Arizona Federal Court Bolsters First Amendment Protections for Off-Duty Peace Officers in Protest Retaliation Matter

In a decision issued on May 21, 2026, the United States District Court for the District of Arizona addressed significant questions regarding the First Amendment rights of off-duty peace officers who engage in political expression and counter-protest activities. Although the court denied the plaintiffs’ request for a preliminary injunction that would have ordered the reinstatement of Sergeant Dusten Mullen to paid administrative leave, it delivered a detailed and favorable analysis of the merits of his First Amendment retaliation claim. 

Sergeant Mullen, a Phoenix Police Department supervisor, went to Hamilton High School on January 30, 2026, to check on his son and remained to counter-protest an anti-ICE student demonstration. He was off duty, out of uniform, and did not identify himself as a law enforcement officer. He wore a face covering together with a T-shirt that read “Trump 2024,” which the court recognized as symbolic speech addressing the salient political issue of immigration enforcement. Sergeant Mullen also recorded his interactions with the student protestors and with responding officers, an activity the court held was protected under the well-established First Amendment right to film matters of public interest in public places. Student protestors surrounded him, shouted curses, and threw water on him. He reported the incident to a Chandler police officer and out of frustration commented about allowing students to assault him.

The video evidence and sequence of events later established that Sergeant Mullen’s remark to the Chandler officer reflected frustration with the limited police response rather than any encouragement of assault. The Phoenix Police Department’s Professional Standards Bureau initially classified the matter as a Class II violation that would not result in termination. After media reports surfaced in April 2026 and Phoenix City Councilwoman publicly criticized his off-duty conduct and questioned his continued employment, the investigation abruptly changed course. The lead investigator was directed to elevate the violation to Class III, to sustain an additional allegation without new factual findings, and to complete the report on an accelerated schedule despite repeated requests for more time. A pre-dsiciplinary hearing was held on May 11, 2026, and termination followed three days later. The court found this timeline, together with the investigator’s testimony describing unprecedented pressure and departures from normal procedure, sufficient to support the inference that Sergeant Mullen’s protected activity was a substantial or motivating factor in the adverse employment action.

The court held that Sergeant Mullen engaged in protected First Amendment activity as a private citizen on matters of public concern. It stressed that speech addressing police competency and core political questions such as immigration enforcement occupies the highest rung of First Amendment values. Defendants failed to carry their burden of demonstrating either an adequate justification for treating Sergeant Mullen differently from other members of the public or that they would have reached the same termination decision absent the protected conduct. Their predicted disruption rested on speculation and negative publicity rather than evidence of actual or imminent workplace interference. The court emphasized that core First Amendment speech by an off-duty employee requires a particularly vigorous showing of disruption. The video did not evidence any intent to provoke a crime and the administrative investigation did not support termination prior to the media publicity. The court therefore concluded that the plaintiff demonstrated a strong likelihood of success on the merits of the First Amendment retaliation claim.

Nevertheless, the court found that Sergeant Mullen had not established irreparable injury sufficient to grant a preliminary injunction. Rather, the court hled that monetary damages or back pay awarded in the ordinary course of litigation can compensate any loss of income. The court noted that the public announcement of his termination had already occurred and  the requested relief would not thaw the chilling effect on other officers. It therefore denied the motion for a temporary restraining order and preliminary injunction.

Although the court denied injunctive relief, the court’s favorable treatment of the underlying First Amendment retaliation claim bolsteres the protections afforded public employees. This case confirms that generalized or speculative predictions of disruption will not suffice, particularly where the speech addresses matters of core political concern and occurs off duty. The ruling further cautions agencies against allowing external political pressure or media attention to drive investigative findings without independent evidentiary support. 

The decision reinforces the importance of distinguishing between legitimate operational concerns and content-based objections to an officer’s political views. It further underscores that policies governing off-duty conduct and social media must be narrowly tailored and applied consistently, lest they become vehicles for viewpoint discrimination.  The underlying litigation remains ongoing with an appeal pending of the denial of preliminary injunctive relief.

