medical and educational needs.

As a note I find it of great curiosity that there is any reason to risk damage to moving the Forrest Monument, other than for political gain, given the new site is only five blocks from the existing site, especially given the cost to bring the proposed site into compliance with various laws and regulations which as previously noted could easily exceeds tens of thousands of dollars.

Not previously discussed is the potential for damage if the Forrest Monument is moved. While opinions are many, and varied on all issues, it is the opinion of the artists involved in creating the Forrest Monument that it can not be moved, and their opinions should be considered controlling. The Forrest Monument is not just another piece of stone and metal, it is a legally identifiable work of art, as such any damage to the Forrest Monument falls under the Visual Artists Rights Act of (VARA) of 1990. I will assume given the wide discussion of VARA that the City Council has previously discussed the risk and applicability of VARA. It is important to remember under VARA, where an artist has created a work of art, and it is damaged the artist has a legal right under Federal law to repair the object.

In that Thomas Smith, the stone cutter, created a work of art, the base, and Mr. Smith has been diagnosed with leukemia, the ability for Mr. Smith to repair the base if it is damaged is minimal, if at all. Since the decision to repair his work of art under V.A.R.A. is at the option of the artist, Mr. Smith can opt to repair and the delay could be months, leaving any damage as an open wound in the meantime. If the base is damaged, and Mr. Smith is not available to repair the damage caused during moving the Forrest Monument the damage done will be irreparable, and the mover, city and any persons participating in moving the monument, especially utilizing "The Resolution", without the permission of the Friends of Forrest, the participants could be liable for the cost of a new pedestal, and other damages as allowed by law.

The Forrest Monument was placed at the Smitherman Building due to its relationship to the War Between the States, and the historical nature of the Forrest Monument and related nexus. Because the Friends of Forrest have throughout the process been in Good Faith, and have reasonably relied on existing city policy, and procedure, they have done so in an upright manner. It is well settled where a person, or group of people have reasonably relied on the word of a public official, with apparent authority to grant, and where the person or group of people have relied to their detriment it is legally, ethically and morally wrong to attempt to void the action, thereby harming those who acted in good faith.

As a result of Selma's long standing policy regarding the erection of privately funded monuments and memorials being placed on public property, it is important to remember the King, Reeb, and Forrest Monuments were placed in a similar manner, if one monument is removed they all must be removed. The Forrest Monument honors a defender of Selma during the War for which there is a historical basis, the monument honoring Dr. Martin Luther King honors Selma's future by recognizing those who gave their lives to shape our future, and Rev. Reeb for giving the ultimate sacrifice in the struggle or Civil Rights.

For those seeking to rabble rouse and threaten the future of Selma's memorials they knowingly endanger the harmonious multi racial composition by interjecting hostile racially motivated elements for their personal political and personal gain. In a society that should be growing towards creating and expanding avenues to understanding, in our diverse society, the current actions against the Forrest Monument are a travesty because they seek only to generate divisions and strife.

Racism is wrong, and those seeking to create racist divisions do so at everyone's expense. Restoring the place of Selma as the leader in racial understanding can be accomplished along with being sensitive to all citizens needs, concerns and interests, but only if the Forrest Monument remains in its proper location at the Smitherman Building. It is my prayer that Selma abandon racial divisiveness and re-group around understanding and harmony, and allow Selma to grow and develop for the benefit of all citizens.

Sincerely,

Charles Yow, Sr., Esq.

cc: Hon. Mayor James Perkins, Council Pres. George Evans, Jean Martin, Bennie R. Crenshaw, B.L. Tucker, Nancy Sewell, Glenn Sexton, Sam Randolph, James Durry, Rita Franklin