A Sebastian County Prosecutor has issued a letter in response to Attorney Joey McCutchen's September, 16 letter that requested criminal charges be filed against Fort Smith City Administrator for violation of the Arkansas State Capitol and Historical Monument Protection Act.

In a press release from McCutchen's office, Daniel Shue issued the response on September, 20, which states that the city's failure to replace the flags over the Fort Smith display could constitute a violation of the Act.

It also said Shue added that his office has historically not weighed into pending civil cases unless instructed to do so by a court.

Sebastian County Circuit Judge Gunner Delay will hold a hearing on September, 27 at 9:30 a.m. in regards to the pending civil case.

McCutchen filed a lawsuit against the City of Fort Smith after the city removed the historical monument and failed to request a waiver pursuant to the Act the press release said.

According to the law office of McCutchen & Sexton, Judge Delay ruled that the city violated the Act for its continued refusal to request a waiver and that the initial removal of the historical monument was not a violation because it occurred before the Act was enacted.

On January 28, 2022, the court issued a subsequent order reiterating the findings of fact and conclusions of law contained in the October 2022 order.

"Since the city’s waiver request was rejected by the Arkansas History Commission, we believe that the city is now knowingly violating the Act," McCutchen said. "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 27th."

McCutchen also 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."