From: San Jose Mercury
By Robert Salonga 2/24/16
SAN JOSE — Backed by an array of local advocates, the local NAACP chapter petitioned the Superior Court to compel the City of San Jose to challenge the recent reinstatement of a police officer at the center of a 2014 controversy where he posted threatening tweets aimed at Black Lives Matter supporters.
The San Jose/Silicon Valley NAACP submitted the filing Wednesday, followed by a rally outside the downtown civil court building on North First Street headed by community groups outraged at the news last week that Officer Phillip White had won his job back in arbitration.
“The city is the only one with the legal right to challenge this … and they have the responsibility,” said Nick Emanuel, an attorney with the NAACP who wrote the court petition. “If the city won’t take a stand against racism and intolerance, the community will.”
The city has 30 days from the filing date to respond, either in the form of agreeing to challenge the arbitration ruling or declining, in which case the petitioners say they would push for a hearing to convince a judge to compel the city into mounting a challenge.
If the city challenges the reinstatement in Superior Court — the only body with the power to vacate the decision — it would also put into open court much of the deliberation that occurred in the private arbitration. For those who opposed White’s return to the force, that would dovetail with their objections to the closed-door arbitrations in which most police disciplinary cases are heard.
But Michael Rains, White’s attorney, said the petition has “no merit with no chance at success,” referring to the rarity in which judges reverse collectively bargained arbitration, the purpose of which is largely to keep disputes out of court.
“Any lawyer who knows this area of the law should understand that,” he said. “It’s regrettable they would engage in grandstanding. There was a process, it’s been honored, and it should be honored by all the parties.”
City Attorney Rick Doyle and acting Police Chief Eddie Garcia are the listed respondents. Doyle said Wednesday he would refrain from comment until he’s had a chance to review the filing. Garcia referred to statements he made earlier this week stating that while he did not agree with White’s reinstatement, his department will abide by the arbitrator’s ruling and focus on healing both internally and with the community.
Mayor Sam Liccardo said earlier this week that he also did not agree with the ruling and that he wants the City Council to take up the issue and evaluate a possible challenge.
The most inflammatory of White’s tweets, posted in December 2014, included: “Threaten me or my family and I will use my God given and law appointed right and duty to kill you. #CopsLivesMatter” and “By the way, if anyone feels they can’t breathe or their lives matter, I’ll be at the movies tonight, off duty, carrying my gun.”
Rains successfully argued to an arbitrator that White admitted to having committed punishable misconduct but that the context of his tweets, in response to a perceived threat to his family, and his unblemished disciplinary record were not sufficiently considered when he was fired in October after a lengthy internal investigation.
The San Jose Police Officers’ Association echoed that sentiment in a statement accusing Liccardo of engaging in “political shenanigans” with his comments questioning the arbitration ruling.
“Officer White made a serious error in judgment with his comments — but weighed against 18 years of exemplary service to all members of our community, an independent arbitrator decided to reinstate him. The city has no reasonable statutory basis for overturning this binding decision,” union President Sgt. Paul Kelly said in a statement.
At Wednesday’s rally, Raj Jayadev, director of police watchdog Silicon Valley De-Bug, noted that many of the signs held by participants were repurposed from over a year ago when they initially called for White’s firing.
“These are recycled signs. We shouldn’t have to recycle our signs,” Jayadev said.
He then referenced an update to their campaign, inspired by the social-media environment where the controversy began: #firewhiteagain#