Trooper training criticized following the Lake of the Ozarks death of Brandon Ellingson

“The unification of the Water Patrol and the Highway Patrol really is about rethinking the way state government works to make it more efficient, more responsive and more responsible to the taxpayers of Missouri,” Gov. Jay Nixon (right, holding bar) said in June 2010. But Water Patrol authorities had concerns.
“The unification of the Water Patrol and the Highway Patrol really is about rethinking the way state government works to make it more efficient, more responsive and more responsible to the taxpayers of Missouri,” Gov. Jay Nixon (right, holding bar) said in June 2010. But Water Patrol authorities had concerns. The Associated Press

Even before divers recovered a handcuffed man’s body from the bottom of the Lake of the Ozarks, some retired Water Patrol veterans already suspected what had gone wrong.

The problem, they thought, came down to two issues: training and experience.

Trooper Anthony Piercy, who arrested 20-year-old Iowan Brandon Ellingson and placed him in handcuffs minutes before he drowned, lacked enough of both on the water, they say. As evidence, they point to his use of the wrong type of life jacket for a handcuffed suspect; how he seemed, according to witnesses, to rush the arrest after one of Ellingson’s friends jumped in the water; and his reported high rate of speed for water conditions on a busy Saturday afternoon at the start of the peak boating season.

Those questions linger, but veterans say the problem isn’t limited to one trooper on one shift. Instead, they say, it’s been an issue for law enforcement on Missouri waterways since shortly after the state Water Patrol merged into the Highway Patrol early in 2011.

After the merger, troopers assigned or transferred to the water full time received less field training than Water Patrol recruits did before the merger. Officers assigned to the water part time — troopers such as Piercy who primarily work Missouri’s roadways — are required to have just a fraction of the field training.

“You just cannot bring somebody out here who doesn’t know the lake and expect them to perform like they should because there are too many things going on that have to mesh,” said Bill Swineburg, a Water Patrol captain who oversaw law enforcement on the Lake of the Ozarks for 15 years in the 1980s and ’90s before retiring in 2001. “This was about lack of training. … I can’t get over the patrol’s attitude on this.”

Piercy, 43, an 18-year veteran of the Highway Patrol, began receiving his training to work the water in March 2013. He has not commented on the drowning or investigation, and the Highway Patrol has referred questions for him to the attorney general’s office.

For months, the Highway Patrol has been silent on what exactly took place May 31. Records officials have delayed numerous requests from The Star; others wouldn’t talk about the training Piercy received before working the lake or provide more details on what led to Ellingson’s drowning near the 3.5-mile marker on the Gravois Arm. The patrol’s initial online report said Ellingson stood, stepped to the right side of the boat “and fell or jumped overboard.”

Late last week, the agency released more than 50 pages of reports and records to The Star. They provide parts of Piercy’s account from that day, his notes from sobriety tests he gave Ellingson and a boating accident report that states in one section that Ellingson “leaves vessel voluntarily.”

And although Piercy’s boat was equipped with multiple cameras that are supposed to record arrests, patrol officials said late last week that no video footage exists.

Details about the life vest that Piercy put on Ellingson, as well as the actions of both men that day, likely will come out this week during a coroner’s inquest in Versailles, Mo. On Thursday, six jurors will be asked to determine the manner in which the young man from Clive, Iowa, died. Was it an accident? Was negligence involved?

Morgan County coroner M.B. Jones wouldn’t talk last week about specifics of the case. But he did say jurors will likely hear more about the patrol’s protocols and procedures — information the state has declined to share during its investigation.

“That boy shouldn’t have died,” Jones said last week. “We can’t bring him back, but maybe we can make changes.”

Craig Ellingson, Brandon’s father, said he hadn’t heard from anyone from the patrol since May 31, the day his son drowned about 5:30 p.m. His body wasn’t recovered until the next day, about 18 hours later. On Friday, the father and his attorneys received the patrol’s final report, which they are still going through.

