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.