A Washington County sheriff's deputy believed he was in the line of fire from a Lake Elmo man kneeling with a gun to his own head, so he fired at him four times, killing him in what his defense team said Monday was a justified shooting.
That was one of the points at a hearing in the case against Washington County deputy Brian Krook. His defense attorneys are seeking to throw out the grand jury indictment of second-degree manslaughter for the April 2018 shooting of 23-year-old Benjamin Evans.
Krook, 31, shot Evans after law enforcement responded to a 911 call about a suicidal man in a Lake Elmo intersection. He is the third officer in recent years to face criminal charges for a fatal shooting while on duty in Minnesota.
Prosecutors argued that Krook used excessive force on a man who had surrendered all but one bullet in his gun that he was holding to his own skull. Krook's defense in part is that Evans may have been trying to commit "suicide-by-cop," inducing law enforcement to kill him.
Evans' movements with the gun were getting "close to where it's pointing at us, and I am getting uncomfortable," one of the defense's dismissal filings quoted Krook's grand jury statement as reading. "I'm worried that if, you know, if he did pull the trigger while he's got his head turned the bullet is going to come at us or at, you know, me [and deputies Michael Ramos or Joshua Ramirez]. So I, and at one point, make a comment like I'm not comfortable with him turning his head."
According to the court filings, Krook said, "so he turns his head again ... so I fired, um I just fired."
The case is set for trial March 9, but Krook's defense attorney Paul Engh argued that Ramsey County prosecutors, who are handling the case to avoid a conflict of interest, should have called Steven Frazer, a former Ramsey County Sheriff's deputy who is now police chief of Prior Lake, to testify before the grand jury. Because they didn't, he argued, the indictment is null.
About a year ago, Frazer reviewed the file on the shooting at the request of Richard Dusterhoft, head of the Ramsey County Attorney's office criminal division. Frazer testified that he determined the shooting was legitimate and not criminal given the "totality of the circumstances" at the time.
Both he and Dusterhoft agreed that Frazer had no formal written agreement to testify as an expert.
On the witness stand, Dusterhoft acknowledged talking to Frazer about the case, saying he sought his advice on possible expert witnesses. He said he shared much of the case file with Frazer, but not all of the video.
He also said he would not have brought Frazer in as an expert because of his ties to the Twin Cities law enforcement community that could make it difficult for him to testify on either side of the issue.
Frazer testified before the grand jury was convened that he explained to Dusterhoft why the shooting was justified in a telephone call where they each watched it frame by frame.
After Krook's indictment, Frazer called Dusterhoft to tell him he was surprised given their previous conversation.
When Dusterhoft tried to downplay the earlier talk, Frazer said he became upset. "I said, 'Rick, stop right there. You're lying and you know it,' " Frazer testified, adding that he then hung up on the prosecutor because, "I've never known Rick to be slippery that way."
Assistant Ramsey County Attorney R.K. Johnson worked to dissect and disprove Frazer's determination that Krook was justified in shooting Evans. For one, he sought to show that Krook had a portable bunker that could be used to provide protection for law enforcement against a shooter.
He sought to dispel Krook's claim that law enforcement was in the line of fire when Evans moved his head as he held a gun to it. He also tried to show that Krook was wrong to move out into the open rather than staying back behind cover after firing the first shot.
"If they had stayed back and let him put down the gun, Mr. Evans might very well be alive today," Johnson asked.
Frazer said he didn't know which shots to Evans were fatal and adhered to his belief that under the circumstances — without the benefit of hindsight — Krook had handled the incident appropriately.
Krook sat silently at the hearing with more than a dozen supporters seated behind him.
Evans had completed his studies to be a firefighter and was working as an emergency medical technician at the time of his death, court filings said. The filings from both the defense and prosecution pointed out that he was in work clothing during the standoff.
When the standoff began, Evans was distraught after pleading with his girlfriend to marry him, the defense filing read.
In court, Frazer read from two purported suicide notes left by Evans.
One was a letter to his parents, telling them they'd done nothing wrong and that he was going to be with his grandparents. The other was an apology to first responders who would be at the scene. "I'm so sorry that this is another memory in your career, of another lost soul, but your job is not to save them all, just the ones you can. Carry on, you have the watch from here my friends." He signed it "Benjamin Evans, Firefighter — EMT."
Judge Mary Yunker isn't expected to rule on the motions for a couple of months.