The last image Craig Ellingson has of his son is a photograph taken by a friend during his arrest on suspicion of boating while intoxicated. It shows him sitting in the back of Piercy’s patrol boat, his hands in his lap. Within minutes, Ellingson’s only son lay lifeless, his hands cuffed behind him, on the lake bed under 69 feet of water.

“That picture haunts me,” the father told The Star late last week. “(Piercy) was supposed to be taking care of my pride and joy. That’s what we pay him for, to serve and protect. And he didn’t do the basics. He wasn’t trained. He wasn’t properly trained at all.”

Merger concerns

Four years ago, Gov. Jay Nixon heralded the merger of the two patrols as a win for the state.

The governor said it would save money and increase efficiency. Officers assigned to water patrol could help on the highways during winter months, and road troopers would pitch in on the state’s lakes and rivers during peak boating seasons.

“The unification of the Water Patrol and the Highway Patrol really is about rethinking the way state government works to make it more efficient, more responsive and more responsible to the taxpayers of Missouri,” Nixon said when he signed the bill in June 2010.

Water Patrol authorities, however, had concerns. Some kept them private, afraid they would suffer retaliation if they sent them up the chain of command. Others were vocal, concerned about officer training and making sure the goals and mission of the Water Patrol were preserved.

“Just to put a highway patrolman in a boat that drives differently from a car, that’s looking for some trouble,” former Water Patrol commissioner Rad Talburt was quoted as saying before the merger.

Contacted last week, Talburt declined to comment.

Swineburg had long since retired from the patrol when the merger occurred. But he told officers still on the patrol that everything would work out. He thought the merger could be good for the state.

“I was like, ‘Look, boys, it will be done right,’” Swineburg said, recalling what he told Water Patrol officers in 2010 and 2011. “I was wrong.”

After the merger, retired Water Patrol veterans say, Highway Patrol officials made decisions on water operations without giving enough weight to input from commanders with decades of water experience. Veterans thought the Highway Patrol didn’t take water enforcement seriously. And when it came time to cross-train troopers, the amount of schooling and field training wasn’t enough.

Patrolling on water is vastly different than on land, retired Water Patrol officials say.

“If you have a wreck on the water, the ambulance isn’t going to pull right up beside you,” said Jody Hughes, a former major with 30 years of experience on the Water Patrol who retired in 2012. “Neither is the fire department. You’re going to be out here battling boat waves. There’s no ground to stand on. No flat ground.

“It’s different, and until you’ve actually worked it or been involved with it, it would be difficult to understand.”

Longtime Water Patrol officers were aware of the dangers patrolling from a boat, Swineburg said. Cars have headlights but boats don’t, he said.

“Officers have to know the water like it’s their house,” Swineburg said. “If you turn out the lights, you have to be able to get to the kitchen.”

Sources familiar with patrol protocol and practice say that before the merger, Water Patrol recruits received at least two months of field training. After the merger, full-time water patrol officers received up to six weeks of field training, while part-time officers on the water — like Piercy — received just days.

“I really didn’t think they would give them much training,” said a retired veteran Water Patrol officer who didn’t want to use his name for fear of reprisal by the patrol. “But I thought they would give them more than they are now. … Until they improve that, they’re putting their officers and other people in danger.”

Water patrol officers who work part time on highways receive more field training to work the road, but not as much as they should, sources said.

The merger put all troopers in a tough spot, Hughes said.

“We’re professionals,” he said. “But it’s hard to be a professional when you don’t do your career full time. …

“If you want to be proficient or professional at what you do, you have to do one or the other full time.”

After Ellingson’s death, sources familiar with the patrol say, officials pulled road troopers from solo patrols on the Lake of the Ozarks. If highway troopers are assigned to the lake now, they must be with a full-time water patrol officer, multiple sources said.

When asked to confirm this change, patrol officials did not respond. Neither did the governor’s office when asked about the move.

The Star last week sent questions for the governor about the drowning and its aftermath to his spokesman, Scott Holste. Among them: Was Nixon involved in the summer decision to no longer allow troopers assigned part time on the lake to do solo patrols?

Holste replied in an email: “We’re not going to have anything for you on this.”

