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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.

Seeking to avoid a summer trial, Palo Alto is asking the courts for a quick ruling on a lawsuit from a group of police officers who claim they were offended by a Black Lives Matter mural that 16 artists painted in front of City Hall in June 2020.

The citys attorney, Suzanne Solomon from the firm Liebert Cassidy Whitmore, filed a motion on Feb. 28 requesting that the Santa Clara County Superior Court issue a summary judgment in May, a ruling that would obviate the need for a two-week trial that is currently scheduled for June 10.

She has asked the court to schedule a hearing on the request on May 28. If the court opts to move ahead with the trial, Solomon has asked that the trial be postponed until June 28 to comply with a 30-day requirement for summary judgments.

The City Council is scheduled to discuss the latest developments in the case in a March 11 closed session.

The six officers Eric Figueroa, Michael Foley, Robert Parham, Julie Tannock, Christopher Moore and David Ferreira filed their lawsuit in July 2021, about a year after the city commissioned artists to paint the mural along Hamilton Avenue, between Ramona and Bryant Streets.

Each of the 16 artists (or, in some cases, artist teams) was commissioned to paint a single letter of BLACK LIVES MATTER. The city removed the mural in the first week of November 2020 with the goal of eventually creating a more permanent art installation.

The mural was part of the citys effort to address nationwide calls for social justice in after George Floyd was murdered by a Minnesota police officer on May 25, 2020. While the mural was only up for about four months, the litigation stemming from the artwork has been winding its way through the legal system for three years. The plaintiffs have maintained that the mural represented a form of harassment. They specifically objected to two images, which are contained in the letters E and R of MATTER.

The E featured Assata Shakur, a civil rights activist and member of the Black Liberation Army who became a fugitive after she was convicted in 1977 of killing a New Jersey state trooper. The R included an image of a black panther, an emblem of the Black Panther Party. In their lawsuit, the police officers claimed the image alludes to the New Black Panther, an antisemitic organization that has been designated a hate group by the Southern Poverty Law Center and that has been disavowed by the original Black Panthers.

In March 2022, the Santa Clara County Superior Court rejected an argument from the officers that the citys failure to immediately remove the images constituted workplace discrimination. Judge Socrates Manoukian also found no evidence that the city had engaged in discriminatory conduct or that its failure to remove the mural had anything to do with the officers race, ethnicity or some other protected classification.

But in July of that year, Manoukian rejected the citys position that the officers claim does not state facts sufficient to constitute a cause of action and allowed the case to move forward.

It is not difficult for this court to conclude that by allowing the mural to be posted in its current location, a reasonable jury could conclude that the behavior by the City was outrageous because it abused its relationship with its valuable employees, should have suspected that the plaintiffs were susceptible to injuries through mental distress; or that the city acted intentionally or unreasonably with the recognition that the act would be likely to result in illness through mental distress, Manoukian wrote in the July 5, 2022, ruling.

The citys latest filing seeks to expedite the resolution of the case by requesting a summary judgment on the officers only remaining cause of action: the allegation that the citys decision to keep the mural constitutes harassment that violates the Fair Employment and Housing Act.

In making the argument, Solomon disputed the notion that the mural is objectively offensive.

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, Solomon wrote in her brief. In any event, they were reassured by the City Manager that the City valued their dedication and hard work, and that the City was not endorsing Ms. Shakurs past acts.

She noted 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. In fact, the only words in the letter E were, WE MUST LOVE EACH OTHER AND SUPPORT EACH OTHER.

Solomon argued in her new motion that the city is entitled to legislative immunity for all claims relating to the mural because the artwork was made in response to a City Council enactment. She also argued that the city could not have altered the mural without violating the artists First Amendment rights.

She dismissed as false the assertion by the officers that the panther in the R references the New Black Panther Party and argued that it in fact alludes to the original Black Panther Party, which is not a hate group. One of the artists who had painted the letter had similarly told this publication shortly after the lawsuit was filed that he was inspired by the Black Panther Party.

Solomon also took issue with the idea that the Shakur painting somehow discriminates against the officers because of their races. The officers identify as Caucasian, Filipino, Asian and Hispanic, according to the filing.

Plaintiffs attempt to recast their offense as being race-based because the police officer Ms. Shakur was convicted of killing was Caucasian, the Solomon motion states. Plaintiffs believe that the murder was race-based, but their unsupported belief does not transform the message of the letter E, which is racially neutral and urges love and support, presumably for everyone.

She also noted that while the plaintiffs see Shakur primarily as a killer, others see her as a civil rights icon. Cece Carpio, the Oakland-based artist who painted the E, explained her decision to paint Shakur in an email to the city shortly after the officers demanded that the letter be removed.She wrote that she felt it was important to represent the words and wisdom of Assata, who has been a political refugee since 1979.

Assata was a target of policing and COINTELPRO, and is still a target of the policing and the US government, Carpio wrote, referring to the surveillance program of political organizations that the FBI conducted between 1956 and 1971. They see her involvement with the Black liberation movement as a threat to the status quo. Just as they see the movement to defend Black lives as a threat to racial capitalism and white supremacy.

But some in the Police Department saw things differently. Anthony Becker, former president of the Palo Alto Police Officers Association, wrote several emails to City Manager Ed Shikada in July 2020 asking that the mural be removed. The exchanges between Becker and Shikada are included in the exhibits that Solomon had submitted as part of her request for a summary judgment.

The men and women of the PAPOA deserve better, Becker wrote. This portion of the mural is intimating (sic), threatening and promotes violence. To allow such an image to be displayed takes away from the message of the mural.

Shikada responded by noting that the art in the mural was based on a selection process managed by the citys Public Art Commission, a process designed to prevent politicians and bureaucrats from making design decisions.

This is a wise rule, Shikada wrote. As a consequence, however, we open the door to diverse perspectives like the mural. Some have called it brilliant and beautiful, while others have called it idiocy and an insult. Personally, I call it art something I perceive in my own way while understanding that others may see it differently.

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City seeks to avoid trial over Black Lives Matter mural - Palo Alto Online