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The Honolulu Police Department is investigating the February shooting death of a homeless man at the State Capitol by a deputy sheriff as a second-degree murder case, HPD spokeswoman Michelle Yu said Friday.

The man, 28-year-old Delmar Espejo, died shortly after what authorities described as a struggle with a deputy sheriff the night of Feb. 18.�� The Honolulu Medical Examiner’s office found that Espejo died after being shot in the back at close range, according to an autopsy report released in April.

HPD originally investigated the incident as an “unattended death” case, but reclassified it as a second-degree murder case, Yu said.

The case has been referred to the Honolulu Prosecutor’s Office, which is deciding whether or not to pursue charges, spokesman Brooks Baehr said. Baehr declined to discuss specifics of the case.

City prosecutors can decide to pursue charges, request more information from HPD or decline the charges.

Toni Schwartz, a spokeswoman for the state Department of Public Safety which houses the sheriff’s division, said it would be premature to comment on the case because of an ongoing internal investigation.

All three agencies declined to identify the deputy sheriff who reportedly shot Espejo.

Myles Breiner, who represents Espejo’s family, said the autopsy raised questions about why the deputy didn’t call for backup or get into a position to retreat.

“The whole thing changes when someone is shot in the back,” Breiner said this week.

State Public Safety Director Nolan Espinda told the media in February that Espejo was shot in the upper torso during a struggle with the deputy sheriff, which ensued after Espejo did not respond to commands to vacate the Capitol grounds, according to the department.

Espinda said the deputy fired a single round after fearing for his safety.��

DPS said the deputy sheriff found Espejo with an open container of alcohol in the Ewa wing of the Capitol Rotunda.�� Espejo had a blood alcohol content twice the legal limit, according to the autopsy report. He was 5-foot-3 and weighed 117 pounds.

Espinda said the incident occurred in an area of the rotunda out of view of the Capitol’s security cameras.

The Department of Public Safety did not provide more specific details when contacted earlier this week. DPS opened an internal investigation into the shooting in February that is still underway.

on the state Department of Public Safety’s account of the incident following the shooting and then enlisted the help of Breiner.

According to the autopsy, the bullet entered from the back about 12 inches below the top of the head with “black soot and searing surrounding the wound.”��

“The wound runs back to front, left to right, and slightly downward.” the report stated.

“It raises all types of questions in my mind,” said Breiner, who added that he could only speculate what happened that night. “How do you explain the mechanics of that?”��

Espejo’s family did not return several phone calls this week.��

Breiner said the deputy’s use of lethal force was particularly disturbing and alleged that it was unnecessary.

“(The deputy’s) response was completely disproportionate to the issue,” Breiner said. “A guy’s drinking in public. Do you shoot him? Do you pull your gun out?”

The deputy sheriff who shot Espejo has been with DPS since 2017. Schwartz did not answer a question regarding the deputy’s employment status other than to say that the deputy was placed on restrictive duty following the shooting.

Before the Feb. 18 incident, the last shooting by a deputy sheriff was in 2011. Kraig Massey shot James Fontanilla in the buttocks following a car chase. The state awarded Fontanilla $35,000 to settle a .

Since at least 2005, no state or county law enforcement officers have faced homicide charges in Hawaii, according to data on shootings from and the .

The Capitol shooting illuminated deficiencies in the sheriffs division.

Deputies who patrol the Capitol are equipped with firearms, but not Tasers. They also have access to less-than-lethal shotguns, according to a from Espinda to state legislators.

But DPS Deputy Director for Law Enforcement Renee Sonobe-Hong told that those guns are only for training.

The sheriffs division also lacks accreditation from a national agency that sets public safety benchmarks. That accreditation has been mandated by law since 2011.