Swicord v. Police Stds. Adv. Council
309 Neb. 43
| Neb. | 2021Background
- Blake Swicord, a former Georgia law‑enforcement officer terminated in Dec. 2017, moved to Nebraska; Seward County submitted a reciprocity certification application on his behalf.
- He signed a Personal Character Affidavit (required to be answered truthfully) and a notarized release authorizing NLETC to obtain records; on the affidavit he answered “No” to having ever been arrested and to inquiries about professional license investigations.
- A background check revealed a Jan. 2018 arrest for alleged battery and that the Georgia POST had voted to revoke his certification; NLETC director Urbanek denied reciprocity for falsification/omission, and Swicord’s administrative appeal was denied by the Police Standards Advisory Council, which found his explanations not credible and that he knowingly falsified answers.
- The district court affirmed the Council’s denial; Swicord appealed to the Nebraska Supreme Court, arguing (among other things) that Neb. Rev. Stat. § 29‑3523 allowed him to deny the arrest and challenging the Council’s authority to comment on his honesty.
- The Supreme Court noted Swicord’s appellate brief omitted a required assignments‑of‑error section and therefore proceeded under the plain‑error framework but ultimately affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 29‑3523 entitled Swicord to deny his prior arrest | §29‑3523(3) and (8) protect records when no charges are filed / sealed, so Swicord could lawfully deny the arrest | §29‑3523 applies to sealed/Nebr. records and does not bar disclosure here; Swicord’s notarized release authorized obtaining records | Court: No plain error; statute did not entitle Swicord to deny arrest and no evidence record was sealed; district court correct |
| Whether Swicord’s affidavit responses were insufficient to deny reciprocity | Responses were honest mistakes and based on counsel/admissible misunderstanding | Regulations permit denial for deliberate omissions/falsifications; evidence showed knowing misrepresentations | Court: No plain error; competent evidence supported finding of knowing falsification and denial justified |
| Whether the Council exceeded authority by commenting on honesty/trustworthiness | Council lacked authority to issue findings criticizing Swicord’s honesty | APA requires findings/conclusions; regulations make honesty/trustworthiness relevant to reciprocity | Court: No plain error; Council properly issued findings and could assess honesty as part of character determination |
| Procedural: Appellate brief noncompliance (assignments of error) | Headings in brief should be treated as assignments of error | Rules require a separate assignments‑of‑error section; failure justifies plain‑error review | Court: Did not treat headings as substitute; proceeded under plain‑error review and affirmed |
Key Cases Cited
- Tran v. State, 303 Neb. 1 (2019) (standard of review for judicial review under the Administrative Procedure Act)
- Estate of Schluntz v. Lower Republican NRD, 300 Neb. 582 (2018) (appellate briefing noncompliance and use of plain‑error review)
- Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916 (2021) (headings in a brief are not a substitute for a properly designated assignments‑of‑error section)
- U.S. v. Johnson, 874 F.3d 990 (7th Cir. 2017) (plain‑error review is deferential to lower‑court factual findings)