Appeals court rules patrol had no authority to fire trooper in Ozarks drowning case

Craig Ellingson gave little doubt Wednesday morning that he was frustrated after the latest court ruling related to his son’s death more than five years ago.

The Missouri Court of Appeals Western District sided with a lower court and ruled Tuesday that the Missouri Highway Patrol did not have the legal authority in late 2017 to fire former Trooper Anthony Piercy. The ruling stated that the patrol’s superintendent overreached when she handed down a stricter discipline than an internal board recommended.

Regardless of the ruling, Piercy still can’t be a trooper again unless he gets back his law enforcement license, which was revoked for a second time earlier this summer. Piercy was disciplined for his actions in May 2014 when Brandon Ellingson drowned in the Lake of the Ozarks while in handcuffs.

“He would have his job back today if I didn’t go after his license,” said Ellingson, who lives in Clive, Iowa. “It’s just a scam. The patrol knew the law, they have attorneys. (The superintendent) knew that she couldn’t fire Piercy. … They didn’t know I was going to go after his license.”

Piercy has appealed that second license revocation so his future is still unclear. A hearing regarding that appeal is scheduled for early next month, Ellingson said.

“You have to have a license to get hired back,” Ellingson said. “For now, I just think he’s going for back pay, that’s what it looks like to me.”

A call to the Highway Patrol was not immediately returned.

In an email, Timothy Van Ronzelen, Piercy’s attorney, said the decision “confirms our long-standing position that the colonel of the Highway Patrol cannot terminate a trooper unless a procedural hearing board first recommends terminations as an appropriate consequence.

“This decision affirms the protections the Missouri legislature has afforded troopers.”

In the Piercy case, Van Ronzelen said, the board unanimously ruled that termination wasn’t appropriate.

“The underlying circumstances leading to Piercy’s termination grew from a tragic situation that continues to weigh heavily on all those involved,” he wrote. “It is my hope that this decision leads to a speedy resolution of all litigation related to the Highway Patrol’s unlawful termination of Tony Piercy.”

Van Ronzelen told the Jefferson City News Tribune that he plans to go back to the initial judge, Patricia S. Joyce, and ask her to make a decision on lost wages and benefits for the former trooper.

Piercy pulled over Brandon Ellingson, 20, on May 31, 2014, on suspicion of boating while intoxicated. During the stop, Piercy handcuffed the Iowa man’s hands behind his back. Witnesses told authorities that the trooper then put an already-buckled life vest — the wrong one for a handcuffed person — over Ellingson’s head.

On the way to a field office for more testing, Piercy traveled at speeds up to 46 mph. At one point, after the boat hit a wave, Ellingson was ejected. His improperly secured life vest soon came off. Piercy eventually jumped into the lake to try to save him but couldn’t.

Though a coroner’s inquest ruled Ellingson’s death an accident in September 2014, a special prosecutor charged Piercy with involuntary manslaughter in December 2015, and the patrol put the trooper on leave without pay. Piercy later pleaded guilty to a lesser charge.

Piercy was sentenced for misdemeanor negligent operation of a vessel in September 2017. And in December of that year he was fired.

PIERCY 20180627 KAM 027F
At a recent hearing, former Missouri Highway Patrol trooper Anthony Piercy recounted details of the day in 2014 when Brandon Ellingson drowned while in his custody. Keith Myers The Kansas City Star

At that time, the leader of the patrol wrote to Ellingson about her decision.

“The board concluded that Trooper Piercy violated the policies of the Missouri State Highway Patrol, and that his actions warranted discipline,” Col. Sandra K. 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.”

The internal board had recommended that Piercy be reinstated to active duty and be transferred out of Troop F, which includes the Lake of the Ozarks.

In Tuesday’s court of appeals ruling affirming a lower court’s decision, Judge Gary D. Witt wrote that the patrol leader doesn’t have that authority to go beyond the recommendation.

“The Superintendent lacked the statutory authority to order Piercy dismissed where dismissal was not recommended by the Board,” the ruling read. “And the circuit court did not err in so finding.”

The case was sent back to the patrol to “allow the Superintendent to determine the proper discipline to impose consistent with the Judgment.”

It isn’t clear what the patrol will do and when, and what it would mean because Piercy’s state license is still revoked.

Karsten is no longer with the patrol. She’s now director of the Missouri Department of Public Safety.

Ellingson had pushed in 2017 for Piercy to lose his Peace Officer Standards and Training license for life. Ellingson said he didn’t believe 10 days in the county jail, two years of supervised probation and 50 hours of community service were enough punishment for the trooper.

Piercy had appealed last summer’s decision revoking his license. In May, a Cole County circuit judge ruled in Piercy’s favor, sending the decision back to the department of public safety.

In mid-June, the deputy director of that agency issued his ruling, again revoking Piercy’s license to be an officer in Missouri.

“In addition to violating Missouri law, Mr. Piercy’s actions violated the policies of his commissioning agency,” wrote deputy director Kenny Jones. “... An individual in custody is entitled to safe treatment from his arresting officer.”

Ellingson said he was warned by the Missouri Attorney General’s Office that Piercy would likely appeal.

In that appeal filed in late June, Piercy said that he hasn’t been given due process and was treated more harshly than other officers. He filed a petition in Cole County Court asking for a hearing in which the judge “hears and considers evidence” and “renders a decision in his favor.”

The former trooper has asked that his attorneys’ fees and court costs be paid for by the Department of Public Safety and “for such other relief as the Court shall order.”

Next month’s hearing regarding Piercy’s appeal could provide more clarity. Presiding over that appeal on the revocation is Cole County Judge Patricia S. Joyce, who issued the initial ruling in June 2018 stating that the patrol superintendent didn’t have the authority to fire Piercy.

Ellingson said he thinks another judge, one who hasn’t been involved in any proceedings, should have been appointed.

“She shouldn’t be presiding over this case,” Ellingson said. “She has a conflict of interest. She ruled on the firing.”

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Laura Bauer came to The Star in 2005 after spending much of her life in southwest Missouri. She’s a member of the investigative team focusing on watchdog journalism. In her 25-year career, Laura’s stories on child welfare, human trafficking, crime and Kansas secrecy have been nationally recognized.