|
Getting your Trinity Audio player ready...
|
Palo Alto suffered a setback in its effort to toss out a lawsuit from six police officers over a Black Lives Matters mural last week when a judge rejected the city’s last-minute attempt to invoke the First Amendment as part of its defense.
While the case has yet to be decided, two recent rulings from two different Santa Clara County Superior Court judges have gone against the city. Both came after the city requested in February a summary judgment that would allow for a quick ruling on the merits of the case and avoid a full trial, which is now scheduled to start on July 29.
On May 28, Judge Evette Pennypacker tentatively ruled against the city’s motion for summary judgment and suggested that the court would not consider the First Amendment defense that the city’s attorney had invoked in its February request. The judge concluded that the city had failed to include the First Amendment in its prior briefs.
The May 28 ruling, coupled with another one last week, effectively prevent the city from using the First Amendment as a shield against the six police officers who filed a lawsuit in 2021 claiming that the city’s failure to promptly remove two images from the mural that the city commissioned in June 2020 constituted harassment and discrimination. The project called 16 artists (or, in some cases, groups) each painting one letter from ‘BLACK LIVES MATTER’ for a temporary mural on Hamilton Avenue, near City Hall.
While the city removed the mural in November 2020, the officers argued in their suit that two elements of the art project constituted discrimination and harassment against them. The six officers — Eric Figueroa, Michael Foley, Robert Parham, Julie Tannock, Christopher Moore and David Ferreira – claimed that found the two images “discriminating and harassing.”
One is a depiction of Assata Shakur, a civil rights activist who was convicted in 1977 of killing a New Jersey state trooper. She appears in the letter “E” on a mural along with the words, “WE MUST LOVE EACH OTHER AND SUPPORT EACH OTHER.”
The other image is a black panther, an emblem of the Black Panther Party. The officers claimed in the suit that the image represents the New Black Panther party, an organization that has been designated as a hate group and disavowed by the Black Panthers. The artists who drew the panther told this publication that the image referenced the Black Panthers.
In making her case for the First Amendment defense, attorney Suzanne Solomon, who is representing the city, claimed that Palo Alto created a “public forum” when it invited artists to paint the mural. As a result, it could not have altered the mural without violating the First Amendment rights of the artists, according to the brief. She acknowledged that the image of Shakur offended the police officers but argued that this alone does not create a “compelling state interest” — the legal threshold for excluding content from a public forum.
“Had the City decided to alter the Mural based on concerns raised by the Police Officers Association, the City would have been subject to liability for violating the First Amendment rights of the artists who created the letters “E” and “R” in the mural,” Solomon argued in the brief. “The portrait of Ms. Shakur and the words ‘WE MUST LOVE EACH OTHER AND SUPPORT EACH OTHER’ are not directed towards anyone’s protected classification. Nor is the simple image of a black panther.”
The final ruling on the summary judgment has not been made and the city was hoping to insert the First Amendment defense before that decision. That request was denied on June 18 by Judge Shella Deen, who concluded in a terse ruling that “no good cause” exists for shortening the timeline.
The attorney for the six officers strongly opposed the city’s late attempt to insert the First Amendment argument in its request for a summary judgment. Any urgency that now exists because of the looming trial date has been “created solely by Defendant’s own delinquency,” wrote Loren Nizinski, attorney for the six officers.
“The fact that the city might possibly face a claim by the artists is irrelevant to the discussion here,” Nizinski wrote in a brief opposing the city’s motion. “In fact, the City opened the door to this possibility when it undertook to exert government control over the content of the admittedly race-based message it authorized but failed to prohibit racially discriminatory and/or harassing content from the criterium.”
The six officers claimed in their complaint that the city took “adverse retaliatory action” against them by failing to remove the mural after they raised the issue. They also claimed that their position has “caused damage to their professional reputation, their ability to promote, their ability to be selected for other units, and their ability to work.
“Moreover, it has adversely affected their personal health and well-being, including medical expenses, that are anticipated into the future and may force an early retirement,” the claim stated.
The mural was impressive and beautiful in its support of ending racism here and elsewhere. It was temporary street art, appreciated by all the many who walked its length.
