WASHINGTON — The huge Confederate battle flag that flies over Interstate 95 in Stafford County, Virginia, is there legally, despite emotionally charged public opposition, according to the county’s attorney.
Stafford County Attorney Charles Shumate told the Board of Supervisors during a public meeting that the flag, which many see as a symbol of hate, is located on private property, which limits any steps the government can take.
During Tuesday’s Board of Supervisors meeting, several attendees restated their calls for the board to find a way to take down or lower the flag, which flies near Falmouth.
“We see it as a symbol of hate, not heritage,” said Fredericksburg local business owner Kim Wyman. “Most of the people driving on I-95 don’t know the difference. They don’t know it’s the battle flag of the Army of Northern Virginia, and they don’t care.”
Wyman said her business has suffered, since people who see the Confederate flag flying keep driving.
“It’s been corrupted by the neo-Nazis, by the Klan,” said Wyman, of the flag. “Once that symbol becomes their symbol it’s no longer ‘Oh, it’s just about history and heritage’ — it’s not.”
Despite ongoing tensions, anger and court battles over Confederate war memorials in Virginia, and elsewhere, Shumate said there’s little the county can do.
“I have concluded, without equivocation, that this county has no legal authority to require the removal of that Confederate flag, from that private property, on that flagpole, which is 80 feet in height,” said Shumate.
An audience member yelled “coward,” as Shumate finished his statement.
Several speakers described seeing the flag from the highway as hurtful and racist, recalling the time when black people were only counted as three-fifths of a person.
“It’s been the law of this land, under the First Amendment, that the Confederate flag may fly,” said Shumate. “It may be very disrespectful to some people, and I respect that.”
Challenged by one heckler, said his legal guidance was not based on his beliefs.
“It’s not my personal beliefs — my belief is in the Constitution of the United States,” he said.
Shumate said he can understand the anger and frustration opponents to the Confederate flag are feeling.
“I served 11 months and 29 days in Vietnam, in a combat zone,” said Shumate. “To this day, if I see someone burning the American flag — that is so disrespectful and hateful to me, I want to grab a hold of that person and bring them great harm.”
Shumate said luckily, he has never witnessed a person burning a flag.
“I’d have to dig down and really understand, there’s a First Amendment our forefathers created that said, you know, you can’t do that,” he said.
Even if the Board were to pass an ordinance, regulating the size and height of flags, Shumate said it wouldn’t affect this case.
“This flagpole would be grandfathered,” said Shumate. “It would become a nonconforming use, and it will remain.”
“You will not be able to reduce the height of this flagpole, through a new zoning ordinance you would pass, so that pole and the flag on it would remain.”
Shumate said the Board and the individual members would likely be sued.
“If this board were to take some action contrary to my legal advice, they would expose themselves to litigation,” said Shumate. “This board’s hands are tied.”
Even before Shumate’s analysis, Hubert Wayne Cash, who has leased the land the flagpole sits on, told WTOP “the flag will stay.”
“It sits on posted private land and is protected by the laws and ordinances of the state of Virginia and Stafford County,” said Cash, who leased the land to a group called Virginia Flaggers until 2024.
Editor’s note: This story has been updated to reflect that Virginia Flaggers is leasing the property until 2024.
© 2017 WTOP. All Rights Reserved.