Appellate Court's Definition of “Great Bodily Injury” Broadens Canine Record Disclosures Under Penal Code Section 832.7

In a published opinion that will shape how law enforcement agencies respond to public records requests involving police canines, the Court of Appeal for the Fifth Appellate District held that the phrase “great bodily injury” ("GBI") in Penal Code section 832.7(b)(1)(A)(ii) carries the same well-established meaning it has long possessed in California’s criminal sentencing statutes. The court denied the City of Fresno’s petition for writ of mandate and affirmed the superior court’s order requiring production of records concerning canine deployments that resulted in GBI, defined as a significant or substantial physical injury. 

The underlying dispute began with a California Public Records Act request from the American Civil Liberties Union of Southern California seeking records from the Fresno Police Department regarding its use of police canines between 2019 and early 2023. The City produced more than nine hundred pages of material but withheld or redacted information from incidents it concluded did not meet its preferred, narrower definition of GBI which was drawn from the “serious bodily injury” ("SBI") standard in Government Code section 12525.2. 

The ACLU filed a petition for writ of mandate, which the superior court granted, holding that the term GBI means a significant or substantial physical injury. Fresno then sought extraordinary relief in the Court of Appeal. The appellate court rejected the City’s construction. 

The appellate court explained that when the Legislature selects a term of art that already possesses a settled legal meaning, courts properly assume the Legislature intended that meaning and its associated body of precedent. Section 12022.7(f)(1) has long defined great bodily injury as “a significant or substantial physical injury,” and decades of case law have refined the application of that standard in the context of sentencing enhancements. The court noted that the Legislature had originally considered the phrase “serious bodily injury” during the drafting of Senate Bill 1421 but ultimately substituted “great bodily injury,” which the court considered a deliberate choice incorpoorating section 12022.7. 

The decision therefore does not open the door to wholesale disclosure of every canine contact or every minor abrasion. The court emphasized that minor or inconsequential injuries do not constitute great bodily injury as a matter of law. Courts must evaluate these questions through fact-specific analysis. The severity of the particular injury sustained in each case controls the determination. 

Pain, superficial lacerations, bruises, or limited punctures will still fall outside the disclosure obligation unless they rise to the level of significant or substantial physical impairment. Courts applying section 12022.7 have recognized that even bone fractures or more serious-appearing wounds may not meet the threshold in every instance. Agencies and officers can therefore continue to distinguish between trivial and qualifying injuries, provided their documentation accurately reflects the medical facts and the extent of any impairment, treatment required, or functional loss.

The ruling produces several practical effects for agencies that deploy police canines. These departments must now produce complete investigative files, use-of-force reports, and related materials whenever a deployment results in significant or substantial injury. This may expand access to more incident records. At the same time, the published opinion supplies clearer guidance by tethering the standsard to an established criminal-law framework. 

As the City of Fresno intends to seek further appellate review, the final contours of the GBI disclosure obligations may ultimately be determined by our California Supreme Court.

Ninth Circuit Victory Bolsters First Amendment Protections for Public Employee Speech on Matters of Public Concern

In a decision of considerable practical significance for California public safety unions and the rank-and-file members they represent, the United States Court of Appeals for the Ninth Circuit has reversed a district court judgment and entered summary judgment in favor of a public university professor who faced investigation, reprimand, and threats of discipline after including a satirical statement in his course syllabus. The ruling in Reges v. Cauce clarifies important boundaries under the First Amendment in the public employment setting and carries implications that extend well beyond the university context.

Factual Background

The case arose when Professor Stuart Reges, a longtime teaching professor in the University of Washington’s Paul G. Allen School of Computer Science and Engineering, incorporated into his introductory computer science syllabus a concise parody of the university’s recommended indigenous land acknowledgment. Reges’s statement invoked the labor theory of property to question historical ownership claims and framed the university’s preferred language as an empty performative act. He viewed the official recommendation as part of a broader diversity, equity, and inclusion agenda that he believed improperly elevated certain groups on the basis of immutable characteristics. The statement was not presented as the university’s position; it was plainly attributed to Reges in the first person and appeared in a document over which faculty traditionally exercise substantial control.

