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In a surprising reversal, a Santa Clara Superior Court judge has dismissed a lawsuit from a group of Palo Alto police officers who claimed that the city had harassed them by failing to remove certain images in a “BLACK LIVES MATTER” mural that was painted in front of City Hall in 2020.
Judge Evette Pennypacker, who in May issued a tentative motion denying the city’s request to throw out the lawsuit and avoid trial, indicated in a July 7 ruling that she reconsidered her decision and granted the city’s motion for a summary judgment. The new ruling, which grants the city’s request for a summary judgment, comes just weeks before the city was set to go to court against the six officers, who had filed their lawsuit in 2021. The trial was set to start on July 9.
The six officers — Eric Figueroa, Michael Foley, Christopher Moore, Robert Tannock and David Ferreira — protested in the lawsuit two images in the mural, which was painted in June 2020 by 16 different artists or teams of artists. The officers specifically objected to the letter R, which featured a black panther, and the letter E, which had an illustration of Assata Shakur and the words “WE MUST LOVE EACH OTHER AND SUPPORT EACH OTHER.” Shakur, a civil rights activist, has been a fugitive since she was convicted of killing New Jersey State Trooper Werner Foerster in 1977.
The officers had claimed that the city’s failure to promptly remove these images constituted discrimination and harassment against police officers. They also maintained that the city’s actions had “caused damage to their professional reputation, their ability to promote, their ability to be selected for other units, and their ability to work,” while also adversely affecting their personal health and well-being.
Palo Alto strongly disputed the officers’ characterization of the mural, which was removed from its location on Hamilton Avenue in November 2020. The city’s attorney, Deborah Solomon, contended that “no reasonable person would have considered public speech on a sidewalk during the summer of 2020, when the entire Country was focused on its history of racial injustice, to be hostility directed toward them personally because they are not African-American.” She also argued that the mural “posed no actual physical threat and did not urge anyone to take any action in relation to Plaintiffs due to their races.”
While the court had rejected in June the city’s attempt to add an argument based on the First Amendment to its defense, that setback is now moot. The July 7 ruling states that the city “very persuasively” urged the court to reconsider its May 24 tentative decision that would have allowed the trial to proceed.
Pennypacker rejected the officers’ claims that the mural case “requires the court to weigh the relative importance of one group’s civil rights over another group.”
“This characterization, like so much of our social discourse of late, misses the mark,” Pennypacker wrote. “The basic question is whether, as a matter of aw, Plaintiffs can be found to have suffered workplace harassment as a result of City not changing the letters “E” and “R” in the Mural after being asked to do so.
“Examination of relevant workplace harassment law makes clear the answer must be no,” Pennypacker wrote.
She cited other cases in which the courts have upheld arguments from employees over workplace harassment, including one in which a supervisor made racist comments against Filipino hospital coordinators, called them old and made fun of their accents and another in which a Department of Corrections employee sexually harassed female workers and provided special benefits to those who were engaged in sexual affairs with him.
The Palo Alto complaint, she argued, falls well short of that standards. She rejected the officers allegation that the black panther in the R symbolizes that New Black Panther Party, an antisemitic hate group that had been denounced by the original Black Panther Party.
The artists who painted the R told this publication that the panther was a reference to the Black Panther Party and Pennypacker concluded that the image refers to the original Black Panther Party’s logo. She also rejected the notion that the Assata Shakur image is offensive and noted that the officers needed to consult the internet and other third parties before they even realized that the letter E had depicted Shakur, whose name is not in the image.
“The parties seem to assume without evidence that Hamilton Avenue can be Plaintiffs’ workplace, but there is no evidence that any aspect of the Mural, much less the letters “E” or “R,” was directed to any particular person, including any particular non-African American police officer,” Pennypacker wrote. “Further, no Plaintiff submits evidence that the Mural “unreasonably interfere[d] with [their] work performance.
She acknowledged that some plaintiffs claimed the mural made them felt “uncomfortable and that feeling upset caused them not to be able to work,” these statements are a “far cry from the type of work interruption plaintiffs in the above-discussed cases experienced as a result of persistent, pervasive racial and sexual harassment.”
“The circumstances here are that the mural, developed for the entire community contained a logo from the original Black Panther Party, a vague reference to Assata Shakur coupled with the statement ‘we must love each other and support each other’ in another letter, and 13 other large apparently non-objectionable letters, and Plaintiffs, non-African American Palo Alto police officers, came into contact with the mural in a public place as they walked in and out of their precinct sometimes in and sometimes out of uniform, licensed to carry and likely at least sometimes actually carrying firearms,” Pennypacker wrote. “Looking, as we must, at all of the circumstances, Plaintiffs cannot state a claim for workplace harassment as a matter of law, and summary judgment in favor of Defendants is granted.”
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