Shooting Victim Was Grabbing Federal Agent's Gun, Defense Argues
BY JIM DOOLEY - The man killed by federal agent Christopher Deedy last year in Waikiki was drunk, high on drugs and repeatedly assaulted Deedy, trying to grab the agent’s gun before being fatally shot, according to papers filed in federal court.
Defense attorney Brook Hart described at length the contents of a surveillance video taken inside McDonalds restaurant early in the morning of November 5 when Elderts was shot, asserting that Deedy acted in an official capacity while defending himself and others. Brook Hart memo
Hart filed a copy of the video, hundreds of photos taken from it, and a written description of what the video purportedly shows in state court last month but those materials were sealed by Circuit Judge Karen Ahn because of potential prejudicial pretrial publicity.
According to Hart’s legal memo filed yesterday, Deedy, 28, was in Honolulu for the Asia Pacific Economic Cooperation conference and on the evening of November 4 was “socializing at various locations in downtown Honolulu and Waikiki” with friends before going to the Kuhio Avenue fast food restaurant around 2:30 a.m. November 5.
Hart is silent on whether Deedy consumed alcohol that evening. Deedy refused to submit to alcohol testing after he was taken to a hospital for treatment of injuries received during his fight with Elderts.
Elderts and friend Shane Medeiros had been “partying with their friends in downtown Honolulu and Waikiki” before arriving at McDonalds shortly after Deedy, according to Hart.
An autopsy showed Elderts was legally drunk and had used cocaine and marijuana before he died.
According to Hart’s version of events:
- Elderts and Medeiros “used racial slurs” when they began to “verbally harass” Michael Perrine, a customer in line for food at McDonalds.
- The two men continued to speak to Perrine “in an aggressive and threatening manner” when all were seated in the restaurant and Deedy then approached Perrine to ask if he “was all right.”
- A security guard in McDonalds told Medeiros and Elderts that they should leave the premises if they continued to make trouble and Deedy “calmly attempted” to speak to the pair because he “sensed that a physical confrontation was imminent and that Perrine was in danger.”
- Elderts and Medeiros “directed their aggression” at Deedy. They were “unreasonable, combative and threatening toward Special Agent Deedy and reacted with an escalating level of aggression that was entirely inconsistent with (Deedy’s) calm tone and manner.”
- Elderts “used the derogatory and racist term ‘haole’” when speaking to Deedy, saying, “eh, fuckin haole, you like beef?” or similar words.
- Deedy then showed his law enforcement credentials and badge to Elderts and Medeiros, telling them that “starting a fight was never in anyone’s interest and that fights often lead to people getting hurt or arrested.”
- “Elderts asserted that he would not be arrested and challenged (Deedy) by asking 'are you going to shoot me?'” although Deedy had “made no reference to a firearm.”
- Elderts stood, reached in his waistband and told Deedy “that he would need to shoot Elderts first or else Elderts would ‘get’ (or ‘gut’) him.”
- As Elderts advanced “menacingly” at Deedy, the agent “reached for, but did not draw or display his firearm” in a holster on his belt.
- Elderts “rushed” at Deedy, “saying things like ‘oh you have a gun?’ ‘shoot ’em then’” and warning that Deedy “better not be bluffing.”
- Deedy kicked Elderts on the leg, losing one of his slippers, then stepped back “to again attempt to assess and deescalate the situation.”
- Deedy’s friend, Adam Gutowski, stepped in front of Deedy and was punched and kicked by Elderts and Medeiros.
- Elderts struck Deedy in the face, knocking him to the floor, and resumed assaulting Gutowski.
- Deedy stood, raised both hands, yelled for them to stop, and “began to draw his gun” after Elderts “clenched his fists and aggressively advanced toward Special Agent Deedy.”
- Elderts grabbed Deedy’s gun hand and pushed Deedy across the room. “As Elderts tried to take possession of (Deedy’s) gun, shots were fired.”
- Elderts “continued his assault,” pushing Deedy to the floor while punching him in the face with one hand and trying to take the gun with the other.
- Deedy “was compelled to discharge his gun, resulting in the death of Elderts.”
- Later analysis showed Elderts had gunshot residue on his hands and a spent cartridge case was found inside the gun. That indicated “interference with the slide and case ejection process at the time of the third shot.”
Elderts was killed by a single gunshot to the chest. Two spent bullets and casings were found by police in McDonalds and a third bullet was recovered from Elderts's body.
Prosecutors have not yet revealed details of the evidence against Deedy in the state case, although they have described Deedy as the “first aggressor” in the altercation.
Deputy Prosecuting Attorney Jan Futa said in court papers filed earlier this month that Deedy “escalated a verbal argument into a physical confrontation when he thrust-kicked Elderts in the chest/stomach and threw his slipper at Elderts, striking Elderts in the head.”
In sealing the videotape and other materials from public view, Judge Ahn cited her 18 years of experience on the bench in warning that the video “is probably not the entirety of trial evidence.”
She said other factors to be considered at trial would be “the credibility of witnesses, the weight and value of the evidence and all reasonable inferences to be drawn from the credible evidence.”
News media outlets asked Ahn to reconsider her decision to seal the video, but in a court hearing this afternoon, Ahn refused to do so.
Prosecutor Futa accused Hart of using the federal court filing to "circumvent" Ahn's sealing order and the judge said she has asked her staff to obtain official copies of what Hart said in his federal court papers.
Hart's federal court filing asks permission to file a motion to move the case before a federal judge.
U.S. District Judge Leslie Kobayashi said in a written order today that she would take the request under advisement and gave the government until July 10 to weigh in on the issue.
Deedy, who lives in Virginia, is free on $250,000 bail pending trial in state court.
In addition to the murder count, he is charged with felonious use of a firearm.
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