Phoenix police can't consider disciplining an officer involved in a dispute at a student protest until a federal court has the chance to weigh in.
Arizona District Court Judge Susan Brnovich, on May 1, granted an emergency request by embattled Phoenix police Sgt. Dusten Mullen to prevent the city from taking disciplinary action against him related to his January dispute with teenagers at a student-led anti-ICE protest in Chandler.
Mullen filed the request to stop the city's May 4 "Loudermill hearing." Such hearings provide public sector employees the opportunity to review and respond to charges of wrongdoing before an employer takes action against them. The hearings usually occur before termination, demotion or suspension.
Mullen's Loudermill hearing came in response to a Chandler Police Department report that showed he was trying to provoke teen protesters into assaulting him so that they could be arrested. The incident sparked widespread community backlash and prompted rebukes from elected officials in multiple cities after it was reported by local news outlets.
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The judge's decision to grant Mullen's emergency request came after Mullen had filed a lawsuit against Police Chief Matt Giordano, the city and Councilwoman Anna Hernandez, who publicly criticized Mullen in the press.
The lawsuit accuses Phoenix of violating his free speech and due process rights. It says the city truncated the typical review process for potential misconduct after facing pressure from politicians and the news media. Mullen asked the judge to issue a temporary restraining order and injunction that would require Phoenix to stop disciplinary measures until a full internal investigation was completed.
Brnovich ordered a hearing to consider that request on May 4. The hearing will move ahead as planned.
Phoenix tried to fight court intervention
Before Brnovich's order, Phoenix officials sought to stop the court's intervention.
City Attorney Julie Kriegh said the city had provided Mullen proper due process and had not predetermined whether or how he would be disciplined. She asked the court not to intrude because the city had an "interest in quickly handling this employee-discipline matter."
Kreigh said that because the Loudermill hearing hadn't yet happened, "there is no indication what discipline, if any, will be issued."
"Contrary to (Mullen's) assertions, his termination from City employment is not imminent," Kriegh wrote.
Mullen accuses Phoenix of viewpoint discrimination
Mullen's battle with the city began after a Chandler Police Department report showed he was involved in a dispute with teenagers at a Jan. 30 student-led, anti-ICE protest. The report was spurred by an alleged assault from a student protester against Mullen, but it also included the statements by Mullen in which he indicated a "plan" to get teens to assault him.
The Maricopa County Attorney's Office declined to pursue charges against the student protester.
According to the report, Mullen told Chandler police, "My plan is legitimately to just let them all assault me," and "my goal (unintelligible) to get all these kids in jail if they want to break the law." He attended “as a supporter of police," the report said.
Phoenix police spokesperson Cmdr. Mercedes Fortune told The Arizona Republic the department transferred Mullen to a non-enforcement role after learning about the incident. After news media reported the story, the department placed Mullen on leave.
It is unclear whether that decision was a result of media reports.
Giordano, the Phoenix police chief, said at the time that officers are "held to higher standards of conduct — both in and out of uniform." Giordano added that he would "not tolerate actions which undermine the trust the community has placed in the department."
But Mullen's complaint stresses that he did nothing unlawful at the student protest and that his expression was protected by the First Amendment.
The complaint accuses the city of discriminating against his viewpoint and argues that a policy the city invoked against him chills free speech.
That policy escalates discipline to suspension, demotion or termination when an employee's "conduct was so outrageous that attempts to correct performance would be fruitless” and “the employee’s actions violated the oath of office or basic Department values."
Mullen's complaint argues those criteria "are entirely subjective (and) grant unfettered discretion to decision-makers."
They "have the effect of punishing officers for engaging in protected off-duty First Amendment speech and expressive activity," the complaint says.
Mullen's complaint also said the city's escalation of the matter to a Loudermill hearing deprived him of the "Investigative Review Process and thorough analysis."
The city has not yet filed a full response to all of Mullen's accusations.
Reporter David Ulloa Jr contributed to this report.
