Phoenix police officer won't get job back while his First Amendment lawsuit plays out in court

PHOENIX (CN) — A Phoenix police officer who was fired after he said he planned to allow student protesters to assault him so they’d be arrested was denied a preliminary injunction that would have temporarily reinstated him to his position.

Sergeant Dusten Mullen was off duty when he went to a Chandler high school protest against ICE enforcement and reportedly agitated students into assaulting him. Mullen carried a handgun, along with extra magazines, and sported a face mask and a “Trump 2024” T-shirt.

U.S. District Judge Susan Brnovich acknowledged in a Thursday morning order that Mullen is likely to win his First Amendment retaliation case against the city. However, she said Mullen failed to convince her that the harm he’s suffered via termination could not be remedied with monetary damages if he’s later reinstated.

“The Supreme Court has held that ‘the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury,’” the Trump appointee wrote. “Accordingly, Sgt. Mullen’s termination, and subsequent loss of income, does not warrant preliminary injunctive relief.”

Mullen says his statement about allowing students to assault him, which led to his termination, was taken “wildly out of proportion” by “political involvement and a misleading media angle." He says he’s suffered not only monetary losses but also reputational harm because of the city’s handling of the case. Phoenix Police Chief Matthew Giordano, the central defendant in the lawsuit, called Mullen a “serious threat to public trust,” in a public statement issued the day Mullen was fired.

“Community trust is not something we are owed; it’s something we earn every day,” Giordano said.

Mullen asked in his motion for preliminary injunction that the department be enjoined from making more public statements regarding Mullen’s employment status. Brnovich said the cat is already out of the bag.

“Plaintiffs seek relief from events which have already concluded, and fail to articulate why issuing a preliminary injunction now would prevent any irreparable harm beyond the damage already done,” she wrote. “The purpose of a preliminary injunction is not to remedy past harm but to protect plaintiffs from irreparable injury that will surely result without their issuance.”

In a Phoenix courthouse on Monday, Mullen said his termination will chill the First Amendment rights of other police officers across the country, who will take the department’s actions to mean any engagement in counterprotesting will lead to adverse employment actions.

Brnovich said Mullen has not articulated how an injunction resolving his termination and instead placing him on paid administrative leave for the length of the case would prevent that chilling effect. Officers would still likely be discouraged from counterprotesting until a final ruling from the court, she said.

Mullen says he first went to Hamilton High School to pick up his son, but stayed because he was irritated by a student walkout protesting ICE enforcement across the country. In a surveillance video juxtaposed with Mullen’s own cellphone footage played for Brnovich on Monday, Mullen asks the students, who are yelling expletives at him, if they want to have a conversation. In another video, he tells them to grow up.

In the video played in court, a Chandler police officer tells him to leave the area, because he’s provoking the students. He later tells another officer he’s been assaulted and asks that officer to arrest the students. That officer tells Mullen they’d have to leave the immediate area to take a police report. As they’re walking from the crowd, Mullen says:

“My plan is legitimately to just let them all assault me, and you guys arrest them all. I will keep it on film. I also have other people filming from a distance, so my goal would be to get all these kids in jail if they want to break the law.”

Brnovich said she didn’t see Mullen instigate or provoke any student to assault him, despite how the defense construes it. She said the video and Mullen’s argument on Monday “persuasively contextualized his statement.”

She added that the city only decided to fire Mullen after City Council Member Anna Hernandez publicly encouraged it.

“Thus, public criticism seems to be the but-for cause of Sgt. Mullen’s firing,” Brnovich wrote. “Undoubtedly, if Sgt. Mullen had not been wearing a Trump T-shirt, mask, and lawful firearm at the protest he would not have warranted animosity from the student protestors and subsequent media attention. Therefore, there is strong evidence to suggest Sgt. Mullen’s symbolic messaging on immigration enforcement was the but-for cause of his termination.”

The parties involved in the lawsuit did not immediately respond to a request for comment.

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