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SLC Officer Involved Shooting – 12/05/2020

BCA #2020-842

Vernon D. Swanum - Attorney at Law

Duluth, MN

This report is prepared at the request of St. Louis

County Attorney Mark Rubin, and should be

considered work product. It is protected by the

attorney-client privilege between County Attorney

Rubin and this reviewer. It may only be distributed or

published with the express consent of County Attorney

Rubin or his designee.

Reviewer Background

I am a licensed attorney in the State of Minnesota in good standing with the

Minnesota Supreme Court since 1978. From 1978 until 1981 I was an Assistant

Washington County Attorney. From 1981 until 2010 I was an Assistant St. Louis

County attorney. My primary area of practice during this time was criminal

prosecution. Since my retirement from St. Louis County in 2010 I have been in

solo practice concentrating on public sector law, primarily providing supporting

services for area county attorneys in conflict cases, short-term contracts to provide

prosecution and related services, and consultation in law enforcement officer

involved shooting and alleged excessive force cases.

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Incident Summary

On 12/05/2020, Deputy J. Braiedy of the SLC Sheriff’s department responded to

the L&M Supply store in the town of Mountain Iron, MN, to investigate a call of a

shoplifting incident from the store. The store employee who called in the report

gave a description of the suspect as a white male, in his 20’s, wearing a black

jacket and sweatpants, and carrying a black duffel bag with some red on it. As

Deputy Braiedy arrived in the area shortly after the dispatch, she noted a young

man walking east bound not far from L&M Supply. She drove to the man’s

location, rolled down her window and requested the man to stop. The man was

wearing a bright yellow cap. When requested to stop by the deputy, he simply

stated “no” and turned to walk the other direction.

Deputy Braiedy then got out of her fully marked squad car, dressed in full law

enforcement uniform and began to approach the man. Upon seeing this, the man

placed his right hand in his jacket pocket. Deputy Braiedy ordered the man to

remove his hand from his pocket, but the man refused, and instead took off running

into a heavily wooded, and largely undeveloped, area. Deputy Braiedy, believing

the man to be armed with a weapon, did not follow him into the woods, but instead

called the information into the police radio band and requested backup to assist.

Over the next moments the radio traffic soon developed that the man resembled the

suspect in a shooting incident the day before in Virginia, MN, in which the suspect

had fired at least 4 rounds from a 9mm handgun at the occupant of the house, and

then fled the scene. That suspect was tentatively identified as Estavon Elioff. As

LEO from various law enforcement agencies converged on the area that the

shoplifting suspect had fled, a call in to 911 dispatch from the great-grandmother

of Estavon Elioff, confirmed that the shoplifter was indeed Estavon.

LEO set up a perimeter around the large, wooded area, and called out loudly to

Estavon to surrender himself, but to no avail. Believing that Estavon was

dangerous and still possibly armed, a K-9 tracking dog was called in and a search

began in the wooded area for Estavon. On several occasions the K-9 handler,

Deputy Smith of the SLCSO, called out loudly announcing the presence of the K-9

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and ordering Estavon to surrender himself. He did not surrender himself, or even

verbally respond.

After about a 40 minute and one plus mile search, Deputy Smith, his K-9, and

Deputy Tomsich who was providing cover for Deputy Smith, discovered Estavon

Elioff standing about 6 feet off the ground on a partially fallen pine tree. Elioff’s

back was turned toward the deputies and he appeared to be leaning against an

upright pine tree that the fallen tree was resting against. Both deputies began

giving loud commands to show his hands and get down to the ground. Elioff did

not initially respond in any way. His hands were in front of him, and he appeared

to be digging into his jacket or jacket pocket. Twice, a taser was deployed to get

Elioff’s compliance, but both times the taser had little to no effect. After the

second taser deployment, Deputy Smith, still in control of his K-9 on a leash,

observed Elioff partially turn towards Smith, and extend his hand in Smith’s

direction. Deputy Smith observed a black object in Elioff’s hand pointed directly at

Smith. Believing this object to be a firearm, Smith hollered to his partner,

Tomsich, “GUN, GUN, GUN”. Smith had been backing away while shouting this

out and tripped and fell. He was able to right himself as Elioff was still pointing the

object at Smith. Believing he was about to be fired upon, Smith fired his service

pistol in the direction of Elioff. Deputy Tomsich, who was preparing to deploy a

3rd taser strike heard Deputy Smith yell “GUN”. Tomsich then dropped the taser

and reached to pull his duty pistol from his holster. As he did so he noticed that

Deputy Smith was on the ground, but did not know why or how. Deputy Smith

then yelled, “Matt, he’s got a gun”, at which point Deputy Tomsich aimed his duty

pistol at the back of Estavon Elioff and began firing, although he had not

personally observed a gun in Elioff’s hand.

Estavon Elioff was struck with 5 bullets fired from the officers and fell from the

tree. Emergency first aid was administered by Deputy Tomsich and other

responding officers, but by the time EMT’s had removed Elioff from the woods to

the awaiting ambulance, Mr. Elioff had expired. The time of death was put at 2:09

pm.

Located at the scene of the shooting, right next to where Elioff had fallen from the

tree was a folding knife that had been opened to a 90-degree angle. The blade of

the knife was black.

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Issue

Were Deputies Smith and Tomsich justified in concluding at the moment they used

deadly force against him that Estavon Elioff constituted an imminent and deadly

threat to their lives?

Legal Authority

Minn. Stat. 609.06 -Authorized Use of Force

Subd. 1. When Authorized

Except as otherwise provided by Subdivision 2, reasonable force may be used upon

or towards the person of another without the other’s consent when the following

circumstances exist, or the actor reasonably believes them to exist:

(1) When used by a public officer…

(a) In effecting a lawful arrest: or

(d) In executing any other duty imposed upon the public officer by law

Minn. Stat. 609.066-Autorized Use of Deadly Force by Peace

Officers

Subd. 1. Deadly force defined. …The intentional discharge of a firearm, other

than a firearm loaded with less lethal munitions, and used by a peace officer within

the scope of official duties, in the direction of another person…

Subd. 2. Notwithstanding the provisions of Sec. 609.06 or 609.065, the use of

deadly force by a police officer in the line of duty is justified only when necessary:

(1) To protect the peace officer or another from apparent death or great bodily

harm.

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Graham v Connor, 490 U.S. 386 (1989)

This case is the seminal case regarding peace officer use of deadly force,

establishing the “reasonable officer” standard in evaluation the use of force, deadly

or otherwise, by law enforcement officers when effecting an arrest or other lawful

duties. Essentially the actions of a police officer should be evaluated using the

totality of the circumstances test from the perspective of the “reasonable officer”

on the scene.

“The calculus of reasonableness [is a totality of the circumstances test that] must

embody the allowances for the fact that police officers are often forced to make

split-second judgments in circumstances that are tense, uncertain, and rapidly

evolving…about the amount of force that is necessary in that particular situation.”

(at 396-397)

The actions of the officer must be viewed at the moment the officer made the

decision to use deadly force, and specifically not analyzed with the benefit of 20-

20 hindsight.

However, “an officer’s good intentions [do not] make an objectively unreasonable

us of force constitutional. “(at 397)

State of Ohio v White, 988 NE2d 595 (Ohio App. 2013)

This case adopts, explains, and expands upon Graham when analyzing

criminal liability of police officers charged with crimes for using excess or

unreasonable deadly force against a citizen. In White, a licensed peace officer

shot and wounded a suspect during a traffic stop when he mistakenly believed the

suspect was about to deploy a firearm against the officer. As it turned out, the

officer was mistaken, and the suspect did not have a firearm in his possession. The

officer was convicted at trial of assault with a deadly weapon, but the conviction

was overturned on appeal.

The Ohio Court of Appeals adopted and clarified much of what was hinted at in

Graham.

-The standard of justified use of deadly force is to be analyzed using the totality of

the circumstances test.

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-The totality of the circumstances test must take into consideration that trained

police officers often have a different understanding of developing actions and are

forced to make judgments in circumstances that are tense, uncertain, and rapidly

changing.

-You cannot engage in second guessing and armchair reflection and ask what the

officer could have done differently or that the officer should have done differently,

or if there were more appropriate alternatives available to the officer. “We must

avoid…analyzing the question at [our] leisure.”

-Police officers are understandably trained in the “action-reaction” principle. In

other words, as a situation escalates, the officer that waits until the threat against

himself or others becomes certain, the officer is then reacting to that threat and is

trying to catch up to the threat. Police officers are trained to act before the threat

actually develops and gets out of hand. This is understandable, acceptable, and

does not detract from the reasonableness of the officer’s actions when considered

within the factual context and compressed timeframe in the decision to act.

-An honest and reasonable mistake as to the degree of threat faced by the officer at

the moment of deadly force does not negate the reasonableness of the action taken

by the officer. After-action acquired information cannot influence the analysis.

See also Anderson v Creighton, 107 S. Ct. 3034, @ 3039 (US 1987)

Hyek v City of St. Paul, 488 F2d 1049 (8th Cir. 2007)

Police officers may use deadly force against another when the officers reasonably

believe that person constitutes a direct and imminent threat of death or great bodily

harm to the officers of others.

Mumm v Mornson, 708 NW2nd 475 (Minn. 2006)

This case adopts for Minnesota the Graham standard for evaluating police officer

use of deadly force.

Malley v Briggs, 106 S. Ct. 1092 @1096 (U.S. 1986)

This case involves a discussion of qualified immunity as it applies to a police

officer applying for a search warrant. The ruling of the court was that the officer

was entitled to qualified immunity if the officers of “reasonable competence” could

disagree on the issue of probable cause. This same analysis can also be used to

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evaluate the reasonable use of deadly force. See also Baker v Chaplin, 517 NW2d.

