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Pleasanton police officer cleared of criminal charges for July fatal shooting

DA's office concludes lawful self-defense; young man's family calls investigation report 'deeply flawed'

The Alameda County District Attorney's Office determined a Pleasanton police officer acted in lawful self-defense when he shot and killed a young San Jose man during an altercation in downtown Pleasanton last summer, and the officer will not face criminal charges, according to the DA's investigative report released publicly Monday.

Officer Daniel Kunkel fatally shot 19-year-old John Deming Jr. in the early-morning hours of July 5 after Deming allegedly charged the officer, who was responding to a burglar alarm at Specialty Sales Classics car dealership on First Street.

"The evidence shows that Officer Kunkel believed that lethal force was necessary because he believed he was about to lose consciousness as a result of Mr. Deming Jr.'s ongoing attacks, which would lead to the loss of retention of his firearm and ultimately his death," deputy DA Kevin Wong concluded in his report.

"The evidence supports the conclusion that Officer Kunkel acted under the actual and reasonable belief that Mr. Deming Jr. posed a threat of death or great bodily injury to him," Wong added.

Pleasanton police chief Dave Spiller said in a statement Monday he respected the DA's findings and offered condolences to Deming's family and support for Kunkel and the officer's family.

"We hope that with the investigation complete and the final report released, the healing process can begin for the Deming family, the officers involved in the incident and our community," Spiller said.

Deming's family, which argues fatal force was not necessary, thinks the final investigative report leaves many questions unanswered, according to their attorney, Ben Meiselas, of the Los Angeles-based celebrity law firm Geragos & Geragos.

"We consider this a deeply flawed and whitewashed report that is a recitation of police reports, rather than the thorough investigation that the Deming family and the community demanded," Meiselas said Monday night. "There are deeply alarming and troubling aspects of the report."

The law firm plans to file a civil suit in Alameda County Superior Court in the wake of the DA's report, Meiselas said.

The full report, completed Feb. 17 and obtained by the Pleasanton Weekly Monday night, paints the picture of an incident that started when Deming tripped a burglary alarm at the dealership, and then acted erratically and violently and ignored repeated demands to comply with officers, which ultimately led to a fatal altercation with Kunkel outside the building.

The 45-page document includes interviews with Pleasanton and Livermore officers who were on the scene, a summary of body camera footage from some officers and the dealership's surveillance footage, and an overview of an Alameda County Coroner's Bureau autopsy.

According to the DA's report, Deming tripped the Specialty Sales Classics motion-detection alarm at 2:01 a.m. July 5 and answered the phone when the alarm company called to check on the situation.

Security footage reportedly showed Deming driving a metal pole into the wall of the dealership, and writing, "Confront me in peace. I have much to teach" on a car roof and "Hope & humanity has failed" on a bathroom mirror before police arrived.

Responding officers said they saw Deming through the front windows, appearing "agitated" and saying he was "a mountain lion," so officers started to get "the 'wrap' ready to detain him," referring to a straightjacket, according to the report. One officer said they may have a "5150" police code for a mental health incident.

Deming threw a large car jack at the window toward officers, but it bounced against the glass, according to the report. He then threw a second jack, which shattered the window.

The 19-year-old reportedly retreated to the roof of a pickup truck, and officers surrounded him. At one point, Deming hung from the showroom rafters above the car and kicked a surveillance camera.

An officer holding a police dog ordered Deming to surrender, and Deming responded by saying, "I have nothing. I mean you no harm," according to the report.

One officer tried to shoot Deming with a Taser, but it didn't shock him, and Deming picked up the charge and flicked it away, the report stated. A second Taser was fired, and Deming grabbed his stomach but stood up. A beanbag round was fired as Deming jumped off the car and ran toward the back of the business.

The police dog was released, but it confused another officer for Deming and had to be commanded not to attack, according to the report.

Outside, Deming reportedly stopped "three feet" away from Kunkel, who ordered him to stop.

Deming started running again and Kunkel tried to fire his Taser, which was on safe mode. The officer got his Taser working again and fired a charge at Deming's back, shocking the young man, who kept running, according to the report.

While chasing Deming through the parking lot, Kunkel reported hearing him say, "Are you going to Tase me?" or "Don't Tase me."

According to Kunkel's statement, Deming then ran at him and kicked him in the stomach, knocking him down. Deming punched Kunkel in the face several times, and the officer said he felt he was losing consciousness and feared being disarmed and killed by Deming.

Kunkel stunned Deming with a Taser on Deming's forehead, which allowed Kunkel enough space to grab his firearm and shoot three rounds. According to the report, Kunkel "didn't know if the gun shot was a contact shot or taken from a couple feet away."

Two bullets hit Deming, in the face and abdomen.

The shooting isn't recorded because Kunkel didn't turn on his department-issued body camera, claiming he "was too busy focusing on the burglary" and "the device commonly doesn't work," according to the report.

After the shooting, Deming reportedly resisted when an officer tried to handcuff him. Another officer had the police dog bite Deming so officers could restrain him, and EMTs took him to Eden Medical Center, where he died.

Kunkel said his hamstrings were injured and was recorded saying "Sergeant, I tried, but why did he have to do that?" and "I'm so happy I'm alive."

Two officers told Kunkel "not to say anything right now," according to the report.

Kunkel was diagnosed with a concussion, bruises to his face and muscle strain in both his legs. He was placed on paid administrative leave during the nearly seven-month investigation.

The police chief said in a follow-up interview Tuesday that Kunkel will remain on leave related to a work-related injury and will return to the department once he's recovered.

Meanwhile, Deming's family continues to challenge aspects of police department's version of events and findings made throughout the investigation, according to their attorney.

Meiselas pointed out Monday that both a county autopsy and a third-party autopsy done by a pathologist hired by the Deming family found no drugs in Deming's system.

He also contested the distance at which Deming was shot, saying neither autopsy found gunpowder residue or tell-tale "tattooing" or skin puckering consistent with a contact shot.

Forensic anthropologist Michael Warren, of the University of Florida C.A. Pound Human Identification Laboratory, reviewed the Alameda County autopsy at the request of the Pleasanton Weekly. He said gunpowder residue or skin stippling or "tattooing" would be expected if an individual was shot within a few feet.

"I don't see any description of that," said Warren, who often works with pathologists on cases and was an EMT for 15 years. "My guess is it's not a contact wound or a close range wound that he was shot from a distance of several feet."

Spiller said his department does not intend to release body camera or security footage captured during the incident. "Some of it is graphic, and out of respect for the Deming family and our own officers, we're not intending to release it," the police chief said.

The Pleasanton Police Officers' Association didn't respond to a request for comment as of Tuesday afternoon.

Associate editor Jeremy Walsh contributed to this report.

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Comments

1 person likes this
Posted by Ralph Kramden
a resident of Danville
on Feb 23, 2016 at 1:03 pm

One way or the other, drugs will eventually kill you. It's really that simple.


Like this comment
Posted by Peter Kluget
a resident of Danville
on Feb 24, 2016 at 9:06 am

What part of "no drugs in Deming's system" is confusing you, Ralph?


Like this comment
Posted by C. R. Mudgeon
a resident of Danville
on Mar 4, 2016 at 5:14 pm

This case is very puzzling to me. The described behavior of Deming seems consistent with drugs or alcohol, yet, as pointed out above, there was apparently no evidence of drugs in his system.

I have a lot of sympathy for Deming's family, and am also not sure I am fully comfortable with the impartiality of the investigation that was done. That is not to say that the conclusion of the investigation was wrong. But this case was far from open-and-shut....


Sorry, but further commenting on this topic has been closed.

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