Exclusive: Files seen by the Guardian raise questions over inquiry into fatal shooting of Eugene Ellison by off-duty officer

Ever since Eugene Ellison was shot dead two years ago by an off-duty police officer in his home in Little Rock, Arkansas, his family have tried to convince the authorities to take action.

The unarmed 67-year-old African American was killed by Donna Lesher, who entered his home with another off-duty officer after spotting that his door was open. She was cleared of any wrongdoing by an internal inquiry.

But the Guardian has learned of new testimony from another police officer who witnessed the shooting, which has cast doubt on Lesher's account and raised important questions over the original police inquiry and the county prosecutor's subsequent decision to rule the shooting justified.

In his testimony to lawyers for Ellison's sons, Vincent Lucio, one of four officers present when Ellison was shot, said he did not believe Ellison posed a deadly threat, according to the documents seen by the Guardian.

Lucio maintains that all of the officers, including Lesher, were outside Ellison's apartment when she fired inside his apartment at him – in apparent violation of the Little Rock police department's own rules on the use of deadly force.

LRPD general order 303 forbids officers from firing inside a building "unless the officer or someone else is drawing deadly fire and the suspect can be identified and is clearly visible".

Lucio also said that the four officers could have walked away from the scene, but instead Lesher opened fire, without issuing any warning to Ellison that she had a gun and would shoot.

Ellison's two sons, who are suing LRPD, asked the US attorney general, Eric Holder, and Christopher Thyer, the US attorney for eastern Arkansas, to mount a civil rights investigation into their father's death.

Their letter alleged a "troubling pattern of police misconduct" at the department, and claimed that any internal investigations into such misconduct are intended to "exonerate police officers who have committed excessive force, illegal warrantless entries, and other unlawful acts in the course of their duties".

The investigation into Lesher's killing of Ellison was conducted from within the homicide division, which is headed by sergeant James Lesher, Donna's husband.

Its outcome has caused internal divisions, as both of Ellison's sons, Troy, a detective, and Spencer, a former detective, are veterans of the force.

Michael Laux, the lawyer for the Ellison family, described the case as a "morally repugnant story" which the LRPD have failed to properly investigate.

Laux said: "What Vincent Lucio's testimony does is demonstrate that fear [of death] was unreasonable."

"He speaks the truth to this fiction," said Laux. "This is one of their own, and he is a very powerful witness. He establishes conclusively there are four of them outside and one inside. Not only does this violate a general order but if there are four outside and one inside, there cannot be a threat of deadly force."

Donna Lesher, Little Rock.

The family have accused the LRPD of using excessive force, of illegal warrantless entry and a cover-up in the case. Neither Lesher, pictured, nor her partner, Tabatha McCrillis, have been subjected to any disciplinary action.

On December 9, 2010, Lesher and McCrillis were working off duty as security guards at Ellison's apartment complex. They entered his home uninvited after they found his door open, they said. Ellison asked them to leave, but they refused and a physical altercation ensued, in which McCrillis's baton was taken from her, according to statements given by McCrillis and Lesher.

However, by the time the back-up officers arrived, any physical contact between Lesher, McCrillis and Ellison was over, according to Lucio in his deposition to Laux ahead of the civil case.

Asked whether he felt "deadly force" was being threatened by Ellison when he arrived, Lucio said: "Not to me at that time."

Laux: "And you didn't think – you never saw deadly force being threatened while you were there. Is what I said true?

Lucio: "Correct."

In the interview with Laux, Lucio agreed that all four officers could have "walked away" from Ellison's home at that point. Asked by Laux: "Once Donna Lesher was out of the apartment, all four of you could have walked away. Is that a fair statement?"

Lucio replied: "Yes".

Laux: "Once Donna Lesher was out of the apartment, all four of you could have moved to a location and conferred with each other and decided a means to handle the situation. Correct?"

Lucio: "Correct."

Laux: " And you could have, for instance, decided that you were going to group tackle him. Correct?"

Lucio: "Correct."

Laux also interviewed Lesher. She too admits that, in the seconds before she shot Ellison, she could have walked away.

Instead, Lesher took out her gun, pointed it at Ellison through his door and shot him twice, fatally. Asked by Laux why she did not run away when she could have, Lesher replied: "I don't know."

Eugene Ellison, Little Rock. Photograph: Sahil Bhatia

Her account of the events of that night, as given to Laux, is peppered with inconsistencies. Lesher told Laux that she was fighting with Ellison outside his apartment, but when reminded of an earlier statement in which she said she didn't know whether that was true or not, she agreed that she did not know.

She also corrected an earlier statement in which she said Ellison had been swinging a cane over his head at her. After being questioned over whether there was room in his apartment to swing a cane over his head, Lesher changed her story and finally said: "I don't know."

She admitted to Laux that she wasn't engaged in a fight with Ellison when she shot him, and did not tell him she had a gun pointed at him.

Furthermore, she told Laux that she does not have a baton, because she is not proficient in its use.

Asked by Laux: "Do you think that not having a baton and putting yourself in situations where intermediate levels of control might be necessary increases the level of danger in use of force incidents that you encounter?", Lesher replied: "Yes."

Citing the statements from Lesher and McCrillis, Laux told the Guardian: "If their story is to be believed, there is a fight in which [Ellison's] glasses come off, and he was pepper-sprayed directly in the eye. They have an officer who has a gun and she doesn't say she has a gun. Her gun shot is immediately. 'Put it down, pow, put it down, pow.' Even if she did all the things she said she did, she didn't give him enough time to heed the warning."

Laux said that the case is one of several use-of-force investigations involving LRPD in which no disciplinary procedures are instigated despite suspicious circumstances.

"When these things go unpunished the officers are emboldened" he said.

When contacted by the Guardian about Lucio's deposition, an attorney for Lesher, McCrillis and Stuart Thomas, the LRPD police chief, said he had no comment. Thomas is also a defendant in the civil case, because it alleges a pattern of tolerance of police misconduct in which investigations are intended to exonerate those involved.

Bill Mann, chief deputy city attorney in Little Rock, said: "We litigate our cases in court and not in the press and we don't have any response."

A spokeswoman for Christopher Thyer, the US attorney, said he had no comment about Lucio's testimony. Attorney general Eric Holder's office did not return calls about the case.