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Judge decides against dismissing lawsuit against city over Duenez’ death

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POSTED February 24, 2012 1:14 a.m.

The City of Manteca has lost its bid to have a $25 million lawsuit filed against the city in federal court over the shooting death of Ernesto Duenez Jr. at the hands of a Manteca Police officer dismissed outright.

United States Eastern District Court Senior Judge Lawrence K. Karlton’s ruling Thursday means the lawsuit against the city as well as individual actions against former Police Chief Dave Bricker, Officer John Moody, and a number of unnamed defendants can proceed.

Attorneys for the city had tried to get the lawsuit dismissed arguing that the law firm of Attorney John L. Burris representing plaintiffs who are Duenez’ widow and son had failed to meet legal qualifications for claims they were suing the city over.

The ruling noted that the plaintiffs have “set forth a number of factual allegations” in support of their claims. Essentially that means they are allegations that appear to be factual but have yet to be proven or dis-proven based on evidence yet to be presented.

The judge’s order points out that plaintiffs allege “in spite of video evidence of the shooting (Bricker) told local press representatives that, when all facts were out, the officer who had shot (Duenez) would be clearly justified in the shooting” and as such Bricker “essentially ratified Officer Moody’s shooting of (Duenez) as being within the policy of Defendant City of Manteca.”

The argument that the plaintiffs have grounds to sue the city for alleged use of excessive force and depriving Duenez of his constitutionall rights was allowed to stand and continue forward in the lawsuit.

The judge noted that the plaintiffs allege:

• Duenez was not carrying a weapon when he was shot.

• Duenez was likely carrying a glass marijuana smoking-pipe.

• Duenez caught his feet in the seatbelt of the truck from the time he was initially shot until his death.

The judge’s ruling noted that “given these circumstances and viewing these allegations in the light most favorable to Plaintiffs, it was unlikely that (Duenez) could have posed an immediate threat to officers at the scene. The court therefore finds that it was objectively unreasonable for the Defendant officers to view (Duenez) as such an immediate threat that deadly force was required against him.”

The Thursday decision basically ruled there was merit to a lawsuit advancing. It doesn’t, one way or another, say that the defendants are guilty of what the plaintiffs allege. That will be decided once the case goes to court.

Almost nine months and no DA ruling

It has been almost nine months after Duenez was shot and killed during a confrontation in the 200 block of Flores Street just southwest of Doctors Hospital and the San Joaquin County District Attorney’s Office has yet to determine whether the shooting was justified.

The family is also pressing the district attorney as well as the federal Department of Justice to file criminal charges.

The attorney for Duenez’ brother Gabriel Duenez is fighting efforts by the Manteca Police Officers Association to secure a permanent restraining order against him.  The association got a temporary restraining order against Gabriel Duenez after alleged incidents took place outside the police station and during a family outing at Great America. The MPOA contends Gabriel Duenez has been harassing two officers - Josh Moody who fired the fatal shots and Armen Avakian - as well as Avakian’s family.

The lawsuit essentially contends officers used excessive force for the situation and failed to secure medical help in a timely manner. Manteca Police have disputed both points indicating that once a dashboard video in Moody’s patrol unit that captured the incident is released to the public it will prove their point. Attorney John L. Burris - who represents the Duenez family - also contends the video footage proves points made in the lawsuit.

The video remains under protective order. That order, though, authorizes Duenez’ attorney to describe what’s depicted in the video as well as statements by witnesses and officers involved. The family attorneys describe the video as “surreal and deeply disturbing” as well as being “clear and unobstructed.”

The knife and a marijuana pipe play pivotal roles in what happened on June 8 according to court filings on behalf of the Duenez family. The police contend that Duenez had a knife in his hand and was moving toward Moody in a threatening manner when the shooting occurred. The plaintiffs contend it was a marijuana pipe and that Duenez wasn’t moving forward but was entangled in a seatbelt.

The lawsuit contends Manteca Police relied on information passed to them wrongfully that Duenez was armed, besides the call from the homeowner who returned the knife Duenez dropped. The filing also states Moody had information that Duenez stored a gun in his buttocks. It also states that that Moody told investigators that information he received from dispatch was simply that Duenez was involved in an altercation with some woman and had a knife on his person but had not threatened anyone.

Duenez was on parole at the time he was killed. He was set to be discharged from parole a month after he was killed. The court filing states Duenez believed he may have tested positive on a drug test and that he possibly had a warrant for violating parole due “to the likely positive drug test.”

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