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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.'”
Think how much money and time our City government would save if it better managed Palo Alto’s ridiculously poorly run and embarrassingly entitled police force! It’s more than bad enough that the PAPD’s out-of-control actions lead to tens of millions of dollars of legal actions taken against our City — including the recent $20 million case against the PAPD for harm caused when PAPD officers ordered a police dog to attack an innocent man sleeping on his own property before checking his identity.
Now, PAPD officers are further driving up public costs by forcing the city to spend limited taxpayer money defending their ludicrous lawsuit, whereby these these frail-ego’d gun-carrying officers claim they were victimized by a piece of art that was temporarily on a street before being painted over.
Palo Alto deserves much, much better.
“No reasonable person would be offended….” That is purely conjecture. In this day and age nobody has any idea what a reasonable person would be offended by. At least that is what is being told to us all the time. People are being offended for almost nothing nowadays and we are in a culture of cancel culture, name changing, statues being toppled, you name it. “Reasonable people are being offended” all the time.
As to what offends, anything can be the cause.
It’s sad that it was ever allowed. They knew exactly what they were doing when they included a “cop killer” and they knew exactly the affect it would have on the police, especially where it was located. And that’s why the city is being sued. And rightfully so. The city of Palo Alto has no one to blame but themselves. Even a former mayor was quoted “it sucks” when asked his opinion of the mural.
The far-left and the far-right are a threat to democracy. They’re extremists, and they’re unhappy people. I feel sorry for them.
One other thing. Either this article was poorly reported, or else the City’s outside lawyers are incompetent at explaining their theory of the case. (Sadly, the latter is most likely to be the most true – more waste of money on taxpayer dime.)
Regardless, the actual reason that this lawsuit should and likely will be dismissed prior to trial is that the plaintiffs’ fail to state a claim. Discrimination law only is available to “protected classes,” and these police officers do not constitute a protected class, under federal or state law. As much as police would like to claim that they are a protected minority, that’s simply not true as a matter of law.
Protected classes, as derived under the US Constitution’s 14th Amendment, and promulgated by the Civil Rights Act of 1964 (and state equivalents), include sex, gender, religion, race, disability, age, familial status, veteran status, and sexual orientation. A protected class status is a status that a person cannot change. Police officers as a legal matter cannot qualify for protected class status in California, as much as they may whine and moan about it.
That’s because police officers who don’t like the job, and in particular don’t like the unavoidable fact that a large portion of the population is going to hate them, for example, have the option to seek alternative employment. And in Palo Alto, we all would be benefited greatly if these officers did exactly that.
The lawsuit is clearly a disability, harassment and retaliation claim under California’s FEHA. Police officers and their command staff file and win FEHA claims with the same regularity as other disability and harassment claims in California. There’s nothing unusual about members of a police department filing an FEHA claim. Nowhere in their original or amended complaints do PAPD officers claim to be a protected class based on their occupation as sworn law enforcement officers.
As part of a commitment to social justice, a past council commissioned painting a large logo on the street near the City’s police station. During this time, nationwide riots against the police raged in cities around the country, including the destruction of police facilities and equipment. In fact, there were protests in Palo Alto and the surrounding area. But, the City failed to properly vet the imagery in the art. The officers complained about a small part of the imagery and its ability to incite hatred and violence, possibly condoned by the City and ignored by the department’s command staff. The City failed to take officers concerns seriously, resulting in increased fear for their safety. Other officers felt threatened due to art’s imagery and proximity to the police station, which is a site with poor physical security, but did not raise a complaint due to the fear of retaliation.
Instead of engaging this lawsuit as armchair art critic, the City Attorney needs to admit the mistake and settle. The City’s position is completely wrong and untenable. The language in the City’s demurrer sends the wrong message to the police officers protecting Palo Alto. Our current City Council needs to stand up and tell the City Attorney this is not how we treat our valuable public safety staff. Furthermore, the council should insist that this employment related action be reviewed by our Independent Police Auditor under their new contract and ensure that this does not happen again.
Wah wah, wah wah wah. The mural is not anti-police. There were no wild demonstrations in Palo Alto. There were CALM demonstrations against what happened to George Floyd and other victims of police violence in this country. Living in America means we get to demonstrate–it’s called Democracy. And all good police officers should agree with the premise and spirit of the mural: art as a means to raise political and social issues. It sucks that the system is corrupt but these police officers should rise up to fix the system that makes them feel dishonored [rather than sue the city]. We do support our police but we are concerned that different rules apply to different ethnicities. You don’t have to choose one or the other.
The City should have vetted the mural and removed the very offensive part representing the cop killer. I am glad that the police sued as the City will be more proactive in the future, whatever the outcome of this case. Police are often sued when they are too rough with criminals; it is only fair that they can sue when they, too, are wrongfully maligned. By suing police, the families of and the victims, aka criminals, stand to make some real money. Twice incarcerated and still unreformed George Floyd earned his family $27 million with his death at the knee of Derek Chauvin. What a windfall for them from their loser relative! Floyd, would have ever earned had he lived. The man in the backyard of what was someone else’s home, where the home owner didn’t even know he was (which was in Mountain View) likewise could earn more $10 million plus for a dog bite.
