RICHMOND, Va. (WRIC) — A Richmond judge refused to dismiss a $5 million wrongful termination lawsuit against Mayor Levar Stoney and Police Chief Gerald Smith from the city’s former interim police chief, allowing the case to move forward.

William “Jody” Blackwell, a former major within the city’s police department, was tapped by Stoney to be Richmond’s interim police chief in June 2020 after the mayor asked the chief at the time to resign in the wake of clashes between protesters and officers during civil unrest that summer.

Blackwell served as interim chief for just 11 days before returning to his role as major, and seven months later he was fired by chief Smith.

In a lawsuit initially filed against the city, Blackwell alleges he was fired “in retaliation for refusing to carry out Mayor Stoney’s illegal order” to have officers stationed around the city’s Confederate monuments as contractors removed them.

Richmond Circuit Court Judge W. Reilly Marchant ruled in March that the city is protected from the lawsuit through sovereign immunity, but he left the door open for a potential case. As a result, Blackwell’s attorney filed an amended lawsuit in April just against Stoney and Smith.

The city filed a demurrer — a motion to dismiss — arguing that Stoney and Smith were also protected from liability and that Blackwell’s lawsuit had failed to present claims showing either acted with “gross negligence, recklessness or willful misconduct” to be exempt from immunity or any link between his firing and refusal to follow Stoney’s request.

Blackwell’s lawsuit asserts that complying with Stoney’s request would have left him and Richmond police officers open to criminal liability because it would have violated a law in place at the time prohibiting authorities from disturbing or interfering with any monuments or memorials.

That clause in the Virginia code was removed through legislation in April 2020, but the change didn’t go into effect until July 1, 2020, after Blackwell alleges Stoney made the order.

The attorney for Stoney and Smith, Bret G. Daniel, argued in court Friday that following such an order would not have made Blackwell or any officers liable after the Virginia Supreme Court overturned a lower court’s decision in April 2021 and allowed the city of Charlottesville to take down two Confederate statues.

Judge Marchant disagreed with that argument, saying “it was illegal at the time” despite the eventual statute established by the state’s Supreme Court and that Blackwell couldn’t review it “in hindsight.”

Marchant pointed to Blackwell’s allegation that he and Richmond police’s general counsel at the time, David Mitchell, informed Stoney that the order would violate the current law. The judge also noted that the lawsuit cites an op-ed from Stoney in the New York Times where the mayor acknowledged he was “risking legal action personally” for his decision to move forward with the removal process.

Blackwell’s attorney, Scott Crowley, said in court Friday that “something was strange” about Blackwell’s firing seven months after he returned to being a major and 18 months before he was set to secure his full pension from the city, arguing that it showed an effort to retaliate against Blackwell.

Daniel said that Blackwell’s retaliation claims in the lawsuit only present circumstantial evidence of a link between his firing and refusal to follow the mayor’s order. He added that the suit fails to prove an intentional act from Stoney or Smith and the seven-month gap shows that Blackwell’s firing was not connected to his decision to not comply with the mayor’s request.

Marchant said allegations of workplace retaliation often rely on circumstantial evidence, unless a plaintiff finds “a smoking gun,” and can only be considered as an intentional act.

The judge also rejected the idea that the gap between Blackwell’s refusal to comply with Stoney’s order and his firing proves that they weren’t linked, pointing to a similar case with the same timeline.

At the end of Friday’s hearing, Marchant said he was overruling the demurrer and that an order would be coming next week. The decision allows the case to move forward to discovery, but Daniel could still try to appeal the ruling.

Blackwell is seeking $5 million and has requested a jury trial. A spokesperson for Mayor Stoney said that the city does not comment on pending or ongoing litigation.