Opinion

No, the law doesn’t require Silent Sam to be returned to his pedestal in 90 days

Must Silent Sam be returned to his pedestal within 90 days of his toppling?

According to Thom Goolsby, a member of the UNC System Board of Governors who has been vocal on the topic, the answer is “Yes, because North Carolina law requires it.” (The law in question is section 100-2.1 of the N.C. General Statutes.)

The law in question requires no such thing. Indeed, the law in question does not even apply to the current situation.

If you’ve been following the Silent Sam story over the last year, you’ve no doubt heard about this law, because it’s the one that has kept the statue in place. The law, hastily drafted and passed by the General Assembly in 2015 during national debates about the Confederate flag, says that the only way an “object of remembrance” (like Silent Sam) can be relocated – temporarily or permanently – is on the say-so of the state’s Historical Commission.

You have to be a bit of a law nerd to dig into Section 100-2.1 and see why no 90-day clock is now ticking, but it’s worth the dig.

The law, in its subsection (b), says that an object that is on public property, like Silent Sam was, may not be permanently “removed.” And it may only be temporarily “relocated” in two situations – (1) where relocation is necessary to “preserve” the object, and (2) where relocation is necessary so that construction or renovation of property can go on around it.

The law’s 90-day rule applies in the case of a temporary “relocation.” It says that an object that is temporarily relocated “shall be returned to its original location within 90 days of the completion of the project that required its temporary removal.”

So, to put it all together: You can’t move Silent Sam permanently. You can move him temporarily only to preserve him or to make way for construction, and if you do remove him temporarily for one of those reasons, you have to put him back within 90 days of when you’ve finished.

Perhaps you can already see why the law’s 90-day rule doesn’t apply to the situation we find ourselves in: Silent Sam was not removed for either of the permitted reasons under the law. He wasn’t removed with the permission of the Historical Commission. He wasn’t removed consistently with the statute in any way.

So the law simply doesn’t apply to this situation. On the question of what happens to Silent Sam now that he’s been toppled, we are in a zone that the law simply does not address.

Mind you, other laws address the statue’s toppling – criminal laws on vandalism, property destruction, and the like plainly apply to the act of pushing him off his pedestal. There’s a robust debate right now about how those laws should apply, but that’s not what we’re talking about here.

What we’re talking about here is what the law has to say about what must happen to the statue once it’s been pushed to the ground.

And the answer is: the law says nothing about that. Whether Silent Sam must go back on his pedestal within 90 days is a political question. If he once again is to stand his northward-facing vigil against invading Union forces trying to take away the right of a state to let one human being own another, that will be because the Board of Governors wants him there. Not because the law requires it.

Eric Muller is the Dan K. Moore Distinguished Professor at the UNC School of Law.
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