Lieutenant: Phoenix rushed probe on cop who baited teen protesters

The Phoenix Police Department may have rushed its investigation of Dusten Mullen, the off-duty sergeant who showed up masked and armed to an anti-ICE student walkout protest in Chandler in January and told local police there that he wanted to bait kids into attacking him and getting arrested. On Monday, the Phoenix lieutenant who signed off on the department’s Professional Standards Bureau investigation into Mullen testified in federal court that he felt the process was too hasty and that he’d been denied a request for more time to finish his review.

The hearing was held in relation to a federal lawsuit that Mullen has filed against the police department, Chief Matt Giordano and city councilmember Anna Hernandez. Mullen is claiming that Phoenix police bowed to political pressure from Hernandez and skipped steps in its disciplinary process to put Mullen on the fast track to termination. The city has claimed that there has been nothing irregular in Mullen’s case and that the disciplinary process has yet to even be completed, much less a punishment decided.

Mullen’s case has generated widespread media coverage in the Valley after news outlets revealed that he was the masked, armed man who’d shown up to antagonize teenage protesters outside a Chandler high school on Jan. 30. According to reports and transcripts of Mullen’s interactions with Chandler police during the incident that are included in court records, Mullen repeatedly declined to move away from the protesting students, claimed that several more armed men would soon join him and told Chandler officers that he intended to bait the students into assaulting them so that they could all be arrested.

One student was arrested for splashing water from a cup onto Mullen, but the Maricopa County Attorney’s Office declined to prosecute. Mullen was not arrested and was not accused of doing anything illegal.

Though the incident happened more than three months ago, the story exploded in early April, when the Chandler police report was made public. In the immediate aftermath, Mullen claims in his lawsuit, the Phoenix Police Department suddenly fast-tracked its PSB investigation of him, bumping his case to a level of severity that could result in termination. In court testimony on Monday, the Phoenix police lieutenant who signed those investigative findings lent some credence to that theory.

Questioned by Mullen’s attorney, Steve Serbalik, Lt. Byron Bewley said he signed and edited but did not author the PSB investigation on Mullen, which he called unusual. He added that after the details of Mullen’s involvement became public — and after Hernandez publicly commented on the matter on April 9 — he felt the probe was rushed. He said he requested more time to complete the report, which was finalized on April 27 after about three months, but was denied. He also said he did not feel he was given adequate time to review additional footage provided by Mullen, though he admitted under cross-examination that he did review all of the material.

He also said his supervisor, Cmdr. James Ward, instructed him to change the severity of Mullen’s alleged policy violations from Class 2 to Class 3 around the time that Hernandez publicly spoke about the case. Class 3 violations can result in termination, though not all are fireable offenses. Bewley did not say that he was ordered to change anything because of Hernandez’s comments.

Bewley also admitted he’d only been with the Professional Standards Bureau for five months, and despite feeling rushed, said that the ultimate call on how PSB investigations are classified belongs to his superiors and not him.

Judge skeptical

Despite Bewley’s claims of being rushed, Judge Susan Brnovich seemed skeptical of Mullen’s larger argument that the police department’s disciplinary process needs correcting before it has been fully carried out. Multiple times throughout the hearing on Monday, she questioned Serbalik on why she’d need to step in when the city has not leveled any punishment.

The police department has not yet held what is called a Loudermill hearing, at which Mullen would be able to present his side of events to Giordano. Only then would the department decide on discipline, and if Mullen was fired as a result, he could contest that firing with Phoenix’s Civil Service Board, Phoenix assistant chief counsel Jody Corbett told the judge. (Serbalik told Brnovich that Mullen would be unable to press Constitutional claims to the Civil Service Board, such as his claim that the city has retaliated against him over his First Amendment expression, but Corbett refuted that.) And Brnovich pointed out to Serbalik that even if that appeal failed and a termination were upheld, Mullen could then seek relief in federal court.

As it stands, both Brnovich and the city pointed out, Mullen is asking the judge to prevent a harm that hasn’t materialized and may not occur at all.

“None of this has happened yet,” Corbett told Brnovich.

Mullen is requesting a preliminary injunction requiring the city to perform a complete disciplinary process, which the city says it has already done to this point. Brnovich has yet to rule on that motion. But she’s already ruled in favor of Mullen once already.

Leading up to the hearing, Mullen’s attorney requested an emergency temporary restraining order, pointing out that Mullen’s Loudermill hearing with Giordano was scheduled just 30 minutes before Monday’s court hearing. Giordano offered to move the Loudermill hearing up by an hour, but Mullen’s attorneys argued that would still prevent crucial witnesses from testifying at both. Brnovich agreed, requiring the city not to hold a Loudermill hearing until she gave her go-ahead.

It’s not clear whether that will presage future success for Mullen in the case, though, as that ruling dealt more with a scheduling conflict than the larger issues of the case.