Family’s lawyers claim recording shows Juneau officer planned fatal shooting

This is a photo of the shoulder and chest of a Juneau Police officers, taken from the side.
An arm badge for the Juneau Police Department on Lt. Kris Sell’s uniform, April 1, 2016. (Photo by Jeremy Hsieh/KTOO)

Attorneys for the family of a man fatally shot by a Juneau police officer last December are highlighting audio of the officer talking to himself before the shooting. The attorneys argue that what the officer says shows the officer’s state of mind and indicates that killing Kelly Stephens was planned.

In a press conference Wednesday and in a letter to state prosecutors, the attorneys called for the state to reopen its investigation into Juneau Police Officer James Esbenshade. Previously, the state’s Office of Special Prosecutions reviewed the Juneau Police Department’s investigation, concluded the shooting was legally justified self-defense, and declined to prosecute.

The audio the attorneys highlighted Wednesday was captured on Esbenshade’s body camera while he was driving earlier that December night, after interviewing someone Stephens had threatened while swinging a dog leash with a chain attached.

The attorneys said they hired technical experts to boost the audio from the raw footage. According to the attorneys’ transcript, they claim that Esbenshade said, “I’d shoot you. On video. … If you came at me with that, I’d shoot you. Drop you dead. You can’t do that, you commin’ at me with a deadly weapon. It’s like you pulled a gun on me, I’m gonna shoot. I don’t know what the hell you’re thinking.”

And the second clip, recorded a few minutes later, lawyers claim he’s saying “You only get one chance, you better make it good, ‘cause when I got ahold of you, there’d be nothing left of you.”

Juneau Police Department’s report on the incident does note some of Esbenshade’s words from this part of the body cam tape. But the Stephens’ family attorneys take issue with the state leaving them out of its summary of facts in its review of the shooting.

Stephens family attorney John Sweeney said state of mind is an important factor in prosecuting homicides.

“Apparently, there was some thought about what was going to happen if that scenario presented itself,” Sweeney said. “That is what is so troubling to us. And that is what we’re asking for the prosecutors’ office to take a look at.”

About an hour and a half after those words were recorded, Officer Esbenshade’s body camera and dashboard camera captured the fatal shooting. Esbenshade was responding to a report of a gunshot at a housing complex. Within seconds of getting out of his car, Stephens repeatedly threatened to kill the officer while walking toward him and swinging a rope leash with a carabiner and chain attached to it.

The Juneau Police Department released this photo of a rope leash with a carabiner and chain attached to it that Kelly Stephens was swinging before a Juneau police officer fatally shot him on Dec. 29, 2019.

Esbenshade ordered him to stop three times, then shot Stephens once.

State attorneys said they are reviewing the material in light of the family’s request and will respond by early next week.

State investigation aside, the Stephens’ family filed a wrongful death suit in federal court in July. It names Officer Esbenshade, Police Chief Ed Mercer, and the City and Borough of Juneau as defendants.

The Stephens’ attorneys said that lawsuit will proceed, regardless of what happens with the state’s investigation. Attorney John Sweeney said criminal prosecutions of police use of force are rare and overwhelmingly fail. But he said he’s had success with civil cases.

Juneau’s City Attorney Rob Palmer said the city and police department won’t comment on that pending case.

“The reason why, is if people have disputes involving legal matters, they need to litigate those through the court process and not through the media process. Because it’s not fair to everybody involved, including the clients of Ben Crittenden.”

Ben Crittenden is another Stephens’ family attorney. Crittenden said the purpose of the press conference was to counter bad publicity from the Juneau Police Department’s own press conferences after the incident, and from releasing the body and dashboard camera videos of the shooting without context.