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Silent Sam

The internet and media are abuzz with the toppling of “Silent Sam” at the University of North Carolina – Chapel Hill. While reporters, bloggers, and social media types will clearly focus on the social justice aspects of the Confederate memorial, very little has been said about the legal implications of the criminal charges in North Carolina.

Thus far the names of people facing allegations of criminal charges have not been widely reported (or the specific felony or misdemeanor charges), other than Resist Obstruct Delay in North Carolina and possibly a Chapter 14, Article 4A violation of wearing of hood or mask.

One would assume the statue sustained damages, thereby potentially supporting the misdemeanor charge of Injury to Personal Property in North Carolina.

ITPP, as some defense attorneys may refer to the criminal charges in shorthand, (Injury To Personal Property), is normally a Class 2 Misdemeanor in North Carolina. In the matter at hand, assuming a statue erected in 1913 is valued at more than $200, the Injury to Personal Property charges would likely be considered a Class 1 Misdemeanor.

The NC Criminal Laws, under Chapter 14-160 define Injury to Personal Property as:

  • Willful Conduct
  • Injure the Personal Property of another
  • Property need not be destroyed, only “injured”

In contrast, Chapter 14: Criminal Law of the North Carolina General Statutes references Injury to Real Property, whether owned by the public or individual person(s) pursuant to N.C.G.S. Chapter 14-127. While one might reasonably assume a statue is personal property in North Carolina; yet, an argument might be made that public memorials, being permanently attached to the land and/or part of government facilities could be deemed a part of real property.

Indeed, the law regarding Injury to Personal Property in North Carolina references the property belonging to a “person,” whereas injury to Real Property in NC is more expansive, specifically noting public and privately-owned real property.

In 2015 the NC General Assembly put into effect, likely as a result of the increasing public outcries both for and against certain types of public monuments, legislation involving removing monuments on public property in North Carolina.

Entitled “Protection of Monuments, Memorials, and Works of Art,” (click here to review statute), empowers the North Carolina Historical Commission to decide whether any such objects of remembrance are to be altered, removed, or relocated.

An object of remembrance in North Carolina applies to plaques, memorials, statues, markers, monuments, and displays of “permanent character” the memorializes an event or person or military service that is part of the history of North Carolina.

The statute authorizes counties in North Carolina to use public funding (are authorized to expend public funds) “to erect a substantial iron fence around” the monument, allowing for the implication that such memorial is real property. In fact, another argument could be made that the pedestal supporting the monument is real property, whereas a statue, like Silent Sam, is personal property.

Who Owns Silent Sam?

The private interest in the property creates a potential legal conundrum, in that if a private organization donates the memorial, yet retains technical ownership, the item at issue could be inferred as remaining private property and not “owned by the State.”

Indeed, N.C.G.S. § 100-2.1(a) applies to a “monument, memorial, or work of art owned by the State.” If a political division of the State, possessing the legal authority to own property, or if the memorial is owned by a private party yet made part of public property, the jurisdiction of the North Carolina Historical Commission would appear to be inapplicable.

Why Is Private vs. Public Ownership of North Carolina Memorials Relevant?

It would behoove the State of North Carolina (the Orange County District Attorney’s Office) to carefully consider, and prove Beyond a Reasonable Doubt in the Chapel Hill District Courtroom on Franklin Street:

  • Whether a person or legal entity owns Silent Sam
  • Whether a proper political division of the State is capable of owning personal property
  • Whether UNC Chapel Hill owns Silent Sam
  • Whether Silent Sam is personal property or real property
  • Whether Silent Sam was paid for by private funds and donated to the State of North Carolina
  • Whether the proper criminal charges are Injury to Personal Property in North Carolina or Injury to Real Property
  • If ITPP Injury to Personal Property, what is Silent Sam’s value. . .and who decides that
  • Is there a “fair market value” for a piece of history?

Given the political fervor associated with the background circumstances of Silent Sam’s demise, even on a temporary basis (as the General Statute authorizes and otherwise directs repairs to items deemed under the purview of the NC Historical Commission), any criminal defense attorney worth their salt will challenge any such assumptions.

The Wearing of Masks, Hoods, etc., on Public Property

With no small amount of irony**, at least one “protester” at Chapel Hill allegedly covered his or her face and therefore appears to face criminal charges under N.C.G.S. § 14-12.8 “Wearing of masks, hoods, etc., on public property.”

**Such NC Criminal Charges under Chapter 14: Criminal Law were not enacted until 1953 and likely related to masks and hoods worn by members of secret societies, such as the Ku Klux Klan. Indeed, Article 4A of the NC criminal laws is entitled Prohibited Secret Societies and Activities.

One would be remiss in failing to note, the title of the law itself is likely overly broad and vague, using the work “etc” in describing the items to be be prohibited for wearing of “masks, hoods, etc.”.

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