Agent acted properly, lawyer says

State Department agent Christopher Deedy was not drunk and was acting as a federal law enforcement officer when he fatally shot an intoxicated and violent man at a McDonald’s Waikiki restaurant last year, Deedy’s lawyers said in court papers filed in his murder case Friday.

Deedy is charged with murdering Kollin Elderts, a 23-year-old Kailua man, at the Kuhio Avenue restaurant early Nov. 5, 2011.

City prosecutors filed papers earlier saying Deedy appeared intoxicated and was the aggressor at the restaurant after spending a night drinking and bar-hopping while armed with a gun in violation of State Department rules.

But Deedy’s lawyer, Brook Hart, said the "objective evidence" shows that Deedy was "not under the influence."

Dave Koga, spokes­man for the city prosecutors, said the office had not yet reviewed the papers filed in the late afternoon and did not have any comment.

Deedy, 28, who was here to provide security at the Asia-Pacific Economic Cooperation summit, is seeking a dismissal of the charge.

He maintains that he was acting as a federal law enforcement officer under the U.S. Constitution’s Supremacy Clause, which would immunize him from the state prosecution.

Circuit Judge Karen Ahn is scheduled to hear the request Jan. 22 when she must sort out the two highly conflicting scenarios filed by the prosecution and defense.

In urging Ahn to deny the request, city prosecutors contend that Deedy fired three shots from his 9 mm Glock pistol after he was punched in the face by Elderts.

But in defense papers filed Friday, Hart said Deedy was "compelled" to fire the weapon after Elderts punched him in the face and tried to take the gun away.

Hart said Elderts had a blood-alcohol level of 0.127 and had metabolites of cocaine and marijuana in his system.

Hart said photographs taken by police less than 90 minutes after the shooting showed Deedy with "clear, not bloodshot, eyes."

The photos were taken at the Queen’s Medical Center, where Deedy was taken after suffering bruises and a broken nose from Elderts’ punches, Hart said.

The hospital staff concluded Deedy was able to move around without difficulty and that his gait and speech were "normal," the lawyer said.

Hart said that later at the police cellblock, Deedy declined to take an Intoxilyzer test for alcohol because he had not been able to reach his State Department supervisors.

Police could have seized Deedy’s blood without a warrant to determine any level of alcohol, but did not, Hart said.

Hart also said Deedy appeared to be "normal" by the police officer who presented the federal agent with the Intoxilyzer.

The defense attorney said the State Department rules about the gun "do not have the force of law."

Deedy is "being wrongfully prosecuted by the state of Hawaii for intervening to stop a belligerent, intoxicated and violent individual from carrying out multiple felony assaults," Hart said.

The defense attorney said "the most important evidentiary witness" is the McDonald’s silent security surveillance video that "shows what happened at McDonald’s."

Hart submitted the video to support his dismissal request, but Ahn granted a prosecution’s request to seal the exhibit to help ensure a fair trial.

It was still not clear Friday whether Ahn will make the video public at the dismissal hearing.

The trial is scheduled for April.