LINCOLN, Neb. – Attorneys for a former state trooper who joined a group affiliated with the Ku Klux Klan argued Tuesday before the state Supreme Court that he was wrongly fired by the state.
In briefs filed with the state Supreme Court, the attorney for former trooper Robert Henderson says his client's free speech rights were trampled and that Henderson didn't violate a specific state policy because he never treated anyone differently based on race.
But an attorney in state Attorney General Jon Bruning's office argues that Henderson's previous ties with the KKK is a clear breach of a policy: that officers be impartial enforcers of the law and encourage public confidence.
"Employing as a state law enforcement officer someone who espouses a personal conviction that race makes a difference in how people should be treated, and who aligns himself with ... the KKK cannot, under any circumstances, be consistent with public policy ... to encourage public confidence in our law enforcement officers and treat all citizens equally," Assistant Attorney General Tom Stine says in written arguments to the state high court.
After oral arguments Tuesday, Bruning said, "A man who embraces racism and white supremacy shouldn't be allowed to carry a gun and a badge."
The court is expected to offer the final word in the topsy-turvy case.
Henderson was fired from the force, then ordered by an arbitrator to be reinstated as an officer, only to have the reinstatement overturned by a Lancaster County District Court judge.
Henderson was dismissed in early 2006 after patrol officials discovered he had joined a racist group and posted messages on its Web site.
Henderson, who was a patrolman for 18 years, told an investigator he joined the Knights Party in June 2004 to vent his frustrations about his separation with his wife. She left him for a Hispanic man.
Henderson posted four messages to the Knights' Web site, according to the investigator's report. The group has described itself as the most active Klan organization in the United States.
Arbitrator Paul J. Caffera from New York later overturned Henderson's firing. He said Henderson was entitled to his First Amendment rights of free speech and that the state violated the state troopers' contract, in part when it fired Henderson "because of his association with the Knights Party ... and the Ku Klux Klan."
Caffera ordered the patrol to reinstate Henderson within 60 days and pay him his back wages.
Bruning's office appealed that decision and won in Lancaster County District Court. A judge said Henderson violated the state's public policy against discrimination.
Henderson then appealed that decision.
His attorney argues that there is no evidence Henderson committed "actual acts" of racial discrimination. The attorney, Vincent Valentino, says in written arguments that Henderson has never been accused of any such act and that data on who he stopped while working indicates he did not engage in racial profiling.
Valentino goes on to argue that the public policy the district court pointed to when reversing the arbitrator's ruling was "judicially created."
"Since ... Henderson has never deprived anyone of any right, privilege, liberty, property or employment because of race, he has not violated the public policy identified by the district court," Valentino says in his written argument.
"Henderson was fired for exercising his constitutional and statutory rights to free speech and free political affiliation, and not for violating clear and explicit Nebraska public policy," Valentino goes on to argue.
The International Union of Police Associations submitted briefs to the court backing Henderson, and the Anti-Defamation League submitted briefs urging the court to sustain the district court's decision.
The state Police Standards Advisory Council will wait until after a ruling from the state Supreme Court before holding a hearing on whether to revoke Henderson's certification to be a law enforcement officer.