Courtesy of Megan Craghead
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The Phoenix Police Department has decided to fire Sgt. Dusten Mullen, the off-duty cop who showed up at a student protest in Chandler and admitted to trying to bait protesters into assaulting him. Phoenix Police Chief Matt Giordano announced the firing in a press release Thursday.
“His actions raised significant concerns about judgment and professionalism,” Giordano wrote. “Although he was off duty and not in uniform, the oath we take binds us to a higher standard. After thorough consideration, I made the decision to terminate his employment.”
As part of an ongoing federal court case against the department, Mullen is asking a judge to reverse that decision. On Thursday, Mullen’s attorney, Steve Serbalik, filed a motion for a temporary restraining order and preliminary injunction, asking federal Judge Susan Brnovich to prohibit the department from going through with firing and to place him on administrative leave until the lawsuit plays out in court. Serbalik asserts the city conducted a flawed investigation of Mullen’s actions, which Mullen claims were protected free speech activity.
“Sgt. Mullen is disappointed by this decision, but not surprised,” Serbalik said in a statement to Phoenix New Times. “While he hoped that the City of Phoenix and Chief Giordano would conduct a ‘thorough and fair’ investigation — that is not what occurred. It will now be up to the Court to protect the rights of Sgt. Mullen.”
The Mullen story first blew up in April, when a Chandler police report revealed he was the masked and armed man who’d appeared at a student anti-ICE walkout protest at Hamilton High School on Jan. 30. Students confronted Mullen, and Chandler police intervened to ask him to relocate. Per the Chandler incident report, Mullen said more armed counterprotesters would be coming and said his plan was to coax the students into assaulting him so that Chandler police could arrest them. One student was arrested for splashing water on Mullen, though the Maricopa County Attorney’s Office declined to prosecute.
Mullen is not alleged to have done anything illegal at the protest, but the Phoenix Police Department says he violated department policy. After Mullen was unmasked in news reports in April, Giordano issued a public statement about the incident and said he would personally announce the results of the internal investigation into Mullen. Mullen responded by suing. He claimed that the city elevated his alleged offenses to a level that could result in termination only after his identity became public and after Phoenix City Councilmember Anna Hernandez publicly commented on it. In a hearing held earlier this month, Phoenix police Professional Standards Bureau investigator Lt. Byron Bewley testified that he felt rushed in the investigation, which he said was reclassified around the time that Hernandez spoke out.
At the time, Mullen asked Brnovich to hit the brakes on his disciplinary process, claiming it was careening toward a foregone conclusion that he would be terminated. Brnovich declined to do so, saying that Mullen had yet to suffer any actual harm and that he could pursue his claims after he was disciplined, if any discipline was in fact issued. Serbalik’s latest motion argues that with Mullen’s firing, that criterion has now been met.
“This Court denied Plaintiffs’ initial Motion (for a temporary restraining order and preliminary injunction), finding that any harm was ‘speculative’ because no termination had yet occurred,” the motion reads. “That premise no longer exists.”
In the new pleading, Serbalik claims that Mullen’s Loudermill hearing in front of Giordano and other police and city officials was flawed, saying the city did not properly take into account exculpatory cell phone video Mullen provided. (In the previous court hearing, Bewley testified that investigators had examined all evidence, although he said he would have liked more time to investigate.) Serbalik also said Brnovich misstated evidence in a previous ruling, noting that while Mullen was accused of making an “untruthful verbal report by omission to his supervisor,” the city never accused him of lying to investigators.
In an affidavit included with the filing, Mullen also says that the attention his case has received has led to his being recognized on the street. He says that notoriety has led to difficulties in a child custody case, and will make finding a new job harder.
It’s unclear how favorably Brnovich will view the latest request from Mullen’s attorney. The next administrative step for Mullen to contest his firing is to appeal to the city’s Civil Service Board. Serbalik has claimed that Mullen is prohibited from pressing a constitutional claim before the board, though the city argued before Brnovich earlier this month that that’s not the case.
