The state Department of Public Safety had zero fatal shootings in the past 10 years until Feb. 18, when a deputy sheriff shot in the back a small, disabled, homeless man who had been drinking beer at the state Capitol rotunda.

Eleven days later on March 1, a second deadly shooting occurred when an Oahu Community Correctional Center guard chased an escapee a couple blocks away and shot him in the back outside a church in a densely populated Kalihi neighborhood.

Despite lingering questions about both shootings, officials from two agencies have decided not to prosecute the unnamed deputy sheriff and prison guard who killed the unarmed men.

The Honolulu Prosecutor’s Office passed both cases on to the Department of the Attorney General due to conflicts of interest connected to the Attorney General’s office. One of the cases was then turned over to the Maui County Prosecutor’s Office to handle.

DPS internal investigations into both deaths are continuing.

DPS Director Nolan Espinda came under intense scrutiny by the Legislature after the shooting deaths, a Maui jail riot and an alleged culture of retaliation and intimidation within the department. A Senate committee voted in April against reappointing Espinda to his post.

Maui Deputy Prosecutor Mike Kagami said his decision not to prosecute the OCCC guard who killed inmate Maurice Arrisgado Jr. was based on Hawaii Revised Statutes 703.307 (4), which “basically states that deadly force can be used to prevent an escape from a facility such as OCCC.”

But Arrisgado already had escaped from the OCCC property, and guards were chasing him on foot and by vehicle. Kagami noted he was shot roughly two blocks away from the jail.

Corrections officers also took the unusual step of not waiting for an Emergency Medical Services ambulance to arrive at the scene to treat the wounded inmate. Instead a DPS van arrived and corrections officers placed Arrisgado inside and took him to OCCC, where medical staff treated him. EMS, called to OCCC, then transported him to a hospital, where he died 33 minutes after being shot.

The 47-year-old had managed to flee from the intake and release unit at OCCC, bolt past a secured door and the front gate, get by armed guards in the towers, and run across Kamehameha Highway to Bannister Street. He was shot near Kaumualii Street and Puuhale Road.

Kagami said, “I didn’t see anything unusual, but with the caveat that I’ve never seen a case like this before.”

Arrisgado was being held on a warrant. Three days earlier, Crime Reduction Unit officers tried to serve him with the warrant when he allegedly stabbed two of them.

Arrisgado’s death marked the fifth officer-involved shooting on Oahu in 2019, barely three months into the year, and the fourth fatal one. That follows 2018’s 11 officer-involved shootings on Oahu, including six fatalities.

The case went to Maui because Arrisgado’s father was a deputy prosecutor with the Honolulu Prosecutor’s Office who had also worked with attorneys at the Department of the Attorney General.

Eric Seitz, the Arrisgado family attorney, said of the decision not to prosecute the officer: “I’m not surprised. I can’t imagine that they would prosecute one of their own. … This guy didn’t have to die,” he said, adding that it all “looks very sloppy and very poorly handled.”

Seitz said he will file a lawsuit shortly.

On Feb. 18, Delmar Espejo, a 28-year-old homeless man, was drinking at the Capitol rotunda when, according to Espinda, he refused to dispose of his beer and started an “extreme struggle” with a deputy sheriff, who claims the 5-foot-3, 117-pound man had him in a headlock.

The Department of the Attorney General said it carefully reviewed the materials and evidence submitted in connection with the shooting death and determined “there is insufficient evidence to support charging the deputy sheriff.” An Attorney General’s office spokesman declined to provide further information on details raised by Myles Breiner, the Espejo family’s attorney.

The Attorney General relied on the police investigation and did not conduct its own criminal investigation, the spokesman said. The family was told Monday of the decision.

Espejo, disabled from childhood polio, could not stand for long on his spindly legs, Breiner said.

He said the deputy attorney general told the family a homeless man saw the deputy and Espejo “rolling on the ground” before the officer put the gun to Espejo’s back and pulled the trigger, providing a sufficient basis for self-defense.

“That’s outrageous and a distortion of the facts,” Breiner said, adding it is inconsistent with the DPS director’s initial statement. “This is the first we’ve learned of a mysterious homeless person.”

The autopsy shows Espejo was shot at close range from the back at a downward angle. Breiner surmises Espejo was on his knees. Espinda did not mention the two were on the ground.

In an incident involving deputy sheriffs last year, DPS officials said “no” to questions of whether a change in protocol occurred after deputy sheriffs called police when Tyson Dinney, a homeless man, failed to surrender a machete and garden shears after arguing with a man Oct. 7 near the Capitol. Police shot Dinney dead within 10 minutes of their arrival.