911, (Minn. 1994)

Johnson v Morris, 453 NW2d 31 (Minn 1990)

A mistake in judgment by a police officer is insufficient to support imposition of

deadly force liability.

Maras v City of Brainerd, 502 NW2d 69, (Minn. App. 1999)

In this civil case, a man’s wife called 911 to report that her husband is drunk and

has grabbed some knives and beer and gone out to his vehicle. Officers arrive to

find the husband backing his car into a tree. The man got out of his car holding a

knife in one hand and a beer in the other. The wife was present, but did not appear

to be in fear for her safety. The husband was clearly intoxicated, could hardly stand

up, and repeatedly fell against the side of the car for support. The officer

approached the suspect and ordered him to drop the knife. The man said, “lets

party”, but made no other threatening statement. The man started to approach the

officer, got to perhaps 6 feet away, still holding the knife. The officer shot him

twice in the chest, killing him.

Although this is a civil case addressing the issue of qualified immunity when

evaluating whether an officer used excessive force, it approached the analysis

much as Graham. The court ruled that we must consider the facts and

circumstances of each particular case, including the severity of the crime involved,

whether the suspect poses an immediate threat to the safety of the officer or others,

and whether the suspect is actively resisting arrest or attempting to evade arrest.

In finding that the officer in this case was not entitled to qualified protection the

court held that “a police officer is not entitled to use deadly force if no reasonable

peace officer would have acted similarly.”

Ramirez v Escajeda 298 F. Supp. 933 (U.S. Dist. Ct., W.D. Texas,

2018)

In this civil case alleging use of excessive force by a police officer, the plaintiff

argues that the officer violated the police department’s use of force policy, and by

doing so, he therefore used excessive force. The court did not adopt that argument

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per se, but does seem to suggest that the violation of department policy on use of

force is one of the factors to be considered in evaluating the reasonableness of the

use of force by the officer. See also Baker v Chaplin, 517 NW2d. 911 (Minn.

1994)

Material Reviewed

-Training records of both officers

-SLCSO firearms policy

-SCLSO Use of Force Policy

-Photographs taken by the SLCSO and BCA relative to the 12/05/2020 OIS

-Google Earth aerial view maps of Mountain Iron, MN, concentration of the search

area of 12/05/2020

-All written reports prepared and submitted by BCA investigators

-Forensic reports prepared by the BCA laboratory scientists

-All written reports prepared by Virginia PD officers regarding the shooting

incident of 12/04/2020 as well as the 12/05/2020 OIS

-All written reports prepared by the SLCSO regarding the shooting incident of

12/04/2020 as well as the 12/05/2020 OIS

-Available body camera footage from several LEO responding to incident

-Preliminary and final autopsy reports of Estavon Elioff prepared by Dr. Anne

Barcey

-Squad video from MSP Trooper Anderson’s vehicle

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Narrative

[This report will be written in the narrative format detailing the incident of

12/05/2020 in the town of Mountain Iron, Mn, investigated by the Minnesota

Bureau of Criminal Apprehension. This report will not detail every report,

interview, or evidentiary material reviewed, but the reader can assume that any

factual information provided in this narrative is supported by evidence that would

be admissible in a courtroom setting through live testimony, physical or

documentary evidence, or digitally recorded evidence.

12/04/2020 Virginia Shooting investigation-

At approximately 7:47 AM on December 4, 2020, Officers of the Virginia (MN)

Police Department responded to multiple 911 calls of gunshots fired in the area of

12th St. N. and 8th Avenue in the City of Virginia. One of the 911 reporters

indicated that a beige or gold colored two-door car, with the back passenger

window covered with plastic and duct tape had been observed speeding westbound

down the alley immediately after the shooting.

The arriving officers got out of their squad cars and could detect the strong odor of

burnt gunpowder. The officers also noticed what appeared to be bullet holes in the

back side of the residence at 801 – 12th St. North. Officer Simons spoke with

neighbors MAK and STK who confirmed that they had heard the multiple

gunshots and called 911. Officer Simons was then approached by another

neighbor, KES, who explained that she had been standing in her driveway when

she observed a male wearing a dark coat and a red scarf standing by the back door

of 801. She heard some yelling and cursing but could not understand what was

being said. KES then stepped behind some bushes so she could not be seen, and

then heard multiple guns shots. Right after that she heard a car “peel out”, but

could not give a description of that car.

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Virginia PD Officer Holeman also responded to the dispatch and began to inspect

the area around 801. He noticed damage to the rear door and the siding on the rear

of the house that he believed to be bullet strikes. He also located a spent 9mm

cartridge casing near outside, NE corner of the residence.

An occupant identified as ARM came out of the house and spoke to Officer

Holeman while other officers checked the inside of the residence for possible

injured parties or suspects. None were found.

Virginia PD Lt. Broneak had also responded to the scene of the reported gunshots.

As he approached the house, he noticed what appeared to him to be a rear window

shattered by a gunshot, and two bullet holes in the rear door. Later inspection also

revealed a gunshot into the upper window on the side of 801 as well as another

gunshot to the siding on that side of the house.

Lt. Broneak knocked on the back door of 801 which was eventually answered by a

male who identified himself as ARM. ARM advised that he is not from around the

Virginia area, this house belonged to his cousin “Kenny” C. and he was only

staying at the house. Furthermore, neither his cousin nor anyone else was in the

house. When asked what had happened, he said a man wearing a mask had come to

the back door. The masked man asked for Kenny. When ARM told the masked

man that Kenny was not there the man produced a pistol and began shooting. ARM

then retreated into the house and eventually found a .22 caliber pistol which he

fired one time at the man that had been shooting at him.

A search of the house later revealed a quantity of marijuana in 13 individual one-

gallon plastic bags and a scale commonly used to weight out marijuana for

packaging and sale. The search also discovered evidence that the house at 801 had

4 bullet holes into the house that had been fired from the outside, and one bullet

hole in the back door glass that had been fired from inside to outside of the house

that was most likely made by the discharge of the .22 caliber pistol located inside

the house. On the person of ARM was $3,516.00 in cash.

*This reviewer is relatively certain that ARM was not totally candid with

investigating officers.

As the Virginia PD was investigating the scene at 801, a description of the tan, 2-

door vehicle seen leaving the shooting scene had been put out on police radio. A

Minnesota Highway patrol officer located the vehicle in the parking lot of the

Virginia Walmart store. This car was towed, and a detailed search conducted. In

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the center console of the car a 9mm, Smith and Wesson pistol was discovered.

Around the grip of the gun were wrapped two shoelaces, one orange and one blue.

The ammunition in the magazine and chamber of the firearm appeared to be the

same as the cartridge casings found at 801. In the rear passenger seat of the car was

a Nike brand backpack which contained a partially full box of Ultramax 9mm

ammunition, as well as several loose rounds of 9mm ammunition. Also located in

the backpack was a document from the Virginia Detox written to “Estavon Elioff”.

St. Louis County Sheriff Deputy Braiedy had also monitored the information about

the gunfire in Virginia and began to investigate by checking with local businesses

that had surveillance cameras that may have captured images of the tan suspect

vehicle. At the Northside Lucky Seven gas station on 9th Ave. N., Deputy Braiedy

located a video capture of a vehicle matching the suspect vehicle and a male

coming into the station that morning prior to the shooting. A still photo from the

surveillance video was shown to Virginia PD detective Kelly who was positively

able to identify the person in the photo as Estavon Elioff from prior contacts that

detective Kelly had with Mr. Elioff. Deputy Braiedy also checked the

surveillance cameras at the Walmart store and located images of a man that were

able to be associated with the tan Pontiac suspect vehicle that had been located in

the parking lot. The photo shows a man that Detective Kelly was also able to

positively identify as Estavon Elioff. The photograph clearly shows Elioff wearing

a dark jacket or coat, dark pants, a bright yellow or lime cap, and white tennis

shoes, one with blue shoelaces and the other with red or orange shoelaces.

Based on the evidence that had been gathered to that point a BOLO (be on the

lookout) was issued for Estavon Elioff stating that if located there was probable

cause to arrest for 2nd degree assault regarding the shooting at 801 that morning.

12/05/2020 – Mountain Iron

Description of search area- (It would be helpful to a person reading this review to

access a Google Earth map of Mountain Iron, MN, and first locate L&M Supply at

8497 Enterprise Drive N. to help orient the reader to the various landmarks and

powerlines mentioned in this report.)

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The area of the search is roughly a square that is approximately 4,000 feet on each

side. (3/4 of a mile). The south is bordered by Highway 169, the north by Parkville

Street, the west by 3rd Street, the east by Highway 53. There is some development

on the west and south borders, but for the most part the square is undeveloped

woodland, with mixed forest and some open areas.

Running parallel to Highway 53 inside the square is a railroad track. Next to the

railroad track about ½ way up the east side of the search area is a large electrical

sub-station.

Running parallel to Highway #169 and slightly north of the highway runs

Enterprise Drive North, which is site of various businesses. On the very southwest

corner of the square, right off Enterprise Drive is L&M Supply. Immediately east

of L&M is a business known as Anderson Auto Service.

There are several power lines running through this square. There is one powerline

that runs basically east/west, beginning just north of the power sub-station on the

east. Along this powerline runs an old, unused, elevated railroad grade (berm). In

the northwest quadrant of the search area, this old railroad grade intersects with

Eagle Avenue which runs from Parkville St., south until it dead ends when it

reaches the old railroad grade. At this point is a north/south powerline that

intersects at the old railroad berm and continues south towards Enterprise Drive.

Approximately one block west of the north-south powerline and Eagle Avenue is

Falcon Avenue which also runs north to south, but continues south past the old

railroad grade for perhaps another 300 yards. Falcon Avenue is lined on both sides

with private residential housing units.

There are two parallel powerlines that run northeast to southwest beginning at the

power sub-station, intersecting with the south border of the search square about in

the middle.

