Judge will not block depositions about Tyrrell Confederate monument

A federal judge has rejected Tyrrell County’s request to block depositions from current and former county commissioners in a lawsuit targeting the county’s Confederate monument.

US Magistrate Judge Robert Numbers issued an order Thursday denying the county’s request for a protective order. Tyrrell’s lawyers had argued that legislative immunity protected commissioners from forced testimony in the case.

“Tyrell County is not entitled to a protective order. Because legislative immunity is personal to the commissioners, the County may not assert the immunity on their behalf,” Numbers wrote in his three-page order.

“The Constitution’s Speech or Debate Clause affords members of Congress immunity for legislative acts,” Numbers explained. “The Supreme Court has extended analogous immunity to state and local legislators to preserve the independence of the legislative function. Thus, local legislators are absolutely immune from suit for actions taken in their legislative capacities. Legislative immunity also includes a testimonial privilege protecting legislators from compelled testimony concerning legislative acts.”

“Legislative immunity, however, belongs to individual legislators, not to the governmental entity,” Numbers wrote. “Since the privilege is personal, each legislator must assert or waive it individually.”

“Here, none of the individual county commissioners have sought to use legislative immunity to avoid deposition,” the order continued. “Nor is there any evidence in the record suggesting that they wish to do so. And since the County cannot raise legislative immunity on their behalf, it has not established good cause for a protective order. Thus the motion for a protective order is denied.”

The county filed a motion in January seeking a protective order on behalf of current and former county commissioners.

US District Judge James Dever issued a May 2025 order allowing the lawsuit to move forward on a federal equal protection claim.

“Now, plaintiffs seek to depose Tyrrell County commissioners regarding the monument,” according to a memorandum supporting January’s motion. “The commissioners, however, have legislative privilege from testifying about their decisions regarding the monument because these decisions amount to core policymaking. And the commissioners have not waived this privilege. In turn, this Court should enter a protective order that prohibits the commissioners’ compelled testimony because they have legislative privilege.”

“The Tyrrell County commissioners’ decisions regarding the monument are quintessentially legislative,” the court filing continued. “These decisions affect all county citizens. The decisions reflect ‘broad policy considerations’ following a deliberative process. And these decisions were not administrative and geared toward one person, like a decision to terminate a municipal employee. In turn, the commissioners’ legislative privilege precludes their testimony in this case.”

Commissioners’ previous comments about the monument do not amount to a waiver of the legislative privilege, their lawyers argued. “The Tyrrell County commissioners have not testified ‘fully and completely’ regarding their policymaking decisions surrounding the monument. Their comments at public meetings reflect ordinary legislative business that does not amount to waiver.”

Dever’s order last spring allowed one of two pieces of the original lawsuit to proceed.

The Concerned Citizens of Tyrrell County, a group of mostly “elderly Black residents,” filed suit in May 2024 against the county. An amended complaint from September 2024 asked for the removal or covering of one phrase engraved on the monument. It says “in appreciation of our faithful slaves.”

Critics argued that the county’s refusal to address the monument’s offending phrase violated the plaintiffs’ right to equal protection of the laws and the equal right to hold property. Tyrrell County filed a motion in October 2024 to dismiss the lawsuit.

Dever allowed the equal protection complaint to move forward while dismissing the equal-right-to-hold-property claim.

“[P]laintiffs plausibly allege that the ‘faithful slaves’ engraving has a racially disproportionate impact on black residents of Tyrrell County,” Dever wrote. “Tyrrell County provides no contrary argument. Plaintiffs also plausibly allege that an invidious discriminatory intent motivated Tyrrell County to install the ‘faithful slaves’ engraving in 1902.”

Dever rejected the county’s argument that a 2024 state court ruling about a Confederate monument in Alamance County prevented any action to remove or change the Tyrrell statue.

“The North Carolina Court of Appeals held that a county commission had no power to relocate Confederate Civil War monuments under North Carolina’ s Monument Protection Law,” Dever wrote. “Here, plaintiffs challenge ‘Tyrrell County’s public, textual expression of appreciation for “Faithful Slaves” and nothing more.’ Alamance County does not bar Tyrrell County from covering or altering the ‘faithful slaves’ engraving, which is plaintiffs’ requested relief. Thus, Alamance County does not help Tyrrell County.”

While the lawsuit could proceed, Dever offered no hint about the case’s final outcome. “Whether plaintiffs’ claim will survive summary judgment is a question for another day,” he wrote.

The judge rejected monument critics’ arguments that the offensive language impaired their equal right to hold property.

“[P]laintiffs fail to plausibly allege that Tyrrell County impaired a personally held property interest of Concerned Citizens or its members,” Dever wrote. “The United States Supreme Court has only recognized equal-right-to-hold-property claims where a plaintiff has plausibly alleged that a defendant has impaired a plaintiff’s personally held property interest.”

“Plaintiffs fail to plausibly allege that the ‘faithful slaves’ engraving impairs any property interest owned by Concerned Citizens or its members. Moreover, plaintiffs fail to plausibly allege that they own a personally held property interest in the courthouse grounds,” the order continued.

“Here, plaintiffs contend that they are ‘demoralize[ed]’ and ‘stigmatiz[ed]’ by the ‘faithful Slaves’ engraving because it is a ‘physical badge of slavery,’” Dever wrote. “Plaintiffs, however, fail to plausibly allege that these harms rise to ‘more than an inconvenience’ or have more than a ‘minimal effect’ on their hypothetical property interests.”

Dever rejected the county’s argument that it had “legislative immunity.” “According to Tyrrell County, decisions concerning the ‘faithful slaves’ engraving are subject to ‘local legislative powers’ and deserve vicarious legislative immunity,” he wrote. “The Fourth Circuit squarely rejected this argument three decades ago.”

“Judge will not block depositions about Tyrrell Confederate monument” was originally published on www.carolinajournal.com.