U.S. District Judge Susan Brnovich said the city failed to show that Dustin Mullen was not fired for First Amendment-protected activity.
PHOENIX (CN) – A Phoenix police officer who was fired after he said he planned to allow student protesters to attack him so they could be arrested has been denied a preliminary injunction that would have temporarily reinstated him.
Sergeant Dusten Mullen was off duty when he went to a protest at Chandler High School against ICE enforcement and reportedly incited students to attack him. Mullen was carrying a handgun, along with extra magazines, and was wearing a face mask and a “Trump 2024” T-shirt.
U.S. District Judge Susan Brnovich accepted Thursday morning command that Mullen is likely to win the First Amendment retaliation case against the city. However, she said Mullen failed to convince her that the harm he suffered from the termination could not be remedied by monetary damages if he were later reinstated.
“The Supreme Court has held that ‘temporary loss of income, eventually recoverable, ordinarily does not constitute irreparable harm,'” the Trump nominee 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 attack him, which led to his termination, was taken “out of proportion” by “political involvement and a misleading media angle.” He says he suffered not only monetary loss, but also reputational damage due to the city’s handling of the case. Phoenix Police Chief Matthew Giordano, the central defendant in the lawsuit, called Mullen a “serious threat to the public trust,” in a public statement released the day Mullen was fired.
“The trust of the community is not something that is forced upon us; it is something that we earn every day,” Giordano said.
Mullen asked in his request for a preliminary injunction that the department be ordered to make more public statements about Mullen’s employment status. Brnovich said the cat is already out of the bag.
“Plaintiffs seek relief from events that have already ended and fail to articulate why issuing a preliminary injunction now would prevent any irreparable harm beyond that already done,” she wrote. “The purpose of a preliminary injunction is not to remedy past harm, but to protect plaintiffs from the irreparable harm that is certain to result without their release.”
In a Phoenix courtroom 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 that any engagement in counter-protests will lead to adverse employment actions.
Brnovich said Mullen has not articulated how an order terminating him and instead placing him on paid administrative leave for the duration of the case would prevent that chilling effect. Officers are still likely to be discouraged from counter-protest until a final decision by the court, she said.
Mullen says he initially 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 compared to Mullen’s cellphone footage played for Brnovich on Monday, Mullen asks the students, who are yelling at him, if they want to talk. IN another videotells them to grow up.
In the video played in court, a police officer tells Chandler to leave the area because he is provoking the students. He later tells another officer that he was assaulted and asks that officer to arrest the students. That officer tells Mullen they need to leave the immediate area to get a police report. As they leave the crowd, Mullen says:
“My plan is legitimately to let them all attack me, and you guys arrest them all. I’m going to keep it on film. I have other people filming from a distance, so my goal would be to put all these kids in jail if they want to break the law.”
Brnovich said she did not see Mullen incite or provoke any students to attack her, no matter how the defense interprets it. She said the video and Mullen’s argument Monday “convincingly contextualized his statement.”
She added that the city decided to fire Mullen only after City Council member Anna Hernandez publicly encouraged him.
“Thus, public criticism appears to be the sole cause of Sgt. Mullen’s firing,” Brnovich wrote. “Obviously, if Sgt. Mullen had not been wearing a Trump T-shirt, mask, and legal firearms at the protest, he would not have warranted the hostility from the student protesters and the subsequent media attention. Therefore, there is strong evidence to suggest that Sgt. Mullen’s symbolic message of immigration enforcement was his term, but the only cause.”
The parties involved in the lawsuit did not immediately respond to a request for comment.
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