SHOPLIFTING CALL AND SUBSEQUENT EVENTS.

At 12:28 pm on 12/05/2020, Deputy Braiedy of the St. Louis County Sheriff’s

office responded to a police dispatch of a shoplifting incident that had just occurred

at the L&M Supply store in Mountain Iron. The information from the dispatch is

that a male suspect had been caught shoplifting a can of spray paint at the store and

had subsequently pushed a store employee and fled the store. The suspect was

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described as a white male, mid-twenties, thin build, sandy blond hair, wearing a

black jacket, dark colored sweatpants, and carrying a dark bag with some red on it.

As Deputy Braiedy approached L&M Supply, driving from east to west on

Enterprise Drive N., she observed a male that seemed to match that description of

the shoplifter walking east bound. As she approached the man, he seemed to notice

her and turned to head westbound. As Deputy Braiedy neared the man she rolled

down the window of her squad car and ordered the man to stop. His reply was

“no”, and then turned northbound and walks away. While doing so he places his

right hand in his right jacket pocket. Thinking the man was reaching for a weapon,

she orders the man to remove his hand from his pocket. Again, the man responds

“no’. Officer Braiedy orders the man several times to remove his hand from his

pocket, but the man refuses and begins to run north into a brushy, wooded area.

Believing the man to be armed, Deputy Braiedy does not pursue. She does radio

out the incident, calling for backup support. She describes the man, including the

fact that he is wearing a bright yellow cap. Deputy Thorne, who was involved with

investigating the Virginia shooting the day before recognizes that this fits the

description of the suspect in that shooting, Estavon Elioff. With that information,

multiple officers from surrounding law enforcement agencies respond and begin to

set up a perimeter of the search area. A K-9 officer, SLC Deputy Smith, is alerted

and asked to respond with his dog.

Officers Roskowski and Simons of the Virginia PD responded to assist in

perimeter. They arrived in the parking lot of a business on Enterprise Drive N.

located in about the middle of the south perimeter. This allowed them to view

down parallel powerlines that ran to the northeast from their position. Shortly after

arrival at that location they observed a man they believed to be the suspect run

across the powerline from west to east into a wooded area. This information was

broadcast to responding officers.

With this fresh sighting, Deputy Braiedy, along with Lt. Broneak of the Virginia

PD, went to a position slightly to the east and north of Officer Roskowski, exited

their individual squads and proceeded into the wooded area toward the general area

that the suspect, now strongly believed to be Estavon Elioff, was last seen. Lt.

Broneak was equipped with a body worn camera and he did activate it. The body

cam footage was later downloaded to two separate videos, the first video 29:00

minutes in length, the second video 32:14 minutes in length.

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The first video begins as Lt. Broneak exits his vehicle after parking in a business

parking lot just to the north of the southeast corner of the search area. He begins

walking towards a wooded area located generally to his west. The footage shows

that he is joined by Deputy Braiedy just before entering the wooded, brushy area.

At the 2:00 mark, just after both officers enter a north-south power line Lt.

Broneak yells “there he is, right there”, followed by a loud command “let me see

your hands”, “get your hands up”. The person who is the subject of Lt. Broneak’s

interest cannot be seen on the footage. Lt. Broneak then radios other officers “he’s

running north…black jacket”. Lt. Broneak and Deputy Braiedy, who is still shown

on the footage, lose sight of the suspect, but remain in the same area pending

additional information. At 3:21 a radio call from another officer (274, Believed to

be Deputy Pauly) announces that he has eyes on the suspect coming up a power

line.

Over the next several minutes radio traffic can be heard regarding the red and blue

shoelaces worn by the suspect, including that they seem to match the red and blue

shoelaces wrapped around the grip of the handgun discovered during the search of

the suspect vehicle after the 12/04/20 shooting in Virginia.

At the 18:21 mark on Lt. Broneak’s body cam, radio traffic indicates that the K-9

is beginning to track.

This video ends at 29:00. Video #2 begins with Lt. Broneak still in the same

position when video #1 ends.

At the 2:30 mark of video footage #2, Lt. Broneak walks back to his squad car and

then repositions to the parking lot at L&M Supply. At 8:17 radio traffic indicates

that Elioff’s grandmother had called to report that she had dropped Estavon off at

the bus earlier in the morning that was going to transport Estavon to Washington

state. Grandmother followed the bus and observed Estavon get off the bus in

Mountain Iron at a location very close to L&M Supply. The call also indicated that

it was discovered that house and car keys are missing from the house.

At 20:43 the audio picks up radio traffic of “contact with him”.

At 24:19 if you listen closely you can hear what sounds to be multiple gun shots

fired close together. This reviewer could not determine the actual number of shots

fired, but they are obviously coming at a distant location north of Broneak’s

position. At 24:23 there is a radio call of “shots fired”. *(this timing sequence is

mirrored in the squad cam audio from the squad of MSP Trooper Anderson which

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will be detailed later in this report.) Thereafter are calls for medical assistance. At

26:35 a radio call indicates that the suspect has been shot and the LEO on scene are

not injured. At about that time Lt. Broneak re-enters his squad car and moves over

to Falcon Avenue arriving at 28:21. Nothing of significance is shown or heard on

the body cam video after that until it ends at 32:14.

SLCSO Deputy Pauly had been involved in the investigation of the Virginia

shooting on 12/04/2020. He was on duty on 12/05/2020 when the original L&M

Supply shoplifting call went out. He monitored the ongoing incident and once he

learned that the suspect matched the description of the previous days shooting

incident, he responded to the area and helped establish a perimeter of the search

area. He parked his squad near the electrical power sub-station on the east side of

the search area, then approached the sub-station on foot. Shortly after his arrival he

spots a man matching the suspect’s description walking northbound in the

powerline. He first radios out what he is observing and then steps out into view and

yells out words to the effect of “Police, come out with your hands up”. He then

yells out what is known as a K-9 command which is used to alert search suspects

that a police K-9 is about to be released and the suspect should surrender, or risk

being bitten. The suspect did not respond, but instead hurries into the wooded and

brushy cover. At about this time, Deputy Pauly is joined by Eveleth police Officer

High, who had likewise been involved in the investigation of the 12/04/2020

Virginia shooting.

SLCSO K-9 handler, Deputy Smith, who has been driving towards the search area

then responds to the electrical power sub-station as that was closest to where the

suspect had last been observed. He readies his dog to begin the search, but before

doing so he also gives several K-9 commands. Smith, along with Deputy Pauly and

Officer High then discover the suspect’s foot prints where he had been spotted by

Deputy Pauly, and the K-9 track ensues. The dog tracks generally east to west

through rough and wooded area. The dog is on a leash, as is the customary

practice, and Deputy Pauly and Officer High are acting as the dog handler’s cover.

This standard procedure is necessary as the dog handler is concentrating solely on

the actions of his dog, and not keeping a lookout at his surroundings to see if there

is any danger approaching from the suspect subject to the search.

The search continues until it is near the east-went powerline and abandoned

railroad line berm. As they approach, they can hear Deputy Tomsich, who has

positioned himself on perimeter overwatch on the berm, not far from where the

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berm intersects with Eagle Avenue. The K-9 search team can hear Deputy Tomsich

yelling commands to someone. The team meets with Deputy Tomsich on the berm

to gather information from him, who advises he had just had visual contact with

the suspect ordering him to surrender, but his commands were ignored. At his point

both Pauly and High are winded from the difficult and fast-paced search, and ask

Deputy Tomsich to take over as K-9 cover. Tomsich agrees to do so, and begins to

follow Deputy Smith as the dog continues the track.

Deputy Smith was to later provide both a detailed written statement followed by a

recorded interview with BCA investigators. Deputy Smith has been a St. Louis

County Deputy Sheriff for about 11 years. He has held several different

assignments over the years including a firearms instructor and member of the

SWAT team. He has been trained and assigned as a K-9 officer since 2017. A

review of his training record reveals that he is up to date on all of his training, and

has participated in many different weapons trainings over the years. He has also

been trained in de-escalation techniques. His K-9 dog, which lives with him at his

home, is duel trained in narcotics searches and apprehension.

Deputy Smith was familiar with the Virginia shooting incident of 12/04, and had

viewed the surveillance camera footage obtained from Walmart. He knew that

Estavon Elioff was the name of the suspect, who was described as a white male,

early to mid-20’s, medium height and build, wearing light colored sneakers (tennis

shoes) with two different colored shoelaces, one red, one blue.

On the early afternoon of 12/05/2020, he was off duty and at home with his family

and dog. At approximately 12:30 he received a call from his patrol Sergeant, Sgt.

Toewe, requesting his assistance in a search for a shoplifting incident at the L&M

Supply store in Mountain Iron. Sgt. Toewe provided a brief summary of the

incident and advised Deputy Smith that the suspect matched the description of the

shooter from the 12/04 shooting in Virginia. Deputy Smith immediately prepared

himself to respond, leaving his house at 12:45 and driving his squad to the scene

using emergency lights and siren. On the way he was advised that the suspect was

recently observed by Deputy Pauly near the electrical sub-station next to Highway

#53 on the east side of the perimeter that had been established. Accordingly, that is

where he first responded.

Upon arrival he met with and was briefed by Deputy Pauly regarding what and

where Pauly had observed the suspect. They located the footprints of the suspect

on the powerline and heading into the woods. Deputy Smith, who had his dog on a

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tracking harness and 20’ leash, first began by giving a loud K-9 warning. This is an

important step in the search process because it frequently causes the search suspect

to immediately surrender. This warning is repeated several times during the search

until the suspect surrenders, is apprehended, or the search otherwise ends. After the

first warming there was no response from the suspect, who was now believed to be

Estavon Elioff, and the dog was ordered to search. Deputy Pauly and Eveleth

police Officer High, who was also on location, acted as Deputy Smith’s cover

officer. Deputy Smith explains this is an important part of the search process as the

dog handler focuses almost exclusively on the reactions of the dog, and rarely has

an opportunity to observe his surroundings. A search is unpredictable, and the

handler does not have the benefit to look around in the event that the suspect might

be lying in wait to ambush or attack the handler or his dog.

