Robert Henderson was a trooper for the Nebraska State Patrol with 18 years of experience. In August 2005, the Patrol received a complaint that Henderson was harassing a black man who was employed as a news anchor for a local television station. Henderson had issued the newscaster a warning for residing in Nebraska for more than 30 days without registering his vehicle. After conducting an investigation, including a review of the in-car video of the stop, the Patrol determined that Henderson had committed no misconduct.
Two months later, the Patrol learned that Henderson had become a member of and participant in a website affiliated with the Ku Klux Klan, and used the pseudonym “White Knight in NE.” Among Henderson’s postings on the web page were the following: A statement that whites were “loosing their rights slowly”; a description of the encounter with the newscaster, and a later statement that he needed “other Klansmen and Klanswomen in my area,” but would have to “be discreet because of my job: i.e., law enforcement.”
After a lengthy investigation that included a “sting” operation designed to draw Henderson out, the Patrol fired Henderson for his association with the Ku Klux Klan. Henderson’s labor organization, the State Law Enforcement Bargaining Council, challenged his termination in arbitration.
An arbitrator ordered Henderson reinstated with back pay. The Arbitrator made it clear how he felt about Henderson’s membership in the Ku Klux Klan: “Distrust, fear, or apprehension that citizens who are members of groups traditionally victimized by various factions of the KKK would feel when pulled over for a traffic stop (or otherwise detained) by a member of a police agency that is known to have employed, or to employ a member (or former member) of the KKK. That said, and personal revulsion aside, the disgust that the Nebraska State Patrol command staff has expressed regarding the Grievant’s decision to align himself with the Ku Klux Klan, through his Knights Party.com membership, is shared by the Arbitrator.”
The Arbitrator also found that the Patrol was unable to point to “a single instance on the job – or for that matter at any time, including his off-duty hours – where Henderson’s actions exhibited any hatred, anger, disgust, or discrimination towards any minority group. In short, the Department discharged Henderson because of his beliefs and because he sought out others who shared his beliefs.”
The Arbitrator found that Henderson’s beliefs were protected by the First Amendment to the Constitution, and that the Patrol was required to show that Henderson’s speech disrupted its operations before it could discipline him. It was this burden of proof that the Arbitrator found the Patrol failed to meet:
“It is very likely that, under Pickering, Connick, and the other related decisions of the United States Supreme Court, the State Patrol could have successfully defended the constitutionality of its decision to terminate the Grievant by either showing some actual harm to its ability to maintain discipline and good order within the ranks, or by showing some actual diminution in the State Patrol’s ability to perform its police function.
“That said, the State Patrol bore the burden of showing such disruptions, and the Patrol failed to meet this burden. In the final analysis, all that the agency presented to the Arbitrator was surmise and speculation that some operational or community-relations harm could occur; this was precious little upon which to hang the ‘hat’ of deciding to terminate the Grievant.”
State Law Enforcement Bargaining Council and State of Nebraska (Caffera, 2006)(unreported opinion; copies available from LRIS).
This article appears in the October 2006 issue