Lawsuit filed to get ‘historic’ flags back at Riverfront Park

Fort Smith attorney Joey McCutchen filed suit Thursday (June 3) in Sebastian County Circuit Court seeking a declaratory judgment that the City of Fort Smith violated the Arkansas State Capitol and Historical Monument Protection Act when it removed the historical flag display and bronze markers from Riverfront Park in Fort Smith.

In October 2001, the city erected seven flags at Riverfront Park, 121 Riverfront Drive, representing the flags flown over Fort Smith since 1699. The flags included: The French Fleur-De-Lis flag; the Spanish Cross of Lorraine flag; the French tricolor flag; the U.S. flag with 15 stars; the U.S. flag with 20 stars; the U.S. flag with 24 stars; and the Confederate States of America flag depicting a circle of seven stars with red and white stripes. Brass markers identifying each flag were on the base of the flag poles.

In April 2020, the city removed the flags due to age and condition, a letter from Colby Roe of Daily and Woods law firm states.

“At some point after the flags’ removal, the brass markers were removed. The display has not existed since the removal,” the letter states.

In May, McCutchen requested the city oblige the Arkansas State Capitol and Historical Monument Protection Act (Act 1003 of 2021) and replace the flags that flew at Riverfront Park from October 2001 to April 2020.

City Administrator Carl Geffken has since said that flags representing the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard and perhaps Space Force will fly next to the United States flag at the park. The original plan was to install the flags on Flag Day, June 14, said Shari Cooper, Fort Smith’s public relations and communications manager.

“However, he and some other board members are not available that exact day, so he told me he would let me know when their schedule permitted. They will probably raise the flags in late June,” Cooper said.

McCutchen is asking for an order compelling the city to immediately replace the flags and markers and enjoin future violations of the act, he said in a news release Thursday.

“The removal of the historical flag display and bronze markers identifying each flag was done without transparency or input from Fort Smith citizens. Fort Smith history is important and must be protected and preserved,” McCutchen said. “The city has made it abundantly clear that they are not going to replace the historic flags and bronze markers and are not going to voluntarily comply with The Arkansas Capitol and Historic Monument Protection Act.”

McCutchen said that while he commends the city on their proposal to honor veterans and troops by raising United States military flags “they cannot do so by unlawfully displacing another historical flag display.”

McCutchen states in his complaint the flags were part of a display known as the “Flags over Fort Smith” and were dedicated in a ceremony involving a narration by then Fort Smith Mayor Ray Baker and local historian J. Fred Patton.

He states the flag display is clearly a historic monument as defined by Act 1003 because they were erected on public property to commemorate and honor various historical events.

“Because the City of Fort Smith removed the flags and bronze markers over sixty days without replacing them or obtaining a waiver, it is in violation of The Act,” the filing states.

In the May 25th letter to Geffken, Roe states he has reviewed Act 1003 and he has “serious doubts as to whether the Riverfront Park flag display would be characterized as a ‘historical monument’ under the Act.”

“We do not believe it to have been ‘installed, erected for, or named or dedicated in honor of a historical person, historical event, public service organization, firefighter, police officer, military organization, or military unit,’” the letter said. “However, assuming for the sake of argument that the flag display could have been once characterized as a ‘historical monument,’ we do not think the Act applies in any event.”

Because the flags were removed in April 2020, there was no “historical monument” in place at the time Act 1003 went into effect, April 28, the letter states.

McCutchen says in his complaint that Act 1003 “applies to historical monuments that were removed prior to its passage” pursuant to Arkansas Code 22-3-2105. He also notes that Arkansas Code 22-3-2104 requires that a damaged flag that is part of a historical flag display be replaced with a similar flag.