RICHMOND, Va. (WRIC) — A Richmond judge didn’t seem convinced Tuesday that the city’s former interim police chief would have been in the clear to order officers to guard Confederate monuments in June 2020 as crews removed them.
In a $5 million wrongful termination lawsuit filed against the city last year, William “Jody” Blackwell alleges Mayor Levar Stoney asked him to make the “illegal order” and that he was ultimately fired from the police department for refusing.
The attorneys representing Richmond filed a demurrer, a motion asking for a dismissal, arguing the city is shielded from such lawsuits on sovereign immunity grounds and that Blackwell made “factually and legally deficient” claims in his lawsuit.
While Richmond Circuit Court Judge W. Reilly Marchant was skeptical of the city’s position that Blackwell’s argument lacked merit, he suggested in court Tuesday that it could be an uphill battle for the lawsuit to survive the city’s challenge.
“How do you get around sovereign immunity?” Marchant asked Blackwell’s lawyer, Scott Crowley, during the hearing.
In most cases, governments and their employees are protected against civil lawsuits by sovereign immunity. But the doctrine offers various levels of protection and can be waived by a government.
Crowley cited two previous cases when he argued that cities have immunity protections for actions deemed a benefit to the public but not actions that only benefit the government. He claimed in court that “only the mayor” would have benefited had Blackwell followed through on the request.
Marchant said he believed the case Niese v. City of Alexandria applied to Blackwell’s and asked Crowley to distinguish Blackwell’s case to survive the city’s demurrer. Crowley and the attorney representing the city, who both said they had not come across the Niese case, have until Friday to submit a letter brief on the case.
In Niese v. City of Alexandria, the Virginia Supreme Court affirmed a lower court’s decision to throw out a lawsuit against the Alexandria Police Department filed by a woman who claimed she was raped multiple times by an officer assigned to assist her with her son’s behavioral issues. The high court agreed with the lower court’s ruling on the case that a municipality is protected for negligence for governmental functions like retaining an officer or maintaining a police force.
While Blackwell’s case may not go to trial, Marchant said he wasn’t sure if he agreed with the city that ordering officers to stand guard while contractors removed the Confederate statues in June 2020 wouldn’t have violated state law.
In his lawsuit, Blackwell alleges Stoney asked him to station officers around the statues during the removal process. Blackwell claims he expressed concerns with Stoney days before and during a meeting with the Richmond Police Department’s general counsel at the time, David Mitchell, on June 26, 2020.
Blackwell and Mitchell told Stoney the order would violate a law prohibiting authorities from disturbing or interfering with any monuments or memorials, according to the lawsuit. That specific clause in the Virginia code was removed through legislation in April 2020, but the change didn’t go into effect until July 1, 2020.
Blackwell’s lawsuit asserts complying with the request would have exposed Blackwell and Richmond police officers “to criminal liability.” Blackwell alleges Stoney was aware that those who complied would have violated Virginia code, pointing to an op-ed for the New York Times where Stoney acknowledged he was “risking legal action personally” for his decision to move forward with the removal process.
The attorney representing the city said Tuesday that following the directive would not have constituted a criminal act. “Why was it not illegal?” Marchant asked the city’s counsel.
The city’s attorney cited the Virginia Supreme Court’s ruling in April 2021 allowing Charlottesville to take down two Confederate statues. Judge Marchant said that decision had been made the year after Blackwell claims Stoney asked him to make the order.
Marchant then referred to the U.S. Supreme Court’s ruling in Loving v. Virginia that declared a state law banning interracial marriage as unconstitutional, linking it to Blackwell’s case by saying the 1967 decision didn’t help the couples who were not able to marry before the ruling.
Blackwell resigned as Richmond’s interim police chief after less than two weeks and returned to his previous position as major. Seven months later he was fired by Chief Gerald Smith, who the city said did not know about Blackwell’s claims at the time.
Blackwell claims in the lawsuit that he was only 18 months away from securing his full pension before he was fired. His lawsuit seeks $5 million in compensatory damages, punitive damages, attorney fees and any other costs the court deems proper. He is also seeking to be reinstated.