Judge dismisses police officers’ lawsuit over mural

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BY BRADEN CARTWRIGHT 
Daily Post Staff Writer

A judge has dismissed a lawsuit filed by six police officers against the city of Palo Alto over a Black Lives Matter mural in front of City Hall that contained a depiction of Assata Shakur, who was convicted of killing a New Jersey state trooper in 1973.

Judge Evette Pennypacker said in a ruling published yesterday (July 10) that the mural on Hamilton Avenue wasn’t directed at the police officers and didn’t interfere with their work.

“Some (officers) declare they were uncomfortable and that feeling upset caused them not to be able to work, but these conclusory statements are a far cry from the type of work interruption … as a result of persistent, pervasive racial and sexual harassment,” Pennypacker said in her ruling.

The mural controversy goes back to the summer of 2020 after the death of George Floyd.

Council voted to commission a mural on the street in front of City Hall that ended up being 245 feet long and 17 feet across.

The city published a call to artists and selected 16 artists out of more than 80 applications in July 2020.

In the letter “E,” Oakland artist Cece Carpio painted the likeness of Assata Shakur, also known as Joanne Chesimard, who was pulled over by New Jersey state troopers on May 2, 1973, resulting in a shootout.

Shakur was arrested and convicted of murder. She later escaped from prison and fled to Cuba, where she is believed to still be living.

Officers also took issue with a black panther that was painted in the letter ‘R.’

The police union asked City Manager Ed Shikada to remove the mural.

“The violent, intimidating and offensive content of the workplace speech is overwhelming,” said Sgt. Antony Becker, then-president of the Palo Alto Peace Officers’ Association, the police union.

But Shikada defended the mural as free speech.

“Some have called (the mural) brilliant and beautiful, while others called it idiocy and an insult,” Shikada said in an email filed in court. “I’ve also wondered what the reaction would have been if it were an image of Vladimir Putin or another character — would we be expected to paint it over? In any case, I find myself needing to choose where to draw a line on free speech and enabled expression. As someone that has sworn an oath to protect our Constitution, this is a line I’m not willing to cross.”

Carpio defended her painting, calling Shakur a political refugee and a target of policing.

“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,” Carpio said.

The city removed the mural in November 2020.

Five officers — Eric Figueroa, Michael Foley, Robert Parham, Julie Tannock and Chris Moore — sued the city on June 4, 2021. Officer David Ferreira later joined the lawsuit as the sixth plaintiff.

“Law enforcement officers, including the plaintiffs, were forced to physically pass and confront the mural and its offensive, discriminatory and harassing iconography every time they entered the Palo Alto Police Department,” the lawsuit said. “Not only did the (city) allow the harassing and discriminatory iconography to exist in the workplace, but they also sanctioned, approved, encouraged, and paid for it.”

Judge Socrates Manoukian tentatively dismissed the lawsuit in March 2022 because he said the officers didn’t show the city and the mural did anything more than annoy them.

So the officers revised their lawsuit to say the mural, and specifically the painting of Shakur, made them depressed and anxious.

The officers “feared daily that they would be targeted, attacked or threatened at work because they are non-African-American police officers,” their updated lawsuit said.

Officers said they lost sleep and their appetites, and they had to see a doctor. They said the painting “may force an early retirement,” resulting in lost wages.

Manoukian allowed the updated lawsuit to move forward, alleging the city harassed the officers.

“A reasonable jury could conclude that the behavior by the city was outrageous because it abused its relationship with its valuable employees,” Manoukian said in July 2022, before scheduling a trial for this summer.

The city in February tried a new argument: The mural was a forum for public art, so the city cannot and did not restrict what the 16 artists painted in each letter because that would’ve been a violation of their First Amendment rights.

Elise DeMarzo, Palo Alto’s public art director for 10 years, said she didn’t know Carpio’s painting was of an actual person, and none of the text indicated who the woman was.

The sketch included a depiction of a woman with an afro hairstyle, and the words, “We must love each other and support each other,” DeMarzo said.

“I did not reject any of the sketches proposed by the selected artists, nor did I request that they be modified in anyway,” DeMarzo said in a statement filed in court.

Judge Shella Deen sided with the officers on June 17, preventing the city from making any arguments related to the First Amendment.

A trial was scheduled for July 29, but the city filed a motion to have the case dismissed in its favor.

The city relied on its previous arguments: The mural wasn’t offensive to a reasonable person and that the police officers didn’t suffer because of it.

After hearing arguments from both sides on May 28, Pennypacker said the language next to Shakur’s portrait, about loving and supporting each other, “negates the promotion of murder” as the officers had suggested.

She also said the case was framed as asking the court to weigh the importance of one group’s civil rights over those of another group.

“This characterization, like so much of our social discourse as of late, really misses the mark,” Pennypacker said. “The basic question is whether, as a matter of law, the officers can be found to have suffered workplace harassment as a result of the 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.”