St. Paul police officer testified he thought man he kicked had a gun

A man is flanked by two women as they walk in a skyway.
St. Paul police officer Brett Palkowitsch leaves the Warren E. Burger Federal Court Building on Friday, Nov. 15, 2019 in St. Paul.
Christine T. Nguyen | MPR News

Updated 6:30 p.m.

A St. Paul police officer charged with using excessive force testified Wednesday that he thought Frank Baker had a gun as the officer kicked him.

On June 24, 2016, officer Brett Palkowitsch repeatedly kicked Baker as Baker was being bitten by a K-9. Baker, who was unarmed, suffered a punctured lung and broken ribs. Baker testified on Friday that he thought he was going to die, showing jurors the scars on his legs and chest.

In the fifth day of testimony in Palkowitsch’s federal trial, the officer testified that he immediately delivered two kicks to Baker, who was moving around on the ground, his right calf in the jaws of the K-9 named Falco. Palkowitsch testified that he made sure not to aim at Baker’s head, and didn’t want to kick below the waist for fear of kicking the dog.

Palkowitsch said he wasn’t sure if Falco, a dog bigger than the other K-9s and known to be aggressive, would detach from Baker and bite him. After the first two kicks, Palkowitsch said he stepped back to assess the situation and command Baker to stay down. He said Baker momentarily complied. But as K-9 handler Brian Ficcadenti moved in to cuff Baker, Palkowitsch said he saw Baker “sit up” and move his hands down towards his waist.

“That movement by him, I took as a threat,” said Palkowitsch, describing why he delivered a third kick to Baker’s torso. “He said, ‘OK’ and lays back on the ground.”

When asked if he boasted to his fellow officers about injuring Baker, Palkowitsch said he was rather surprised when he heard Baker had broken ribs and perhaps a collapsed lung. He also told the jury that he had no intent to injure Baker, saying he had “no malice in my heart.”

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“I feel terrible he was injured,” Palkowitsch said.

During the Wednesday testimony, Assistant U.S. Attorney Christopher Perras questioned Palkowitsch about the accuracy of the police report he filed about the incident. Perras pointed out that Palkowitsch left out some key details in his police report.

He said Palkowitsch failed to write that Baker was actually being bitten by the K-9 when he used force and that Palkowitsch didn't say Baker was screaming in pain during the encounter. That's a detail Perras said may have helped better explain why Baker wasn't complying with the K-9 handler's orders.

Palkowitsch also described Baker's injuries as minor in the report. And in a section of the report labeled “weapons used by suspect," Palkowitsch included firearms, hands, fists and feet, though Baker was not armed nor struck anyone with his feet, hands or fists.

Defense attorneys have called witnesses to try to show that K-9 handler Ficcadenti’s failure to call off the dog biting Baker prompted Palkowitsch to try and end the confrontation more quickly. Ficcadenti, who received immunity from prosecution in exchange for cooperating with the investigation, had testified that he felt like Baker was not a threat while he was in the jaws of the dog. And he said he felt like Palkowitsch's three kicks were not necessary.

Wounds to Frank Baker's legs after K-9 attack.
Frank Baker shows the wounds to his legs after the K-9 attack in a 2016 file photo.
Courtesy Andrew Noel

The defense is also trying to show that two veteran officers who felt Palkowitsch’s kicks to Baker were excessive — Anthony Spencer and Joseph Dick — had a prior bias towards the younger Palkowitsch, 32. The two had told younger officers not to come to their calls unless they asked for help. They had complained that the officers were often discourteous to the public and some used force when it wasn’t warranted.

A former supervisor, Doug Whittaker, testified on Tuesday that he’d told the veteran officers that their actions posed a safety threat to the public and the officers themselves.

Whittaker also testified that he’d had no indication that Palkowitsch acted disrespectfully towards members of the public. He said he’d had a chance to watch Palkowitsch in action on at least one occasion and liked what he saw. Whittaker said he responded to a domestic violence call and arrived after Palkowitsch and his partner secured the scene. He said Palkowitsch “was showing a great deal of compassion to an upset child.”

Frank Baker, 53, has reached a tentative settlement with St. Paul.
Frank Baker, 53, in the offices of his attorney on March 27, 2017, after reaching a tentative settlement with the city of St. Paul over an encounter with a police dog in June.
Tim Nelson | MPR News

Whittaker testified that he’d had multiple conversations with Spencer, then a 20-year veteran of the force, about his conflicts with the younger officers, like Palkowitsch. According to Whittaker, Spencer referred to them as “F-ing millennials.” He said he urged Spencer to end the feud and restore some unity to the unit. Spencer retired later that year.

Another officer, Chenoa Fields, who was at the station on the night of the incident, testified that she didn’t hear Palkowitsch brag about kicking Baker, contrary to what one of the prosecution’s witnesses said. However, Fields also said she didn’t follow Palkowitsch around and listen to all of his conversations that night.

The defense expects to wrap up its testimony by the end of the day. Prosecutors expect to present a rebuttal case which could last another half or full day.