The fight over POST license number 39985 and the 2014 handcuffed drowning death of a young man on Lake of the Ozarks is heading to the courtroom.
On August 13, 2018, Anthony Piercy’s attorney Tim Van Ronzelen filed a petition in Cole County Circuit Court to reverse or remand the revocation of the Missouri state trooper’s Peace Officer Standards and Training license. Alternately, the lawsuit petition against the Missouri Department of Public Safety and DPS Director Charles (Drew) Juden seeks judicial review of the case.
POST and the Missouri State Highway Patrol are both divisions of the Missouri DPS.
Juden permanently revoked Piercy’s POST license on July 16, 2018 more than four years after the incident that started the drawn-out legal battle — the death of 20-year-old Brandon Ellingson. The college student from Clive, Iowa drowned on the Gravois Arm in Piercy’s custody on May 31, 2014. He had been arrested on suspicion of boating while intoxicated.
Piercy didn’t follow on-water arrest procedure and despite having been trained for proper transport and life jacket use, he handcuffed Ellingson and used the wrong flotation device and improperly placing it over him. As Piercy took Ellingson in, he hit a wake traveling at a high rate of speed, forcing the young man overboard. Piercy’s attempts to get Ellingson back in the boat failed.
Unable to swim, Ellingson drowned after the life jacket slipped off.
Piercy was an 18-year veteran of the MSHP at the time and had taken on marine duties some time after the Missouri Water Patrol was merged into the MSHP in 2011.
At the time, Piercy was removed from duty for three days and returned to active duty as a road officer on June 4, 2014. The MSHP Crash Review Board conducted an investigation and on September 14, 2014 recommended Piercy be suspended without pay for 40 hours and complete a four-week Marine Operations Trooper Training Course and field evaluation program before being assigned to marine duties, according to the lawsuit petition. After serving the suspension, he continued to work as a full time trooper with road duties.
A separate MSHP Division of Drug and Crime Control investigative report was produced. A special prosecutor presented certain facts from the report to a Morgan County coroner’s jury which found no crime had been committed. No charges were then filed.
A second special prosecutor was appointed and a felony involuntary manslaughter charge was filed against Piercy on December 18, 2015. Piercy was placed on unpaid administrative leave.
In a plea deal on September 19, 2017, that charge was dropped to misdemeanor negligent operation of a vessel. He was sentenced to 180 days of incarceration in the county jail. With suspended execution, he actually got two years supervised probation that included 10 days of shock time in the county jail and 50 hours of community service. The community service has been carried out at the Royal Theater in Versailles, and the jail time was accomplished in stints of two days at a time.
As a result of misdemeanor, a review board of five commissioned officers was convened by the MSHP to make a disciplinary recommendation to MSHP Superintendent Col. Sandra Karsten. On December 11, 2017, the board recommended Piercy be reinstated and transferred from his current troop assignment. Karsten instead terminated Piercy’s employment.
A subsequent lawsuit resulted in the disciplinary action being remanded back to the MSHP for further review. The MSHP has moved to alter, amend or stay that judgement, and the motion is still pending.
According to Piercy’s petition in the POST license lawsuit, the basis of the MSHP’s motion on its side of things is the DPS decision to revoke Piercy’s POST license.
On June 27, 2018, the DPS hearing on the POST license was held. The only person to testify besides Piercy was Ellingson’s father, Craig, according to the lawsuit petition.
According to Juden’s POST revocation order, Piercy testified and additional documents were presented by a member of the public. Juden said he indicated he would consider the documents though they were not formally admitted into evidence. After a letter from Piercy’s attorney objecting to consideration of the documents, Juden said he did not review or consider them.
Instead, “[b]ased solely on the other facts and evidence in the record, there is sufficient evidence to conclude that revocation of Mr. Piercy’s peace officer license is appropriate,” Juden wrote in the order.
The Order, Exhibit 1 in the lawsuit, does not provide any further explanation.
The alleged lack of clarity on findings of fact or conclusions of law in the order are grounds for reversal, the petition argues, citing RSMo Section 536.090. And because of this lack, there is insufficient evidence to allow the court to review the agency’s decision, the petition states.
Failing that, the petition argues for judicial review to determine whether the order violates constitutional provisions under 536.140.2, RSMo, namely for:
•Procedural due process, claiming “procedural irregularities” in the decision due to a lack of written findings of fact or legal conclusions,
•Equal protection, claiming Piercy’s discipline was harsher than that of other officers guilt of Class B misdemeanors (no permanent license revocation).
• Lack of evidence, factual findings, legal conclusions or reasoning for the harshest penalty possible,
The petition claims the order was arbitrary and capricious or unreasonable and/or an abuse of discretion with the intent to punish Piercy rather than to protect the public, claiming the revocation was “more severe than was justified in the circumstances or that was given to other who were convicted of or pled guilty to Class B misdemeanors.”
Without facts from DPS, the petition seeks a de novo review in which the court would become the fact finder.
The petition also states that the MSHP Administrative Hearing Commission disciplinary decision and the DPS director’s decision to revoke POST licensing should be “one decision” for the purposes of judicial review.
Past reporting by Lake Media Editorial Director Joyce L. Miller contributed to this story.