After white nationalists rallied around Charlottesville’s statue of Robert E. Lee in 2017, then-Gov. Terry McAuliffe took action to prevent “similar-styled events” at the towering, state-owned Lee statue in Richmond.
It started with a temporary ban on political demonstrations within the grassy circle enclosed by Monument Avenue. Then, at the McAuliffe administration’s direction, the state adopted a set of official regulations governing how and when people could gather at the monument.
Though the regulations were created in response to white supremacist violence, authorities are now using them to manage the throngs of social justice demonstrators that have made the Lee monument the epicenter of Black Lives Matter activism in Virginia’s capital for the last month.
The new rules require a permit for any event expected to draw more than 10 attendees, close the area from sunset to sunrise and prohibit people from climbing on the statue, which Gov. Ralph Northam has said he intends to remove as soon as a pending legal challenge is settled.
Since announcing they would begin enforcing the Lee monument regulations a week ago, law enforcement agencies have issued repeated reminders that the area is off-limits after dark, citing the emergency rules that were finalized just last year.
The Virginia State Police have said anyone remaining in the area at night is trespassing, which appears to be a factor in law enforcement decisions to declare unlawful assemblies. Those declarations precede police efforts to move in and clear the circle, confrontations that have occasionally involved police deploying tear gas and pepper spray.
The ACLU of Virginia opposed the regulations from the start, calling them overly restrictive and “constitutionally suspect.”
“It’s a deep concern for us that they are using these regulations to suppress people’s First Amendment rights,” said ACLU of Virginia Director Claire Gastañaga.
Joe Macenka, a spokesman for the Capitol Police, the agency directly responsible for policing the Lee monument, did not give a yes-or-no answer when asked if trespassing violations alone had ever been the justification for declaring an unlawful assembly.
“Merely being on the property after dark can amount to a trespass,” Macenka said. “Presence alone does not create an unlawful assembly.”
A Richmond Police timeline of the night of June 24 illustrates how the rule has shaped policing of protests at the statue at night.
The sun set at 8:35 p.m., city police said, but officers didn’t announce that people remaining were considered trespassers until 11:06 p.m.
Police moved toward protesters to “enforce trespassing violations” at 11:25 p.m., and declared an unlawful assembly minutes later when some in the crowd allegedly threw rocks at officers.
Protesters then marched through other parts of the city until almost 4 a.m., with police reporting multiple arrests and windows broken at a few businesses.
When the regulations were being drafted, the ACLU’s primary concerns were a clause exempting “established events” like the Monument 10K and the Easter parade and a rule saying permit applications had to be submitted 45 days in advance,
“The regs say no one can be on the property with more than 10 people at a time without a permit. Period,” Gastañaga said. “Speech is subject to time, place and manner rules. But these rules are inherently unreasonable.”
The ACLU has already sued Richmond and state officials for breaking up a sit-in outside City Hall on the night of June 22. It wasn’t clear if the group is planning similar action challenging crackdowns on protest activity at the Lee statue.
Officials seem to be enforcing some rules more strictly than others.
Dena Potter, a spokeswoman for the Department of General Services, said her agency had received just one permit application by a group seeking formal approval to use the space. It wasn’t clear Monday who had filed the application, which Potter said the agency received last week.
That hasn’t stopped people from gathering around the graffiti-covered monument – refashioned as something like a community art project – during daylight hours.
Potter said the state is “asking that visitors voluntarily comply” with the regulations.
For permitted events, the regulations also ban firearms and other weapons, glass bottles, rocks, fundraising, food and drinks, pets and tables. Some people who have showed up the Lee monument have been armed.
McAuliffe announced his temporary ban on protests at the statue late in the summer of 2017, as Richmond braced for a pro-Confederate demonstration many feared could lead to a repeat of the violence that broke out at the Unite the Right rally in Charlottesville. On Sept. 17 that year, a handful of protesters calling themselves the New Confederate States of America held a short rally just west of the Lee circle, outnumbered by hundreds of counterprotesters.
At the time, the McAuliffe administration said the Lee circle was a uniquely dangerous spot for protests, situated in the middle of a major residential street. Officials were still grappling with the safety failures in Charlottesville, where a disorganized police response contributed to the chaos in which a neo-Nazi rammed his car into a crowd, killing activist Heather Heyer.
Officials have put barriers around the Lee circle as a precautionary measure with the statue’s removal pending.
When officials announced the regulations would start to be enforced, they characterized it as a safety issue, “especially at night.”
“The substantial increase in pedestrian and bicycle traffic in and around the monument and intermittent blockages to vehicular traffic within the intersection pose serious safety risks,” officials said in a joint statement from DGS and state and local police. “In addition, such legal violations as vandalism, trespassing on nearby private properties, littering, public urination and excessive noise have steadily been on the rise.”
The overnight closures, officials said, will remain “indefinitely.”