In a development of significant historical and social note, the Fontana Police Department this week released the video from the bodyworn camera of its officer who fatally shot an unarmed burglar who had fled and hid after he was interrupted by the police during a home break-in.
The Fontana Police Department has a tradition of virulently protecting its officers from any second-guessing by the public with regard to the way they conduct themselves in the field, a policy which has extended to the fatal shootings of civilians in the past as well as in cases where objective community standards suggest officers overstepped their authority.
A confluence of factors in this case, including extremes the department went to in its effort to keep the video under wraps and certain misrepresentations made by members of the department in seeking to justify the shooting contrasted with a million dollar payout to the dead man’s family, ultimately forced the department’s hand.
The video captures the February 13 shooting of Daverion Deauntre Kinard by Police Officer Johnny Tuitivake.
There have been conflicting accounts provided by the department itself as to how the events leading up to the deadly confrontation between Tuitavake and Kinard came about.
Two days after the event in February, the department said that on the evening of February 13, 2021, a resident of a home in the 16500 block of Casa Grande Avenue in north Fontana who was not present at the residence was alerted, through a video surveillance and digital relay and notification system, that there was an intruder on her property. The homeowner contacted the police department, which dispatched officers, including one subsequently identified as Johnny Tuitavake, to the Casa Grande location.
However, yesterday the department released the audio of a 911 call in which an off-duty Los Angeles police officer and his wife, residents on Casa Grande Avenue, are heard telling a police dispatcher that a man in a black hoodie was apparently trying to gain entry to a neighbor’s home.
Also released was footage from a video surveillance system showing a man subsequently determined to be Kinard on the porch of the home, removing a window screen, walking off with it and then returning.
Kinard, 29, had a history of burglary arrests. As of the February 13 incident, Kinard was on a probational release related to a previous burglary conviction, and was avoiding incarceration by having agreed to engage in no further violations of the law and submit to supervision. At the time of the shooting, the police department had not identified Kinard as the suspect its officers were dealing with.
Upon reaching the home on the north side of the street where the burglary was reported as taking place, a body video cam and accompanying audio shows officers locating the open window from which the screen had been removed and through which Kinard had apparently gained entry. The video shows officers peering inside with the assistance of a flashlight beam, and one calls out their presence. After a momentary delay, Kinard can be seen coming out of a room toward the middle of the house into a hallway. Ignoring the officers’ shouts and demands that he not move, Kinard exited the rear of the house, at that point outside the body cam’s field of view, and took flight. A choppy video of the pursuit from one of the body cams shows the officers giving pursuit, with the video librating between total black and slightly better visibility as the lighting conditions change with the officer’s rapid movement.
According to the police department, Kinard scaled three walls and ran through backyards in his escape attempt. Kinard headed into a tract of homes under construction south of Casa Grande Avenue at the southwest corner of Justin Street and Heinz Way, where he took refuge inside a portable enclosed toilet stall, which the police department said was roughly 1,000 feet away from the home Kinard had been burglarizing.
Footage from Tuitavake’s body cam shows him approaching the portajohn located within a remote corner of the residential construction site hemmed in by block walls. Tuitavake is seen opening the door to the portable toilet with his left hand, and visible in the bright glow of the flashlight held in his right hand is Kinard, who is seated, relatively immobile, within the portacabin. Kinard gestures with his left hand, holding it palm up. Tuitavake lets go of the door, which begins to close, but just before it reaches the jamb, he reaches out with his right hand in which he is still holding the flashlight, the beam of which has at that point turned momentarily downward, and slaps the door open once more while simultaneously drawing his gun with his left hand. He fires it at once, a single shot. Immediately upon the sound of gunfire, Kinard can be heard making a load and short-lived plaintive moan, “Ohh,” after which he seems to have blacked out.
According to Fontana Police Chief Billy Green, Tuitavake opened fire roughly two-and-a-half seconds after he initially opened the toilet stall door.
Green in a video statement accompanying the release of the footage emphasized that when Tuitavake opened the door the first time, Kinard was seated with his arms folded and neither hand visible. Green displayed a still isolated from the video showing Kinard’s right hand still obscured when he lifted his left hand.
Green said Kinard “began to roll his right hand forward toward the officer, revealing a metallic object.” A grainy closeup of a still from the video showed what appeared to be a compact and indistinct light-colored object in his right hand that appeared too small to be a gun. Green said the object was later determined to be a lighter. An unverified report to the Sentinel was that it was a plastic lighter.
Other footage released by the department shows Tuitavake in the immediate aftermath of the shooting seeking to render assistance to Kinard. Tuitavake is heard saying, “Hey bro, breathe for me” and “I gotcha.”
Further footage shows other officers with Tuitavake tending to Kinard in the relatively tight confines around the entrance into the portable toilet. Those efforts were in vain, as Kinard’s aorta had been ruptured by the gunshot. He died at the scene.
Tuitavake, as is standard procedure, was placed on paid administrative leave in the near aftermath of the shooting. The department’s internal affairs division, however, made a determination that he had not acted improperly, and he was reinstated.
Simultaneously, the department moved to stem any controversy pertaining to the shooting.
At that point, Tuitavake had not been identified as the officer involved in the shooting. Nevertheless, there was an immediate clamoring for the release of the video footage from the responsible officer’s body cam. The city and the police department refused, even in the face of California law which requires that footage of police shootings must be made public within 45 days of such an occurrence. The department denied the requests, citing the need to protect the integrity of its investigation of the shooting and the safety of witnesses.
