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Judge tosses lawsuit from police officers over Black Lives Matter mural

Court finds officers failed to prove city discriminated against them by letting mural stay in place

Artists and volunteers work on a mural that reads "Black Lives Matter" on Hamilton Avenue in front of Palo Alto City Hall on June 30, 2020. Each artist was assigned one letter in the mural to paint in their own style. Photo by Magali Gauthier.

A Santa Clara County Superior Court judge on Thursday tossed out a lawsuit from six Palo Alto police officers who claimed that the city discriminated against them by allowing a Black Lives Matter mural to remain in front of City Hall with images that they found offensive.

The six officers — Eric Figueroa, Michael Foley, Chris Moore, Robert Parham, Julie Tannock, and David "Heath" Ferreira — claimed in a lawsuit last year that the city engaged in "discrimination and harassment" by failing to remove iconography in a mural that the city commissioned in June 2020. A collaboration by 16 teams of artists, the mural was painted on Hamilton Avenue, with each artist (or team) painting a letter. The city removed the artwork in November of that year.

The six officers took issue with two specific images in the mural: a picture of Assata Shakur, a civil rights activists who became a fugitive after being convicted for shooting a state trooper, and an image of a black panther, which the lawsuit alleged represented the New Black Panther Party, a 1989 group that was described by the Southern Poverty Law Center as "virulently racist and anti-Semitic" (the group is distinct from the original Black Panther Party, which the mural image actually represented, according to the artists who painted it).

The lawsuit claimed that the city discriminated against the officers because it failed to "disapprove of and enjoin the underlying harassing and discriminatory conduct."

"Failure to abate the harassing and discriminatory conduct in and of itself is a form of retaliation for raising such issues," the complaint states.

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In a tentative ruling published this week, Superior Court Judge Socrates Peter Manoukian disagreed with that argument and found that the officers did not adequately allege any adverse employment action taken against them by the city that would support a claim of discrimination. The ruling also rejected the notion that the city's failure to remove the mural had anything to do with any "protective class" that the officers belonged to. Being a police officer, he noted, "is not a protected class."

"There is nothing to suggest that the Mural and its iconography was created in favor of one (protected) group over another," Manoukian wrote. "Similarly, Plaintiffs do not provide any factual allegations which would suggest defendant City's refusal to address Plaintiffs' complaints about the Mural are based on Plaintiffs' race, ethnicity, or some other protected classification."

The city filed three demurrers in the suit and effectively argued that even if the facts laid out by the officers are true, they do not justify the claims. Manoukian sustained all three demurrers and concluded that the officers did not demonstrate any retaliatory motive to demonstrate that the city subjected them to any "adverse employment action."

"The court finds persuasive defendant City's argument that Plaintiffs have not adequately alleged any adverse employment action taken against them by defendant City to support a claim for discrimination," Manoukian wrote.

Attorneys for the two sides appeared in court at 9 a.m. on Thursday, where the tentative ruling was adopted as the official ruling.

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Attorney Emily Pincin, representing the officers, argued Thursday that the because the mural was commissioned in response to the murder of George Floyd by non-African American peace officers, it favored one group over others.

"The court is entertaining a legal fiction that the mural was in fact commissioned in support of diversity, inclusivity and 'equal treatment of all rights.' It was quite clearly commissioned in favor of one group — African Americans — at the expense of the city's non-African American employees, including its non-African American peace officers," Pincin said.

Suzanne Solomon, attorney representing the city, called that argument "a move from the playbook of racist history of this country" and noted that the letter "E" on the mural that contains the image of Shakur also includes the words, "We must love one another."

"By asserting that people who are asserting rights on behalf of Black people or other groups of people who have been traditionally killed and murdered — sometimes by official policy such as the the genocide of Native Americans — the act of calling that assertion of your own rights to be treated like a human being… actually discrimination is ironic here. Because that's exactly what this mural is designed to counteract," Solomon said.

