Missouri

Ozarks drowning case whistleblower says Highway Patrol wanted him to lie

In a lawsuit filed Thursday in federal court, Randy Henry contends his demotion and reassignment by the Missouri Highway Patrol was in retaliation for his whistleblower actions after the drowning of Brandon Ellingson in May 2014. Henry (left) is shown testifying before a special Missouri House committee in October 2014.
In a lawsuit filed Thursday in federal court, Randy Henry contends his demotion and reassignment by the Missouri Highway Patrol was in retaliation for his whistleblower actions after the drowning of Brandon Ellingson in May 2014. Henry (left) is shown testifying before a special Missouri House committee in October 2014. kmyers@kcstar.com

The retired sergeant who spoke out after the drowning of a handcuffed Iowa man is suing three Missouri Highway Patrol officials, alleging that they violated his First Amendment rights and conspired against him.

In the lawsuit, filed Thursday in federal court, Randy Henry said the actions of Col. Bret Johnson and two others at the patrol — Capt. Corey Shoeneberg and Cpl. Stacey Mosher — forced him to retire early from the patrol after nearly three decades of service.

Shoeneberg headed a professional standards investigation against Henry. Mosher provided false statements during that probe, Henry’s lawsuit contends.

Henry was eventually moved from Lake of the Ozarks to Truman Lake and demoted to corporal. He left the patrol before that demotion took effect.

“They forced me to retire by moving me,” Henry told The Star on Thursday. “I basically lost all supervisory roles I had. I was treated like a first-year recruit. … I feel like I was retaliated against for doing the right thing.”

Lt. Paul Reinsch, a patrol spokesman, said the agency does not comment on pending litigation.

Henry was heading into his 30th summer on Lake of the Ozarks on May 31, 2014, when Brandon Ellingson drowned in the custody of Trooper Anthony Piercy. Piercy had arrested Ellingson, 20, on suspicion of boating while intoxicated and was transporting him to a field office for a sobriety test. The trooper traveled at speeds up to 43 mph in the moments before Ellingson ended up in the water.

Ellingson’s life vest, which witnesses said Piercy had failed to secure properly, came off and Ellingson drowned.

Special prosecuting attorney William Seay has charged Missouri Highway Patrol trooper Anthony Piercy with the class C felony of involuntary manslaughter in the death of Brandon Ellingson. The charge was filed in the Morgan County Justice Center in

In the days after Ellingson’s death, Henry told investigators what Piercy had told him in a phone call the night of the drowning.

Piercy’s account to investigators, however, was different, and so was his testimony during a coroner’s inquest. According to the lawsuit, when Henry relayed to investigators what Piercy had told him, Henry was told not to prepare a report.

“… Henry believed that the (patrol) intended to cover up the facts and circumstances of the Ellingson drowning to protect itself from civil liability and Piercy from criminal liability,” the lawsuit reads. “After the inquest, he began speaking as a private citizen about this matter of public concern.”

Henry eventually testified twice in front of a legislative committee about minimal trooper training after the Water Patrol merged into the Highway Patrol in 2011. Before one of those hearings, Henry met with top patrol commanders and Tracy McGinnis, general counsel for the Department of Public Safety.

In his lawsuit, Henry said McGinnis told officers, including himself, to tell committee members that training had been sufficient before the drowning. Henry said he refused and said he “wasn’t going to lie for anyone.”

McGinnis, according to the lawsuit, then said: “As long as you are wearing that uniform, you’ll testify the way you are told.”

After that day, Henry said, he knew the patrol would lash out at him.

“I knew that I was going to be subject to hostile acts toward me,” Henry told The Star.

During the spring of 2015, as Henry continued to be outspoken about the Ellingson case, the sergeant was ordered to undergo a psychological exam. No cause for concern was noted. Henry was sent for a second exam. Again, no concern.

“Upon information and belief, this action was taken as a pre-emptive measure to discredit Henry, whom the (patrol) knew was likely to be called as a witness for the Ellingson family at any trial, which would likely expose the State and the defendants named in the Ellingson lawsuit to substantial liability,” Henry’s lawsuit said. “This action was also taken to intimidate Henry into being quiet ... so as to cover-up the truth about the Ellingson drowning that Henry was attempting to expose.”

J.C. Pleban, who represents Henry, said his client was a whistleblower who played a vital role in the public’s knowing what happened to Ellingson.

“If he hadn’t stepped forward, who knows if the truth would have ever come to light,” Pleban said. “And after he brought it to light, he was the one who was punished.”

According to Henry’s lawsuit, attorneys for the Ellingson family deposed the sergeant in early June 2015 for their civil lawsuit against the patrol, several commanders and Piercy. Henry’s testimony included statements that an investigator intentionally and deliberately excluded information from his investigative report that Henry provided and that Henry was not called to testify at the coroner’s inquest because he would “muddy the waters.”

Five days after the deposition, Henry was notified that the formal internal charges had been filed against him, with the recommendation that the complaint filed by the case’s special prosecutor be substantiated and he be demoted to corporal. That’s when he was told he would be transferred.

“He would have had to uproot everything. … He still had a son in high school,” Pleban said. “What sort of lesson is that for kids? If you tell the truth, something bad will happen to you?”

Henry said he thinks the patrol didn’t want certain information to come out, especially regarding the training of troopers after the patrol merger.

“They didn’t want it to be shown how sloppy it was,” Henry said. “The main reason I did it was for the family. The family deserves to know what happened to their son.”

Two Missouri troopers set out to re-create the ride and conditions on Trooper Anthony Piercy's boat. This run reaches average speeds of 38 to 40 mph. Piercy was going 39.1 to 43.7 mph just before Brandon Ellingson left the boat and drowned May 31.

Laura Bauer: 816-234-4944, @kclaurab

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