McCutchen threatens legal action against Fort Smith over historic flag removal controversy
Updated: May 20, 2021
The removal of seven historical flags and downtown flag poles that greeted visitors making their way into Fort Smith from the west via the Garrison Avenue bridge spurred a lot of controversy last year, and Fort Smith attorney Joey McCutchen says the time has come to cut through the rhetoric and hoist the flags again.
This time around, state law may just be on his side. And if the city does not comply he says he intends to take legal action.
McCutchen says Senate Bill 553, which became Act 1003 and was passed with an emergency clause during the 2021 legislative session, provides for the flags to be restored. The new law also provides misdemeanor penalities for violations.
Subtitled the "Arkansas State Capitol and Historical Monument Protection Act", the legislation states "The State Capitol shall not be vandalized, damaged, destroyed, or otherwise disturbed." and "A historical monument shall not be relocated, vandalized, damaged, destroyed, removed, altered, renamed, rededicated, or otherwise disturbed."
McCutchen is seeking the immediate restoration of the flags, which had flown in the Fort Smith Riverpark for almost two decades.
"Those flags were all national flags, representing the seven national entities that controlled Fort Smith at one time or another," said McCutchen. "They removed all seven, but that was actually just a smoke sceen to get rid of the Confederate State flag. They used the the excuse that the flags were worn and would be replaced. Then they used the excuse that their vendor no longer made the Confederate state flag,"
According to a September 4, 2020 press release fro the city, the flags included:
• French Fleur-De-Lis Flag (1682-1763)
Spanish Cross of Burgundy Flag (1763-1800)
French National Flag (1803 Louisiana Territory)
U.S. 15-Star Flag (1805-1812 Territory of Louisiana)
U.S. 20-Star Flag (1812-1819 Territory of Missouri)
U.S. 24-Star Flag (1812, Arkansas from Missouri Territory)
Confederate States of America Flag (1861-1863).
McCutchen addessed a letter to Fort Smith City Adminstrator Carl Geffken on Wednesday:
"Pursuant to Senate Bill 553, now Act 1003 of 2021 of Arkansas, I hereby request that you immediately replace all flags that were removed in the River Park Historic Flag Display in Fort Smith, or otherwise comply with Act 1003. As you may know, the law was passed with an emergency clause during the 2021 legislative session and carries a penalty of a Class A misdemeanor if the value of the property is more than $500.00.
I am attaching a copy of Act 1003 of Arkansas for your review.
Also attached is the city’s statement on September 4, 2020 re the removal of flags from Riverfront Park in early 2020.
If the flag display is not promptly restored, I intend to file suit to seek a mandatory injunction to compel the City to comply with Act 1003."
Geffken is the one who spearheaded the decision to remove the flags. He released a memo on the actions in September:
“In light of recent racially historic events that have taken place across the country, the City is reconsidering the re-installation of the historical flags and approaching the re-installation plan with sensitivity and empathy for many who find the historical associations with the Confederate flag hurtful or hateful. Parks staff continues to have discussion with the City Administrator on how to reinstate the flag display at Riverfront Park while best serving the Fort Smith community. No final decision or recommendation has been made at this time.”
McCutchen said the controversy is ironic on a couple of fronts.
"The Confederate State flag, which was the real target of the removal, is not even the Bars and Stars that everyone seemingly equates with racism," said McCutchen. "And look at it logically. The rest of the flags, including the flags of France and Spain as well as the United States flags, all flew over countires that had slavery."
"He gives us a story about the flags being tattered and worn, and suddenly we get another story about about how they can't find a replacement for the only flag they wanted to take down in the first place,' said McCutchen.
McCutchen stated the following in a social media post last year:
“Fort Smith was occupied by the Confederacy for almost two years. It’s our history and why should Carl Geffken attempt to cancel our history by taking down historic flags which have flown over Arkansas by various ruling governments. The decision was made by June 23 (2020) that historic flags would not be flown and/or that all flags including US flag and Arkansas flag would be removed. The decision was made by Mr Geffken in secret email chains and/or discussions without public discussion or input-zero transparency. The city can try and spin this as they wish, but documents paint a much different picture.”