The family of a man killed by a deputy sheriff at the State Capitol in 2019 has sued the state Department of Public Safety for wrongful death.

In a lawsuit filed in the First Circuit Court on Wednesday, the family of Delmar Espejo allege 13 counts against the state including assault and battery, excessive force, negligence and infliction of emotional distress. DPS, the sheriff’s division, an unnamed deputy sheriff and Nolan Espinda, the public safety director at the time of the shooting, are also named as defendants.

Myles Breiner, one of the family’s attorneys in the case, expects a legal fight that could take at least three years.

“It’s going to be an uphill battle,” Breiner said.

DPS said in a written statement that the department has not yet been served the lawsuit and can’t comment on litigation.

The state Attorney General’s office, which represents government agencies in legal matters, didn’t respond to a request for comment Friday afternoon.

On a night in February 2019, according to DPS, a deputy sheriff — who the state has still not named and whom the lawsuit only refers to as “Defendant Doe” — ended up in a scuffle with Espejo, who officials said had an open container of alcohol on the Capitol grounds.

The state says that at some point in the struggle, Espejo held the deputy in a chokehold, at which point the deputy shot Espejo in the back. 

The suit describes a police statement from an Oahu medical doctor who walked past the State Capitol around the time of the shooting. The doctor heard a gunshot, but no verbal commands.

The lawsuit also challenges officials’ description of Capitol staffing by the sheriffs’ office at the time. DPS said the Capitol was fully staffed, but the lawsuit cites a separate case in which a former sheriff sergeant says that the building was not fully staffed that night.

Breiner also cast doubt on the official description of the incident, citing an autopsy report that found that Espejo was shot at close range. The autopsy describes the trajectory of the bullet as entering at the upper back and running down to the right.

Espejo suffered from physical disabilities from childhood polio, according to his family members and the lawsuit.

“He had skinny bone legs and walked with a limp. Plaintiff Espejo was unable to stand for more than 10 minute intervals,” the lawsuit says, adding that Espejo had multiple surgeries to fix a clubfoot and had metal braces placed in both legs.

The Honolulu Police Department opened a second-degree murder investigation into the shooting, but state prosecutors never brought charges.

DPS also opened an internal investigation, which has since been completed, department spokeswoman Toni Schwartz wrote in an email.

The deputy is still employed at the department.

The shooting brought renewed scrutiny to the sheriffs division over how it trains its deputies, its equipment, its policies and its lack of accreditation by a national agency required by law a decade ago.

Espinda’s administration of DPS came under heavy criticism from state lawmakers and the public following the capitol shooting, a separate shooting of an escaped detainee, and a string of jail riots on Maui.

Espinda was ultimately reconfirmed to his position by the Senate in 2019, but he retired in October at the height of the pandemic and COVID-19 outbreaks in the state’s jail population.