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Duenez family showing footage of deadly shooting
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The dashboard video footage of the shooting death of Ernesto Duenez Jr. by Manteca Police Officer Josh Moody is being shown during a press conference today in the offices of Oakland attorney John Burris.

Burris has filed a $25 million lawsuit against the City of Manteca on the behalf of the Duenez family.

 Duenez’s parents - Rosemary and Ernesto Duenez - well as his wife Whitney Duenez will show the video. Burris and associate Ben Nisenbaum who are representing the Duenez family will also be present and answer questions during the 11 a.m. gathering.

San Joaquin County District attorney James Willett indicated Tuesday that a court order stemming from that lawsuit prevents his office from releasing the video per se to the public. The Duenez family decision to simply show the video is apparently not in violation of the court order.

Willett’s office on Monday announced a multi-agency investigation into the June 8, 2011 encounter in the 200 block of Flores Avenue that left the 35-year-old Duenez dead had determined the shooting by Moody was “legally justified.”

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

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.

Attorneys for the city had tried to get the lawsuit dismissed arguing that the law firm 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 of disproven.

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 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.