Troopers’ reports

The reports the Highway Patrol provided late last week offer its fullest accounting yet of the initial boat stop and arrest just after 5 p.m. May 31.

In a seven-page marine alcohol influence report, Piercy checked boxes detailing Ellingson’s appearance and demeanor. He wrote more than a page outlining why he says he stopped his boat, describing the multiple sobriety tests he gave Ellingson and explaining how one of the young man’s friends jumped into the water during the arrest.

Piercy wrote that Ellingson had admitted to drinking, had a strong odor of alcohol, was sweating and had bloodshot, glassy eyes. During one test, the trooper asked Ellingson to recite the alphabet. He said the young man stopped at F and then restarted, “only to jumble and miss multiple letters.” He said Ellingson slurred his speech and “drooled on himself while speaking.”

The Arizona State University student was cooperative, Piercy said.

In a story last weekend, The Star described the arrest and chain of events though the eyes of Ellingson’s friends, who were spending the weekend with him at his family’s lake house. Seven high school buddies were with Ellingson, and six of them conducted taped interview with patrol investigators. The newspaper obtained those interviews from an attorney for the Ellingson family.

Piercy wrote in his report that he first noticed Ellingson’s boat didn’t have a visible registration number and then he saw an occupant toss a Bud Light can into the water.

The trooper stopped the boat and asked Ellingson for his identification. Ellingson first showed the trooper his Missouri boater certification card, but when Piercy pointed out the date of birth had been scratched from the card, Ellingson handed him a passport photocopy, the trooper’s report said.

After Ellingson was aboard Piercy’s boat, the friends said, the trooper became agitated when one of the friends jumped in the water to throw a card to Ellingson detailing a person’s rights when stopped by police for an alcohol-related incident.

Piercy addressed that card in his report.

“It should be noted, as I was performing the sobriety tests and securing Ellingson in handcuffs, the other individuals on Ellingson’s vessel were yelling toward my patrol boat,” Piercy wrote. “One of the individuals on Ellingson’s vessel jumped into the water and began swimming toward my boat. I yelled for the subject to stop and not to approach my boat.”

The trooper used roughly 400 words to describe the three sobriety tests and portable breath test.

Friends told investigators they only saw Piercy conduct an eye test on Ellingson. They also indicated that they did not see the trooper conduct a portable breath test.

Little is mentioned in the reports about the life vest Piercy grabbed and put on the young Iowa man after he was handcuffed.

Experts have said the Type III vest Piercy grabbed cannot be effectively used on an already handcuffed suspect because his arms cannot be placed through the arm holes. Witnesses said the vest came off Ellingson soon after he entered the water.

In that last picture taken of Ellingson, as he sat in the back of the patrol boat, a Type I flotation device can be seen hanging on the inside of the boat, not far from the young man. According to sources familiar with patrol protocol, experienced troopers on the lake know to use Type I devices on handcuffed subjects. They have straps that go around the torso and allow for handcuffs. They also are highly buoyant and will turn someone who is unconscious face up in the water.

Piercy wrote briefly about the flotation device he put on Ellingson:

“I reached into the overhead compartment of my patrol boat and retrieved a life jacket. I fastened the life jacket around Ellingson with the jacket straps, tightened the straps to secure it and had Ellingson sit in the seat next to me for transporting.”

In contrast, friends told investigators they saw the trooper grab an already buckled Type III for Ellingson. They said they watched as Piercy tugged on the vest, struggling to work it over Ellingson’s muscular build.

“He tried to pull (it) over his shoulders … and was having a very hard time doing so,” Ellingson’s friend Myles Goertz told patrol investigators. “… It clearly was not the proper way to wear a life jacket. It was not how the life jacket was designed to be worn.”

Another friend said the trooper put the buckled vest over Ellingson’s head and didn’t have it fully on him.

“He didn’t tighten it, didn’t loosen it,” said friend Brody Baumann. “He didn’t do anything.”

Piercy asked whether any of the friends was sober and could operate Ellingson’s boat, they said. One of them said he could. But, the friends said, Piercy failed to check that young man for intoxication.