That we have police in the PAPD who demanded it be destroyed indicates either no understanding of what this mural stood for, or understanding very well and rejecting it. That is beyond concerning – that is frightening and ignorant.
Indeed.
“’Moreover, it has adversely affected their personal health and well-being, including medical expenses, that are anticipated into the future and may force an early retirement,’ the claim stated.”
This is a takedown. Palo Alto police officers make great salaries and have excellent pensions for a small city with no murders, nobody selling drugs on the street, no gangs, etc. It’s a very good gig. And if you get to retire at 30 with all the privileges of your colleagues who’ve actually earned them, our entire community gets get screwed over by these supposed community service officers. It’s ridiculous that we must fund a potentially 60-year retirement for a group of delicate young men.
They may win the case but they’ve lost the thread.
This is another great example of why the city government should not express a view on sensitive political issues. If the murals had not been commissioned by the city, there would not have been a basis of any lawsuit against the city.
Part of the mural “was a depiction of Assata Shakur, a civil rights activist who was convicted … of killing a New Jersey state trooper. She appears in the letter E … along with the words, ‘We must love each other and support each other.’ “
Is this for real? If a were a cop, I would protest, too.
We are taking down statues of Confederate leaders so we don’t continue to honor people who shouldn’t be honored. We are renaming local schools to erase names that most of the community now finds offensive. These cops had every right, in the same spirit, to seek the erasure of a cop killer from a publicly funded art project.
Not just a state trooper killer, but after being convicted fled to Cuba escaping incarceration for her crime.
Sorry that I may have overused the term “cop” (instead if police officer) above. I didn’t mean to offend the very folks I am defending! (Do today’s police mind being called “cops”?)
@FrancesG, Assata Shakur was convicted by a court despite evidence demonstrating she could not have killed the cop. The medical evidence established that her own bullet wound had been suffered while her hands were up, would have paralyzed her firing arm, and she had no gunpowder residue on her hands. [1]
She was nevertheless convicted … on the basis police testimony. Testimony that contradicted all of the material evidence. It’s hard to imagine that trial going the same way today.
When Shakur fled to Cuba, the USSR used her in propaganda against the United States, similar to how they beat us over the head for support of Appartheid South Africa.
This lawsuit has more to tell us about police-civilian relations and PAPD’s culture, than the plaintiffs perhaps intend.
[1] https://en.wikipedia.org/wiki/Assata_Shakur#Medical_evidence
Offensive, gratuitous, and showing poor judgement by the City and as a resident, homeowner and taxpayer I certainly don’t condone this mural.
– Interesting that some take enjoyment out of insulting select public servants.
Art is in the eye of the beholder. Artists are free to express their ideas and feelings in their art but when a city supports the installation of even a temporary piece of art that is demeaning to a section of society then in my opinion that is wrong. When that section of society is our law enforcement agency then that speaks volumes of lack of impartiality by city government.
Scott:
Assata Shakur (under her birth name Joanne Deborah Chesimand) was the first woman to be put on the FBI’s Most Wanted Terrorist List. It sounds like lots of intelligent people think she was framed. But the FBI calls her a “cold-blooded murderer” of the New Jersey state trooper and dangerous terrorist on the lam (now living in Cuba). I frankly don’t know what to believe. But I think generally it’s bad policy for one government agency (the City of Palo Alto) to sponsor the celebration of a woman that the nation’s highest domestic law enforcement agency (the FBI) thinks is a terrorist. I understand why the police officers filed suit.
In mid-year 2020, post-Floyd, it was de rigueur in left-leaning cities to vilify the police and call for defunding and/or elimination of the police force. This was Palo Alto’s contribution to the insanity — an insulting mural celebrating a cop-killer.
The city was wrong to allow these nasty political messages to be made. If the city has indeed retaliated against the 6 officers who brought the suit, it just adds to the shameful behavior. Message to city: admit your errors and settle.
This whole lawsuit was a travesty. Those snowflake cops should be ashamed of themselves. The city, rightly, did not censor the artists’ views.
PA c. 1976:
Your post is the first time I’ve heard anyone evaluate the merits of a lawsuit based on the plaintiffs’ salary and pension plan.