BELLE — Missouri Department of Public Safety’s (MDPS) Administrative Hearing Commission (AHC) announced  Oct. 17 that former Belle policeman “Anthony J. Baretich’s peace officer license is subject to discipline pursuant to Missouri State Statute 590.080.1(2) because he committed a criminal offense.”

There were 15 alleged violations submitted against Baretich on Sept. 20, 2017. Acts one through six were presented at the hearing. According to the AHC commissioner, one act was  “proven by preponderance of the evidence that Baretich committed an act for which the law allows discipline.”

“We find that Baretich’s conduct meets the elements of third-degree assault under State Statute 565.070.1(1), (3), and (5), even though he was not charged with that crime,” wrote deciding AHC Commissioner Philip Prewitt.

The Director of the Department of Public Safety amended the complaint against Baretich on March 20, 2019, — the day of the hearing — to say, “On or about July 1, 2016, in the County of Maries, State of Missouri, and without provocation, (Baretich) assaulted David Zink, who was being treated by paramedics at the Belle Police Department for injuries sustained during his arrest, by forcibly putting the handcuffed detainee on his back and spraying pepper in his eyes. His use of pepper spray was unprovoked and excessive, and amounts to assault in the third degree.”

Commissioner Audrey Hanson Mcintosh heard the case. Prewitt took over to render the decision of whether Baretich’s peace officer license should be subject to discipline.

Prewitt, having read the full record including all the evidence, “rendered the finding of a criminal offense — assault in the third degree.”

According to the conclusion of law, the director shall have cause to discipline any peace officer licensee who: (2) has committed any criminal offense, whether or not a criminal charge has been filed; (3) has committed any act while on active duty or under color of law that involves moral turpitude or a reckless disregard for the safety of the public or any person.

Prewitt determined the case met the second requirement when “Baretich unquestionably attempted to cause physical injury to minor David Zink on July 1, 2016, by pepper spraying him a second time. Baretich placed Zink in apprehension of immediate physical injury in the moments before he pepper sprayed him. Baretich knowingly caused physical contact with Zink that he knew Zink would regard as offensive or provocative. Baretich does not deny that the nature of the force he used on Zink but argues that such force was legal because he performed actions necessary to effectuate Zink’s arrest.”

The law explains that a police officer is allowed to use force that is reasonably necessary. But an officer “is prohibited from using any more force than is necessary to effect the arrest; his doing so will constitute assault.”

“When Baretich pepper sprayed Zink the second time, Zink had already been arrested and was subdued and compliant,” Prewitt wrote. “While he received treatment, Zink cooperated with EMT’s and presented no threat to any person at the scene.”

EMT witnesses said Zink was compliant with their commands.

“Zink’s only malfeasance at this point was his continued verbal antagonizing of Baretich,” Prewitt writes. “Common sense tells us that such behavior could be expected from an intoxicated, pepper sprayed arrestee. These mere words do not justify the physical response Baretich took.”

Baretich claimed his actions were reasonable because he observed Zink not cooperating with EMTs, spitting and failing to comply with their directions.

“We do not find Baretich credible in this respect,” Prewitt determined, adding that medical professionals who treated Zink testified to the arrestee’s peaceful nature, and the off-duty officer present did not interfere.

As far as the Assistant Attorney General Richard Groeneman’s attempt to prove a lack of “moral turpitude,” Prewitt determines there is “no cause to discipline Baretich under SS 590.080.1 (3).

“We understand the context that led to Baretich assaulting Zink,” Prewitt writes. “We do not excuse Baretich’s actions, but we understand the frustrations that precipitated the attack. The totality of the record indicates that Baretich attacked Zink out of anger due to his repeated verbal provocations. His actions were illegal, and they reflect a lack of self-control that is unacceptable for a police officer, but they did not involve moral turpitude.”

The commissioner determines that the Director of Public Safety only argues cause for discipline under this subsection on the theory that these acts “belies good morals.”

“Therefore, we need not consider whether Baretich’s actions involved reckless disregard for the safety of any person, and we find no cause to discipline Baretich,” Prewitt wrote.

Ultimately, Prewitt states that the Groeneman’s complaint and use of the words “unprovoked” and “excessive” about Baretich’s conduct in the situation were justified.

“We find cause to discipline Baretich’s peace officer license under SS 590.080.1(2),” according to Prewitt’s report released Thursday.

According to an employee at AHC, the commissioner’s job was simply to determine if the officer’s peace license should be disciplined. Now that the case has been ruled on, it will be given back to the Director of the Department of Public Safety  and assistant attorney general’s office to review  and determine if there will be any disciplinary action and to what extent. A message left Monday morning with the assistant AG’s office was not returned.

Baretich answered the call requesting comment Monday afternoon. He said he was unaware of the hearing’s conclusion.

“I don’t want to comment at this time,” Baretich said. “Later, when I get everything settled, I will probably say something.”

Baretich was stripped of his commission by Belle Marshal Joe Turnbough Sept. 20, 2017, for reasons Baretich says were “unforthcoming.”

When asked why Baretich’s commission was stripped, Turnbough provided a Maries County Sheriff’s Department investigation that was completed months prior to decommissioning his officer.

The investigation included 13 complaints that were divided into sections of allegations of insubordination, allegations of criminal actions and multiple allegations of inappropriate and unprofessional behavior.

“We had several complaints against Tony,” said Maries County Sheriff Chris Heitman. “Police officers have a right to use force. In this case AHC thought that (Baretich) exceeded that amount of force approved to be used by law.”

Heitman added that he doesn’t think the decision will change the way his department utilizes pepper spray.

“Pepper spray is on our force continuum, we just need to make sure we are justified to use force before we do,” Heitman said.

Following his decommissioning, Baretich worked briefly for the city of Belle as an ordinance officer, but could not write tickets. Aldermen said the position was seasonal and eliminated it months later. Baretich has been working outside of the public safety field since then, waiting for AHC to hear his case.

The Advocate contacted Turnbough Monday afternoon for comment about the resolution of the case.

“I’d rather not (comment) right  now,” Turnbough said, adding that he was not aware a decision had been rendered.