A St. Paul police officer who kicked a man when he was being bitten by a police dog, leading to a $2 million legal settlement, should get his job back, a state arbitrator ruled this week.
Officer Brett Palkowitsch kicked Frank Arnal Baker three times in the ribs and the 53-year-old man was hospitalized for two weeks with his lungs collapsed and ribs broken. He was later fired by St. Paul Police Chief Todd Axtell, who also suspended the K-9 officer, Brian Ficcadenti.
Palkowitsch appealed his firing to the Minnesota Bureau of Mediation Services, and the arbitrator decided that Palkowitsch’s termination should be reduced to a 30-day suspension without pay, according to a decision made public Wednesday.
St. Paul officers had responded in June to an anonymous report of a man with a gun and were told the suspect was black and had dreadlocks, on East Seventh Street near Hazel Street. Baker, who was returning to his apartment in the area, fit the general description but was unarmed and turned out not to be the suspect.
A police K-9 held Baker’s leg for 70 seconds and Palkowitsch kicked him because, he wrote in a report, he believed Baker was armed and wasn’t complying with officers’ orders.
Arbitrator Richard J. Miller wrote in his analysis of the evidence that the “situation could have been easily avoided had Mr. Baker simply complied with the reasonable commands of Officer Ficcadenti’s to leave his vehicle and keep both hands in the air and approach the officer. Had Mr. Baker complied, there would have been no need to deploy K-9 Falco and/or be kicked in the torso by (Palkowitsch). Conversely, had Officer Ficcadenti and (Palkowitsch) elected to not deploy Falco and/or kicked Mr. Baker, Mr. Baker would have avoided the pain and suffering from the dog’s leg bite and/or broken ribs and collapsed lungs from the kicks.”
‘EXCESSIVE AND IMPROPER,’ SAYS EARLIER DECISION
In October, the St. Paul Police Civilian Internal Affairs Review Commission had decided that Palkowitsch and Ficcadenti’s “use of force were both excessive and improper.” The commission recommended a 10-day suspension for Ficcadenti and a 30-day suspension for Palkowitsch.
Chief Axtell, though, suspended Ficcadenti for 30 days and fired Palkowitsch.
The arbitrator wrote that both Ficcadenti’s and Palkowitsch’s “actions were egregious and not distinguishable to warrant one receiving a 30-day suspension and the other termination.” He said the penalty should be the same for their misconduct.
ARBITRATOR SUMMARIZES POSITIONS
Miller, the arbitrator, summarized the city and police union’s positions:
The city believed Palkowitsch’s “level of force … was never authorized, trained or sanctioned by the police department.” Also, Palkowitsch’s “refusal to accept any responsibility or even consider that he could have done anything differently in this incident makes him dangerous and untrainable,” according to the city’s position.
But the St. Paul Police Federation’s position was that the discipline against Palkowitsch was “without just cause.”
Axtell became police chief in June and the case was his “first high-profile use of force case” as chief, the police union noted.
“It appears to be a classic example of the city/police department taking unwarranted disciplinary action for political reasons, following an incomplete investigation in a high-profile case, and forcing the officer and his Federation to fight for his job at arbitration,” according to the union’s position.
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Palkowitsch testified that he will follow “new police department policy forbidding officers from kicking suspects while they are on the ground,” which did not exist at the time of the Baker case, Miller summarized about the union’s position.
RETURNING TO DUTY
Chris Wachtler, attorney for the St. Paul Police Federation, said in a statement that Palkowitsch “looks forward to returning to proactively serving the citizens of St. Paul, and helping keep our streets safe.”
Wachtler said it was unfortunate that Baker was injured, “but it was his decisions that led to his injuries.”
“The presence of a cocktail of illegal narcotics in Mr. Baker’s system, including THC, cocaine and opioids, likely influenced his decision not to comply with these reasonable commands,” Wachtler wrote. “… The evidentiary record disclosed that Officer Palkowitsch faced a ‘tense, uncertain and rapidly evolving situation involving an uncooperative individual, whom he believed had a firearm, as stated by dispatch.’ ”
The arbitrator’s decision is the second in three years that overturned the decision of a St. Paul police chief to terminate an officer, Wachtler said. That “should put the city on notice that such a termination may not be based on feelings and emotions, but rather facts,” he wrote.
CHIEF AXTELL RESPONDS
Axtell said in a statement Wednesday that the incident has been difficult for everyone in the department.
“It required a strong response that accurately reflects our values, which is to ensure that our actions are reasonable, necessary and done with respect,” he said. “While I respect the process, I remain disappointed that an officer used excessive force, put his colleagues’ safety in jeopardy and severely injured an innocent man. The arbitrator agrees with my assessment that excessive force was used, and I stand by my decision to hold everyone in our department to the highest possible standards.”
Baker’s attorney, Bob Bennett, said there was no evidence that Baker was under the influence when he was taken to the hospital.
“Frank Baker’s the victim, not the officers who violated the Constitution in numerous ways to physically and emotionally harm him,” Bennett said. “… Most places I know, if you cost the company $2 million, they’d fire you.”
The arbitrator’s fee and incurred expenses were $16,694, which are split between the city of St. Paul and the police union.
Palkowitsch has been a St. Paul police officer since 2013. He was disciplined once before — he received an oral reprimand in 2013 for improper procedure.
On Wednesday afternoon, the St. Paul City Council approved a $2 million settlement to Baker, which is the largest in the city’s history.