As the search begins Deputy Smith can tell his dog is on the scent by the dog’s

reactions. The dog’s search is aggressive, his nose to the ground and his tail

wagging wildly. The initial track heads to the north, northwest. Every couple

hundred yards a loud K-9 warning is given. About 500 yards into the search the

team locates a place where Elioff has obviously stopped and sat down to rest.

Another K-9 warning is loudly announced. At no time during the entire search,

either in response to K-9 warnings or otherwise, does Elioff ever give a verbal

response.

Deputy Tomsich has by this time established himself on the old railroad track berm

on the northern edge of the search area, just to the east of Eagle Avenue. Looking

south he observes Elioff step out of the woods and into the powerline running

north-south. He gives loud commands to Elioff to show his hands and surrender

himself. Instead of complying with the commands, Elioff runs back into the

wooded area in a generally westbound direction.

Hearing the commands from Deputy Tomsich, the search team heads in his

direction. In short order they come upon Tomsich who briefs them about what he

had observed. By this point both Deputy Pauly and Officer High are winded from

the rapid track through the wooded and difficult terrain and Deputy Tomsich

agrees to take over as cover officer for the dog and handler. The dog recovers the

track of Elioff, but before the search resumes another K-9 warning is shouted out.

The search starts out in a generally west direction, but before proceeding very far

the dog stops and begins to sniff the air, rather than the ground. Another K-9

warning is shouted. The track then begins again in a southwest direction. After a

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short distance, the dog once again stops to sniff the air. At this point Deputy Smith

glances to his right and observes Estavon Elioff standing approximately 6’ off the

ground on a partially downed tree leaning at about a 45-degree angle. The leaning

tree is resting upon an upright pine tree and Elioff is facing away from Smith and

Tomsich, and appears to be leaning against the upright tree. He is looking over his

left shoulder at Smith and Tomsich from a distance of 10-15 yards.

Deputy Smith immediately begins to shout loud commands to Elioff. “Sheriff’s

office…show me your hands…you are under arrest.” This and similar commands

are shouted again and again at Elioff, but Elioff does not show his hands, or

respond in any other way. Smith believes his partner Tomsich is also giving

commands to Elioff, but cannot recall exactly what they were. Deputy Smith

becomes aware that Elioff seems be looking down toward his stomach or waist

area while manipulating something around his waistline. As Deputy Smith cannot

observe the front of Elioff or his hands he doesn’t know what he is reaching for or

doing, but it concerns Deputy Smith to the point that he deploys his service pistol.

He yells at Elioff, “Drop it”.

Deputy Tomsich advises Deputy Smith that he intends to deploy his taser. A loud

announcement is directed to Elioff that he is about to be tased. Elioff does not

respond. Deputy Tomsich then activates his taser, and the prongs shoot out but

have little effect on Elioff. Certainly not the desired effect of causing temporary

disablement of the suspect. Tomsich then advises Smith that he is going to attempt

a drive stun with his taser. This is a technique where the officer will attempt to

make direct contact with the subject, and if at least one of the prongs shot out from

the initial taser activation is in contact, the drive stun with achieve the intended

result. Tomsich approaches under the tree and attempts the drive stun, but without

success. As Deputy Tomsich is attempting the drive stun, Deputy Smith observes a

black object in Elioff’s right hand. Thinking that the object was a weapon of some

kind he yelled at Deputy Tomsich to “get back, get back.”

Deputy Smith was later to describe his thought process at this point was they

needed to find a way to get Elioff down from the tree and handcuffed.

After the attempted drive stun, Deputy Tomsich retreats and removes the taser

from Deputy Smith’s duty belt. Deputy Smith continues to shout commands at

Elioff to show his hands. Instead, Elioff continues to manipulate his hands in his

waistline area. Deputy Smith will later explain that officers always concentrate on

the hands. Hands can hurt you.

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Deputy Tomsich then deploys and activates Deputy Smith’s taser. Deputy Smith

notices that Elioff gives a slight reaction as if he is slightly affected by the taser,

but then punches out his right hand and lowers his head as if to sight down his arm

in preparation to fire a pistol. Deputy Smith observes a black object in Elioff’s

hand pointing directly at him. Believing the object to be a gun, Deputy Smith

immediately shouts a warning to his partner, “GUN, GUN, GUN”, as he begins to

back up to create space between himself and Elioff. However, he trips over

something and falls onto his left side but continues to hold onto the dog’s leash

with is left hand, and his service pistol with his right hand. He looks up and sees

that Elioff is fixated on him and continues to aim down his arm pointed at Deputy

Smith. When later asked by BCA investigators how sure his was that the object in

Elioff’s hand was a gun, his response was “100%”.

Believing he was in immediate mortal danger, Deputy Smith sprang to his feet

again yelling, “MATT, HE’S GOT A GUN”. As Deputy Smith is getting off the

ground, he sees Elioff swing his arm around in the direction of Deputy Tomsich.

Elioff then swivels his arm back at Deputy Smith, still sighting down the length of

his arm along the black object. Smith fires his duty pistol at Elioff. As his does so

he sees Elioff’s right arm recoil in an upwards motion as if in recoil from

discharging a handgun. Deputy Tomsich discharges his own duty pistol, but

Deputy Smith does not know how many times. Deputy Smith’s instantaneous

thought is wondering when he would register pain from being shot. But quickly

realized he had not been hit. Elioff crouched down but did not immediately fall

from his position on the tree. When he did fall, both officers and the dog advanced.

They could not see Elioff’s hands, they were unsure how badly he was injured, and

considered that he may still be armed and a threat. The dog was deployed and took

hold of one of Elioff’s legs. Deputy Tomsich secured Elioff’s hands. With that,

Deputy Smith called off the dog and tied his leash to a tree. The dog was able to

free itself and again advanced on Elioff and grabbed onto an arm. This time the

dog was moved farther away and secured. Returning to Elioff who was being

tended by Tomsich, Smith took Tomsich’ s radio and called out “Shots fired” to

notify other officers to come to their position. He dropped the radio and tried to

assist in life saving aid to Elioff, as other officers quickly arrived on the scene and

relieved him and Tomsich. In short order, Sgt. Toewe arrived on the scene and

advised another deputy to take both Deputy Smith and Tomsich away from the

scene. Deputy Smith walked with Deputy Parise out to her squad car parked a short

distance away on Falcon Avenue. This is standard practice in officer use of deadly

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force cases. He did not discuss the incident with Deputy Parise. The intent of

assigning an officer to attend to the officer who used deadly force is to ensure the

well-being and stability of that officer. It is not intended to question or advise the

officer in any way.

Deputy Smith provided to BCA investigators a written report he prepared 3 days

later. On 12/16/2020 he sat for an extended recorded interview with two BCA

investigators. He explained that after the incident he had not spoken to or

communicated in any way with Deputy Tomsich regarding the details of this

incident. Nor did he speak with any other law enforcement officers about the

details of the incident prior to speaking with BCA investigators. Deputy Smith

began a tracking app on his cell phone as he began his search with the dog. From

this it was determined that the search lasted 39 minutes, 40 seconds, and traveled

1.07 miles from beginning to end.

Deputy Tomsich provided a detailed written statement regarding his involvement

in both the 12/04/2020 Virginia shooting incident as well as the 12/05/2020

Mountain Iron incident. He later sat for a recorded interview with two BCA

investigators. Deputy Tomsich has been a St. Louis County Sheriff’s Deputy for 12

years. He is a member of the Emergency Response Team, (aka: SWAT), a use of

force/defensive tactics instructor, and assigned as a uniformed patrol deputy.

On 12/04/2020 he monitored the dispatch on the Virginia shooting incident. He

provided assistance in attempting to locate the vehicle associated with the

shooting. After that vehicle was located in the Walmart parking lot in Virginia he

responded and provided perimeter security while the shooting suspects were

searched for. At that time he was able to view the surveillance photos of the

suspect; learned his name to be Estavon Elioff; he also pulled up a photo of

Estavon Elioff from the Sheriff’s record system so was able to get a full face,

unmasked photo of Elioff.

On 12/05/2020 he was on routine patrol when he monitored the dispatch regarding

the shoplifting incident at L&M Supply. Once Deputy Braiedy reported that she

had contact with the suspect, indicating he was not responding to commands, and

provided a description that matched that of the 12/04 shooter, Deputy Tomsich

began to head in the direction of Mt. Iron. He continued to monitor the events and

responded to assist in setting up a perimeter. Upon arrival in the area, he parked his

squad car at the end of Eagle Avenue and proceeded a short distance on foot to

stand atop the east-west old railroad grade berm, in the northwest sector where it

21

formed a 90-degree intersection with the powerline that ran north-south. From his

position he had a clear view down the berm to the east, and down the powerline to

the south.

As Deputy Tomsich surveilled the perimeter he monitored information from police

dispatch that a recent caller had indicated that Estavon Elioff was known to have

boarded a bus in Virginia destined for the state of Washington, but had gotten off

the bus in Mt. Iron just across the road from L&M Supply. This increased his

suspicion that the person being sought was in fact Estavon Elioff.

As Deputy Tomsich monitored the K-9 search he realized the search was headed

towards his position. He could hear yelling but could not make out the words.

Suddenly he sees a man enter the west side of powerline to the south of his

position. The man apparently sees Deputy Tomsich and momentarily steps back

into the woods and brush, but soon steps out into the powerline again and looks

directly at the deputy from about 40 yards away. The man fits the description of

the suspect. Deputy Tomsich recognized the man to be Estavon Elioff and began

shouting commands at Elioff to show his hands and get on the ground. Elioff

appeared to have his right hand inside the partially zipped jacket he was wearing.

