BREAKING: 5th Circuit Rules That NOLA Monuments Can Be Taken Down

The opinion was just released. You can read it here.

An excerpt…

First, although Appellants asserted twelve causes of action in their initial complaint, their preliminary injunction application relied solely on two legal claims, both of which wholly lack legal viability or support. We therefore hold only that Appellants have failed to carry their preliminary injunction burden with respect to the two claims briefed and given to us, namely, their federal statutory claim and their procedural due process claim based on the Louisiana doctrine of negotiorum gestio. Indeed, by failing to show a constitutionally or otherwise legally protected interest in the monuments, they have also failed to show that any irreparable harm to the monuments—even assuming such evidence—would constitute harm to Appellants. Second, although Appellants implied at oral argument that the ownership of the monuments and land on which they sit may be uncertain, we have exhaustively reviewed the record and can find no evidence in the record suggesting that any party other than the City has ownership.2 Third, like the district court below, we accept the City’s assurances that it will hire only qualified and highly skilled crane operators and riggers to relocate the monuments from their current positions and, further, that the monuments are merely to be relocated, not destroyed.

Finally, we note the limited scope of our judicial review. We do not pass on the wisdom of this local legislature’s policy determination, nor do we suggest how states and their respective political subdivisions should or should not memorialize, preserve, and acknowledge their distinct histories. Wise or unwise, the ultimate determination made here, by all accounts, followed a robust democratic process. Appellants here have failed to put forward even a prima facie showing in support of their two claims that this federal court must interfere with this local political process, which required consideration of heated and disagreeing viewpoints.

The Louisiana legislature could have largely put an end to this controversy, but opted not to move forward a bill last year that would have put a state commission in charge of preservation of historic monuments.

Another such bill will certainly be introduced in the legislative session next month, but there is little reason to believe the legislators will have the appetite to take it up. At this point the City of New Orleans is likely free to destroy as many of its historical landmarks as it sees fit.

Or rather, to relocate them – which, as the rumors indicate, will involve handing them over free of charge to the Slavery Museum being assembled by politically-connected New Orleans lawyer John Cummings.

UPDATE: Here was New Orleans mayor Mitch Landrieu’s statement…

“Today the Fifth Circuit Court of Appeals affirmed the City’s ability to control its property. This win today will allow us to begin to turn a page on our divisive past and chart the course for a more inclusive future. Moving the location of these monuments—from prominent public places in our city where they are revered to a place where they can be remembered—changes only their geography, not our history. Symbols matter and should reflect who we are as a people. These monuments do not now, nor have they ever reflected the history, the strength, the richness, the diversity or the soul of New Orleans.”

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