A Black Lives Matter mural spanning three blocks of San Jose sidewalk is still standing despite being painted illegally — and the city’s mayor wants to keep it.
“I’d be happy to leave the mural right where it is actually, in my neighborhood,” Mayor Sam Liccardo told San José Spotlight. “I’ve got a Black Lives Matter sign in front of my home and so do several other neighbors of mine. There’s nobody complaining about it in the neighborhood.”
Those making a fuss include lawyers from outside Santa Clara County, Liccardo said, who have been threatening to sue the city. The mural has raised red flags because it was created without a city permit.
“We are currently working with the attorneys to find a way to ensure that the community can meaningfully express itself on this important issue,” Liccardo said.
People gathered to paint Black Lives Matter on the street July 4 as a peaceful protest with the family of Anthony Nunez, who was killed four years ago on July 4 by San Jose police. The mural is on Empire St., between 15th Street and 18th Street.
But the mural was done without the city’s blessing and leaders say City Hall receives requests from many groups wanting to add political messages of their own near the mural.
“If we say no to … Trump 2020 or MAGA 2020 or the KKK or anybody else, then there could be an alleged First Amendment violation by virtue of the fact that there’s now a public forum created, and we’re discriminating on the content of the message,” Liccardo said. “And then they file a lawsuit, they force us to paint it out and then they go collect attorneys fees. And usually those attorneys fees are creatively assembled at $700 an hour.”
A San Jose resident named Anthony, who did not want his full name released due to fear of retribution, worked on the mural. He said he knew the group was technically breaking the law and is surprised the city has kept it up this long.
“We thought it would be buffed out the next day or maybe within a month,” Anthony said. “The fact that it was able to last this long is already a pretty amazing thing.”
Because street artwork can be distracting and potentially dangerous to drivers, the Federal Highway Administration (FHWA) prohibits murals and other writing. The FHWA also views murals as an attempt to communicate with other drivers, which violates state and federal guidelines.
The city of Martinez faced similar issues.
After white supremacists put up flyers around Martinez, city officials quickly approved a Black Lives Matters mural to be painted in front of the local courthouse.
Martinez Mayor Rob Schroder said the city expedited the process by classifying the painting as an event instead of going through the proper channels to approve street art. Soon after it was finished, the city received a number of complaints and a couple tried to paint over it.
“We felt we were justified because of the racist flyers that came out but we also did kind of a mia culpa saying, ‘You know, you’re right, we didn’t follow our regular procedures,” Schroder said. “Going forward, we will.'”
Schroder said the city will go through the appropriate channels next time. Still, he doesn’t see Martinez approving a MAGA mural, Joe Biden campaign taglines, or any other art pieces that are directly affiliated with a political campaign.
“I think we as a government need to stay out these types of political campaigns,” Schroder said.
The temporary Black Lives Matters mural remains in Martinez — for now. Schroder said the city is discussing a replacement mural depicting images of people rather than text. The new mural would be crafted on a building.
For San Jose’s mural to remain, the city would need to develop a program for painting messages on public streets. Department of Transportation Director John Ristow said creating such a process is complex and requires collaboration from city departments such as the Office of Cultural Affairs and the City Attorney’s Office.
The mural, which has served as an icebreaker for conversations about equality, does more good for the community than bad, according to Anthony. But he also understands the city’s obligation to possibly take it down.
“Whatever they need to do, they can do,” Anthony said, “But it’s already been stamped in history books as something that was beautiful and peaceful, and for the culture and for the community.”
The San Jose City Council declared its support for Black Lives Matter in a June 30 meeting, one month after the death of George Floyd, an unarmed black man killed by Minneapolis police. San Jose followed in the footsteps of other major cities that painted their streets in support of the movement.
“Being a part of the creation of the mural was probably the most impactful and powerful experience I’ve ever had,” Anthony said. “Even the land prior to painting was blessed by the Ohlone natives. To see the whole cultural blend happen — that was the most beautiful thing I’ve ever witnessed.”
Contact Carly Wipf at [email protected] or follow @CarlyChristineW on Twitter.