The city of Palo Alto is asking the court to dismiss a lawsuit from a group of police officers over a Black Lives Matter mural that the city commissioned in 2020 and that the officers claimed constituted harassment and discrimination.
The city filed its request for a demurral in Santa Clara County Superior Court on Nov. 23 after talks between attorneys from both sides reached an impasse. The lawsuit was filed in June by officers Eric Figueroa, Michael Foley, Christopher Moore, Robert Parham and Julie Tannock. A sixth officer, David Ferreira, joined the group later in the year. A court hearing on the city's objections is scheduled for this March.
The officers specifically took issue with two images in the mural, which the city commissioned in June 2020 as part of its response to demonstrations demanding social justice and police accountability in the wake of George Floyd's murder by now former Minneapolis police Officer Derek Chauvin. The 16-letter painting that spelled out "Black Lives Matters" was painted by artists and, in some cases, teams of artists. The mural included in one of its letters the image of Assata Shakur, a civil rights activist who was convicted in 1977 of killing a New Jersey state trooper. Another letter contained an image of a black panther, which the officers alleged resembles the icon of the New Black Panthers, a political organization that was founded in 1989 and that is described by the Southern Poverty Law Center as "virulently racist and antisemitic." It has no relation to the original Black Panther Party, which also used the panther in its logo.
The officers maintained in the suit that the city engaged in "discrimination and harassment" by allowing what they called "discriminatory iconography" to exist in the workplace and by failing to remove it upon request by the officers. They claimed that the mural and the city's response had "adversely affected their personal health and well-being, including medical expenses, that are anticipated into the future and may force an early retirement."
"Failure to abate the harassing and discriminatory conduct in and of itself is a form of retaliation for raising such issues," the officers argued in their suit.
Suzanne Solomon and Shane Young, whose firm Liebert Cassidy Whitmore is representing the city, took issue with the officers' arguments that the imagery constitutes discrimination and that the city owes the officers compensation.
"The harassment claim fails because no reasonable person would be offended by a mural asserting that Black lives matter," Solomon and Young wrote in the response.
Solomon and Young specifically took issue with the officers' argument that the portion the panther logo in one of the mural letters is offensive, ostensibly because it resembles a logo in the New Black Panthers. The suit made that allegation despite the fact that the original Black Panther Party, which is not affiliated with the New Black Panthers, also uses the logo. Adam Amram, one of two artists who created the logo, had told this news organization that the logo has no relation to the New Black Panthers.
The allegation from the officers, Solomon argued, appears to be "intentionally vague to mask the true nature of the 'portion' of the 'logo' at issue: figure of a leopard or jaguar that is black, which would not offend any reasonable person."
When asked about the logo, Amram, one of the artists who painted the letter "R" in which it appears, said the images in the letter were inspired by the quilted works of artist Rosie Lee Tompkins and the graphic iconography of Emory Douglas, who created art for the Black Panther Party.
"Our work was created with love and tremendous care," Amram told this news organization in a July 2020 email, shortly after the officers filed their lawsuit. "It was made to inspire."
Solomon and Young argued in their response that a reasonable person viewing the mural "would not interpret it to be an offensive assertion of animus against Caucasians, Asians, Pacific Islanders or Latin people," an allusion to the officers' respective ethnicities.
"The mural was a piece of art in front of City Hall asserting that 'Black Lives Matter.' It was installed in the wake of the murder of a Black man, George Floyd, by a white police officer, that was caught on video, resulting in worldwide protests," Solomon wrote. "The message 'Black Lives Matter' is not offensive to a reasonable person, and therefore cannot be the basis for an actionable harassment claim under FEHA (Fair Employment and Housing Act)."
She also argued that, contrary to the claims in the suit, the officers did not in fact suffer any major adverse consequences. They did not allege that they were "fired, disciplined, demoted, not promoted, reprimanded, or given any negative performance evaluation based on their race." The actions that the city is accused of — refusing to eliminate the mural and failing to investigate the officers' complaints — do not meet the legal standard for "adverse action," she states.
"However, annoyed the Plaintiffs were by the mural, that annoyance does not rise to the level of an actionable adverse action," Solomon and Young wrote.
They also noted in their response that unlike race, the classification "police officer" is not a protected status. While the officers alleged discrimination, their complaint did not make any mention of the officers' "national origin" or "color," Solomon and Young wrote. As such, there were no factual allegations that the mural was targeted at them or their races.
"What happened in this action is that the City commissioned a mural, in the wake of George Floyd's murder by police officers, to publicly affirm the City's commitment to equal treatment of all residents, regardless of race," the city's response states. "That action was not 'harassment.'"