Sebastian County Prosecutor Daniel Shue said Tuesday (Sept. 20) he would not file criminal charges against Fort Smith City Administrator Carl Geffken regarding the Flags over Fort Smith Historical Monument.
Fort Smith Attorney Joey McCutchen requested Shue to charge Geffken with a misdemeanor for violating Arkansas’ Historical Monument Protection Act in a letter Sept. 16.
“The City has made it clear that it refuses to reinstall this monument without a Court order despite the Arkansas History Commission rejecting its waiver request. This is a clear violation of the Historical Monument Protection Act which expressly prohibits the removal, alteration, or rededication of historical monuments,” McCutchen noted in the letter.
In his letter Tuesday, Shue said that the only action that could possibly violate the Act would be the City’s failure to replace the Flags over Fort Smith display between Sept. 14 and Tuesday. However, Shue added that his office has historically not weighed into pending civil cases unless instructed to do so by a court. Judge Gunner Delay will hold a hearing in the pending civil case Sept. 27.
In regards to misdemeanor charges against Geffken, Shue said three things would have to be proven beyond a reasonable doubt: A knowing violation of the subchapter; the value of the property is more than $500; and the damage or repair cost to the monument is more than $100.
“No evidence has been presented to the Prosecuting Attorney’s Office establishing the value of the property or the damage or repair cost to the historical monument. The matter would have to be referred to the appropriate law enforcement agency for investigation to develop these facts,” Shue said.
He also pointed out that the court made the finding in its Jan. 28 order that the initial removal of the flag display prior to the enactment of the Act did not violate the act.
In April 2020, the city removed seven flags in the display because of age and condition. The display represented the flags flown over Fort Smith since 1699, including 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.
McCutchen filed suit June 3, 2021, in Sebastian County Circuit Court seeking a declaratory judgment that the city violated the Arkansas State Capitol and Historical Monument Protection Act when it removed the historical flag display, which was erected in October 2001. The city noted in correspondence with the Arkansas History Commission that it did not want to replace the Confederate Flag because “many people in our community find historical associations with the Confederacy emotionally charging and potentially provocative.”
Sebastian County Circuit Court Judge Gunner DeLay ruled that the city seek a waiver from the Arkansas History Commission for any plan to dispose of the previous display items. On Sept. 8 the Arkansas History Commission denied the city’s waiver request, but included in the action the option for the city to appeal the decision.
Colby Roe, an attorney with the Fort Smith law firm Daily & Woods who represented the city, said in response to McCutchen’s request to take legal action against Geffken that the commission did reject the waiver “but did not order the City reinstall the subject display.”
“Both the judge’s ruling and the constitutional prohibition against ex post facto laws prevent prosecution for the removal of the flag in 2020,” Shue wrote in his letter.
McCutchen said Tuesday that since the City’s waiver request was rejected by the Arkansas History Commission, he believes the City is now knowingly violating the Act.
“We respect Mr. Shue’s decision not to pursue criminal charges at this time with the civil case still pending and a hearing set on Sept. 27,” McCutchen said. “Since Judge Delay has already heard the evidence in this case, we agree with Mr. Shue that Judge Delay is in a better position to determine the respective rights and responsibilities of the parties.”