Judge won't reinstate Phoenix police sergeant fired over ICE protest as case continues

A federal judge says a former Phoenix police sergeant can likely prove he was fired in retaliation for expressing himself at an anti-ICE student protest in Chandler in January.

Judge Susan Brnovich rejected Dusten Mullen’s request to be reinstated on paid leave while a lawsuit to keep his job goes forward.

But Brnovich writes that Mullen’s actions as a masked and armed counter-protester while wearing a Donald Trump t-shirt were protected under the First Amendment right to free expression.

“Sgt. Mullen, while off duty, was acting in a private capacity. And it's our position that police officers, just like everyone else, have First Amendment rights when they're off duty,” said Steve Serbalik, an attorney representing Mullen.

Brnovich also writes that there’s evidence the internal investigation of Mullen was rushed, after a city council member publicly criticized him, so he could be fired as quickly as possible.

And Brnovich is rejecting a claim by Phoenix officials that Mullen was fired for deliberately trying to provoke crime.

Instead, Brnovich writes that Mullen told Chandler police he planned to let students assault him because he was frustrated that officers didn’t intercede when students became aggressive.

“People being present at protest or as a counter-protester doesn’t necessarily mean the same thing as they are trying to incite or provoke crime,” Serbalik said.