Here are selected passages from the lengthy ruling in Mullen v. Giordano, issued Thursday by Judge Susan Brnovich of the District of Arizona:
The Ninth Circuit has reduced Pickering v. Board of Education (1968) into a five-part framework for deciding whether a government employer retaliated against a public employee in violation of the First Amendment:
(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or as a public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state possessed an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have imposed the same adverse action absent the protected speech….
[1.] Sgt. Mullen Was Engaged in Protected Activity
First, the plaintiffs can demonstrate that Sgt. Mullen acted as a private citizen engaging in First Amendment protected activity. Although Sgt. Mullen initially went to Hamilton High School to check on his son, he remained to oppose the anti-ICE student protest. He was off duty, not in uniform, and did not identify himself as a police officer. Phoenix PD’s internal inquiry acknowledges that Sgt. Mullen acted as a counter-protester. Officers from Chandler PD at the scene also regarded him as a counter-protester.
In addition, Sgt. Mullen wore a face covering and a T-shirt bearing the slogan “Trump 2024.” … It is unquestionable that the anti-ICE student demonstrators understood the Trump T-shirt to convey a stance favoring immigration enforcement, judging by their vehement curses and loud denunciations directed at him.
Furthermore, there is a First Amendment right to film matters of public interest. This includes the right to record law enforcement officers performing their duties in public settings. Sgt. Mullen captured a substantial portion of his exchanges with the officers and protesters for his own safety and to document the events.
[2.] Officers’ Conduct At A Protest Are Matters of Public Concern …
[3.] Evidence Supports Plaintiffs’ Claim That Sgt. Mullen Was Terminated For Engaging In First Amendment Protected Activity …
[4.] A Reasonable Jury Could Find That Defendants’ Justification For Treating Sgt. Mullen Differently Than The General Public Is Inadequate ….
“[T]he Ninth Circuit has recognized the exceptional need for police departments to avoid disruption to safeguard public safety.” A government can demonstrate this interest “by showing a reasonable expectation of disruption.” Yet, when assessing whether the government’s interest in avoiding disruption outweighs an employee’s First Amendment rights, courts must be vigilant to ensure that public employers do not lever their authority over employees to suppress discourse merely because they disagree with the content of the speech rather than because it hinders public functions.” …
“[T]he more the First Amendment protections cover the speech, the stronger the showing of disruption must be.” As previously noted, the First Amendment clearly protects Sgt. Mullen’s attendance at a protest, his symbolic speech about immigration enforcement, and his right to record officers’ conduct. Consequently, the defendants must offer a robust demonstration of disruption…. [And] the alleged disruptive behavior by Mullen occurred while he was off duty, which makes it harder for the government to meet its burden here….
The defendants predict that “Mullen’s conduct on January 30, 2026 and the ensuing events could reasonably erode public trust in the Phoenix PD and generate tension between officers and members of the public who want to express their political views peacefully.” … The sole evidentiary basis for these predictions is the unfavorable publicity surrounding Sgt. Mullen’s actions. The defendants point to five headlines about his conduct at the student anti-ICE protest and his later termination. Indeed, such evidence weighs in the defendants’ favor. But we are reminded that “even when an employer adduces evidence of a negative reaction to speech, courts require evidence that it will disrupt the workplace.” The defendants fail to present any non-speculative proof that disruption has occurred or will occur in the workplace….
[5.] Defendants Fail To Show They Would Have Terminated Sgt. Mullen Even In The Absence Of His Protected Conduct
Defendants “may avoid liability by proving that the employee’s protected speech was not a but-for cause of the adverse action.” … The defendants contend that Sgt. Mullen was terminated not for his speech, but because he “took actions deliberately intended to provoke or incite wrongdoing.” They claim this is supported by video evidence. The Court disagrees.
During oral argument on the plaintiffs’ second TRO, the plaintiffs presented the only video evidence to date of the January 30 protest. This footage does not show Sgt. Mullen instigating or provoking any students to assault him. In fact, the video depicts Sgt. Mullen asking students whether they wished to engage in conversation. Although in the clip Sgt. Mullen tells a Chandler officer that he planned to permit students to assault him, the plaintiffs have persuasively explained the surrounding context.
Before his remark, a large group of student protesters, while shouting insults, closed in on and trailed Sgt. Mullen. At one point, a protester douses him with water. Mullen then runs across the street toward a motorcycle officer who is stopped at a red light and indicates his desire to report an assault.
The student protesters shadow Mullen to this officer, continuing to scream. The officer immediately instructs Mullen to move to the sidewalk where the crowd of students was gathered. Mullen replies that he cannot proceed onto the sidewalk because of the students. The officer then, after a moment, dismounts and guides Mullen to a different location to file the report.
Later, Mullen makes the remark about permitting the assault. It appears he uttered this in frustration with Chandler officers’ limited efforts to intervene as the students aggressively surrounded, chased, shouted at, and threw water on him. He never encouraged any student to attack him. Accordingly, the defendants have failed to show that the City of Phoenix terminated him for his conduct at the protest rather than for his First Amendment right to be present there.
Moreover, … [p]rior to Councilwoman Hernandez’s remarks, the defendants had no intention of firing Sgt. Mullen for his protest-related conduct…. Public criticism appears to be the but-for cause of Mullen’s firing. Certainly, if Sgt. Mullen had not been wearing a Trump T-shirt, a mask, and a lawful firearm at the protest, he would likely not have attracted hostility from the student protesters or the resulting media attention. There is strong indication that the symbolism of his message on immigration enforcement played the decisive role in his termination….
The court ruled that an injunction ordering Sgt. Mullen’s reinstatement on paid administrative leave was not warranted, on the grounds that any harm to Mullen could be redressed with a damages award:
Plaintiffs contend that Sgt. Mullen will suffer irreparable harm from his termination and loss of income if the court does not restore him on paid administrative leave. Monetary damages, however, can make these injuries whole….
Plaintiffs also argue that Sgt. Mullen’s termination will create a continuing chilling effect on other officers’ First Amendment rights unless the court reinstates him. The Ninth Circuit has recognized that retaliation for protected activity carries the risk that employees may be deterred from engaging in lawful conduct, potentially causing “possible irreparable harm far beyond economic loss.” Plaintiffs bolster these concerns by noting that Lt. Thatcher has received multiple calls from AZCOPS members seeking updates about whether Sgt. Mullen’s rights will be respected.
Important, however, is that “there must be a sufficient causal link between the alleged irreparable harm and the activity sought to be enjoined, and showing that an interim injunction would prevent the irreparable harm must qualify as such a link.” In other words, “there must be a showing that the chilling effect on free speech would be alleviated by the entry of a temporary injunction.” The plaintiffs have not convinced the court that placing Sgt. Mullen on paid administrative leave for the duration of the suit would relieve any alleged chilling of other officers’ right to speak. Accordingly, the court holds that a preliminary injunction is not warranted….
Nevertheless, the court’s rationale suggests that a claim for damages would indeed be adequate to proceed to a jury.