University administrators responded swiftly. They removed the statement from the online syllabus, issued public statements condemning it, solicited student complaints, opened a lengthy disciplinary investigation, withheld a merit pay increase, and ultimately issued a formal reprimand while warning that future inclusion of similar language could result in further discipline. A faculty committee concluded that the statement caused significant disruption, citing student discomfort, one reported leave of absence, and an alleged dropout—claims the Ninth Circuit later found inadequately substantiated.

The district court had granted summary judgment to the university officials, concluding that any First Amendment interests were outweighed under the Pickering balancing test by the university’s interest in avoiding disruption to the learning environment. The Ninth Circuit disagreed in a thorough and carefully reasoned opinion.

The Ninth Circuit’s Ruling

The court first confirmed that Reges’s speech constituted protected academic speech rather than unprotected government speech. Although syllabi are distributed as part of a professor’s official duties, the Ninth Circuit’s precedent in Demers v. Austin establishes that speech related to scholarship or teaching falls outside the Garcetti framework that ordinarily denies First Amendment protection to public employee speech made pursuant to official duties. Reges was commenting on a matter of ongoing public debate, the propriety and factual premises of institutional land acknowledgments, and was not speaking as the university’s messenger. The court noted that the university itself treats syllabi as the purview of the faculty and does not pre-approve their content.

Because the speech addressed a matter of public concern, the court proceeded to Pickering balancing. It held that the university failed to carry its burden of demonstrating that its legitimate administrative interests outweighed Reges’s First Amendment rights. The primary evidence of disruption consisted of student offense, anger, and discomfort—reactions the court deemed an inevitable byproduct of robust academic debate on contested public issues. In the higher education setting, such reactions do not justify adverse employment action against a professor. The court further observed that claims of more tangible disruption, such as students dropping out or difficulties recruiting Native students, suffered from serious problems of proof. One cited student had not even been enrolled in Reges’s course and identified multiple other reasons for taking a leave of absence; the second student referenced in the record did not appear to exist.

The Ninth Circuit therefore directed entry of summary judgment for Reges on both his First Amendment retaliation claim and his viewpoint discrimination claim. It remanded for further proceedings on Reges’s facial challenge to the university’s broadly worded nondiscrimination policy, which authorizes discipline for “any conduct that is deemed unacceptable or inappropriate” regardless of whether it rises to the level of unlawful harassment or discrimination.

Implications for California Public Unions and Their Members

For California public unions and their members, this decision merits close attention. Although the facts arose in a university setting, the  framework governs public employees generally, including peace officers and firefighters. Public safety personnel routinely encounter questions regarding the scope of their rights to comment on departmental policies, social issues, or legislative matters that affect their profession and the communities they serve. The Ninth Circuit’s emphatic rejection of “heckler’s veto” reasoning, i.e. the notion that employee speech may be suppressed simply because it causes offense or emotional distress among colleagues or constituents, provides meaningful protects for publci employees who speak on controversial topics.

Overbroad language of the sort challenged in Reges may prove vulnerable to constitutional scrutiny, particularly where enforcement appears to turn on viewpoint rather than narrowly tailored operational needs.  The decision further underscores that public employers must substantiate claims of actual, material, and substantial disruption with concrete evidence rather than speculation or generalized assertions of harm. Mere predictions of difficulty in recruitment, retention, or internal harmony, without more, may not suffice to overcome an employee’s First Amendment interests when the speech addresses a matter of public concern.

The opinion serves as a timely reminder that the First Amendment exists to protect unpopular and even sharply worded expression on matters of public importance, and that public institutions may not insulate themselves from debate by punishing those who challenge prevailing orthodoxies.The principles articulated by the Ninth Circuit offer valuable tools for preserving the ability of rank-and-file employees to participate meaningfully in public discourse without undue fear of retaliation.