Gennady Sheyner
 
Gennady Sheyner covers the City Hall beat in Palo Alto as well as regional politics, with a special focus on housing and transportation. Before joining the Palo Alto Weekly/PaloAltoOnline.com in 2008, he covered breaking news and local politics for the Waterbury Republican-American, a daily newspaper in Connecticut. Read more >>

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Judge tosses lawsuit from police officers over Black Lives Matter mural

Court finds officers failed to prove city discriminated against them by letting mural stay in place

by / Palo Alto Weekly

Uploaded: Wed, Mar 2, 2022, 7:44 pm
Updated: Thu, Mar 3, 2022, 10:02 am

A Santa Clara County Superior Court judge on Thursday tossed out a lawsuit from six Palo Alto police officers who claimed that the city discriminated against them by allowing a Black Lives Matter mural to remain in front of City Hall with images that they found offensive.

The six officers — Eric Figueroa, Michael Foley, Chris Moore, Robert Parham, Julie Tannock, and David "Heath" Ferreira — claimed in a lawsuit last year that the city engaged in "discrimination and harassment" by failing to remove iconography in a mural that the city commissioned in June 2020. A collaboration by 16 teams of artists, the mural was painted on Hamilton Avenue, with each artist (or team) painting a letter. The city removed the artwork in November of that year.

The six officers took issue with two specific images in the mural: a picture of Assata Shakur, a civil rights activists who became a fugitive after being convicted for shooting a state trooper, and an image of a black panther, which the lawsuit alleged represented the New Black Panther Party, a 1989 group that was described by the Southern Poverty Law Center as "virulently racist and anti-Semitic" (the group is distinct from the original Black Panther Party, which the mural image actually represented, according to the artists who painted it).

The lawsuit claimed that the city discriminated against the officers because it failed to "disapprove of and enjoin the underlying harassing and discriminatory conduct."

"Failure to abate the harassing and discriminatory conduct in and of itself is a form of retaliation for raising such issues," the complaint states.

In a tentative ruling published this week, Superior Court Judge Socrates Peter Manoukian disagreed with that argument and found that the officers did not adequately allege any adverse employment action taken against them by the city that would support a claim of discrimination. The ruling also rejected the notion that the city's failure to remove the mural had anything to do with any "protective class" that the officers belonged to. Being a police officer, he noted, "is not a protected class."

"There is nothing to suggest that the Mural and its iconography was created in favor of one (protected) group over another," Manoukian wrote. "Similarly, Plaintiffs do not provide any factual allegations which would suggest defendant City's refusal to address Plaintiffs' complaints about the Mural are based on Plaintiffs' race, ethnicity, or some other protected classification."

The city filed three demurrers in the suit and effectively argued that even if the facts laid out by the officers are true, they do not justify the claims. Manoukian sustained all three demurrers and concluded that the officers did not demonstrate any retaliatory motive to demonstrate that the city subjected them to any "adverse employment action."

"The court finds persuasive defendant City's argument that Plaintiffs have not adequately alleged any adverse employment action taken against them by defendant City to support a claim for discrimination," Manoukian wrote.

Attorneys for the two sides appeared in court at 9 a.m. on Thursday, where the tentative ruling was adopted as the official ruling.

Attorney Emily Pincin, representing the officers, argued Thursday that the because the mural was commissioned in response to the murder of George Floyd by non-African American peace officers, it favored one group over others.

"The court is entertaining a legal fiction that the mural was in fact commissioned in support of diversity, inclusivity and 'equal treatment of all rights.' It was quite clearly commissioned in favor of one group — African Americans — at the expense of the city's non-African American employees, including its non-African American peace officers," Pincin said.

Suzanne Solomon, attorney representing the city, called that argument "a move from the playbook of racist history of this country" and noted that the letter "E" on the mural that contains the image of Shakur also includes the words, "We must love one another."

"By asserting that people who are asserting rights on behalf of Black people or other groups of people who have been traditionally killed and murdered — sometimes by official policy such as the the genocide of Native Americans — the act of calling that assertion of your own rights to be treated like a human being… actually discrimination is ironic here. Because that's exactly what this mural is designed to counteract," Solomon said.

Comments

felix
Registered user
Another Palo Alto neighborhood
on Mar 2, 2022 at 10:52 pm
felix, Another Palo Alto neighborhood
Registered user
on Mar 2, 2022 at 10:52 pm

Glad to hear it.
Justice will be served.


