Judge declines to reinstate fired Phoenix officer in anti-ICE case

Dusten Mullen argued that Phoenix fired him for speech protected by the First Amendment after Chandler police submitted a report saying he tried to provoke teenage student protesters near Hamilton High School.

The city argued Mullen was fired for his conduct, not his speech.

U.S. District Judge Susan M. Brnovich’s order on May 21 cut both ways.

She denied Mullen’s request for a temporary restraining order and preliminary injunction, but wrote that Mullen had shown a strong likelihood of success on his First Amendment retaliation claim.

Video a factor in firing

The dispute stems from a Jan. 30 student-led anti-ICE protest near Hamilton High School in Chandler. Chandler police said about 170 students participated, with officers stationed nearby.

According to a Chandler police report, Mullen arrived off duty wearing a face covering, a baseball hat and an exposed handgun in a holster, with two extra magazines.

The report said Mullen told Chandler police his plan was “legitimately to just let them all assault me and you guys arrest them all and I’ll keep it on film.” He also said his goal was “to get all these kids in jail if they want to break the law,” according to the report.

In court on May 18, Mullen’s attorney, Steven Serbalik, argued that the statement was stripped of context.

He said video showed Mullen had already been surrounded, followed and had water thrown on him before making that statement to police.

“What happened, as we presented in the Loudermill presentation, is that he actually was assaulted, then asked to have those individuals who assaulted him dealt with,” Serbalik said in court. “He was told to go back into the crowd, and at that point, based out of frustration, he says, 'Well, this is my plan.'”

Serbalik said the video did not show Mullen encouraging anyone to attack him. Brnovich appeared to agree with that part of Mullen’s argument.

In her order, she wrote that the video presented to her in court did not show Mullen instigating or provoking students to assault him.

She wrote that Mullen appeared to make the statement out of frustration after Chandler officers made minimal effort to intervene when students surrounded, followed, yelled at him and threw water on him.

“This is buttressed by the fact that Sgt. Mullen never encouraged any students to assault him,” Brnovich wrote.

Phoenix argued firing was justified

The city argued in court that Mullen’s firing was justified because his conduct damaged public trust and created concerns for law enforcement operations.

Stephen Coleman, an attorney for Phoenix, told the judge the case was not a routine request to preserve the status quo because Mullen was asking the court to order him reinstated and placed on taxpayer-funded paid leave while the case continues.

Coleman said Mullen’s conduct had led to “a cascade of negative publicity” and raised questions for people who want to protest peacefully.

“They’re probably wondering, if the police show up, are they here to protect me or are they gonna trap me?” Coleman said.

Coleman also argued that courts rarely order reinstatement in employment cases because lost wages and reputational harm can often be addressed later through monetary damages.

Brnovich ultimately denied Mullen’s request on similar grounds.

She wrote that the temporary loss of income generally does not constitute irreparable harm because it can be repaid if Mullen wins. She also said the city had already publicly announced his termination, meaning an injunction could not prevent that harm from happening.

Judge: Investigation rushed

Mullen’s attorneys also argued his firing would chill the First Amendment rights of other officers.

But Brnovich wrote that Mullen had not convinced the court that temporarily placing him back on paid leave would solve that alleged chilling effect.

Mullen was fired after a Loudermill hearing, a pre-disciplinary process that gives public employees a chance to respond to allegations before final discipline is imposed.

Phoenix Police Chief Matt Giordano announced the termination on May 14, saying Mullen’s actions raised “significant concerns about judgment and professionalism. Although he was off duty and not in uniform, the oath we take binds us to a higher standard,” Giordano said in a released statement.

Mullen and the Arizona Conference of Police and Sheriffs, a police advocacy group also named as a plaintiff, argue the city rushed the investigation and changed course only after public and political criticism.

Brnovich wrote that the timeline showed “a rushed and conclusory investigation” that appeared to have been prompted by Phoenix City Councilwoman Anna Hernandez’s public criticism of Mullen’s conduct.

However, the judge said that was not enough to order an injunction to get him his job back.

How Mullen could eventually get his job back

Mullen still has avenues to fight his firing, but the two sides disagree on whether those options are sufficient.

The city argues that he does not need the judge to put him back on paid leave right now because he can keep fighting the firing through an appeal with the Civil Service Board.

Mullen’s attorney says that is not good enough because the city’s Civil Service Board can deal with job discipline, but it cannot fully decide his First Amendment claims. That, he argues, is why the fight belongs in federal court.

While Brnovich refused to put Mullen back on paid leave for now, she did not make a final decision on whether Phoenix was right to fire him or whether he could eventually get his job back.