The state Legislature is expected to approve a $750,000 settlement in the 2019 wrongful shooting death of an unarmed, disabled, homeless man by an on-duty state deputy sheriff, who was not criminally held responsible but since faces scrutiny in the deaths of two more people in 2021 and 2022 while a police officer in San Diego.
Delmar Espejo, 28, was shot in the back at close range and killed on Feb. 18, 2019, at the state Capitol rotunda by former Deputy Sheriff Gregory Bergman.
The victim’s family filed a civil wrongful death lawsuit against the state and Bergman on Feb. 17, 2021. A jury awarded $2.27 million to Espejo’s mother, Cresencia
Espejo, including $1.52 million in punitive damages.
The shooting of Espejo was the 12th in a string of 16 shootings by Oahu law enforcement officers from 2018 to March 2019, eight of them deadly. The fatal shootings by Bergman and a second by a prison guard in March 2019 were the first fatal shootings in at least the previous 10 years by Department of Public Safety officers.
The state sought to overturn both the jury’s verdict and a judge’s findings and conclusions against the state and Bergman, who left Hawaii shortly after Espejo was killed. He became a
police officer in San Diego, where he was involved in the shooting of a suicidal man; the other, a man shot in the back, on his knees
allegedly surrendering.
Bergman was never held criminally responsible for Espejo’s death. The Department of the Attorney General in September 2019 cleared him, saying there was insufficient evidence to charge him, despite the
Honolulu Police Department having opened a second-degree murder case after an autopsy revealed Espejo was shot in the back at close range.
The AG spokesperson at the time said the Attorney General’s Office reached its conclusion by relying on HPD’s preliminary findings and did not conduct its own investigation.
After the verdict in the civil case, the state and Bergman, who claimed self-defense, had filed a
motion for a new trial, but instead a closed settlement conference was held Feb. 6. The parties reached a confidential agreement.
The state’s $750,000 portion was made public when it sought approval by the Legislature in House Bill 990 with other judgments against the state and settlement of claims.
The Department of the
Attorney General did not
respond to requests for comment.
On the evening of Feb. 18, 2019, Bergman was making his rounds and encountered Espejo, who had been
drinking alcohol at about 8:20 p.m. at the Ewa-makai corner of the state Capitol rotunda.
At a news conference the following day, then-Public Safety Director Nolan Espinda told the public the shooting resulted from an “extreme struggle” between a deputy sheriff and Espejo, who refused to dispense of his drink container, was combative and failed to obey numerous commands to stop fighting.
Instead of waiting for backup, the deputy got up close enough to Espejo so that according to Espinda’s narrative, Espejo wrapped his arms around the deputy sheriff who, at over 6 feet
2 inches tall and 205 pounds, towered above the 5-foot-3, 117-pound shooting victim.
Espinda said that’s when the deputy’s gun discharged and killed Espejo.
Espejo walked with a limp and had withered legs from congenital polio as a child, which required surgery, his family and his family’s attorney, Myles Breiner, said.
Espinda said there was no surveillance footage of the shooting at the state Capitol, despite numerous security cameras there.
Circuit Court jurors, in an overwhelming majority — 11 to 1 — found Nov. 29 that punitive damages in the amount of $1.52 million should be awarded to Espejo’s mother and against Bergman.
Jurors found that compensatory and/or general damages of $750,000 should also go to Espejo’s mother.
The majority of jurors,
10 to 2, found Bergman was negligent in his use of force.
But a majority did not find that, based on the evidence, Bergman used excessive/
unreasonable force, and none found he committed battery on Espejo.
The jury unanimously found the state breached its duties to properly train and/or supervise Bergman.
Circuit Judge Dean Ochiai, in his Jan. 10 findings of fact and conclusions of law, awarded $750,000 in general damages to Cresencia Espejo, “in which Bergman and the State of Hawaii are jointly and severally liable.”
The judge found Bergman violated training, department policy on use of force, failed to wait for backup, failed to remain 6 feet away, and shot Espejo in the back while pushing him down onto his stomach.
The lawsuit was initially filed against the state, Public Safety Department, Sheriff Division, Bergman in his individual capacity and Public Safety Director Nolan Espinda individually and in his official capacity.
The judge found Bergman, who had been a deputy sheriff for less than two years, called but failed to wait for backup.
He confronted Espejo for drinking alcohol, a petty misdemeanor, and ordered him to pour out the drink.
“From the time Bergman reached toward Espejo to force him to pour out the bottle in less than 1 minute, (he) had shot Espejo in his upper back,” the judge said.
An Internal Affairs investigator and Bergman testified he had at least six opportunities to call for backup and maintain a 6-foot distance and use a baton or pepper spray, but instead rushed to tackle
Espejo for refusing to pour out the drink.
“While pushing Espejo down onto his stomach, Bergman discharged one round into the unarmed Espejo’s back,” the judge found.
The judge quoted Bergman’s testimony as to why he did not follow the department’s crisis intervention training that avoids injury to officer and citizens and the need to deescalate and wait for backup.
Bergman said, “I thought I could take him,” according to the Internal Affairs investigator’s testimony.
The court also found that numerous items of evidence, which should have been in the state’s custody and control, were lost. They include footage from eight HPD body cameras, Bergman’s interview with HPD and video footage from the state
Capitol.
The San Diego Police Department confirmed with the Honolulu Star-Advertiser that Bergman was hired in 2019 shortly after the Hawaii shooting, but would not respond to questions concerning the San Diego shootings, nor whether he is in good standing.
The California Department of Justice is investigating Bergman and another officer in the Dec. 8, 2022, shooting of John Ray Romero, the Office of the
Attorney General’s website shows.
In that case, Romero had a gun pointed to his own head when police arrived, according to news reports. He asked police to shoot him. Bergman and another officer reportedly did.
In a July 23, 2021, case, Bergman was one of two officers involved in the shooting death of Jesus Veleta,
a 22-year-old armed man who was shot in the back.
The Veleta family filed a $20 million legal claim against San Diego County, alleging Veleta was in the process of surrendering and was on his knees with his back turned when he was shot. The complaint
accuses the officers of using excessive and lethal force.
The San Diego County
District Attorney’s Office had previously cleared Bergman and the other officer of criminal liability.
The DA’s report said Veleta stumbled and fell, and officers ordered him to drop the gun. He “raised it up behind him back towards the officers.”
Officers fired and struck him in the back.
“Veleta threw his handgun in front of him as the officers discharged their weapons,” the report said.
The DA concluded Veleta ignored multiple commands to drop the gun and made no indications he was going to surrender, and that the officers reasonably believed he would shoot them unless they fired.
