Swicord v. Police Stds. Adv. Council
958 N.W.2d 388
| Neb. | 2021Background
- Blake Swicord, a former Georgia law‑enforcement officer whose Georgia State Patrol employment was terminated, moved to Nebraska and sought reciprocity certification through NLETC.
- He submitted a Personal Character Affidavit answering “No” to questions about prior arrests and investigations of professional licenses/certifications, and signed a notarized release authorizing disclosure of arrest and certification records.
- NLETC director Urbanek denied reciprocity after learning Swicord had been arrested in Georgia for suspected battery and that the Georgia POST had voted to revoke his certification; Swicord failed to disclose these matters on the affidavit.
- Swicord’s administrative appeal to the Police Standards Advisory Council resulted in a unanimous decision finding he knowingly made false statements and omissions; the Council concluded he was not truthful or trustworthy.
- The Hall County District Court affirmed the Council’s denial; Swicord appealed to the Nebraska Supreme Court but his initial brief lacked a proper assignments‑of‑error section, so the Court reviewed for plain error and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Neb. Rev. Stat. § 29‑3523 entitled Swicord to deny a prior arrest | §29‑3523 (records not charged/sealed) allowed him to truthfully deny the arrest | §29‑3523 doesn’t apply to Georgia records here; even if it did, notarized release and no showing of sealed record defeat the claim | Court: No plain error; §29‑3523 did not entitle him to deny the arrest |
| Whether affidavit answers were innocent mistakes vs. deliberate falsifications justifying denial | Swicord relied on attorney advice and believed “certification” ≠ “license”; answers were honest errors | Regulations require disclosure; record shows inconsistent explanations and evidence supports knowing falsifications | Court: Competent evidence supported finding of knowing misrepresentations; denial upheld |
| Whether the Council exceeded authority by commenting on honesty/trustworthiness | Council lacked authority to make character judgments / issue such written statements | APA requires findings/conclusions; regulations make honesty/trustworthiness relevant to reciprocity | Court: No plain error; Council had authority and comments were appropriate |
| Whether appellant’s briefing defect (no assignments of error) precludes review | Headings in brief should be treated as assignments of error | Rules require a separately designated assignments section; headings are insufficient; Court may review for plain error | Court: Refused to treat headings as assignments; reviewed for plain error and found none |
Key Cases Cited
- Tran v. State, 303 Neb. 1, 926 N.W.2d 641 (standard of review for judicial review under the Administrative Procedure Act)
- Estate of Schluntz v. Lower Republican NRD, 300 Neb. 582, 915 N.W.2d 427 (failure to comply with briefing rules may trigger plain‑error review and definition of plain error)
- Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916 (headings are not a substitute for properly designated assignments of error)
- U.S. v. Johnson, 874 F.3d 990 (7th Cir. 2017) (plain‑error standard is deferential to the factfinder/district court)