Elioff did not comply with the commands, nor did he respond verbally or any other

way. Deputy Tomsich even yelled “Estavon, the area is surrounded, you are being

tracked by a K-9, get down on the ground.”. Elioff ignored the command, kept his

right hand in his jacket, and then turned and walked southwest into the woods on

the east side of powerline headed in the general direction of Falcon Avenue.

Within moments the K-9 team reached Deputy Tomsich. He briefed Deputy Smith

and the others of what he had just observed. Deputy Pauly and Officer High were

quite winded at that point and Deputy Tomsich agreed to take over as cover for

Deputy Smith and the dog. They proceed down the powerline until they located the

shoe prints left by Elioff and the dog began to track west by southwest through the

wooded area. They had not been searching long when Deputy Tomsich responded

to a remark by Deputy Smith and observed Estavon Elioff positioned

approximately 15 feet away, standing on a leaning tree about 6’ off the ground. His

back was to the officers, but he appeared to glance over his left shoulder at

officers. Deputy Tomsich recognized him to be Estavon Elioff. At this point both

officers began to shout commands to Elioff to show his hands and to get onto the

ground. These pleas were ignored by Elioff. Deputy Tomsich advised Deputy

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Smith that he was going to attempt to tase Elioff and that Deputy Smith should

provide cover while he did so.

Deputy Tomsich then holsters his duty pistol, removes his taser unit, yells a

warning to Elioff that he is about to get tased, and when there was no response he

fires his taser. It appeared as though Elioff tenses briefly, but the taser does not

bring the desired response of rendering the suspect incapacitated. At this point

Deputy Tomsich decides he will try a “stun drive” with his taser. This is a

maneuver in which the officer attempts to make direct physical contact to the

suspect while activating the taser unit to incapacitate the person. Deputy Tomsich

was to later explain that this is always a risky move as it requires the officer to get

within close proximity to the suspect. In this case he believed there was a high

probability that Elioff was armed due to the firearms related incident the day

before, and his present refusal to show his right hand. Deputy Tomsich elected to

make the attempt anyway because he knew his partner was providing overwatch,

and because he wanted to end the incident without anyone getting seriously

injured.

When asked by BCA investigators if he had considered reaching up and grabbing

Elioff by the leg and pulling him off the tree, Deputy Tomsich indicated he did, but

only briefly. With the taser, even with a stun drive maneuver there was some

distance between them, and he would have more ability to separate from Elioff if

Elioff deployed some kind of weapon or was to fall out of the tree. If he had

grabbed onto Elioff and pulled him out of the tree they may have crashed together

and if Elioff was in fact armed with a gun or knife it would have been more

difficult to control or separate away from Elioff.

Deputy Tomsich approached Elioff from under the tree, reaching up he tried to

make direct contact with the taser to Elioff’s leg. He thought he had been

successful, but Elioff moved his leg and at that moment Deputy Smith yelled for

Deputy Tomsich to move or get out of the way. Deputy Tomsich explained that he

was not sure what was happening, but assumed that Elioff was showing a weapon

or otherwise attempting to cause him harm so he quickly backed up.

He still could not see either of Elioff hands and was unsure of why Deputy Smith

had yelled at him to move out of the way.

Deputy Tomsich decides to make one more attempt to tase Elioff, but to do so he

must retrieve Deputy Smith’s taser from Smith’s duty belt. Deputy Smith is

holding onto the dog’s leash with his left hand and his duty pistol with his right

23

hand. Both officers continue to yell commands to Elioff to show his hands and to

get out of the tree, which continue to be ignored by Elioff.

Once he has the other taser, he steps off to the right of Deputy Smith and prepares

to deploy the taser. He is aiming at Elioff’s back. Suddenly he hears Deputy Smith

yell words to the effect of “GUN, GUN, GUN”. Out of the corner of his eye he

sees Smith is on the ground. He doesn’t know how or why he is on the ground.

Deputy Tomsich will later tell the BCA investigators that he thinks at that moment

he discharged the taser, but could not be absolutely certain, *(later investigation

would reveal that he did) because at that point Deputy Smith yelled “Matt, he’s got

a gun.” Deputy Tomsich, relying on his partner, withdrew his duty pistol, he looks

and sees Elioff turn to his left and kind of drop his head. At that point Deputy

Tomsich began firing at Elioff’s back. He does not know how many shots he fired,

but he continued shooting until Elioff fell from the tree. He heard someone else

shooting but didn’t know if it was Elioff or Smith. Asked if he ever saw a gun in

Elioff’s hand, Deputy Tomsich said he did not. Asked why he shot at Elioff if he

didn’t see a gun in his hand, Deputy Tomsich said he was already on high alert

because he knew that Elioff had been involved in a shooting from the day before,

Elioff’s conduct of refusing to show his hands despite multiple commands to do so,

the fact that he heard Smith yell “Gun, gun, gun”, before falling to the ground, and

his reliance on Deputy Smith with whom he had worked and trained before, and

the tone in which Smith yelled “Matt, he’s got a gun”, and his belief that Deputy

Smith was about to be shot by Elioff.

As soon as Elioff began to fall from the tree, Deputy Tomsich stopped shooting.

Still unable to see if Elioff possessed a weapon, and not knowing the degree of

Elioff’s injuries, he and Smith both approach Elioff with their firearms drawn. The

K-9 had hold of Elioff’s leg. Tomsich holstered his duty firearm and took hold of

both of Elioff’s hands to prevent him from reaching towards any weapon. At that

point Smith initially secured the K-9, but the dog broke loose and then grabbed

Elioff by the arm. Smith again got hold of the dog and secured him further away

and to a tree. Deputy Tomsich did see there was a blade of a knife sticking up

from the snow in the general area of Elioff’s head, but did nothing about it, as he

became aware that Elioff was bleeding badly and he attempted to provide

lifesaving first aide to Elioff. Deputy Pauly soon arrived and started to assist with

life saving measures, followed shortly by several other law enforcement personnel.

Patrol Sergeant Toewe also arrived on scene, and once he determined who had

discharged their service pistols requested that Smith and Tomsich leave the area

24

escorted by other deputies. This is standard procedure in officer involved shooting

cases.

According to Deputy Tomsich he did not talk about the details to Deputy Lucas

who escorted him out of the woods and later to the Virginia office of the Sheriff.

He also did not talk at all to Deputy Smith until they had both prepared written

reports on the incident. And even after that, they only talked briefly to see how

each other was doing, never discussing the details of the shooting with each other

or anyone else until the interview with the BCA investigators.

As is standard procedure in officer involved shootings, once both officers were

transported to the headquarters office in Virginia their service weapons and duty

belts were taken into evidence. They were photographed. Blood samples were

drawn and later analyzed at the BAC lab for the presence of drugs or alcohol. That

analysis revealed neither Deputies had any drugs or alcohol in their systems.

Minnesota State Patrol Trooper J. Anderson monitored the police radio dispatch

requesting assistance in establishing a perimeter in the search for the L&M Supply

shoplifter. He proceeded to the area and met with SLC Deputy Pauly about 12:49

pm, before Deputy Smith and his K-9 had arrived on scene. Trooper Anderson was

updated on the situation and was requested to assist establishing the northern

perimeter near Parksville Street, which he did. His squad car is equipped with a

squad camera and it was activated during the entire time beginning as he heads for

the search scene.

Trooper Anderson continues to monitor the progress of the search and dog track as

it moves westerly towards Eagle and Falcon Avenues. He eventually moves his

squad to the dead end at Eagle Avenue, arriving there at 52 minutes and 53

seconds on the timer on his squad video. This can be correlated to approximately

1:35 pm by reference to the police dispatch CAD report. Trooper Anderson then

gets out of his squad and walks up to the point were the north-south powerline, and

the east-west berm intersect. The video shows that there is at least one or two other

law enforcement officers also in that general area. Trooper Anderson has a

microphone on his uniform that does allow the camera audio to pick up sound to

some degree.

Trooper Anderson steps off into the wooded area and is no longer captured by the

video. As he does so, Trooper Anderson can hear what sounds to be someone, he

assumes to be deputies, yelling commands such as “show your hands”, at least

three times. Listening to the audio on the squad video at the 54:48 mark you can

25

clearly hear someone yelling loudly in the distance, but the exact words cannot be

distinguished. Trooper Anderson’s written report indicates that he then heard what

sounded like 4 gunshots. Listening to the audio on the squad video one can clearly

hear at the 55:39 mark 6 distinct and separate gun shots in a very fast sequence. At

the 55:42 mark on the video one can hear someone on the police radio announce,

“shots fired”. Comparing this to the computerized print out of radio calls, we

know that the “shots fired” call came through at 1:38:16 pm. After that point the

audio on the squad video picks up voices yelling in the distance, but no additional

sounds of gunfire. At the 57:54 mark on the video Trooper Anderson again appears

on the powerline when he returns to his squad car to retrieve a large container of

medical equipment and then returns back towards the area where the gunshots had

been heard.

Trooper Anderson then proceeds to the scene of the shooting and offers equipment

to the other officers already tending to Estavon Elioff. Trooper Anderson does not

personally get involved in rending aide to Mr. Elioff. He does report observing two

discharged tasers on the ground, but does not see any other weapons on the ground.

He stays on scene until EMT’s removed Mr. Elioff from the scene to the

ambulance.

The officers that begin providing first aide to Estavon Elioff detect that Elioff is

alive, but his breathing and pulse are labored. They continue to attempt to keep

Estavon alive until the EMT’s arrive approximately 12 minutes later. Estavon is

placed on a stretcher and carried through the woods about 50 yards to the waiting

ambulance. Once at the ambulance medical procedures are attempted, but it soon

becomes apparent that Estavon Elioff has expired from the bullet wounds he has

sustained.