Ninth Circuit Protects First Amendment Rights to Place Political Yard Signs While Drawing Sharp Limits on Internal Job-related Speech

In a decision that offers important guidance for California public safety unions and the rank-and-file members they represent, the Ninth Circuit Court of Appeals in Burch v. City of Chubbuck (2025) 146 F.4th 822 has clarified the boundaries of First Amendment protection in the public workplace. Although the court ultimately affirmed summary judgment in favor of the employer, the opinion carefully distinguishes between protected speech made as a private citizen and unprotected speech made pursuant to official job duties. The ruling reaffirms that off-duty political expression retains meaningful constitutional safeguards while underscoring the narrower protection afforded to internal workplace communications.

Rodney Burch served as the Public Works Director for the City of Chubbuck, Idaho. During a local mayoral election, he placed a yard sign at his residence supporting the incumbent mayor’s opponent. Separately, he engaged in internal advocacy, criticizing the mayor’s management policies and advancing a detailed proposal for the creation of a city administrator position. After the mayor secured re-election, Burch faced requests that he resign, an attempt to remove him through the city council, and subsequent reductions in his responsibilities and decision-making authority. He filed suit alleging First Amendment retaliation.

The Ninth Circuit held that Burch’s political yard sign constituted protected speech. It addressed a matter of public concern and was undertaken in his capacity as a private citizen rather than pursuant to his official duties. By contrast, the court concluded that Burch’s internal criticisms of the mayor’s policies and his structural reform proposals were speech made pursuant to his official responsibilities as a department head. As such, those communications fell outside First Amendment protection under the principles established in Garcetti v. Ceballos. Because the employer demonstrated adequate justification for the adverse actions based on the unprotected speech, and because the changes in Burch’s duties did not rise to the level of constructive discharge, the court affirmed summary judgment for the city.

For rank-and-file public safety employees, this decision carries significant practical weight. Public employees frequently speak out on matters of public concern, including departmental policies, public safety priorities, budget decisions, or local political questions. Burch confirms that classic off-duty political activity, such as displaying campaign signs, posting on personal social media in a private capacity, or otherwise expressing views as a concerned citizen, remains strongly protected. Public employers may not retaliate against employees for engaging in such citizen speech merely because the content is critical of management or touches on workplace issues.

At the same time, the ruling serves as a clear cautionary note about the limits of protection for speech delivered in the course of employment. Internal emails, reports, meeting comments, or proposals that can reasonably be viewed as part of an employee’s official responsibilities will typically be treated as unprotected under Garcetti. This distinction is especially pertinent in law enforcement and fire service agencies, where structured chains of command and operational proposals are commonplace. What may appear to a member as legitimate workplace advocacy can mischaracterized by management as insubordination once it is framed as an official communication.

Public safety unions should therefore treat Burch as a valuable educational tool. It is advisable to provide members with clear guidance on how to separate personal, citizen speech from any expression that could be construed as arising from their official duties. When raising legitimate concerns about public safety or departmental operations, members are generally better served by channeling those concerns through union representatives or other protected avenues rather than through formal internal memoranda or proposals presented in their official capacity.  

While the outcome in Burch favored the employer, the decision does not represent a broad retreat from public employee speech rights. On the contrary, it reaffirms that pure private-citizen speech on matters of public concern continues to enjoy meaningful First Amendment protection. For California public safety unions, the case provides a useful roadmap for how to exercise their constitutional rights safely and effectively. By understanding and respecting the line drawn in Burch between protected citizen speech and unprotected official-duty speech, public employees can more confidently participate in the democratic process while minimizing exposure to retaliation.

Public safety unions must remain vigilant in defending these rights and should be prepared to challenge overbroad applications of Garcetti whenever employers attempt to silence legitimate citizen expression. The First Amendment remains a vital safeguard for those who protect our communities.