California Dreamin'
Registered user
Southgate
on Mar 3, 2022 at 8:11 am
California Dreamin', Southgate
Registered user
on Mar 3, 2022 at 8:11 am

This is a petty lawsuit that should never have been filed in the first place.


vmshadle
Registered user
Meadow Park
on Mar 3, 2022 at 10:38 am
vmshadle, Meadow Park
Registered user
on Mar 3, 2022 at 10:38 am

California Dreamin' is spot-on. First Amendment, anyone? If I filed suit every time my feelings were hurt by someone, I would be in debtors' prison by now!


peppered
Registered user
Community Center
on Mar 3, 2022 at 10:57 am
peppered, Community Center
Registered user
on Mar 3, 2022 at 10:57 am
Online Name
Registered user
Embarcadero Oaks/Leland
on Mar 3, 2022 at 12:20 pm
Online Name, Embarcadero Oaks/Leland
Registered user
on Mar 3, 2022 at 12:20 pm

So glad this finally happened.

User note: One-word comments like "Finally" are unacceptable and get rejected.


rita vrhel
Registered user
Crescent Park
on Mar 3, 2022 at 12:28 pm
rita vrhel, Crescent Park
Registered user
on Mar 3, 2022 at 12:28 pm

As a white resident, I saw the mural as an "artistic expression" of the painters. Not everyone agrees with every "artistic expression" or even with what constitutes "art". But I do defend your right to express.

If, per the officers' attorney, African-Americans were (for once) favored over non- African American city employees, including non-African-American police officers; i say FINALLY. LONG TIME COMING!!!!!

But please note the "alleged favoritism" was only for several months. Now unfortunately, back to "normal".

The mural is gone; the killing of Black people in America continues.

Seems like the officers missed a great opportunity for serious introspection.

WOW! If I feel discriminated against by a colorful mural, how would it feel to have negative images of yourself, especially as a young Black man, projected against you your entire life? Judged FOREVER by the color of your skin; not by who you are?

A great learning opportunity .....missed.

Thank you Judge Manoukian. Now could you please award legal fees to the City.


anon1234
Registered user
College Terrace
on Mar 4, 2022 at 6:27 pm
anon1234, College Terrace
Registered user
on Mar 4, 2022 at 6:27 pm
Jennifer
Registered user
another community
on Mar 5, 2022 at 7:17 am
Jennifer, another community
Registered user
on Mar 5, 2022 at 7:17 am

I can't help but wonder if the officers expected to prevail. I think they were sending a message. Maybe they're sick of people trying to control the police. Palo Altans are only hurting themselves when they refuse to let the police do their job. The police are the main political target for the left, far left. It gets old. A long time ago.


Bystander
Registered user
Another Palo Alto neighborhood
on Mar 5, 2022 at 7:57 am
Bystander, Another Palo Alto neighborhood
Registered user
on Mar 5, 2022 at 7:57 am

I still say that the roadway is not the place for art. Roads are for traffic and should be left untouched so that stripes and other road instructions can be seen easily and without the hindrance of distraction. I doubt if autonomous vehicles can appreciate the message when they can't observe the important information expected in stripes and other essential road details.


Kevin
Registered user
Greendell/Walnut Grove
on Mar 6, 2022 at 4:46 pm
Kevin, Greendell/Walnut Grove
Registered user
on Mar 6, 2022 at 4:46 pm

"Maybe they're sick of people trying to control the police. "

The police are supposed to be controlled, they're not a law unto themselves where they can do whatever they want. If police officers can't do their job without abusing the population, they should find a different job.


Jennifer
Registered user
another community
on Mar 6, 2022 at 8:50 pm
Jennifer, another community
Registered user
on Mar 6, 2022 at 8:50 pm

They're supposed to be held accountable, not controlled by a certain political leaning who want to defund the police, etc. There's a difference. If citizens can't be law abiding that's their fault. Not the police.


vmshadle
Registered user
Meadow Park
on Mar 8, 2022 at 1:19 pm
vmshadle, Meadow Park
Registered user
on Mar 8, 2022 at 1:19 pm

Jennifer, Officer Andrew Hall was convicted of murdering an unarmed mentally ill man in Danville last autumn, two and a half years after shooting to death another homeless, mentally ill man.

Web Link

In 2015, a mentally ill man wielding a table knife was shot and killed by police here in Palo Alto.

Web Link

You have been heeding too much right-wing propaganda. We liberals actually don't want to defund the police. We want to diversify police hiring to include psychiatric experts and social workers to prevent the needless killing of the mentally ill by police.

