UPDATE: Patrol claims whistleblower punishment wasn’t First Amendment violation

UPDATE, 10:45 p.m.: The Missouri State Highway Patrol claims Henry was disciplined for not following patrol orders and for his “bizarre and inappropriate” conduct.

The patrol’s motion for summary judgment, filed late Friday, asks a federal judge to drop Henry’s case against eleven individual patrol members, including Col. Sandra Karsten.

The motion from Assistant Attorney General Jordan Williams said the patrol punished Henry for comments he made about Amanda Grellner in 2014. Grellner, the Osage COunty prosecutor, was the first special prosecutor handling the Brandon Ellingson drowning case. Henry, according to the motion, accused Grellner of dropping the Ellingson case as a favor for the patrol clearing her son in a juvenile rape case.

Both Grellner and Morgan County prosecutor Dustin Dunklee told the patrol they would not handle cases filed by Henry. Grellner filed a complaint against Henry based on his comments, and the patrol punished him for it by ordering him transferred out of Troop F. Williams said Henry’s speech was not protected by the First Amendment.

“The insinuation that various members of the [patrol] and a sitting prosecutor are engaged in a massive conspiracy where the [patrol] ‘owed’ a sitting prosecutor for falsely exonerating her son as a rape suspect years before is not only an outlandish and outrageous claim, but it also defames the character and reputation of the state’s highest ranking law enforcement agency, leading to a loss of public trust,” Williams wrote.

ORIGINAL: A former sergeant with the Missouri State Highway Patrol argued that denying him access to records would be a “manifest injustice” to his case.

The attorney for Randy Henry, the whistleblower and former Missouri Water Patrol member at the Lake of the Ozarks, filed a motion on Friday asking a federal judge dismiss the patrol’s request to quash a subpoena for records.

Henry sued 11 members of the patrol, including two former colonels, for allegedly retaliating against him for criticizing the patrol’s handling of 2014 drowning of Brandon Ellingson at the Lake of the Ozarks. Henry told the Missouri General Assembly that Ellingson’s death involved “reckless” and “negligent operation” on the part of the patrol, including Anthony Piercy, the trooper who arrested Ellingson and later pleaded guilty to a misdemeanor related to his death. Henry was later forced into psychiatric evaluations, demoted and ordered to work at a lake three hours from his house, which he claims was done because of his testimony.

The patrol asked Magistrate Judge Willie Epps to quash a subpoena Henry’s attorney filed on June 21, a day before the discovery deadline. The demand sought records on several topics, including conversations between a patrol captain and Morgan County prosecutor Dustin Dunklee in 2010 about rejecting cases from a different trooper. Assistant Attorney General Jordan Williams noted that June 22 was the deadline for completion of discovery, not just for sending requests.

Henry’s attorney J.C. Pleban said many of the requests were made after a deposition with Dunklee, and criticized the patrol for delaying the discovery process throughout the lawsuit. Pleban argued that the importance of the case, which features the top-ranking members of the patrol, needed a thorough review of the evidence.

“This case involves homicide by law enforcement officers, a conspiracy to cover up that homicide, contempt for the First Amendment by agents of the State, and a conspiracy to violate the First Amendment and punish the only cop who sought justice,” Pleban wrote.

Pleban did not respond to a request for comment on Friday.

The trial is set for Nov. 5 in Jefferson City.

Henry resigned from the patrol in Oct. 2015, saying he wanted “nothing to do with” the agency. His resignation came after months of trying to fight for his old rank back.

The patrol agreed to a $9 million settlement in 2016 in a wrongful death lawsuit filed by the Ellingson family. A judge dismissed civil conspiracy claims against the patrol in that case, which claimed the department tried to cover up Piercy’s actions.

Piercy continues to fight for his job back with the patrol. A Cole County judge agreed that Col. Sandra Karsten’s firing of Piercy in 2017 was unlawful. Department of Public Safety director Drew Juden heard arguments earlier this month on revoking Piercy’s peace officer license. As of Friday, Piercy still had a valid license, according to a department spokesman.

(Editor’s note, 10:45 p.m.: This story has been updated from its original version, titled ‘Former highway patrol sergeant argues for records in federal lawsuit’.)