A St. Paul police officer fired for kicking an innocent bystander three times while a K-9 dragged him in circles should be allowed back on the force, an arbitrator has ruled.
The decision, dated April 3 and disclosed Wednesday, came on the same day that the St. Paul City Council voted to approve a record $2 million settlement with the man who was attacked, 53-year-old Frank A. Baker.
Arbitrator Richard J. Miller ruled that Officer Brett Palkowitsch's termination should be reversed because his actions reflected the training he received at the department, and because K-9 Officer Brian Ficcadenti had also mishandled the situation.
"All of the officers who testified … confirmed that they have been trained at the academy to use kicks as a use of force option," Miller wrote, adding that an arrestee's torso was "never construed as a 'nonapproved target area' as alleged by the city."
Miller agreed that Palkowitsch, who joined the police academy in 2013, should receive a 30-day suspension without pay to keep in line with the discipline Ficcadenti received.
"Both of their actions were egregious," Miller wrote. Miller noted that Palkowitsch's termination was also influenced by his denial of any wrongdoing and because he "showed no remorse or compassion for Mr. Baker's injuries."
Police Chief Todd Axtell, who issued a public apology following the incident, defended the firing.
"This incident has been difficult for everyone in our department," Axtell said. "It required a strong response that accurately reflects our values, which is to ensure that our actions are reasonable, necessary and done with respect.
"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. … I stand by my decision to hold everyone in our department to the highest possible standards."
The St. Paul Police Federation, the union that represents the city's police officers, lauded the ruling.
"This decision, the second in three years overturning a City of St. Paul Chief of Police's decision to terminate an officer, should put the City on notice that such a termination may not be based on feelings and emotions, but rather facts," federation President Dave Titus said in a written statement. "Officer Palkowitsch looks forward to returning to proactively serving the citizens of St. Paul, and helping keep our streets safe."
Last November, the police department released a graphic dashcam video of the June 24 incident. It showed Baker, of St. Paul, writhing on the ground and screaming as police K-9 Falco, deployed by Ficcadenti, bit down on his right leg.
The video showed six officers standing around Baker, whom they believed matched the description of an armed suspect.
Palkowitsch wrote in his police report that he kicked Baker in the midsection two times because he was moving and stopped complying with Ficcadenti's orders.
"Again I fully believed that Baker was armed with a firearm," Palkowitsch wrote.
Baker stayed prone after the second kick, then reached toward Falco, Palkowitsch wrote, so he kicked a final time.
Baker was not armed. He spent two weeks in the hospital, underwent skin grafts and suffered seven broken ribs and two collapsed lungs, his attorneys said.
Community activists had called for the firing of both Palkowitsch and Ficcadenti. Wednesday, Tyrone Terrill, president of the African American Leadership Council, said he was disappointed but not surprised by the arbitrator's decision.
"We don't want that officer anywhere working in our community," Terrill said.
The arbitrator's binding decision noted that after the incident, authorities learned that Baker had narcotics in his system and a warrant out for his arrest. Robert Bennett, one of Baker's attorneys, said that the officers had no prior knowledge of Baker's warrant.
"It's the traditional blame-the-victim methodology that's employed in cases like this," Bennett said of the arbitrator's note on narcotics. "I'm neither disagreeing or agreeing" with that finding.
Baker received anesthesia and emergency surgery, which wouldn't have occurred had doctors believed he was on narcotics, Bennett said.
"I don't think there was any persuasive evidence he was under the influence of anything," Bennett said.
Miller's decision noted that only beginning in early 2017 did the department enact a policy forbidding officers from kicking suspects on the ground. He outlined five previous cases in which officers kicked suspects and received a lesser or no discipline. Palkowitsch was involved in two of those incidents: In April 2015, he delivered a kick and a knee strike to a suspect on the ground and received no discipline. In January 2016, Palkowitsch and two other officers kicked suspects.
Other officers at the scene last June were Joe Dick, Brian Nowicki, John Raether and Anthony Spencer. Spencer is on personal leave, and the others are assigned to the Eastern District.