Phoenix officer denies provoking student protesters in federal court

PHOENIX (CN) —  A Phoenix police officer who showed up armed to a high school protest and told other cops he planned to “just let them all assault me” asked a federal judge Monday to reverse his termination from the force.

The Phoenix Police Department fired Sergeant Dusten Mullen Thursday, finding he intended to provoke adolescents into committing violent crimes and that he lied to a Chandler police officer and his own supervisor. In a Phoenix courthouse, his attorney said Mullen’s termination violated his right to due process and chills First Amendment rights of police officers everywhere.

Attorney Steven Serbalik said Mullen never intended to incite students to violence and that the statement that led to his termination was taken “wildly out of proportion” by “political involvement and a misleading media angle.”

“His reputation is being destroyed, and the city of Phoenix is sending a message,” Serbalik 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 U.S. District Judge Susan Brnovich, 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.”

Serbalik said Mullen made that statement out of frustration only after he was ignored by Chandler police.

“This activity you saw in the video,” Serbalik said. “It shows there’s no incitement. There’s no provocation.”

But if Mullen were there only to pick his kids up from school, city attorney Stephen Coleman asked why he approached the crowd wearing a mask on his face and a handgun and extra magazines on his hip.

“I think it goes to his mindset and his intention when he shows up like that,” Coleman said. “He was there to provoke people into committing assaults against him.”

Before deciding to fire Mullen, Serbalik said the city never considered the video he played for Brnovich, nor did it consider the two-hour presentation Mullen gave correcting the record on the situation.

Mullen asked for a temporary restraining order reverting his termination to paid leave to alleviate irreparable damage he says he’s suffered.

Coleman said the provocation was just one of three offenses that led to termination.

He said Mullen lied to a Chandler police officer when he told him he had “30 armed people with long guns” on their way to the protest to back him up.

“A lie is essentially a career killer,” Coleman said, adding that Mullen knew such a threat would put officers on high alert and risk the department misallocating resources to respond to it.

Serbalik said Mullen made that statement because “he wanted people to believe backup was coming” and didn’t think Chandler police would protect him from the students.

Coleman said Mullen also lied by omission to his supervisor when he called in the incident, intentionally leaving out the fact that he was armed and the fact that he stayed at the school after his son had left.

Coleman said Mullen was afforded his due process rights when he was given a hearing before the city. Whether the city is persuaded by the evidence presented in that hearing is up to it.

“He’s not entitled to the outcome he wants,” Coleman said.

Because the challenged action is a singular employment action and not a generally enacted policy, Coleman said Mullen can’t argue that it will chill others’ free speech rights. He added that the record is unclear whether Mullen engaged in protected speech at all, suggesting he simply provoked the students without stating or supporting a political cause.

Serbalik said wearing a Trump shirt to an ICE protest is a clear political statement.

Brnovich, a Donald Trump appointee, said injunction is rare in an employment action because there is typically no irreparable harm. Relief is always available in the form of back pay and other damages if the plaintiff wins at trial.

Serbalik said Mullen faces irreparable reputational harm because of the news stories circulating about the case. He said the story is currently being used against him in family court and could be used to reduce or eliminate custody of his son.

Brnovich said she’ll take the matter under advisement.

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