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PORTSMOUTH — Attorneys for state Sen. Louise Lucas are asking a judge to dismiss the felony charges against her in the Portsmouth Confederate monument case, saying local police didn’t have the authority to investigate and that the case stems from “an illegal and unsanctioned police action.”
In court documents filed last week, attorneys Don Scott and Verbena Askew argue that under state law, a criminal investigation of an elected official can’t be done unless requested by the governor, attorney general or a grand jury.
Portsmouth police investigated without “permission or approval” from state police, the commonwealth’s attorney, governor or attorney general, the attorneys wrote in their motion filed in General District Court.
“Permitting any rogue local law enforcement agency to investigate an elected official without oversight would create a system whereby localities could attempt to intimidate and influence state officials at will,” Scott and Askew wrote.
The law they cite limits “certain investigations of elected officials” and falls under a chapter of the code for state police. It was not immediately clear whether it applies to local police.
Victoria Varnedoe, spokeswoman for the Portsmouth Police Department, did not respond to an email seeking comment.
Scott declined to comment on the motion.
An outside judge will handle the cases, and hearing dates for this and other motions have yet to be set.
Nineteen people — including Lucas, NAACP leaders, several public defenders and a School Board member — have been charged with felonies stemming from a protest and vandalism June 10 at the city’s Confederate monument.
That afternoon, demonstrators spray painted the monument ahead of a rally planned for that night. While the protest continued, the City Council postponed a vote on moving the monument, a topic of longstanding debate. (The council has since voted to move it, and contractors have been dismantling the structure.)
[ Previous coverage: Portsmouth begins taking down Confederate monument ]
Later that night, protesters beheaded four statues of soldiers attached to the monument, and one fell on a man, seriously injuring him.
Portsmouth Police Chief Angela Greene announced the charges two months after the protest to the surprise of many, including the city manager and commonwealth’s attorney, who said they didn’t know charges were coming.
Much political fallout has happened since. City Manager Lydia Pettis Patton temporarily removed Greene from her position last week. This week, Pettis Patton resigned, and the City Council fired City Attorney Solomon Ashby.
In an email days after charges were announced, Patton told council members Portsmouth police were supposed to drop an investigation into the protest because of a conflict of interest, although she didn’t say what that alleged conflict was.
Greene has said she tried to have an outside agency investigate because of a potential conflict involving “elected city officials” who were at the protest. After “all efforts were exhausted” to have an outside group investigate, Greene said it was up to her department to do it. She said there weren’t any conflicts of interest for her department.
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Charges in the case were taken out by Sgt. Kevin McGee of the department’s Property Crimes Unit.
McGee emailed the city manager and council members about 24 hours after the protest, defending the police chief and condemning Lucas and others. McGee didn’t respond to an inquiry from The Pilot but told HuffPost that he wasn’t involved in the investigation at the time he sent the email and that he and the Portsmouth department could investigate “without bias and only present the facts as they are found.”
In an email, Greene praised and thanked McGee for his words to the council, saying she was “humbled and moved” by what he wrote, according to a copy of the email obtained by The Pilot.
“You are the epitome of what an officer should be, brave, unwavering, dedicated, selfless and honorable to name a few,” Greene wrote to McGee June 12. “I’m privileged and honored to not only serve with you but call you family!”
In court documents, McGee lists a number of local officials as potential witnesses, including Commonwealth’s Attorney Stephanie Morales. Morales, who wasn’t at the monument June 10, is fighting the subpoena, asking a judge to block it. If Morales were called as a witness, her office likely couldn’t prosecute the case.
Staff writer Ana Ley contributed to this report.
Margaret Matray, 757-222-5216, margaret.matray@pilotonline.com