Retired veteran water officers say it was their standard procedure to field-test a new operator for sobriety before releasing the boat.

The friends said they could see the life vest encasing Ellingson’s upper torso, with its top buckle touching his chin, when the trooper “sped away” with him.

Ellingson family attorney Matt Boles of Des Moines said a preliminary investigation indicates Piercy was traveling in excess of 40 mph.

“When you are dealing with factors such as a high chop and powerful boat at that speed,” Boles said, “with a handcuffed person … that’s a recipe for disaster.”

Excessive speed, however, was not mentioned in Piercy’s report or in the four-page marine accident investigation report filled out by Cpl. David Echternacht.

Piercy doesn’t address speed. Echternacht’s report says the operator’s estimated speed was 10 mph and classified the water as “choppy,” with waves between 6 inches and 2 feet.

The only mention of the period right before Ellingson hit the water comes from Echternacht’s accident report:

“Operator 1 (Piercy) was driving vessel 1 downstream at the 3.5 mile mark of the Gravois Arm, Lake of the Ozarks. Operator 1 slowed for a large boat wake produced by an unidentified vessel(s). Operator 1 navigated the boat over the top of the wave,” Echternacht wrote.

He went on: “At the bottom of the wave, passenger 2 (Ellingson) stood up from the passenger seat. Passenger 2 turned to the starboard side of the vessel and took a step toward the starboard of the vessel. Passenger 2 toppled over the side of the boat and entered the water.”

The corporal said Piercy tried to grab hold of Ellingson’s feet but was unable to prevent the young man from entering the water. Once Ellingson was in the water, the trooper turned the steering wheel to the right and turned off the engines to prevent the boat from striking Ellingson, Echternacht wrote.

“Passenger 2 floated at the surface in the personal flotation device. (Piercy) restarted vessel 1, and drove to the area of passenger 2. Passenger 2 became separated from the personal flotation device and submerged.”

The report doesn’t address witness accounts that the trooper initially used a pole to try to grab Ellingson. It does state that Piercy dove in but was unable to bring Ellingson to the surface.

The corporal’s one-sentence conclusion:

“Passenger 2 failed to remain seated and secure in vessel 1.”

Inquest on Thursday

Craig Ellingson spoke to his son the morning before he died. The next day, the young man and his friends planned to be back in the West Des Moines area.

“He was having fun with his friends,” Ellingson said. “… I told him I loved him.”

Brandon’s father doesn’t believe the patrol’s assertion, which is described in the boating accident report, that his son may have voluntarily left the boat. The father plans to go to the coroner’s inquest, which is open to the public, Thursday in the Morgan County justice center in Versailles.

He wants to hear what jurors hear and listen to what they decide.

“I know my son wouldn’t jump,” Ellingson said. “He was going to Europe, never been in trouble. He was on academic scholarship to ASU. He had everything to live for.

“These jurors, they need to put themselves in my place. Would they want their son put in a boat like that, be treated like that? Brandon didn’t have a chance.”

Inquests are uncommon. Coroners use them in cases, often of high community interest, in which the manner of death is questionable. The prosecutor takes the panel’s recommendation under advisement when deciding whether charges should be filed but does not have to follow it.

Jones, the Morgan County coroner, said six jurors and one alternate were chosen more than a week ago. Jurors were chosen at random from a group of names pulled from across the county. Four towns are represented, he said.

The intent with this inquest is to allow an independent review of the Ellingson case, Jones said. Among the issues likely to be addressed are the type of life vest used and how it was put on and why.

Jones plans to call four witnesses and provide the panel details from the patrol’s investigation.

Many in the county know Piercy, who has been on the school board of the Morgan County R-II district since 2012. Some have described him as an exceptional road officer. Jones said he has talked with three of the jurors and asked whether they have any preconceived notion of what happened on May 31. All said no, he said.

“We’re trying to keep it as objective as we can,” Jones said. “I don’t know how we can make it any more objective.”

To reach Laura Bauer, call 816-234-4944 or send email to lbauer@kcstar.com.

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