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Serving Northern St. Louis County, Minnesota

Report says deadly force was justified in shooting by officers

David Colburn
Posted 2/10/21

DULUTH – The Dec. 5 shooting death of a 19-year-old Virginia man by two St. Louis County Sheriff’s deputies was “reasonable, necessary, justified and authorized,” according to …

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Report says deadly force was justified in shooting by officers

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DULUTH – The Dec. 5 shooting death of a 19-year-old Virginia man by two St. Louis County Sheriff’s deputies was “reasonable, necessary, justified and authorized,” according to a statement and report released Monday by St. Louis County Attorney Mark Rubin, but an attorney for the victim’s family is raising serious concerns about the investigation and the report.
Estavon Elioff was shot multiple times and killed by deputies Ryan Smith and Matt Tomsich in a wooded area northeast of L&M Supply in Mt. Iron after Smith shouted that Elioff was taking aim at the officers with what he perceived to be a gun in his right hand. After the fatally wounded Elioff hit the ground, the officers discovered the weapon to be a pink-handled pocket knife with a three-inch black blade.
The shooting was a tragic end to a nearly hour-long search that began when Elioff ran from another deputy who had confronted him from her patrol car about shoplifting a can of spray paint. Believing Elioff could be armed, the deputy radioed for assistance rather than immediately pursuing him. Sheriff’s deputies, police officers from Virginia, Eveleth and Gilbert, and the Minnesota State Patrol responded.
Early in the search, it was determined that the shoplifting suspect matched the description of an individual being sought by Virginia police for a shooting incident at a house in Virginia the previous day. After confronting an occupant of the house, a man pulled out a handgun and fired at least five shots at the house. The vehicle that the suspect was driving was found abandoned a short time later in the Walmart parking lot. Officers found a 9mm Smith and Wesson pistol, ammunition, and a document from a Virginia drug detoxification program with the name “Estavon Elioff” on it.
Tracked by a police dog after the shoplifting report the next day, Elioff was found standing about six feet off the ground on a partially fallen tree facing away from the officers, according to Smith’s account as detailed in the report. Elioff did not respond to officer commands, and three attempts to incapacitate Elioff with a Taser were unsuccessful. In Smith’s account, he observed a black object in Elioff’s hand pointing directly at him; he shouted “gun, gun, gun” to Tomsich. After falling while backing away, Smith reported that Elioff continued to aim at him, then swung his arm toward Tomsich and back to Smith. The deputies opened fire, striking Elioff five times. After Elioff fell from the tree the officers attempted to provide lifesaving first aid, but were unsuccessful.
A blood drug screen performed during Elioff’s autopsy identified methamphetamine and an active methamphetamine metabolite (amphetamine) in his blood.
“When confronted with the inherent threat of great bodily harm or death to themselves or others, an officer has the right and the duty to use the amount of force reasonably necessary to meet that threat,” said Rubin in his Monday press release. “This was a death following the pursuit, confrontation and attempt to take into custody a young man suspected of firing multiple shots into a home in Virginia, with a 9mm weapon, a little more than 24 hours earlier.”
Rubin also appeared to suggest that Elioff’s actions were intended to provoke the shooting.
“A tragedy? Yes. Especially because indications point to young Elioff feeling caught, trapped, and hopeless … and in all likelihood knowing that his gesture towards the deputies would force a professional response and cost him his life,” Rubin said.
Rubin’s press release was accompanied by a 40-page report by retired prosecutor Vernon Swanum, a “frequent reviewer of previous officer involved shooting cases” that Rubin asked to review all of the reports and evidence collected by the Minnesota Bureau of Criminal Apprehension during its investigation and render an opinion regarding the justification of the use of deadly force. Rubin subsequently had Washington County Attorney Peter Orput review the report, and all three men reached the same conclusion that the use of deadly force was necessary and justified.
Family attorney reacts
After the shooting, Elioff’s family retained the services of Robert Bennett, a Minneapolis civil rights attorney who has successfully handled numerous high-profile cases involving police shootings and misconduct, including the 2016 civil rights case regarding the police killing of Philando Castille.
