Pointer says his client, 20-year-old Kaun Green, who is a football player for Contra Costa College, was eating at La Victoria Taqueria near San Jose State University with a friend early Sunday. He was approached and threatened by someone who was part of a group. Another person in that group had a gun and a brawl broke out.
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Surveillance video released by police shows the melee. Police confirm that Green disarmed the man with the gun, but say officers responding didn't know that. When they arrived, Green had the gun in his hand.
"Officers gave repeated commands to drop the gun, however the individual does not drop the gun and one officer shot more than one time, striking the individual," said San Jose Police Chief Anthony Mata.
The chief says officers had been searching for a homicide suspect in a case that had just happened a few hundred feet away. He says commands were clearly given to Green, but he did not drop the gun.
Pointer says witness video from outside the taqueria shows a different story.
"The officers were walking up the stairs. My client is backing out, you hear them yell something, and within less than a second there are gunshots," says Pointer.
Green is now recovering after being shot in the abs, an arm, and a leg. Pointer says at this point they plan to file a lawsuit and bring this case in front of a jury.
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The man shot has non-life threatening injuries.
San Jose police say they found out that the man they shot was not the one who brought the gun.
The person who did bring the gun was arrested that night.
Mata explained more about what the officer who shot knew and didn't know leading to the shooting.
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"The officer knew that less than a block away from the homicide, a man with a gun, inside a crowded restaurant engaged in a fight and that panicked customers were running out reporting what was occurring," Mata said. "The officer knew that the person coming out of the restaurant was holding a gun and pointing it at others. The officer knew that that individual holding the gun did not drop it when commands were clearly given to him. The officer did not know who brought the gun to the restaurant. That information came to light after the detectives viewed the surveillance footage after the shooting."
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Mata says that a joint criminal investigation by the Santa Clara County District Attorney's Office and the San Jose Police Department's Homicide Unit is underway. The case is also being monitored by the San Jose Police Department's internal affairs unit, the city attorney's office and the office of the independent police auditor.
It will be the District Attorney's office who will determine whether the shooting was lawful and justified.
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Mata says that the officer who shot at the man has four years of experience and has been placed on routine administrative leave.
The bodycam video that would include the officer asking the man he shot to drop the gun has to be released per state law.
San Jose police say it should be released within 45 days.