What’s not in dispute is that on June 24, 2016, St. Paul police officer Brett Palkowitsch repeatedly kicked Frank Baker in the midsection while Baker was being bitten by a police dog.
The question at the heart of the federal criminal trial, which begins in St. Paul Tuesday, focuses on whether or not the kicks Palkowitsch delivered were excessive or justified.
That night, police officers were called to the 1800 block of East Seventh Street on a report of a crowd of people with bats or clubs who were fighting. Police were told a man with dreadlocks and a white T-shirt was in the area and had a gun.
Baker, who wore his hair like that at the time, was in a Jeep nearby talking on his cellphone when police ordered him to get out with his hands up.
Part of the incident was captured by a police car dash camera.
The video is blurry. As the police dog drags Baker to the ground and begins to tear at him, Baker screams in pain. At the same time, officers are shouting commands at Baker to turn over and put his hands out.
Baker was not complying. And at one point an officer, later identified as Palkowitsch, can be seen delivering three kicks to Baker.
“The suspect flailed, turned and reached his hands toward his midsection multiple times,” reads a trial brief from the defense. “A suspect, believed to be in possession of a gun, moving his hands toward his midsection presented a deadly threat to police officers.”
Federal prosecutors say Palkowitsch used excessive force. And they charged him with one count of violating Baker’s civil rights. Prosecutors say officers are trained how to respond to a suspect who’s in the custody of a police dog. On that night, Palkowitsch allegedly did not abide by his training.
“Specifically, they were trained that during a K-9 apprehension, the pain of the dog bite often prevents a suspect from hearing and complying with officer commands, and for that reason, officers should not use additional force, including kicks or punches, on a suspect during a K-9 apprehension,” reads a prosecutor’s trial brief.
Baker, 56, was not the man police were looking for that night.
He was unarmed and police later determined he had nothing to do with the reported fight. Baker had just returned home from work around 10 p.m. And he was sitting in his SUV talking on his phone when police ordered him to get out.
Baker’s legs are permanently disfigured by the deep divots of flesh torn from his calves by the dog. The officer’s kicks fractured Baker’s ribs and punctured his lungs. Baker spent two weeks in the hospital.
Prosecutors say other officers present at the scene will testify that Baker did not present a threat.
Palkowitsch has pleaded not guilty. He is on paid administrative leave.
Police Chief Todd Axtell apologized to Baker. He also fired the K-9 handler, officer Brian Ficcadenti, and Palkowitsch. Axtell later modified Ficcadenti’s punishment to a 30-day suspension and transferred him out of the K-9 unit. Palkowitsch challenged his firing and an arbitrator had him reinstated.
In 2017, Baker sued the city and settled the lawsuit for $2 million — the city’s largest ever police misconduct payout.
Testimony in Palkowitsch’s trial is expected to last into next week.