One day after prosecutors in the Central Valley cleared a police officer in the fatal shooting of a parolee,
Police in Manteca (San Joaquin County) say the officer opened fire after seeing a knife in the man's hand as the suspect got out of a pickup truck, and that a knife was later found in the bed of the vehicle. The family's attorneys countered that the man had been unarmed and trying to surrender when he was shot.
The video was recorded by a camera in Manteca police Officer James Moody's patrol car June 8, 2011, as he ordered 34-year-old Ernesto Duenez Jr. from a pickup truck after it pulled up to the home of a friend.
Police had been staking out the house because Duenez was wanted in connection with a domestic-violence incident earlier in the day, authorities said.
The footage shows Duenez, a passenger in the truck, getting out of the back seat and then leaning back toward the cab. Attorneys for his family say his right foot became tangled in the seat belt and that he was trying to free himself.
'Drop the knife now!'
Moody yelled at Duenez to put his hands up. Before opening fire, the officer can be heard on the camera footage yelling, "Drop the knife now!" and, "Hands up! Hands up, Ernie! Don't you move, Ernie, don't you move or I'll shoot you!"
Moody, 40, who has been on the Manteca force for 12 years, told investigators that he had seen a knife in Duenez's right hand and believed the suspect might charge him or throw it at him.
Moody fired 13 bullets in 4.2 seconds, investigators wrote, striking Duenez 11 times, including four shots while Duenez was on the ground. At one point in the camera footage, an entry wound can clearly be seen appearing on Duenez's back as he rolls on the ground after being hit several times.
Police said an 8-inch "throwing knife" with a 4-inch blade was later found in the truck's bed. Video experts hired by the district attorney's office said it appeared Duenez initially had a knife in his hand, but that they lost sight of it and couldn't explain how it ended up in the truck bed.
John Burris, an Oakland attorney who filed a wrongful-death lawsuit against Manteca and Moody in federal court in July, said that even if Duenez had been carrying a knife, "he made no aggressive movements toward the officer."
Burris said he has asked the U.S. Justice Department to open an investigation and seek murder charges against the officer.
"This is more barbaric than even the Oscar Grant shooting," Burris said, referring to the unarmed transit passenger whose fatal shooting on New Year's Day 2009 by a BART police officer was recorded by onlookers.
Burris obtained the video through the discovery process in his federal lawsuit. He released it at an Oakland news conference one day after the San Joaquin County district attorney's office concluded that Moody had been legally justified in shooting Duenez.
The prosecutor's report said Duenez was involved in a domestic disturbance earlier in the day with his wife, Whitney Duenez, and that witnesses had told police Duenez was carrying the throwing knife and was known to carry a gun. No gun was found at the shooting scene.
After the shooting began, Whitney Duenez emerged from the house, screaming, and bent over her mortally wounded husband.
According to the district attorney's report, Duenez was a gang member who had served three prison stints for convictions stemming from methamphetamine possession, reckless evasion of police in a
Burris said Duenez had failed a drug test before the police stop and had known he was in violation of his parole.
Duenez's mother, Rosemary Duenez, 58, said at the news conference that she had decided to release the video after concluding that local authorities "would never deliver us justice."
"As heartbreaking as it is," she said, "people need to see what happened. They need to know what we see, and what we're fighting for."
Manteca Police Chief Nick Obligacion declined to comment on the shooting, citing the pending lawsuit. He said Moody has returned to active duty.