we-killed-brandon

As veteran Missouri Highway Patrol Sergeant Randy Henry prepares to retire on December 1, he is free to entertain, and express, subversive thoughts about accountability that are increasingly unwelcome in the profession to which he devoted decades of his life.

“We killed Brandon Ellingson,” Henry bluntly told the Lake Expo newspaper, following that unadorned declaration with a question few of his comrades could countenance: “Why are we investigating ourselves?”

Alone among his MHP comrades, Henry has the character to take responsibility for his role in the May 31, 2013 in-custody death of Ellingson, a 20-year-old who drowned in the Lake of the Ozarks after being arrested by Trooper Anthony Piercy on suspicion of Boating While Intoxicated.

Piercy, who as arresting officer had both moral and legal responsibility for Ellingson’s safety, incorrectly placed a life jacket on his prisoner and then drove his patrol boat away from the scene at a high rate of speed. Ellingson was thrown from the craft when it struck a sizeable wake.

Following the familiar full-court press to prevent officer accountability, the jury in a Coroner’s Inquest ruled Ellingson’s death to be accidental. It was subsequently revealed that Amanda Grellner, the prosecutor who declined to file charges against Piercy, had received a personal favor from the MHP three years earlier when the department declined to charge her then-18-year-old son with DUI.

Piercy, who was unqualified for marine enforcement operations, had been hurried through the program as part of a personnel re-deployment in anticipation of the 2013 Lake Race. Henry expressed concerns about the rushed process to qualify Piercy and other troopers for lake duty, to the point he faced potential sanctions for insubordination. Eventually, he yielded to pressure and wrote a letter of approval for Piercy, albeit with what the Lake Expo newspaper describes as “ambiguous wording, fearing that some day the letter might be used against him.”

“I knew something was gonna happen,” Henry lamented to Lake Expo.

A week before Ellingson’s death, Piercy – an ambitious trooper who had acquired a reputation for aggressive DUI enforcement while on highway patrol – had arrested a boater for suspected BWI. As would later happen with Ellingson, Piercy used the wrong style of life jacket – a Type III – but in this case it was fastened on the arrestee before the handcuffs were applied. That incident was recorded by the patrol boat’s camera. The video recorder captured a moment in the arrest when the detainee struck his head on the vessel’s computer when the craft struck a wave.

That video was never used in the Coroner’s Inquest into Ellingson’s death. No video record was made of the Ellingson arrest because both SD cards had been removed. As a result, it’s not clear whether there had been probable cause to stop the vehicle in the first place.

“There were several close friends of Brandon on the boat, including a cousin,” the victim’s mother, Sherry Ellingson, recalled in an interview with The Free Thought Project. “What they told me is that the reason [Piercy] had come on the boat was because he didn’t have proper registration numbers. Our boat was considered a yacht, which meant that it didn’t need registration. He was asking Brandon to produce something that he wasn’t legally required to have or produce.”

As is often the case when a citizen finds himself on the receiving end of a police officer’s attention, Brandon became “very flustered by that, [and] he freaked out. The glove compartment was locked up and didn’t have access to the paperwork. Piercy should have known he didn’t have to right to ask for that, but he pressed the issue anyway.”

Piercy’s aggressive nature as a highway patrol officer translated into his new assignment at the lake. Brandon’s mother reports that the owner of the Coconuts Caribbean Beach Bar and Grill “has complained about Piercy lurking in the harbor waiting for people to pull away and stop them.” He was clearly trolling for a DWI when he intercepted the Ellingson family’s yacht, but according to witnesses on the scene “there were no beer cans for him to see inside the boat. [That’s why] he went to the registration issue.”

Piercy ended up arresting Ellingson. He cuffed the college student’s hands behind his back and placed an ill-fitting vest on him – the Type III, despite the fact that his training and policy required the use of a Type I, which is designed so that a handcuffed subject who is flung overboard will float to the water. The Type III cannot be properly secured on a subject who has been cuffed. All of this is why properly trained troopers are required to use the Type I vest – several of which were available on Piercy’s boat. One was just feet away when Ellingson was subjected to field sobriety tests.

The reason why he didn’t use the proper vest, Piercy explained to Henry after Ellingson’s death, was because he was “in a hurry.”

In a conversation with Piercy the day following Ellingson’s death, Henry expressed concerns about how the arresting officer had conducted himself. Piercy himself seemed remorseful, telling Henry,

“I feel like I drowned that kid…. I should have done more for him.”

In any other context, that comment would be treated as a confession to second-degree murder.

The following week, Henry offered to submit a report on the incident for the investigation, only to be turned down.

Being stiff-armed by the investigation, along with Piercy changing his original story about attempting to rescue Ellingson, convinced Henry that “The fix was in,” he told Lake Expo.

In theory, police officers are accountable for the safety of those whom they detain. In practice, however, in every encounter between an officer and a citizen – particularly those involving arrests – officer safety is the highest consideration, and often the only one.

When a detained citizen is injured or killed without justification, officer safety and institutional protection for the agency employing him trump full and timely disclosure of the facts. This is borne out by the actions of the Missouri Highway Patrol in reacting to Ellingson’s Death.

Defying the state’s Sunshine Law, the Missouri Highway Patrol initially refused to honor public records requests, insisting that the investigation wasn’t complete. However, even before the inquiry was finished – as if there were any real suspense regarding its outcome — Trooper Piercy was returned to duty following a brief paid vacation (also known as administrative leave). This sent the tacit but unmistakable message that the MHP has no problem with allowing a homicide suspect to carry a gun and badge and exercise custodial control over other suspects.

For exhibiting a conscience, Sergeant Henry earned official disapproval.

While his superiors did their formidable best to impede the investigation, Henry filed a report on the drowning and testified truthfully before a legislative committee regarding the inadequate training Piercy and other water patrol officers received. During an interview with patrol investigators following the drowning, Henry mentioned a state law dealing with the safety of people in custody. An investigator interrupted Henry and insisted that the recorder be turned off, in order to prevent an official record of his disclosures. After the Ellingson family filed a lawsuit, Henry took the opportunity to testify, under oath, about the facts that the agency was trying diligently to suppress.

In predictable fashion, Sergeant Henry was suddenly demoted to corporal. His attorney, who refers to the trooper as a whistleblower, insists that the action was pure retaliation for the former sergeant’s determination to tell the truth as he understood it. Threatened with further punitive sanctions for signing off on Piercy’s certification – in fulfillment of his worst expectations – Henry announced his retirement. He did nothing to endear himself with his superiors by urging an outside investigation of the matter, and no doubt infuriated them by being deposed in the lawsuit filed by the victim’s family.

“I recommended that they call the Coast Guard in,” Henry points out. “Why are we investigating ourselves?”

The soon-to-be-retired trooper emphatically believes that the MHP’s priorities would have been different if Ellingson had been related to someone in their own ranks: “If the Ellingson investigation would have been handled as if it were one of our kids that drowned… being transparent with the family… none of this would have [come] to this point….“If it was my kid who was thrown in the water, I’d want to know what happened. That’s my only reason for doing this.”

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