Mental illness is not only not a crime but also no excuse for imposing the death penalty as the result of a call to police.


Rev.AmyZuckerMorgenstern
Registered user
Fairmeadow
on Mar 8, 2022 at 3:47 pm
Rev.AmyZuckerMorgenstern, Fairmeadow
Registered user
on Mar 8, 2022 at 3:47 pm

I am very glad to hear it. The case was specious from day one.

Their first charge, that the New Black Panther Party logo was incorporated into one letter, did not hold up to examination. (Go look up the logo and see if you can find it on the mural. I tried. It wasn't there.) Their second, that the mural made a cop-killer a hero, holds little water for anyone who knows much about the case against Assata Shakur. She *was* convicted of killing a police officer, but the preponderance of medical evidence supported her version of the incident.

As a supporter of the movement for black lives, I want ALL citizens, including police officers, to respect the rule of law and to be held accountable when they violate it. I thought that that hope was beautifully expressed by the artists who created this mural. I don't need the police to agree with my take on all political questions, but I do worry about the impartiality of officers who look at this affirmation of the beauty and dignity of black lives and see a "hostile work environment."


scott
Registered user
Fairmeadow
on Mar 8, 2022 at 4:17 pm
scott, Fairmeadow
Registered user
on Mar 8, 2022 at 4:17 pm

If you ignored testimony and only looked at material evidence in the Assata Shakur case, you would reach the conclusion that she was shot with her hands up without having fired a weapon. On the basis of officer testimony, she was convicted of killing a police officer. If she were on trial today, after the advent of ubiquitous cell phone video has pierced our illusions about the prevalence of police misconduct, she doubtlessly would have been acquitted.

I understand why PAPD, which has faced several brutality and abuse cases in the last several years, were triggered by her image --but in filing this suit, they were telling on themselves.


John
Registered user
Adobe-Meadow
on Mar 9, 2022 at 4:32 am
John, Adobe-Meadow
Registered user
on Mar 9, 2022 at 4:32 am

@vmshadle The next time a suspect is charging, screaming, at our officers in the dark with a knife raised. I hope the officers keep a cool head, call a time out and look for the sign around the individual’s neck indicating they are mentally ill and their diagnosis. Baring that, perhaps they could sit in the street and fully evaluate prior to getting a butter knife in the neck.

We wonder why our pd is gutted and can’t even field a traffic team. I suspect even more will move on to saner (no pun) cities.


Pam T
Registered user
Charleston Gardens
on Mar 9, 2022 at 6:30 pm
Pam T, Charleston Gardens
Registered user
on Mar 9, 2022 at 6:30 pm

If I were a Palo Alto Police Officer, I would feel disrespected by the mural and also some of the comments here. I believe in free speech, in artistic expression and do not support censorship of any kind. However, where street art is concerned, common sense should inform us as to where that art should be appropriately placed. We would not support frightening images, violent images etc for public areas. The PAPD has every right to bring this forward for discussion, especially since the reality here is that policemen and policewomen lose their lives every single day in this country, and their position is an extremely vulnerable one. If 6 people felt 2 of these images were inflammatory, they have every right to speak up.


vmshadle
Registered user
Meadow Park
on Mar 10, 2022 at 11:11 am
vmshadle, Meadow Park
Registered user
on Mar 10, 2022 at 11:11 am

Sorry, John, but our police and dispatchers have shown themselves to be woefully undertrained to spot illness, including seizure symptoms.

Web Link

Furthermore, sarcasm about reading imaginary signs around the mentally ill does NOT excuse the murders that result. The victims and their families deserve considerably more respect and sympathy than you offer.


John
Registered user
Adobe-Meadow
on Mar 10, 2022 at 5:20 pm
John, Adobe-Meadow
Registered user
on Mar 10, 2022 at 5:20 pm

vmshadle, so more training and pay for the officers, in order to make them capable of infallible streetside diagnoses, something even trained physicians cannot reliably do? You really do live in a fantasy world.


vmshadle
Registered user
Meadow Park
on Mar 11, 2022 at 10:48 am
vmshadle, Meadow Park
Registered user
on Mar 11, 2022 at 10:48 am

John, I have worked in health care for 35 years. I know what I am talking about. Do you? Why so snide?


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