SEBASTIAN COUNTY, Ark. (KNWA/KFTA) — Sebastian County prosecuting attorney Daniel Shue will not be pursuing any criminal charges over the removal of a Confederate flag from a Fort Smith city display.

On September 20, Shue issued a press release detailing why there is no legal basis to prosecute Fort Smith City Administrator Carl Geffken for violation of the Arkansas State Capitol and Historical Monument Protection Act. The three-page document also indicated that no injunction will be made requiring the display to be returned before a court hearing on the matter.

In April of 2020, the Flags Over Fort Smith display, which included the French Fleur-de-Lis, the Spanish Cross of Burgundy, the French tri-color flag, three varieties of U.S. flags and a Confederate flag, was removed.

Today’s release addresses Joey McCutchen, a Fort Smith attorney that wrote a letter on September 16, asking that charges be filed in the matter. McCutchen also filed a lawsuit against the city on June 13, 2021, according to court documents.

Shue states that the city was “not specifically ordered to replace the flag display in its prior location,” and he added that “correspondence between the attorneys involved in this matter and the Court over the last ten days seems to indicate that the City of Fort Smith is preserving the flags, but that the City does not intend at this time to put the flag display back up.”

The release noted that there are “several issues that impede the filing of criminal charges at this time,” including the unknown value of the display and the cost to replace it. The prosecutor then states that “the Court made a finding in its January 28, 2022 Order that the initial removal of the flag display prior to the enactment of the [Arkansas State Capitol and Historical Monument Protection] Act did not violate the Act.”

He continues by explaining that the timing of the passage of that act would make prosecution “violative of the ex post facto clauses of the U.S. Constitution and the Arkansas Constitution.”

Shue then added that the prosecutor’s office usually does not weigh in on pending civil cases unless specifically instructed to do so by the court. He concludes by citing recent, relevant case law.

The decision not to intervene has been prudent in all of these cases as the Court has heard the testimony and is in the best position to enter appropriate orders and ensure compliance with those orders. Criminal charges by the Prosecuting Attorney which have not been requested by the Court are in essence suggesting that the Court is unable to effectively deal with the situation. This matter is set for hearing one week from today and I have complete confidence in the Court’s ability to determine the respective rights and responsibilities of both parties.

Daniel Shue, Sebastian County prosecuting attorney

“Since the City’s waiver request was rejected by the Arkansas History Commission, we believe that the City is now knowingly violating the Act,” said McCutchen following the press release. “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 September 27.”