Information from Estavon’s relatives-

On the evening of 12/05/2020, BCA investigators were able to contact the great-

grandparents of Estavon Elioff who live in Virginia, MN. From them the

investigators learned that Estavon’s mother lives in the state of Washington.

Estavon lives in the Virginia area, but the great-grandparents do not know where

he stays. He does not stay with them. The believe Estavon has struggled with drug

use but since he is an adult, he cannot be forced into treatment. In the past he has

entered treatment programs, but then left before completion.

On the evening of 12/04 Estavon supposedly went to the hospital to get help. On

the morning of 12/05/2020 Estavon showed up at their house. He told them he

26

wanted to go to Washington state to be with his mother. They allowed Estavon into

the house to shower and be fed, while arrangements were made to purchase a bus

ticket for Estavon from Virginia to Washington. While at their house Estavon was

asking questions about the shooting that had occurred the previous day in Virginia.

They then gave Estavon a ride to the bus stop and on the drive over Estavon made

a comment that he “was going to jail anyway”. They stayed with Estavon until the

bus arrived and saw him get on the bus. On a hunch they decided to follow the bus,

and once in Mt. Iron the bus pulled into the gas station known at Little Joe’s where

they observed Estavon got off the bus. They then returned home and discovered

some house keys and car keys were missing so the called to report that to 911 and

also changed the locks, believing that Estavon had stolen the keys.

After speaking with the great-grandparents, the BCA investigators made contact

with JL, the grandmother of Estavon Elioff. JL explained that Estavon has been

struggling with using marijuana and methamphetamine. She has tried, without

success, to get him help. JL explained that oftentimes Estavon would stay at her

house, but she had to tell him he was no longer allowed at her house because of his

drug use. After that she did not know where he had been staying. JL also told the

investigators that Estavon had a tough life growing up and little parental guidance.

Recently Estavon had made comments to her that he didn’t think he would live to

see 20, that this world was terrible, and he believed that he knew in his heart that

life was better on the other side, and other comments that made JL concerned for

his personal safety.

On the evening of 12/04 Estavon showed up at JL’s house. She would not let him

in the house as she believed he was high on drugs. He told JL that he wanted to get

into detox, so she made a call to the detox facility, but learned there was no more

room. She advised Estavon to go check himself into the hospital which she thought

he was going to do. While JL spoke with Estavon through the door he inquired of

her if anyone had come to her house looking for him. He then left.

On the morning of 12/05 he showed up at her house about 7:00 in the morning. He

again asked about getting into detox, but again when JL called there was no room

at the facility. Estavon then said he wanted to go to stay with his mother in the

state of Washington. JL agreed to try to make travel arrangements, but would not

let him in the house as she was sure he was still high on drugs. Estavon left and

went to her parents’ house. (Estavon’s great-grandparents). JL was able to book a

bus ticket for Estavon leaving from Virginia at 11:15 that morning.

27

JL then went over to her parents’ house where Estavon had cleaned up, eaten, and

great-grandmother was laundering his clothes. While waiting to bring Estavon to

the bus stop he seemed to be very interested in the shooting that had taken place

the day before in Virginia. He was reading about it in the newspaper, and asking

questions about it. They then drove him to the bus stop at the Village Inn located in

Virginia. On the way Estavon made the comment that he hoped he made it on the

bus because the cops were looking for him. Great-grandfather asked why that

would be. Estavon replied something to the effect of “you will find out”, followed

by “well the person owed [him] money”.

Once the bus arrived, they saw Estavon get on the bus. As the bus pulled out,

great-grandfather decided to follow to see if he would stay on the bus. As the bus

got to Mr. Iron it pulled into a gas station. Estavon got off the bus, looked at JL,

waved, and then walked towards the Raintree apartments. That is the last she saw

of him.

When asked if she had ever seen Estavon in possession of weapons, JL said she

knows he has a small, folding knife. She provided no additional details about the

knife.

Bus Driver-

On January 15, 2021, BCA investigator Gherardi was able to contact SK, who was

the driver on the Jefferson Lines bus that had transported Estavon Elioff on

12/05/2020. SK had good recall of the 12/05 incident. She remembers a younger

man approaching the bus accompanied by an older gentleman who inquired if this

was the bus to Seattle, Washington. The younger man then got on the bus and sat 3

rows behind the driver. The older man then left and got into a mini-van. SK then

drove the bus out of the parking lot and to the stop lights at Highway #53. As soon

as the mini-van continued through the intersection the young man approached her

and said he needed to get off the bus as he had forgotten his ID. SK advised the

young man she could not just stop and let him off. The young man was very

insistent that she immediately stop the bus and open the door. She tried explaining

that she was only allowed by company rules to let someone off the bus where there

was a business open 24 hours that could provide shelter, food, and water. The

young man continued to insist he be allowed off the bus. SK told him to sit down

and as soon as she found a suitable place she would pull over and let him off.

Soon, she saw what she believed to be a Cenex gas station near #169 and #53. She

28

pulled into the parking lot, opened the door, and the young man got off the bus.

She was able to watch as he approached a nearby apartment building which he

appeared to enter. SK then continued on her route.

AUTOPSY REPORT –

On December 7, 2020, Dr. Anne Bracey of the Midwest Medical Examiner’s

Office conducted an autopsy on the body of Estavon Elioff. Dr. Bracey

documented the following gunshot wounds.

- Penetrating gunshot wound of Torso. Entrance wound on the left back, no exit,

bullet recovered from abdomen. Back to front, left to right, downward.

- Penetrating gunshot wound of pelvis. Entrance wound on lateral left hip, no exit,

bullet recovered from right groin. Back to front, left to right, downward.

- Perforating gunshot wound of pelvis. Entrance on lateral right buttock, exit on

left lower abdomen. Back to front, right to left, upward.

- Perforating wound of right forearm. Entrance on Posteromedial forearm, exit on

the anterolateral forearm. Back to front, left to right, downward.

- Perforating wound of the left foot. Entrance on sole of foot, exit top of foot.

Upward, slightly left to right.

Dr. Bracey also discovered wounds on the left leg consistent with dog bites.

A blood drug screen was performed that identified methamphetamine, and an

active methamphetamine metabolite (amphetamine) in the decedent’s blood.

Dr. Bracey opined that the cause of death was multiple gunshot wounds, and the

manner of death was Homicide. *[It should be understood that the opinion of

Homicide by a medical examiner is a medical term not a legal term. It means that

the death was caused by unnatural forces, and not accidental. It is not intended to

assign criminal responsibility.]

Upon reviewing the Preliminary Summary of Dr. Bracey, I was able to speak with

her by telephone. I was somewhat concerned, and a bit confused by her description

of 3 of the bullet wound trajectories as “downward”. My confusion stemmed from

the description of the shooting by the 2 officers involved that Mr. Elioff was 6-7

29

feet off the ground when they discharged their firearms. If true, why would the

trajectories be “downward”?

I asked Dr. Bracey if she had the benefit of the officer’s explanation of the actual

shooting event. She advised she did not, nor did she have any information how the

shooting happened. I then gave Dr. Bracey a brief explanation of how the officers

involved described the shooting. Basically that Mr. Elioff was standing in a tree

with his back to the officers, and the officers opened fire when Mr. Elioff swiveled

towards them and appeared to sight down his arm to an object in his right hand that

the officers believed to be a firearm. I asked Dr. Bracey if she understood what I

was relating to her. She said she did.

I asked given that description of the shooting, how could 3 of the gunshots be in a

downward trajectory. She explained to me, that by “downward” she was not

describing an extreme angle. The “downward” trajectory was very slight, and not

at an extreme angle. I pressed how could the trajectory be at even a slight

downward angle if the officers were shooting upward. She said it could easily be

explained by how Mr. Elioff had bent over, swiveled or positioned his body prior

to the bullet strikes. I then asked Dr. Bracey if there was anything about the path,

or trajectory of the bullets that was inconsistent with the explanation provided by

the officers. She said there was not.

*After speaking with Dr. Bracey, I prepared a memo to myself to document the

conversation contemporaneously with our conversation. I have attached a copy of

that memo to this report.

CANVAS OF NEIGHBORS-

BCA investigators went door to door on Falcon Avenue to learn if any of the

neighbors had heard or observed anything that might be related to the incident

resulting in the death of Estavon Elioff. If a resident was home, they were

interviewed to determine if they had any information that might be helpful. If no

one answered the door a note was left in the door to please contact the BCA. In all,

10 separate residences located on Falcon Avenue were approached.

Resident RP indicated she heard what sounded like 3 gunshots, she estimated the

time to be around noon. She did not know exactly where, but she was able to point

in the general direction of where the shooting took place. She had no other

information to add.

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Resident GL explained that he was doing yard work in his back yard when he

heard shooting just to his north. He heard some “screaming” coming from that

direction. He could not make out the words being said. Just before he heard what

he believed to be 6-8 gunshots he heard words to the effect of “hold him down”.

He then went into his house as he did not know what was going on. He later

observed deputies in the area, but had no other information to add.

Resident AP called the BCA investigators after finding the note on her door. She

explained that she had been home on the afternoon of 12/05. She said that she

received a phone call advising her that something was going on in the

neighborhood and she should stay in her house. (the report does not say who had

called her or what information that person had) She said that she was in her office

that is in her residence, and that there is a window in the room that faces the south.

She saw two Sheriff’s deputies in front of her house. She saw one of them remove

a K-9 from a squad car and the dog was barking. Shortly after that she heard what

sounded to be two gunshots. She did not see anyone enter the woods, nor did she

hear any yelling. She later heard a call for an ambulance on her scanner. She had

no additional information.

