After losing in court, the Palo Alto police officers who sued the city over pictures in a Black Lives Matter painting are getting ready to take their case to a higher court.
Eric Figueroa, Michael Foley, Robert Parham, Julie Tannock, Christopher Moore, and David (Heath) Ferreira are the six cops whose lawyers told the Santa Clara County Superior Court last week that they are going to appeal to the California Sixth District Court of Appeals.
On July 7, Judge Evette Pennypacker threw out the lawsuit that they filed in 2022, two years after the city paid for a mural to promote social justice in response to protests across the country over the death of George Floyd by a Minneapolis police officer. The appeal will question that decision.
It’s not a big surprise that the officer made a plea. When the police filed a move for a new trial in August, it was clear that they weren’t ready to let the case go.
They said that the court went too far when it threw out the officers’ claims that the pictures and the city’s failure to take them down right away were unfair treatment and abuse.
The city’s lawyers said that the officers had misunderstood the court’s order and were against the move for a new trial.
The legal argument is mostly about two specific pictures in the painting, which was commissioned by the city in June 2020 and stayed up until November 2020. One is a picture of Assata Shakur, a political activist who was found guilty of killing a New Jersey state trooper in 1977.
The words “We must love each other and support each other” are written next to her picture in the letter “E.” The other is a black panther, which used to be a symbol of the Black Panther Party but is now used by the New Black Panther Party, which is not related to the original party.
Pennypacker threw out the lawsuit because the painting was made for the whole community and most of the letters were “non-objectionable.” There were claims by the officers that the mural caused them to be discriminated against, have health problems, and have had setbacks in their careers.
However, Pennypacker found that these claims were “far cry” from the examples the officers’ lawyers used in their arguments, which were about people who faced “persistent, pervasive racial and sexual harassment.”
Lawyers for the police officers want a new trial because they say the jurors, not the judge, should decide if the pictures are offensive.
In a brief filed on September 9, the officers’ lawyers said, “There is clearly a triable issue of fact as to whether a reasonable non-African American police officer in Plaintiffs’ circumstances would have considered the depiction of Assata Shakur, a fugitive convicted murderer of a Caucasian police officer, to create a hostile, intimidating, offensive, oppressive, or abusive work environment.”
This was true even though the words “we must love each other and support each other” were shown next to the picture of Shakur.
The September filing also says it doesn’t really matter if the black panther was meant to represent the original Black Panther Party, as the artists said it was, or the New Black Panther Party, which is anti-Semitic and has nothing to do with the original party.
In their first statement, the officers made it clear that the panther image was connected to the New Black Panther Party.
Whether the black panther image is the official NBPP logo or not, it is still a triable issue as to whether it was reasonable for Plaintiffs to associate that image with the NBPP, since the NBPP party has essentially taken the leaping black panther logo from the original Black Panther Party and put it on top of Africa, as lawyers Matthew S. McNicholas, Douglas D. Winter, and Loren Nizinski wrote in a motion last month.
“Again, it is not for the Court to decide swiftly whether or not a reasonable non-African American police officer might have found this picture offensive, oppressive, hostile, or abusive because of race.”
“The record has enough information for a reasonable person to decide that the Black Panther image in the mural would be offensive enough to constitute harassment for a reasonable officer in the Plaintiffs’ position.”
The city’s lawyers have strongly disagreed with the claims that the painting is offensive or biassed. When the police asked for a new trial, the city’s lawyers replied, “the objective evidence establishes the BLM mural was created for the entire community—not to the exclusion of non-African Americans—and a reasonable person would not be offended by reference to the original Black Panther Party or a vague image of Ms. Shakur paired with the words “WE MUST LOVE EACH OTHER AND SUPPORT EACH OTHER.”
“There is no evidence that the artwork was meant to offend Plaintiffs or their protected class as non-African Americans,” the city’s lawyers, Morin I. Jacob and William I. Abramovitz, wrote.
“The art that Plaintiffs objected to had an image in the “E” block that vaguely resembled Assata Shakur and an image of a black panther in the “R” block that clearly referenced the original Black Panther Party, even though Plaintiffs had the wrong idea about the NBPP at first.”
