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$2.2 million settlement ends lawsuit over Manteca police shooting

By Denny Walsh, The Sacramento Bee
McClatchy-Tribune Information Services

April 08--A Sacramento federal judge Monday approved a settlement that calls for the family of a man who was shot and killed by a police officer nearly three years ago to collect $2.2 million from the city of Manteca.

Ernesto Duenez Jr., who was wanted for violating parole, was confronted on June 8, 2011, by Officer John Moody, an 11-year Manteca police officer at the time of the shooting. Officers had information that Duenez may have been armed with a knife, a gun or both, according to court documents. As Duenez was getting out of the pickup in which he was a passenger, he appeared to be holding something in his right hand, which Moody later testified was a "large knife."

After the shooting, a knife was found in the bed of the pickup. How it got there was never determined.

"Drop the knife," Moody ordered, and immediately began shooting, according to court records. He fired 13 rounds.

"The final shots were fired after (Duenez) had fallen to the ground," according to an order on cross-motions for summary judgment that U.S. District Judge Lawrence K. Karlton issued in December.

Duenez lay on the ground writhing in agony after Moody stopped shooting, court records show. Emergency medical personnel arrived seven minutes later, but it was too late to save him. Duenez was 35.

His wife, their son -- who was 17 days short of his first birthday when his father died -- and Duenez's parents sued, alleging civil rights violations and wrongful death. Named as defendants were the city, Moody and Police Chief David Bricker, now retired.

The incident was captured on a "dash-cam" video taken from Moody's police car, and that film was the most critical piece of evidence. Both sides claimed the video justified their respective positions.

Karlton ruled there were a number of factual issues that a jury would have to decide.

"The court finds that there is a genuine dispute about exactly what the video depicts," Karlton wrote in his 56-page order on the summary judgment motions. "Defendants say it depicts (Duenez) with a knife, plaintiffs say it depicts (him) with ... tweezers. The video is not fine enough to resolve that dispute.

"Defendants say (Duenez) kept reaching as if for a weapon, plaintiffs say (his) body was simply responding to being shot," the judge wrote. "The video does not resolve that dispute. Those are among the main facts that must be resolved to determine whether the shooting was a justified response to a dangerous parolee trying to throw a knife at a police officer, or the unjustified police killing of an unarmed man just trying to get out of a pickup truck."

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That order was filed on Dec. 23. Moody filed an interlocutory appeal -- that is, an appeal filed before a case has been resolved in the trial court. The appeal was based upon the judge's rejection of the officer's assertion that he must be given qualified immunity because his actions were "objectively reasonable."

Karlton found the appeal to be "frivolous" and refused to wait for it to run its course at the 9th U.S. Circuit Court of Appeals. The judge confirmed an April 15 trial date.

However, in a conference presided over by U.S. Magistrate Judge Dale A. Drozd on Feb. 27, the parties agreed on a settlement, approved by Karlton, which included the $2.2 million payment.

Joe Kriskovich, Manteca's director of human resources and risk management, said in an email that the city continues to dispute the claims made by the Duenez family and "views the actions of its officer as appropriate in defending himself and others. However, all jury trials involve a level of uncertainty. The self-insurance pool of which the city is a member concluded that this settlement was appropriate given the risks of continued litigation and enormous expense."

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(c)2014 The Sacramento Bee (Sacramento, Calif.)

Visit The Sacramento Bee (Sacramento, Calif.) at www.sacbee.com

Distributed by MCT Information Services

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