Resident DG called the BCA in response to the note left in her door. She said she

was home during the incident of 12/05. At some point she heard what sounded to

be 5-6 gunshots. She didn’t give it much thought as there are coyotes in the area

and thought someone was probably shooting at them. She gave it no more thought

until she saw squad cars in the area. She had no additional information.

Resident NL was interviewed and he explained that he was at home on Falcon

Avenue on the afternoon of 12/05 along with his girlfriend and his older brother,

JE. At some point he sees a black police car pull into his yard. He apparently

doesn’t think too much about that because shortly thereafter he goes to take a

shower to get ready for work. As he is taking a shower his brother enters the

bathroom to tell him he heard gunshots outside. NL then gets out of the shower

and looks through a window and observes a female officer get out of her squad

armed with an “AR”. She ran into the woods. NL first says that 5-10 minutes later

he heard 4 gunshots ring out. He later clarifies that from the time he got out of the

shower, until her heard the gunshot about 10 minutes elapsed. NL also explained

that prior to the gunshots he heard some yelling but could not understand what was

being said. He also recalls seeing a K-9 at some point, but doesn’t add any

information about when or where he saw the K-9. Apparently at some point NL

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steps outside of his house and hears more yelling. His statement is unclear whether

this was before or after the sound of the gunshots.

Two days after the interview with NL, investigators made contact with JE to

determine what information he could add. JE explained that the house he lives in

on Falcon Avenue faces towards the woods where the shooting took place. *(it

should be noted he indicated the direction as north, but in actuality it faces east)

He was home on the afternoon of 12/05 when he first noticed a black truck

reversing down Falcon Avenue. He then heard what he believed to be a gunshot

from a pistol in the direction of L&M Supply, which is to the south of his house.

About one minute later he heard another pistol gunshot from that same area. He

then saw Sheriff’s squad stop in front of his house. Another squad soon joined that

one. He saw two deputies, one armed with an “AR15” run into the woods. He then

heard some yelling in the woods from what he thought to be at least 4 or 5 people,

but could not tell what was being said. He then heard what he described to be 4

gunshots which he believed to have been fired by a rifle. He estimated the time

between the first two shots he heard from the south of his house until the four shots

from the woods was 4-5 minutes.

After the rifle shots he watched as the two deputies he first saw run into the woods

came out with two other deputies along with a K-9. Those 4 officers and the dog

stayed outside the squad cars for 10-15 minutes and appeared to be talking, then

entered the squads and drove off. JE had no other information to add.

BCA CSI report-

The BCA on-scene investigation was able to locate a folding knife under the tree.

The knife was a folding knife with a pink handle that was opened to a 90-degree

angle. The blade was black and about 3” long. There were also two taser

cartridges just to the right of the tree. The investigators also located 3 expended

9mm cartridge cases in close proximity to the tree. All of these items were marked,

and their relative locations photographed.

There were four 9mm bullets located during the investigation. One bullet was

located on the stretcher used to transport Elioff from the woods to the ambulance.

One bullet was located on the floor of the ambulance. Two bullets were removed

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from the body of Estavon Elioff during the autopsy. These were all documented

and photographed.

Also located imbedded into the back of the jacket worn by Estavon Elioff was a

taser barb.

After both officers were transported back to the Sheriff’s office in Virginia, they

turned over all of their duty equipment, including their firearms and magazines

(sometimes referred to as clips), for later examination at the BCA laboratory.

Initial forensic testing at the BCA lab determined that two of the cartridge casings

had been fired from the duty pistol of Deputy Smith. One of the cartridge casings

had been fired from the duty pistol of Deputy Tomsich. The two bullets recovered

from the body of Estavon Elioff and the bullet located on the stretcher used to

transport Mr. Elioff from the woods to the ambulance were examined and

determined to have been fired from the duty pistol of Deputy Smith. The bullet

located on the floor of the ambulance was fired from the duty pistol of Deputy

Tomsich.

These initial findings at first resulted in some confusion. When Deputy Smith’s

duty pistol was examined after he turned it over there were 16 live rounds in the

magazine and one round in the chamber. The maximum capacity of that pistol is 18

rounds, 17 in the magazine, one in the chamber. This seemed to correlate to

Deputy Smith’s recall of having fired one shot. As a result, the investigators

revisited the issue.

They inquired of Deputy Smith if had conducted a mag change during the incident

or if he had added rounds to his duty mag after the incident. Deputy Smith did not

recall doing so. Investigators also inquired of the deputies that had been assigned

to them immediately after the shooting, and they could not recall observing Deputy

Smith changing magazine or adding cartridges to his duty magazine.

Thinking perhaps the duty pistols or magazines of Deputy Smith and Deputy

Tomsich had inadvertently been switched in the process of collection or transport

the investigators re-examined the chain of custody. They were able to eliminate the

possibility that the firearms or magazines had been switched or mislabeled.

Accordingly, the BCA laboratory conducted new forensic testing of the firearm

evidence and reached the same conclusion that 3 of the bullets that were

discovered during the investigation had been fired from the duty pistol of Deputy

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Smith, and one of the recovered bullets had been fired from the duty pistol of

Deputy Tomsich.

While this presents a bit of a conundrum, there is a rational explanation. Shooting

incidents are extraordinarily stressful and traumatic. While some may think

shooting incidents involving law enforcement are regular occurrences, they are

actually quite rare. The majority of law enforcement officers will retire after long

careers never having fired their duty weapons at another person. This was the first

time in his law enforcement career that Deputy Smith had actually had to fire his

duty weapon at a suspect. The same is true for Deputy Tomsich.

Deputy Smith had just lived through perhaps the worst experience in his life. He

thought he was going to be shot and perhaps die. He then shot another human. He

was at once trying to ascertain the condition of Mr. Elioff, control his K-9, provide

aide to an injured man, and call for backup assistance. *(I have heard of officers

after a shooting incident that could not recall actually shooting their firearm.) In

the final analysis, is this unsolved mystery critical to the ultimate determination of

the case? Deputy Smith accrues no benefit for intentional misrepresentation. The

BCA lab results are reliable and credible. The science establishes that Deputy

Smith fired 3 rounds from his duty pistol at Estavon Elioff.

The BCA laboratory is in the process of conducting DNA testing on items of

evidence obtained during the investigation, but the testing has not been completed

as of the issuance of this report. *In my opinion it is not anticipated that the results

of the DNA testing will have any bearing on the conclusions reached in the

analysis of this case.

Analysis-Conclusion

Totality of the circumstances-

On December 4, 2020, there was what basically amounted to a gunfight in the City

of Virginia. Investigation of that incident established to a reasonable conclusion

that Estavon Elioff was the instigator, or at the very least one of the shooters in that

incident. Although the gun believed to be involved in that incident was recovered,

it would be folly for anyone, let alone a peace officer, to conclude that the shooter

was not able to re-arm himself.

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The very next day, December 5, 2020, a young man is caught in the act of

shoplifting in Mt. Iron, mere miles away from the previous day’s shootout. Deputy

Braiedy arrives to investigate the shoplifting, and comes across a man matching the

description of the shoplifter. When she tries to talk to the man, he not only ignores

her, he begins to walk the other way. He places his hand in his pocket and refuses

to stop and refuses to remove his hand from his pocket. This immediately causes

Deputy Braiedy concern. It is the hands that a law enforcement officer must always

pay attention to. As Deputy Smith was to later explain, it is the hands that can hurt

you. When the man flees into the woods, Deputy Braiedy does not attempt to

follow him, wisely and reasonably believing him to be armed. She radios out the

description of the young man and the information regarding his conduct through

the police radio network.

It takes but moments for other officers to realize that the shoplifting suspect fits the

description of the man involved in the Virginia shooting the day before, who has

been identified as Estavon Elioff. There is now a large-scale law enforcement

response in the belief that the search is not just for a shoplifter, but for a named

suspect in a firearm related assault the day before. Any reasonable officer would

proceed believing that man was highly likely armed and dangerous.

Rather than immediately rush into the woods helter-skelter to chase down a

possible armed suspect and knowing that the area he had entered was wooded and

for the most part undeveloped, a decision is made to first establish a perimeter to

prevent the suspect from evading apprehension or getting into a residential area

that would possibly endanger the residents. A decision is made to request the

assistance of a K-9 unit to assist in the search due to the geographically large,

wooded area. While awaiting arrival of the K-9 unit and further establishing the

integrity of the perimeter, a call from Estavon Elioff’s relatives alerts the officers

to information that places Estavon in the area under unique and suspicious

circumstances. This lends further credibility to the belief that the suspect of the

search is in fact Estavon Elioff and raises the threat alertness of searching officers.

As the perimeter is being established a loud verbal warning is given that a K-9 will

be searching the area. Just prior to the arrival of Deputy Smith and his dog,

Virginia Police Lt. Broneak and Deputy Braiedy make visual contact with Elioff at

the southern perimeter of the search area. They shout loud commands for him to

stop and to show his hands. He ignores them and continues to run northeast along

a powerline. This information is likewise transmitted to other officers on the scene.

35

Shortly after that Elioff is spotted by Deputy Pauly near the electrical power sub-

station. Deputy Pauly loudly yells “police, come out with your hands up”. He then

yells out the “K-9 command”. Elioff does not comply but instead hurries back into

the woods. Deputy Smith then responds to this area to begin the dog track, and

before beginning he yells out the “K-9 command” and continues to do so

throughout the 40-minute search for Estavon Elioff. Originally he is accompanied

by two other officers as his cover team. After close to a mile search, Deputy

Tomsich takes over as the cover officer.

Deputy Tomsich, who had taken a position on an elevated berm had observed

Estavon Elioff step into an open powerline area about 40 yards away. He yells at

Elioff, even calling him Estavon. He notices Estavon has his hand in his jacket and

orders him to remove it. There is little question but that Elioff hears him but

refuses to comply to either surrender or to remove his hand from his pocket. Elioff

then continues across the powerline westbound towards Falcon Avenue, which is a

residential area about a city block away. When the K-9 search team reaches

Tomsich’s position a few minutes later he briefs them. He then follows Deputy

Smith into the wooded area that Elioff was last seen to enter the woods headed

west.