I appreciate the Palo Alto police, especially with all the “unhoused” who are now in our area and the crime they bring.
@jlanders explains the situation and the case for the police officers beautifully. It is worth reading more than once. And his suggestions that City Attorney Stump settle the lawsuit and that City Council have the Independent Police Auditor review the lawsuit to prevent similar situations from happening in the future are spot on.
Disrespect for police in Palo Alto comes from a very small group, but they cause a lot of damage, as exemplified by this case. Rebecca EIsenberg ran and lost in the last election for City Council, but she will likely run again, and people should keep in mind her anti-police stand and her distortion (above) of the legal issues — e.g., saying the lawsuit is unfounded because it rests on the police officers being a protected class. (It doesn’t.) Eisenberg believes her manifest dislike of police is universal, saying “a large portion of the population” hates the police. Fortunately, she is in a very small minority in this attitude.
Given that BLM is partly a terrorist organization, or at least has a terrorist wing (see recent threats of violence against NYC for more info. on that), and that they want police forces disbanded, it seems VERY reasonable to believe that police officers would be offended by BLM and their threats of violence.
Hurt feelings aside, why are the PAPD officers seeking monetary compensation for their grief?
Since the mural has since been removed, isn’t this grievance just water under the bridge?
In the future, potentially controversial murals should be preliminarily screened and approved by an oversight committee comprised of Palo Alto residents and senior city administrators (including the PAPD).
Otherwise it will remain open season for trivial lawsuits against the city.
@Janders – FEHA is merely the state agency whose job is to enforce anti-discrimination and other state employment laws. Anti-discrimination law requires that the plaintiff be a member of a protected class. There is no disability claim here (unless someone can please articulate it; being a police officer carrying a gun is the opposite of having a disability), and there is no basis for a claim of retaliation. That is the legal situation.
Rebecca Eisenberg states “That’s because police officers who don’t like the job, and in particular don’t like the unavoidable fact that a large portion of the population is going to hate them, for example, have the option to seek alternative employment. And in Palo Alto, we all would be benefited greatly if these officers did exactly that.” I strongly question her assertion about a large portion of the population hating the police, and would suggest that perhaps a much larger portion hates attorneys like her who try to assert their “superior level of intelligence and training” in blustering against opponents to their arguments.
Just one of many reasons Eisenberg wasn’t elected to City Council. Should she attempt another run at office she will most likely lose again. The Defund the Police movement is officially dead as mostly Democrat run cities across the country are experiencing sweeping crime waves and increased murder rates. They are now realizing that a police presence is necessary to preserve law and order and that police officers deserve the respect of the citizenry. It’s a difficult and challenging line of work. Without them, it’s unbridled chaos, as seen in the recent smash and grabs all over the bay area. Are there a few bad apples? Of course, but there in every profession and walk of life and they need to be weeded out. Just yesterday the progressive mayor of Oakland began begging for state assistance to quell the crime and murders in her city. Portland, Minneapolis, Chicago and other “progressive” run cities are also in beg mode. Voters should take note. Think before you cast your next ballot. You get what you vote for.
@ A Person … the BLM/George Floyd protests turned into riots that resulted in up to 2 billion dollars worth of property damage by some estimates and reported by numerous media outlets. There were at least 19 deaths or more and estimates of over 2000 injuries. To say that there were “calm demonstrations” is a bit disingenuous. While thousands protested peacefully, thousands turned cities like Portland and Minneapolis into burning piles of destruction. As Americans we have the right to protest. Lawlessness is a different story. The city should have used better judgement in allowing the mural to include a convicted cop killer.
The complaint (which I had to track down myself)* does not allege the mural was anti-police. It alleges that a portion of it was anti-white and antisemitic, containing an image of a black man who shot a white cop, and the logo of an anti-white and antisemitic hate group that’s recognized as such by the SPLC (the New Black Panthers). And the officers had to unwillingly pass by it as part of their job (i.e., to get to work), which is a problem under CA’s FEHA. So everyone might want to adjust their arguments accordingly.
*https://padailypost.com/wp-content/uploads/2021/07/21CV38374O.pdf
I guess Palo Alto online is having to fall back on thought control in applying censorship to comments posted about 9 hours ago. There’s a vast difference between removing comments that are offensive and removing comments that you simply may not like.
If you wish to behave like Vladimir Putin or Xi Jiping and redact parts of some peoples’ comments so that they may appear to support your opinion so be it.
But readers should be cautioned to not believe that what you report truly reflects to opinions of the community.
I challenge you to unredact the areas of comments on this issue you have removed and forego the practice of dispersing fake news.
