A Pleasanton police officer who shot and killed the son of an Oakdale reserve police officer last summer during a bizarre confrontation at a Pleasanton auto dealership has been cleared of criminal wrongdoing by the Alameda County District Attorney's Office.
Pleasanton police had said Officer Daniel Kunkel shot 19-year-old John Deming Jr. shortly after 2 a.m. on July 5. Pleasanton police said Deming attacked Kunkel outside the dealership and when a stun gun failed to stop him Deming ended up on top of Kunkel, nearly knocking him unconscious, leaving Kunkel with no choice but to shoot.
The district attorney's office on Monday issued a report on its investigation into the incident, concluding Kunkel acted in legal self-defense and will not face criminal charges.
"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," Deputy District Attorney Kevin Wong wrote in the report.
But Geragos & Geragos, a high-profile law firm hired by the family, has repeatedly accused the Police Department of lying, changing its story and making false accusations against Deming. The firm filed a wrongful death claim against the city on behalf of Deming's parents, Linda Stasi and John Deming Sr., shortly after the shooting and plans to file a lawsuit, likely within the next week.
"The district attorney's whitewashed and flawed report sends the wrong message, that cover-up will be tolerated," attorney Ben Meiselas said Monday. "It's not even an investigation, it's a recitation of police reports."
Police said Deming was found inside Specialty Sales Classics at 4321 First St. about 2 a.m. that morning. The former football player at Piedmont Hills High School in San Jose showed superhuman strength in his confrontation with police, throwing a 50-pound floor jack through the window at officers shortly after they arrived, police said.
After jumping around on the cars inside, Deming withdrew into the store. When police sent a dog in after him, he jumped through a broken window in the back of the building, police said.
Kunkel was guarding the back and saw him jump through the window. Deming kept running and refused Kunkel's orders to stop, so Kunkel hit him with a Taser, police said.
The Taser didn't stop him and Kunkel chased him, the Taser wire still in Deming's back, until Deming turned to face him. According to Kunkel's description in the report, Deming was screaming like "an animal in distress" he had clenched fists and was "combative" and "aggressive."
According to the report, Deming then ran at Kunkel, kicked him in the stomach, punched him in the head and knocked him to the ground, pummeling him as he lay on the concrete.
Kunkel again used the Taser on him, driving it into his forehead, but that didn't stop Deming either. Finally, afraid he might lose consciousness, Kunkel managed to pull his pistol and fired three shots, hitting Deming in the torso and the head, according to the report.
Deming was taken to Eden Medical Center in Castro Valley where he died later that morning.
Kunkel did not activate his body-worn camera during the confrontation, "because he was too busy focusing on the burglary and the suspect inside the building. In the past he has tried to turn it on and it doesn't go on. In his experience, the device commonly doesn't work and he has to look down to confirm that it is on," the report states.
"In his opinion, doing this is an officer safety issue because he is taking his eyes off someone who can hurt him," according to the report.
Pleasanton police Chief Dave Spiller said in a statement, "We respect the findings of the District Attorney's Report and I want to express our deepest condolences to the family of Mr. Deming Jr. I also want to communicate support for Officer Kunkel and his family through this time."
Meiselas said Monday the report had numerous flaws and inconsistencies, criticizing the thoroughness of the district attorney's investigation and suggesting the evidence doesn't indicate that Deming was shot at close range.
Only one officer had a body camera activated during the incident, which captured officers saying it appeared Deming was having a mental health crisis. At one point they order him down from the roof of a truck. Deming sits on the hood with his hands up sporadically, and says, "I have nothing. I mean you no harm," according to the report.
When he still doesn't come down, the video shows the officers hit Deming twice with a Taser and with a beanbag shotgun before he flees out the back, according to the report.
An autopsy found no evidence of smoke or powder near the gunshot wounds, which indicates the shots were not as close range as Kunkel reported, according to Meiselas. An independent pathologist hired by the firm confirmed that assessment, he said.
Toxicology screenings by the Alameda County coroner's bureau did not find any drugs in Deming's body. Police had suspected drugs were present, searching his mother's San Jose home for evidence of drugs likely to cause psychotic behavior, according to a copy of the warrant released by the family's attorneys.