When Using an Internal Investigation as a Defense, Expect Disclosure: Lessons from Paknad v. Superior Court

In a decision of considerable practical significance for public safety unions, the Sixth District Court of Appeal in Paknad v. Superior Court (Apr. 17, 2026), has clarified that an employer cannot invoke the thoroughness of its internal investigation as a shield in litigation while simultaneously withholding the factual substance of that investigation behind claims of privilege. The ruling arises from a sexual harassment, gender discrimination, and retaliation lawsuit in which the employer repeatedly emphasized the quality and independence of its pre-litigation investigation. When the plaintiff sought production of the full investigative reports, the Court of Appeal held that the employer’s defensive reliance on those materials waived both attorney-client privilege and work-product protection as to the factual findings and information bearing on the scope and adequacy of the investigation itself.

Before litigation commenced, the employer retained outside counsel to investigate the employee’s complaints. Counsel conducted witness interviews, reviewed documents, and prepared two detailed written reports containing the employee’s allegations, summaries of the interviews, the investigator’s factual determinations, conclusions, and legal recommendations for future action. The employer provided the plaintiff only with a high-level summary of the findings and later asserted an avoidable-consequences defense in the lawsuit, representing to the court and the jury that it had “thoroughly investigated every allegation” through an “independent, outside investigator” who had interviewed numerous witnesses and reviewed a voluminous record. When the plaintiff moved to compel production of the actual reports and underlying materials, the trial court initially permitted sweeping redactions that stripped away virtually all of the investigator’s factual findings. The Court of Appeal twice granted writ relief, first ordering production subject to in-camera review and then rejecting the trial court’s overly broad redactions on the second petition.

The appellate court’s reasoning rests on a straightforward fairness principle. Once an employer places the adequacy and independence of its internal investigation at the center of its defense, it cannot fairly withhold the very facts that would allow the plaintiff to test that claim. The court expressly held that factual content—witness statements, the investigator’s factual determinations about what occurred, and any information relevant to whether the investigation was thorough and impartial—must be produced. Pure legal advice, mental impressions, or unrelated protected communications may still be shielded, but the factual core of the investigation is not. Even core attorney work product loses protection when the employer voluntarily puts the protected matter at issue.

For California public safety unions, this decision represents a meaningful advance in discovery rights. Public employers routinely contract lawyers to conduct workplace investigations into member complaints of discrimination, harassment, and retaliation. Later, they seek to conceal these investigations citing attorney-client privilege while simultaneously touting that they “did everything right” and “thoroughly investigated.” Paknad makes clear that such representations come at a price.

Unions and their members now have authority supporting demands that the employer produce the actual investigative reports, interview summaries, and factual findings rather than hiding behind vague summaries or privilege assertions. The practical implications are considerable. In future litigation, counsel for public safety members should move aggressively to compel production whenever the employer pleads or argues that it conducted a proper investigation. Unions should also counsel members, during the administrative phase, to request full copies of any investigative reports generated in response to their complaints. Early reliance on an attorney-conducted investigation does not guarantee confidentiality if that investigation later becomes a centerpiece of the defense.

Conclusion

In light of Paknad, public safety unions would be well advised to treat any employer assertion regarding the quality of an internal investigation as an invitation to demand full disclosure. Paknad establishes an important principle in California employment law: an employer who voluntarily invokes the thoroughness and independence of its internal investigation as a litigation defense cannot simultaneously withhold the factual substance of that investigation behind claims of attorney-client privilege or work product protection. 

To that extent, the decision supports access to investigation materials by the employee who was the subject of the investigation—but its support is conditional, not categorical. The case does establish a freestanding right of an accused employee to access investigation materials in the pre-litigation or pre-disciplinary context. Rather, it holds that when an employer places investigation adequacy "at issue", a waiver of both attorney-client privilege and work product protection occurs, and the scope of that waiver is governed by what the employer has voluntarily put at issue. The practical result is that the employee targeted by the investigation gains access to the investigator's factual findings, credibility determinations, and other materials related to the scope and adequacy of the investigation.

The decision potentially levels the playing field by ensuring that members can effectively challenge the very investigations their employers use to justify discipline but then seek to hide behind. California public safety employees deserve nothing less than the ability to test the completeness and fairness of the processes that determine their professional futures.