Mo. to pay millions for student who drowned in trooper's custody
The family alleged that Trooper Anthony Piercy, the state and the Missouri Highway Patrol were liable for Brandon's death in the Lake of the Ozarks
By Laura Bauer
The Kansas City Star
LAKE OF THE OZARKS, Mo. — The state of Missouri will pay $9 million to the family of an Iowa college student who drowned in handcuffs while in the custody of a state trooper.
The settlement, announced Thursday morning, ends a civil lawsuit that Brandon Ellingson's family filed in federal court nearly two years ago. The family alleged that Trooper Anthony Piercy, the state and the Missouri Highway Patrol were liable for Brandon's death in the Lake of the Ozarks.
"The money isn't going to bring Brandon back, but at least that amount shows they are at fault," said Craig Ellingson, Brandon's father. "If they weren't at fault, they would have kept fighting us."
The settlement allows the family to focus on Piercy's criminal case. He was charged with involuntary manslaughter, a Class C felony, in December. That case is on its third judge and is set for a hearing Monday in Morgan County. Piercy has been on unpaid administrative leave.
Lawyers for the Ellingson family sent out a release Thursday morning detailing the civil case settlement, which one attorney called "justice for Brandon."
"Nine million dollars is a sizable settlement indicating that there was clearly an undeniable liability on behalf of Tony Piercy and his actions," Des Moines attorney Matt Boles told The Star. "What the family has always wanted is for the state of Missouri to accept responsibility for what Tony Piercy did to Brandon -- and (the state) wrote a check."
But, he said, the family still feels it has not yet seen sincere remorse or heard words of condolence from the state or highway patrol.
"The silence is deafening," Boles said. "No apology, no 'Sorry for your loss.' "
The only person from the state or patrol who has offered a true apology, Craig Ellingson said, is retired Sgt. Randy Henry, a whistle-blower who spoke out after Brandon's death.
A spokesman for the patrol released a statement to The Star Thursday morning.
"The mission of the Missouri State Highway Patrol is to serve and protect all people, and any loss of life is a tragedy," said Capt. John Hotz. "With this case now settled through the court system, the patrol will have no additional comment on this matter."
The Missouri attorney general's office, which represented the agency and troopers, declined to comment.
The Ellingson family -- his parents and older sister Jennifer -- filed the lawsuit in federal court on Dec. 5, 2014, two days before Brandon would have turned 21. The suit initially named the patrol and several top commanders and troopers, as well as Piercy, who stopped Ellingson on May 31, 2014 for boating while intoxicated.
Piercy's actions and inactions that day caused Ellingson's death, according to the lawsuit. The state and patrol were also responsible, the suit alleged, because of a lack of training for troopers after the 2011 merger of the Missouri Water Patrol into the Highway Patrol.
As the civil case played out in federal court, the judge dismissed several counts and claims against multiple defendants. Only three counts -- including conspiracy and negligence -- remained, all against Piercy.
Ellingson's parents have said the suit wasn't about the money but about uncovering exactly what happened that day in 2014 and what the state and highway patrol did to try to conceal it.
"We knew ... that it was a cover-up from the beginning," Craig Ellingson said.
Not having their day in civil court is one reason the settlement is difficult for Sherry Ellingson, Brandon's mother.
"The rest of the corruption that surrounds this will not see the light of day," she told The Star. "The lying, the keeping the information from us, the changing of stories. That really saddens me and is hard to let go of."
The Ellingson family "understood how much more time it would take to take this case to the jury, and I think it was just time," said attorney Thomas Burke, who with Jerry Spaeth and other attorneys represented Sherry and Jennifer Ellingson and Brandon's estate. "This was never about the money for Craig and Sherry. No amount of money is ever going to bring Brandon back. But it's the only way, sadly, our system compensates for these types of things."
Earlier this year, a circuit judge ruled that the patrol "knowingly" and "purposely" violated the state's open records law in the days and months after Ellingson's drowning. The agency and its custodian of records didn't properly respond to Sunshine Law requests by attorneys for the Ellingson family and in some cases didn't hand over requested information, the judge wrote.
Through multiple records requests and interviews with past and current troopers and former water patrol commanders, the newspaper discovered that the 2011 merger of the Missouri Water Patrol and the Highway Patrol set the stage for the drowning.
After the merger, some road troopers were assigned to help out on the water, and Water Patrol officers at times were put on the road. Piercy -- an 18-year veteran road trooper -- received only two days of field training before he worked on the lake alone, The Star found.
In September 2014, the jury in a Morgan County coroner's inquest found that Ellingson's death was an accident. In that inquest, Piercy cried at times as he told jurors he wasn't properly trained for what he encountered the day he stopped the 20-year-old man's boat.
Ellingson and a group of his high school friends from Clive, Iowa, had gone to the lake for the weekend, and they were heading back to his family's lake house.
Brody Baumann, one of Brandon's closest friends, watched as Piercy arrested Ellingson for boating while intoxicated, cuffed his hands behind his back and then grabbed a Type III life vest, with arm holes.
Brandon's friends say Piercy stuffed the already buckled vest over Ellingson's shoulders and was unable to get it down over his entire torso.
Piercy was taking Ellingson to a zone office at speeds up to 46 mph when the young man was ejected from the patrol boat. The life vest soon came off. Piercy eventually jumped in the water to try to save Ellingson, 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.
The civil settlement is a step toward justice, Baumann told The Star.
"It's something that never should have happened in the first place," he said. "Right from the start, it seemed like the trooper was out to get us or out to get something. ... I don't think any of us will feel complete or as complete as we can be until something happens to (Piercy)."
Already, the family has seen changes to the patrol, after legislative hearings in late 2014 led to improvements across the state.
Road troopers no longer patrol the lake alone, and training for troopers who work the water has increased, as has the patrol's swimming requirement.
More troopers have been assigned to the Lake of the Ozarks, and a commander with the old Water Patrol now oversees the water division.
The Ellingsons also have seen strangers stand up for their son. Thousands of people nationwide have reached out to the family, and many residents at the lake have demanded justice for the young man they never met.
"I'm still overwhelmed from the support of people across the country and how touched they've been by Brandon's story," Sherry Ellingson said. "They've been what's kept us afloat. I can't imagine continuing with this fight if they weren't there fighting this with us."
The Ellingsons say they know people will be with them as they face Piercy's upcoming criminal trial. The past 2 1/2 years have been unbearable, Brandon's father said, and so will the coming months and years.
"Knowing I won't have grandkids by Brandon and he won't get to go to Jenny's wedding," Craig Ellingson said, his voice breaking. "Just the companionship. Brandon used to tell his fraternity brothers that I was his best friend.
"For the rest of our lives, there will be a big hole."
(c)2016 The Kansas City Star (Kansas City, Mo.)
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