Mother Sues City, Police in Son’s Shooting Death

Tony Tumminia could instantly light up a room and share jokes with a special skill that earned him dozens of friends, his mother said. She called him “Heart Soars Like an Eagle” because of his Cherokee-Mohawk heritage and the exhilaration she felt in his presence.

His life ended last September when he was killed by police in a controversial shooting. On Thursday, Diana Tumminia filed a wrongful-death lawsuit against the officers, the city of San Diego and the San Diego Police Department.

Her attorneys also presented new findings that are at odds with police accounts of the shooting and contradict a district attorney’s report issued in April legally clearing both officers in the Ocean Beach incident.

“We want to focus attention on the lack of controls that are placed on the police in San Diego,” said Tom Adler, one of Tumminia’s attorneys. “We also want to focus on the dangerous conditions that exist in San Diego because of the inadequate and distorted investigations the police conducted in this case and other cases.”

Police officer John Cain shot and killed Tumminia shortly after Cain and detective Ronald Featherly appeared at his apartment to investigate an assault case. Tumminia was a suspect in the beating of another man with a device that locks steering wheels.

According to the district attorney’s account of the incident, Tumminia at first refused to come outside his apartment. But, after Featherly said they would tow his truck, Tumminia walked outside. He produced his driver’s license and unlocked the trunk for the officers, who pulled out a paper sack of ammunition. Police said they saw the steering wheel lock at the time.

Featherly grabbed Tumminia’s hand and told him to put his hands on the truck’s hood. Tumminia said his civil rights were being violated because police had produced no arrest warrant. A struggle began, and Cain wrapped his martial-arts nunchakus around one of Tumminia’s arms, according to the district attorney’s report. Police said Tumminia was on his stomach but rolled over, got up, grabbed the nunchakus and struck Featherly.

Cain said he backed up, tripped, fell backward and saw Tumminia about to strike him.

“He raised the ( nunchakus ) above his head, and the only thing I could think of is, if I don’t stop him now, he’s going to kill me,” Cain was quoted as saying in the district attorney’s report.

Cain fired a single shot at Tumminia’s chest that killed him.

“In my opinion,” Diana Tumminia said at a press conference Thursday, “those officers took away every civil right he had: the right to remain silent, the right to legal counsel when being questioned, the right not to be tortured and beaten, and most of all the right to live.”

Her attorneys said police should not have been at Tumminia’s apartment in the first place because he was the wrong suspect in the assault. They said police reports show that the suspect had tattoos on both arms and drove a king-cab truck, which the officers could see was not true when they first met him and saw his truck.

They said Cain had not been falling backward when he shot, as he asserted, because the autopsy report showed that the bullet that killed him entered his chest at a 45-degree downward angle. The attorneys’ contention is that the bullet should have struck Tumminia at an upward angle if the policeman was shooting from the ground.

Diana Tumminia hired a private investigator, who said he interviewed 20 to 30 witnesses. None of them said they saw Tumminia strike either officer with the nunchakus or raise the weapon above his head, said Michael Newman, the investigator.

“Rather, witnesses describe the nunchakus as initially being wrapped around Tony’s wrist and subsequently held at the waist or chest level,” Newman’s report says.

Craig Rooten, the deputy district attorney who investigated the case that legally cleared the officers, said he stands by his conclusions.

He said it doesn’t matter whether Cain was falling backward or standing straight up when he shot, nor does it matter whether Cain was the person who committed the assault.

Tumminia “was charging (Cain) with nunchakus , and it’s pretty clear the situation was out of control,” he said. “We had an enraged man with a deadly weapon.

Rooten said he did not mention that both Featherly and Cain had been involved in other shootings “because it had nothing to do with this incident. I might have looked at previous histories if there was any question about the shooting and the officer’s judgment. There was no question in this case.”

He said witnesses can change their stories at any point, but that his account is based on what witnesses told him and police at the time of the investigation.

“We stand by our investigation and report,” he said. “Whatever Mr. Adler is doing is to somehow embellish his chances in his civil action against the department.”

Although police said Tumminia’s “increasingly bizarre and aggressive behavior” threatened Cain’s life, his mother described her son as “a very beautiful person. He loved children. He loved animals. He fought for civil rights. He was concerned about the plight of the Earth. He was a young man who wanted to join the Marine Corps.”

Police, she said, “killed my son twice. Once with a bullet through his heart and again through false accusations.”

Tumminia was the 21st of 28 people to be shot by police last year. He was also the ninth of 12 to die in a shooting. Late last year, Police Chief Bob Burgreen instituted a number of measures, including added training and new weaponry, that he hoped would reduce the number of shootings.

So far this year, police have shot three people, one fatally. Last year at this time, police had shot 14 people, five fatally.