The First Amendment and Off-Duty Police Officer’s Counterprotest of Anti-ICE Student Protest

Some excerpts from the long opinion in Mullen v. Giordano, decided Thursday by Judge Susan Brnovich (D. Ariz.):

The Ninth Circuit has distilled Pickering v. Board of Education (1968) into a five-step inquiry to determine 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 public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech….

[1.] Sgt. Mullen Was Engaged in Protected Activity

First, Plaintiffs can show Sgt. Mullen acted as a private citizen engaged in First Amendment protected activity. Although Sgt. Mullen initially went to Hamilton High School to check on his son, he stayed to counter protest the anti-ICE student protest. Sgt. Mullen was off duty, not in uniform, and did not identify himself as a police officer. Phoenix PD’s internal investigation acknowledges that Sgt. Mullen was engaging as a counter-protestor. Chandler PD officers at the scene also considered Sgt. Mullen to be a counter-protestor.

Additionally, Sgt. Mullen wore a face covering and a T-shirt that said, “Trump 2024.” … There is no question the anti-ICE student protestors understood Sgt. Mullen’s Trump T-shirt to express a message favoring immigration enforcement given their vehement cursing and yelling at him.

Moreover, “there is a First Amendment right to film matters of public interest.” “This includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Sgt. Mullen filmed much of his interactions with the officers and student protestors for his 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 special need for police departments to avoid disruption to provide public safety.” A government can evidence the applicability of this interest “by showing a reasonable prediction of disruption.” But “[w]hen determining whether the government’s interests in avoiding disruption outweigh an employee’s First Amendment interests, vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” …

“[T]he more tightly the First Amendment embraces the speech the more vigorous a showing of disruption must be made.” As discussed earlier, the First Amendment plainly protects Sgt. Mullen’s attendance at a protest, symbolic speech on immigration enforcement, and right to record officers’ conduct. So, Defendants must present a vigorous showing of disruption…. [And] Sgt. Mullen’s allegedly disruptive conduct occurred while he was off duty, and thus the government is less likely to meet its burden here….

Defendants predict that “Mullen’s conduct on January 30, 2026 and the events that followed, can reasonably be expected to undermine the trust of the general public with the Phoenix PD and create friction between police officers and members of the public who wish to peacefully express their political views.” … The sole evidentiary foundation for Defendants’ predictions is the negative publicity following Sgt. Mullen’s actions. Defendants cite five headlines that concern Sgt. Mullen’s conduct at the student anti-ICE protest and his subsequent termination. Indeed, this evidence weighs in Defendants’ favor. But “[e]ven where the employer provides evidence of a negative reaction to speech, courts require evidence that it will disrupt the workplace.” Defendants fail to offer any evidence, outside of speculation, that disruption has 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 showing that the employee’s protected speech was not a but-for cause of the adverse employee action.” … Defendants argue that Sgt. Mullen was terminated, not for his speech, but because he “took actions deliberately intended to provoke or engender crime.” They contend this “is confirmed by video evidence.” The Court disagrees.

In oral argument on Plaintiffs’ second TRO, Plaintiffs presented the only video evidence, so far, of the January 30 protest. That video does not depict Sgt. Mullen instigating or provoking any students to assault him. In fact, the video showed Sgt. Mullen asking students if they wanted to have a conversation. Although in the video Sgt. Mullen tells a Chandler officer he planned to let students assault him, Plaintiffs have persuasively contextualized this statement.

Prior to his comment, a large group of student protestors, while cursing and shouting, surrounded and followed Sgt. Mullen. At some point, a protestor throws water on Sgt. Mullen. Sgt. Mullen then runs across the street to an officer on a motorcycle stopped at a traffic light and states he would like to report an assault.

The student protestors follow Sgt. Mullen to this officer, continuing to scream at him. The officer immediately tells Sgt. Mullen to get on the sidewalk where the large group of students were yelling. Sgt. Mullen says he cannot go on the sidewalk because of the students. The officer then, eventually, gets off his motorcycle and leads Sgt. Mullen to a different area to take the report.

Sgt. Mullen then made his statement about letting the students assault him. Thus, it appears Sgt. Mullen made this statement out of frustration with Chandler officers’ minimal effort to intercede after students aggressively surrounded, followed, yelled, and threw water on him. This is buttressed by the fact that Sgt. Mullen never encouraged any students to assault him. Accordingly, Defendants fail to demonstrate that the City of Phoenix terminated him for his conduct rather than his First Amendment right to be present at the protest.

Moreover, … [p]rior to Councilwoman Hernandez’s statements, Defendants did not intend to terminate Sgt. Mullen for his conduct at the protest…. Thus, public criticism seems to be the but-for cause of Sgt. Mullen’s firing. Undoubtedly, if Sgt. Mullen had not been wearing a Trump T-shirt, mask, and lawful firearm at the protest he would not have warranted animosity from the student protestors and subsequent media attention. Therefore, there is strong evidence to suggest Sgt. Mullen’s symbolic messaging on immigration enforcement was the but-for cause of his termination….

The court concluded that a preliminary injunction ordering that Mullen be reinstated on paid leave wasn’t warranted, because any injury to Mullen could be remedied by a damages award:

Plaintiffs contend that Sgt. Mullen will be irreparably harmed by his termination and loss of income if the Court does not reinstate him on paid administrative leave. Monetary damages, however, can compensate these injuries….

Plaintiffs argue that Sgt. Mullen’s termination will cause an ongoing chilling effect on other officer’s First Amendment rights unless the Court reinstates him. The Ninth Circuit recognizes that “retaliatory action for protected activity carries with it the risk that employees may be deterred from engaging in legitimate conduct,” and therefore may cause “possible irreparable harm far beyond economic loss.” Plaintiffs substantiate these concerns by stating, “Lt. Thatcher has received multiple phone calls from AZCOPS members inquiring about the matter and waiting on updates regarding whether Sergeant Mullen’s rights will be respected.”

Importantly, however, “there must be a sufficient causal connection between the alleged irreparable harm and the activity to be enjoined and showing that the requested injunction would forestall the irreparable harm qualifies as such a connection.” In other words, “there must be a showing that the chilling of the right to speak will be thawed by the entry of an interim injunction.” Plaintiffs have not convinced the Court that temporarily placing Sgt. Mullen on paid administrative leave for the duration of this lawsuit would thaw any alleged chilling of other officer’s right to speak. Accordingly, the Court finds that preliminary injunctive relief is not warranted….

But the court’s reasoning suggests that a claim for damages would indeed be sufficiently supported to go to the jury.