White is not a protected class. Jewish is a protected class, but did any of the plaintiffs have standing to make that argument? (Aka, were any of them Jewish?) Regardless, it will be extremely difficult for them to state of claim of discrimination based on an image of a person imbedded in a mural on the ground. Not only is the mural not only in their “workplace” (officers cannot claim the entire city to be their workplace), but it doesn’t come close to meeting the requirement of “pervasive.” No use arguing this point, however. You will see this come to pass when the case is dismissed, and hopefully/possibly/conceivably the plaintiffs will be sanctioned or forced to pay for Palo Alto’s legal fees — but only if Palo Alto attorneys know how to make these arguments, which is a bit of a long shot given the caliber of legal counsel the city has had in the past.
A large portion of the population either hates or fears (or both) the police. Most white wealthy people are not in that portion of the population, but that does not mean that many, many people do not like the police. I grew up in a city rooted in deep anti-Semitism where the police not only did not stop violence against Jewish immigrants, the police regularly engaged in violence against Jewish immigrants. Over time, white Jews in the US have for the most part succeeded in acquiring white privilege, which generally includes police protection. But it is irrational to forget my family and our country’s past, and simply unethical to be willfully blind to the fact that police forces in general, across the country, have strong historic ties to white supremacist organizations, and that biased, out-of-control police officers present far more danger than safety to many people of color, especially African-Americans. The fact that the police protect YOU does not mean that the police protect everyone equally. Even police departments admit they have a problem with bias. No need to defend them on this.
Most Americans support the police. They protect law abiding citizens, and keep criminals off the streets. If you choose not to rise above past hurt, it’s a decision only you can make. You’re only hurting yourself.
Rebecca, you are incorrect. “Race” is a protected class under FEHA, and CA workers are protected from discrimination based on their race. It doesn’t matter what their particular race is (which is of course as it should be). It’s the discrimination based on race that matters.
I was also dismayed to read about this silly lawsuit when I first heard of it. It has also been mentioned in comments when they first sued that they were not “triggered” each time they came to work because the mural was not where they entered police HQ. And wouldn’t it have been sufficient for them to write a letter to the editor of local newspapers expressing their displeasure with the artwork on ONE of the letters in the mural. I loved the mural and wish it could have been somewhere permanent.
Suing the city was just plain ridiculous. Rebecca, you are right that some percentage of the populace has little regard for the police. But I found your arguments against the lawsuit overwrought. I just thought it was a big waste of time and money. It seemed to reflect the saying: for every action there’s an equal reaction. These officers took Black Lives Matter to be against them. So they reacted in a defensive way that I did not like one bit.
I fervently hope the lawsuit gets kicked to the curb.
This lawsuit is going nowhere because the police are not a protected class and….. it’s a piece of art. However, the damage has already been done. By filing this lawsuit, reasonable people in the comment section are saying we should allow the police to have a vote on what art gets made in Palo Alto. So much for the 1st Amendment…
THe city as a whole gets into problems when they start attempting to use taxpayer property to promote politically devisive trends which only support a portion of the population’s POV. Support for the police is now one of those politically devisive topics.
I grew up in LA in the Fairfax section, proximity now CBS studios and Farmer’s Market. Last time I looked they are white people. White people are also Armenian, French, British, all with POV’s which disagree on numerous topics including religion.
Do not get off on Ethnic issues. Within Africa you have the second biggest continent on the planet in which huge conflicts take place because the powers to be in each state do not flow that wealth down to the population in the form of education, commerce, etc. Ethnicity is a key element that displays where people come from and what they think – their POV.
Redwood City was being bullied by calls for New York to put a sign in their street – they said NO. RWC has a great police force which is present at all of the city functions and very welcome at those events. An example of how a city does it right.
To get back to the “mural” being art.
The definition of the word mural is pertaining to a wall, from the Latin murus, muralis, meaning wall.
Secondly, artwork is something to be observed and looked at, not ignored. I would imagine that putting anything on a city street could cause problems for vehicles, particularly in the rain and dark. Making something that is designed to be looked at while at the same time having taffic drive over it is in my mind completely dangerous. I would not be surprised if it was illegal also.
Putting something on road surfaces designed to distract pedestrians or drivers should be bad common sense to me.
In other words, this was a bad idea to start with.
Lots of POV’s stated here. Any ones’ POV has to be owned by them. Hating the police is a personal issue and is not shared by the majority of the citizens of this country. That is becoming very obvious as the local mayors are now back-tracking and asking for help in their cities. Reduction in state population, families moving to less troubled locations is another indication that safety is a giant issue. All POV’s will be noted and remembered at the next election time. If you said it you own it. Not good for the city, state, or nation.
Note that the taxpayers have a say in what the “city” purports to be positions supported by the taxpayers of the city. The city works for the taxpayers -and cannot support positions of a political nature not voted on by the city as a whole. Many people are trying to turn cities into political machines of their own POV choice and comments above indicated that this city has many POV’s that everyone does not agree on.
This controversial street mural has since been removed and it is time for everyone to move on.
The police are also entitled to create their own public artwork but to date, have not proceeded in any matter or format.
It is one thing to complain and another to counter with an opposing viewpoint.
The PAPD officers could easily create a temporary mural of their own.
I agree strongly with Rebecca Eisenberg’s comments.