Phoenix may discipline cop who baited protesters

Editor’s note: This story has been updated with a statement from Steve Serbalik, the attorney for Sgt. Dusten Mullen.

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A federal judge won’t stop the Phoenix Police Department from disciplining Sgt. Dusten Mullen, the off-duty cop who showed up masked and armed at a Chandler student protest in January and told local police there that he intended to bait the teens into assaulting him and getting arrested.

Tuesday afternoon, Judge Susan Brnovich denied Mullen’s request for a temporary restraining order against the city, allowing Mullen’s disciplinary process to continue. Mullen has sued the city, Police Chief Matt Giordano and city councilmember Anna Hernandez, claiming retaliation and the trampling of his First Amendment rights. The parties argued the issue in front of Brnovich at a May 4 hearing in downtown Phoenix, during which Brnovich appeared skeptical of arguments made by Mullen’s attorney, Steve Serbalik.

In an eight-page ruling, Brnovich rebuffed arguments made by Serbalik, who had claimed that the city was setting Mullen up to be fired. She pointed out that the disciplinary process involving Mullen is not yet complete and that he will still be afforded what is called a Loudermill hearing in front of the police chief, at which he can present his side of the story. She also noted that the severity of Mullen’s supposed violation triggers a process that may result in demotion, suspension or termination, but that doesn’t mean it will.

“It is entirely speculative that Sgt. Mullen faces imminent termination,” Brnovich wrote.

A spokesperson for Phoenix immediately responded to a request for comment from Phoenix New Times. In a statement emailed to New Times, Serbalik wrote: “While we believe the evidence is sufficient, we hope that Judge Brnovich is correct — that termination is not imminent — and that Phoenix still intends on conducting the thorough and fair review that Chief Giordano promised.”

Brnovich also wrote that Serbalik failed to show that the Professional Standards Bureau investigation into Mullen’s actions was incomplete, as Mullen’s lawsuit claims. Despite a PSB lieutenant testifying Monday that he felt the investigation was rushed, Brnovich noted that the full PSB investigation — filed in the case under seal, meaning it is not public — shows that investigators considered all the evidence that Mullen’s suit claims they ignored. “The Court is not convinced that PSB did not adequately analyze the materials,” the ruling reads.

The judge also rejected Serbalik’s argument that elevating Mullen’s violations to a class 3 level — a change that made termination a possibility, and that happened after details about Mullen’s actions became public and Hernandez addressed them — was excessive. She noted that the violations include “(g)iving false, incomplete, misleading statements, or willful omissions during an investigation,” which falls comfortably under the umbrella of a class 3 criterion of “actions (which) violated the oath of office or basic Department values.”

“Accordingly, Plaintiffs have failed to show that Sgt. Mullen has been or will likely be subject to irreparable harm in the absence of preliminary relief,” Brnovich wrote.