Judge: Mo. trooper charged in man's drowning death shouldn't have been fired
A judge said the head of the Missouri Highway Patrol did not have the authority to fire trooper Anthony Piercy
By Laura Bauer And Max Londberg
The Kansas City Star
KANSAS CITY, Mo. — A Cole County judge has ruled that the head of the Missouri Highway Patrol did not have the authority to fire trooper Anthony Piercy and sent the case back to the agency for consideration of a new, lesser punishment.
In her ruling, Judge Patricia S. Joyce said state law does not allow Col. Sandra Karsten, the patrol's superintendent, to go beyond the recommendation of a disciplinary review board. That board ruled in December that Piercy should be reinstated as a trooper and moved from Troop F, where he was patrolling Lake of the Ozarks at the time of Brandon Ellingson's death.
State law "is designed to give the Superintendent maximum flexibility in suspensions of less than thirty days, fines, demotions and transfers," Joyce said in her ruling. "But it allows her to exercise the extreme remedy of removal (and suspensions greater than thirty days) only when a panel of the employee's peers finds that removal is appropriate."
The case is now sent back to the patrol to allow Karsten to decide what discipline she'll hand down, as long it is among the lesser punishments, including suspension not to exceed 30 days, a fine, demotion or transfer. The judge also wrote that Piercy deserved a new hearing to reconsider Karsten's decision to withhold his pay and benefits.
Her ruling came down Wednesday, the same day Piercy appeared before the director of the Missouri Department of Public Safety, who is deciding whether the former trooper's peace officer license should be revoked. During that hearing, Piercy and his attorney, Tim Van Ronzelen, asked that the former trooper be allowed to keep his license to be an officer.
"The whole thing just sucks," said Craig Ellingson, Brandon's father, who was "shocked and upset" by the court ruling. "If you're on the blue line team, you're safe. You can kill anyone you want. ... He gets his job back, and my son is dead."
Piercy pulled over Brandon Ellingson on May 31, 2014, on the Lake of the Ozarks for suspicion of boating while intoxicated. During the stop, Piercy handcuffed the 20-year-old Iowa man’s hands behind his back. Witnesses told authorities that the trooper then stuffed an already-buckled life vest — the wrong one for a handcuffed person — over Ellingson’s head.
After arresting Ellingson and on the way to a field office for more testing, Piercy traveled at speeds of up to 46 mph. At one point, after the boat hit a wave, Ellingson was ejected. While in the water, his improperly secured life vest soon came off. Piercy eventually jumped in to try to save him but couldn’t.
A toxicology report would later show that Ellingson’s blood-alcohol level was 0.268, more than three times the legal limit. His family thinks the test was inaccurate because Ellingson’s body wasn’t recovered from the water for more than 18 hours.
When reached Wednesday evening about the judge's decision, patrol spokesman John Hotz said, "We are reviewing the ruling and evaluating next steps."
Van Ronzelen, Piercy's attorney, said he didn't wish to comment at this time but sent a copy of the ruling.
Nearly four months after Ellingson drowned, a coroner’s inquest determined the death was accidental and the special prosecutor assigned then to the case declined to file charges. During the inquest, Piercy, a veteran road trooper who was helping out on the water, told jurors that he wasn’t trained for what he encountered that May day.
In December 2015, a special prosecutor charged the trooper with involuntary manslaughter, and Piercy was put on unpaid administrative leave.
Late the next year, the Ellingson family received a $9 million settlement from the state and earlier won a lawsuit over records. A judge in that case ruled that the patrol knowingly and purposely violated the Sunshine Law by not handing over some information or delaying the release of other documents.
Avoiding a jury trial on involuntary manslaughter, Piercy pleaded guilty in June 2017 to misdemeanor negligent operation of a vessel. In September, Judge Roger Prokes sentenced Piercy to 10 days of shock time in the Morgan County jail and two years of supervised probation. Prokes also ordered him to complete 50 hours of community service
A patrol review board concluded three months later that Piercy violated patrol policies and that his actions deserved punishment. That panel decided on Dec. 11 that Piercy should be reinstated to active duty and be transferred from his current troop assignment at the lake, according to a lawsuit filed by Piercy earlier this year.
Karsten informed Craig Ellingson about the board's decision, and her final ruling, in a mid-December email.
“The board concluded that Trooper Piercy violated the policies of the Missouri State Highway Patrol, and that his actions warranted discipline,” Karsten wrote in her email to Ellingson. “The final decision regarding discipline of Patrol employees rests with me.
“Therefore, I am informing you Trooper Piercy’s employment with the Missouri State Highway Patrol was terminated effective December 15, 2017.”
Yet Joyce's ruling said Karsten didn't have that authority.
It is unclear what happens now, with the director of the Department for Public Safety beginning his review of the case. After Wednesday's hearing about Piercy's peace officer license, Craig Ellingson gave director Drew Juden two large binders full of depositions that were taken in his son's civil case.
Juden said he planned to read those depositions and take all the information into consideration when he makes his decision. He could decide to revoke the license, suspend it or deem no discipline is warranted.
Before Ellingson went back to his home in Clive, Iowa, on Wednesday, he got the chance to speak directly to Piercy during the hearing.
"You change your story all the time," Ellingson said. "You're not the victim. My son is the victim, OK?"
©2018 The Kansas City Star (Kansas City, Mo.)