It is not long before the two deputies spot Elioff up in a leaning tree. They

immediately begin to give loud verbal commands. Estavon does not respond in any

way, but it is obvious that he knows the officers are there. He is faced away from

the officers, but keeps looking over his shoulders as if to verify the location of the

officers. The officers make every attempt to take Estavon into custody without

harm to him or themselves. Deputy Tomsich attempts the taser, but without

success. Deputy Tomsich even takes the extremely dangerous step of approaching

a man he had every reason to believe was armed, possibly with a gun, to end the

incident without injury to the suspect. Elioff, who had continued to ignore the

officers’ commands to show his hands makes a threatening move towards Deputy

Tomsich that Deputy Smith sees and warns Deputy Tomsich to back off. Still, the

officers do not use deadly force. They continue to shout commands at Elioff and

prepare to make one more attempt at less lethal use of force.

It is at this point that Estavon Elioff removes his right hand from in front of him

and points his arm in direction of Deputy Smith. In his hand, is almost certainly the

knife, folded it out at a 90-degree angle, the handle covered in his hand, the black

blade extended horizontally out from his hand and arm. Elioff drops his head as if

36

to sight along his arm as one would if aiming a gun. Deputy Smith reasonably

believes that is exactly what Elioff is doing. There is little doubt that was the intent

that Mr. Elioff wanted to convey. Deputy Smith first tries to create distance

between himself and Elioff by backing up, while shouting a gun warning to his

partner. He trips and falls, as his starts to right himself he watches as Elioff turns

his extended arm in the direction of Tomsich. Deputy Smith yells out another gun

warning. Elioff then swings his arm back at Deputy Smith who believes that he is

going to be shot. Deputy Smith discharges his duty pistol at Elioff. He hears other

shots going off at the same moment, and when the shooting ends is surprised to

find he himself has not been shot. Deputy Smith had to make a lightening quick

decision after many attempts to defuse the situation without use of force. Estavon

Elioff had been given every chance to surrender peaceably and had consistently

refused to cooperate and to show his hands. Deputy Smith was reasonable in his

belief that he was about to be shot and justified in using deadly force to end that

threat. Was he mistaken as to his belief that Estavon Elioff was pointing a firearm

at him? He was. However, “an honest and reasonable mistake as to the degree of

threat faced by the officer at the moment of deadly force does not negate the

reasonableness of the action taken by the officer.” Ohio v White, (supra). Johnson v

Morris, (supra)

The same holds true for Deputy Tomsich. While he did not see the object in

Elioff’s hand, he did observe Elioff turn his should towards Deputy Smith and drop

his head down. Police officers train to rely on their partners, to trust their partners,

and to protect their partners. They know that their welfare, their partner’s welfare,

and the safety of the public depends on mutual trust. Deputy Tomsich could not

reasonably have been expected to wait to see if Estavon Elioff was in fact armed

with a gun and would shoot at Deputy Smith. That would have been too late. He

had to make a decision in an instant. That decision to use deadly force was

reasonable and justified.

Civilian statements-

The statements of the neighbors who had some relevant information was taken into

consideration while reviewing and analyzing the facts of the case. The information

of NL and JE were of particular interest. JE indicates that he heard 2 pistol shots

from the area of L&M Supply about a minute apart from each other. Then 4-5

minutes later he hears 4 rifle shots from the woods to the east of his house. While

there is no reason to believe that JE is not being truthful about what he thought he

37

heard, it is just not supported by the other known facts. There were perhaps a

dozen or so law enforcement officers in the area by the time JE heard what he

believed to be 2 pistol shots from the area of L&M Supply. No one else heard what

they believed to be gunshots from that area at any time. He then believes he heard

4 rifle shots 4-5 minutes later in the woods to the east of his house. While he may

have heard the volley of shots fired by Deputies Smith and Tomsich, they were not

rifle shots, and the timing of what JE believes he heard just does not work. It was

well over an hour that the activity around L&M had moved to the area in the

woods east of JE’s house. The noises or sounds that JE heard coming from the

area around L&M Supply were not gunshots. If they had been gunshots they would

have almost certainly been picked up on the audio of the body worn cameras of the

Virginia PD officers on scene, the audio of Trooper Anderson’s squad camera, or

heard by at least some of the several LEO on the perimeter of the search area.

None of the other information obtained from area neighbors in any way contradicts

the explanations of Deputy Smith and Deputy Tomsich.

After-acquired information-

Information gathered by the BCA investigators after the shooting paint a picture of

a troubled young man with a history of drug abuse. His grandmother was even

afraid to allow him in her house. The autopsy toxicology results confirm he was

under the influence of methamphetamine during his encounter with law

enforcement on 12/05/2020.

Comments made to his grandmother in recent days could reasonably lead one to

conclude he was experiencing suicidal ideation. Whether he was or not will never

be known, but his comments and his conduct on 12/05/2020 have all the hallmarks

of it.

None of this information was available to Deputy Smith and Deputy Tomsich of

course, but it does provide those who must review and analyze the events of

12/05/2020, some insight of what Estavon Elioff was dealing with at the time.

BCA ballistics testing-

As stated earlier, Deputy Smith states that he believes he only shot one time. This

seems to fit with the physical evidence, because when he turns over his firearm at

38

the Sheriff’s office after the shooting he has 16 rounds in the magazine and one

round in the chamber, for a total of 17 rounds. The firearm is capable of holding a

total of 18 rounds. The math works.

But the forensics tells a different story. The science tells us that 2 of the 3 cartridge

casings found at the scene came from the duty pistol of Deputy Smith, and 3 of the

4 bullets recovered came from the duty pistol of Deputy Smith. How do we

reconcile that evidentiary mystery? Perhaps the most reasonable explanation is

that during the shock and disorientation after the shooting, Deputy Smith, without

thinking and without recall removed the duty magazine, topped it off with two

spare rounds, and put the magazine into the gun. The other, but highly unlikely,

explanation is that a mistake was made at the BCA laboratory. But in the final

analysis, it really makes no difference to the final conclusion. Whether Deputy

Smith fired one round at Estavon Elioff, or three rounds, his decision to use deadly

force was reasonable under the totality of the circumstances.

Legal opinion

Based on the totality of the circumstances, the statutory language of Minnesota

Statute 609.066, and existing federal and state case law, the use of deadly force by

both Deputy Smith and Deputy Tomsich on 12/05/2020 was reasonable and

justified.

/S/ Vernon D. Swanum

Vernon D. Swanum

Attorney at Law

February 5, 2021

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Addendum

Memo to Self - VDS

01/15/2021

I spoke with Dr. Anne Bracey from the Midwest Medical Examiner’s Office this

afternoon. She is the pathologist who conducted the autopsy on Estavon Elioff.

At the time I spoke with her I did not have access to her final autopsy report, only

her initial report.

I explained to her that I was conducting an independent review of the 12/05/20

incident that resulted in the death of Mr. Elioff.

I first asked Dr. Bracey if she had the benefit of the officers’ explanation of the

actual shooting before beginning the autopsy. She said she did not.

I gave her a very brief synopsis as I understood the facts as provided by the

officers. I explained to her that the officers had been tracking Mr. Elioff through

the woods in an attempt to apprehend him. That the officers came upon Mr.

Elioff while Mr. Elioff was standing on a leaning tree, with his back to the officers.

Elioff was about 6’ or a little higher off the ground. The officers gave several

verbal commands to Elioff to show his hands and surrender, all of which were

ignored by Mr. Elioff. I explained that the officers tried to tase Elioff on two

occasions to no effect. I then explained that the actual shooting occurred when

Elioff, still standing in the tree about 6-7 feet off the ground, facing away from the

officers, turned to his left to look at the officers over his left shoulder. He then

extended his right arm and was holding a dark colored object in his hand,

appearing to aim down his arm as if he was about to discharge a firearm at the

officers. At that time the two officers shot between 6-7 rounds at Mr. Elioff

apparently striking him 5 separate times. Mr. Elioff fell from his position on the

tree landing on the ground, and soon succumbed to his injuries.

40

I asked Dr. Bracey if she understood the shooting as I explained it. She said she

did. In Dr. Bracey’s preliminary report, she opined that at least 3 of the bullet

trajectories that struck Mr. Elioff were from back to front, in a downward

trajectory. I told her I was confused how that could be if Mr. Elioff was in a tree as

the officers explained he was when they fired. Dr. Bracey explained to me that

while the trajectories were generally in a downward trajectory, that the trajectory

was actually relatively slight. I asked what she meant by that and she responded

that the bullet path was not at an extreme angle, but only generally in a

downward path. I asked if she had conducted a bullet trajectory test during her

exam, and she told me she did not.

When I again asked how the bullet path could be even in a slight downward

trajectory considering Mr. Elioff’s elevated position above the officers, she said it

could be explained if Elioff had bent over or turned his body in such a way that

caused this trajectory. I then asked Dr. Bracey if there was anything in the path of

the bullets into the body of Estavon Elioff that was inconsistent with the

explanation provided by the officers. She said there was not.

02/04/2021- I was again able to make phone contact with Dr. Bracey regarding

the toxicology results on the blood sample from Mr. Elioff. I did not have those

results when I first spoke with her on 01/15/2020. Dr. Bracey explained to me

that the results indicate that Estavon Elioff was actively using methamphetamine

in the timeframe immediately preceding his contact with law enforcement on

12/05/2020 and would be under the influence of methamphetamine at the time

of the encounter with Deputies Smith and Tomsich. To what degree she could

not say as she had no information regarding his history of use, but he would

definitely be under the influence of the drug.

VDS