While Bennett has yet to get a look at the BCA investigative materials, he was highly critical of aspects of the investigation and Swanum’s report in a Tuesday phone conversation with the Timberjay.
“The first thing is you have to have a good investigation, and the second thing is you have to have a fair and balanced review of the evidence in this case,” Bennett said. “I don’t think we have either. I think the investigation was hindered, in part by the officers and their attorneys.”
St. Louis County deputies don’t wear body cams, so the investigation relies heavily on the statements of the only two witnesses to the shooting, Smith and Tomsich. Both deputies initially declined to be interviewed by the BCA, instead working with their respective attorneys to create written statements that were submitted to the BCA three days after the shooting. Smith and Tomsich eventually agreed to in-person interviews by BCA investigators. Swanum’s report indicated Smith’s interview took place 11 days after the shooting but did not state when Tomsich was interviewed.
Bennett said his skepticism is driven by his past experience with similar cases, and there were multiple questions he raised about the report.
“First of all, the bullet counts don’t add up,” he said. “I’ve looked at hundreds of shootings over 40 years and the bullet counts add up in other investigations. I’ve never seen one as messed up as this one.”
Bennett didn’t specify the discrepancy, but he may have been referring to an inconsistency between the number of shots Smith said he fired and the bullets retrieved from Elioff’s body. Smith said he shot just once, a number consistent with the number of rounds remaining in his gun. However, forensic examiners determined that three of the four bullets recovered from Elioff were consistent with having been fired from Smith’s gun.
Swanum identified a potential conundrum in the autopsy report when he noticed that three of the bullet wounds had downward trajectories.
“My confusion stemmed from the description of the shooting by the two officers involved that Mr. Elioff was 6-7 feet off the ground when they discharged their firearms. If true, why would the trajectories be ‘downward’?” Swanum wrote.
Swanum sought an answer to the question by calling the medical examiner, Dr. Anne Bracey. According to Swanum’s report, Bracey said that the downward trajectories were “very slight” and not an extreme angle and could be explained by how Elioff had positioned his body prior to the bullet strikes.
Bennett said he wasn’t convinced by Swanum’s report.
“The trajectory depends on if he was really in a tree or on the ground when they shot him. Who knows?” Bennett said. “And medical examiners aren’t trajectory experts. I want to read the autopsy very closely.”
Bennett’s skepticism of the report is fueled in part by his experience with a 2019 police shooting in Moose Lake, an incident that left the victim, Shawn Olthoff, paralyzed from the neck down.
Swanum conducted a similar evidentiary review of that case and concluded that the officer, Carlton County Sheriff’s Office Sgt. Jason Warnygora, was justified in shooting because he believed Olthof was raising a firearm. After the shooting, no firearms were found in the house, and other officers present at the scene reported that Olthoff was complying with commands to raise his hands.
Bennett filed a $35 million lawsuit on behalf of Olthoff, based in part on information that he said was not included in Swanum’s report, including that Warnygora told BCA investigators that he had consumed two beers just hours before the raid. Carlton County agreed to a $6.2 million settlement in that case that did not acknowledge fault by any of the named parties.
As the attorney for Elioff’s family, it’s Bennett’s job to cast doubt on the BCA investigation and the conclusions reached by Rubin, Swanum, and Orput. Bennett said he would soon be submitting a request to the BCA for the investigative reports and evidence.
“We’ll get the whole file; we’ll have a process that we’re going to do carefully,” Bennett said. “I want to read the autopsy very closely, do all my homework and then decide with my client what we’re going to do about it. There are a lot of questions that aren’t answered by this investigation.”
However, the final decision of justified deadly force for now rests with Rubin, who expressed strong confidence in Swanum’s evaluation of the BCA investigation.
“Based upon the totality of circumstances in the case and the facts as particularly set forth by Mr. Swanum, the current statutory and case law, and taking into consideration the conclusions reached by Mr. Swanum and County Attomey Orput, I too have concluded that the use of deadly force by Deputies Ryan Smith and Matt Tomsich was reasonable, necessary, justified and authorized.”.