After Tuitavake was reinstated to duty, the department yet defied calls for the release of the relevant video material. Pushed as to why, a department spokesman said there were concerns that the video in the hands of the public would lead to civil unrest and rioting.
The department put out some factually inaccurate information meant to reduce public anxiety over what had occurred, including statements that Kinard was rushing the officer when he was shot.
Kinard’s bereaved parents, Amond Hawkins and Kenisha Kinard, represented by the Law Firm of Douglas Hicks Simplis & Perez, in March lodged a claim against the city based on the death of their son.
A claim against a municipal entity is a precursor to a lawsuit. Under California law, those intent on suing a city must first lodge a claim, which the city can acknowledge and settle upon terms deemed suitable by both parties. A city has six months to reject or accept a claim. If a claim is rejected or if six months elapses, the aggrieved party can then proceed with a lawsuit.
In relatively short order, the City of Fontana came to terms with Douglas Hicks Simplis & Perez over the Hawkins/Kinard claim, agreeing to provide Daverion Kinard’s parents with $1 million to settle the claim in its entirety. Under the terms they reached with the city, the $1 million they are receiving is considered a full and final settlement of their claim, they agreed to make no public comment with regard to the shooting nor any comments about the city or the department that might be interpreted as “disparaging” and they dropped their demand that the video be publicly released. Indeed, according to Police Chief Green, both Amond Hawkins and Kenisha Kinard wanted Tuitavake’s bodycam video footage kept out of the public domain to preserve, Green said, Daverion Kinard’s dignity.
The announcement last week of the $1 million settlement, however, provoked considerable concern and skepticism. A $1 million payout to the parents of a burglar who was shot and killed by police after he was caught in the act during a break-in and then attempted to flee, in particular given that the police department had made a finding that the officer who had fired the fatal shot had done nothing illegal, wrong or out of department policy was difficult for a large number of people to swallow. Under California law and court precedent, a law enforcement officer is at liberty to use deadly force against a fleeing felon if in the officer’s judgment the individual represents a threat to the officer or others.
At that point, pressure was brought to bear not only on the police department, but City Hall, including Mayor Acquanetta Warren and Councilmen Pete Garcia, John Roberts, Phil Cotharan, Jr. and Jesse Sandoval, as well as City Manager Mark Denny and Assistant City Manager Phil Burum. Citizens were demanding to know why taxpayer money, and a lot of it, was being handed out to the family of a man whose death was the end result of a felony he had perpetrated.
In this way, a decision to release the video was made, with the calculation being that it would demonstrate Kinard was killed when a young police officer panicked and used deadly force against someone who, albeit involved in criminal activity, represented no mortal threat to the officer, making what had befallen Kinard, an unjustifiable use of deadly force.
Indeed, the video has silenced those who had decried the settlement. At the same time, it has now raised questions about Tuitavake’s suitability and continued status as a police officer, and the decision-making process within the police department in which the department’s leadership sought to gloss over the shooting previously and allow Tuitavake to return to duty.
With circumstances now wildly altered, Police Chief Green this week said that Tuitavake is not out of the woods yet. He said the officer, who was welcomed onto the force in February 2019 after graduating from the sheriff’s academy, almost two years to the day before the Kinard shooting, is yet the subject of an investigation by both the Fontana Police Department and the San Bernardino District Attorney’s Office as pertains to his action last February 13.
There is virtually no prospect that the Fontana Police Department will provide findings to the district attorney’s office that would in any way lead to the filing of criminal charges against Tuitavake by the San Bernardino County District Attorney’s Office. Nor would San Bernardino County District Attorney Jason Anderson entertain a criminal filing against Tuitavake or any police officer relating to the fulfilling of his or her duty as a peace officer.
Nevertheless, what was depicted on Tuitavake’s body camera, Kinard’s death and the aftermath of the entire episode, including first the refusal to release the video and now the worldwide scrutiny of the video, could well make Tuitavake’s continuation as a Fontana police officer untenable.
Homegrown in Fontana, Tuitavake yet has family in the city. And while the settlement with Amond Hawkins and Kenisha Kinard renders highly unlikely that they or perhaps family members or those close to them will seek to exact revenge for the shooting of Daverion Kinard, there is no guarantee that others will not. This puts not only Tuitavake at risk but other officers and members of his family as well. The prospect that Tuitavake and his colleagues on the force might find themselves obliged to adopt a hair-trigger on their firearms while at work in the community is not one that augers well for them, the department, the city or its citizens. For that reason, if Tuitavake can find work with another department, it may be better for all involved.
The outside scrutiny and the forced self-examination the department is engaging in in the aftermath of the Kinard shooting is remarkable. There has long been criticism of the insensitivity of, the tactics used and brutality evidenced by the Fontana Police Department. Whereas the vast majority of the community’s members are non-white minorities or Hispanics, historically upwards of 80 percent of the department’s officers are white. The department has made inroads on that by a concerted effort to hire minorities, in particular Latino officers, in recent years, but the department remains vulnerable to suggestions that it has long been and remains a tool of a repressive elite. The department resisted, and resisted mightily, allowing anyone outside of the department to second-guess what the department’s policies and standards were or how it was managed. There has been no shortage of suspects, witnesses, residents, bystanders – both guilty and innocent – who have been roughed up, beaten or killed by Fontana police officers over the years. As recently as a year ago it would have been unthinkable that the police department would be induced, cajoled, persuaded, required or mandated to turn over to anyone evidence pertaining to an officer-involved shooting the department did not want to provide. In the United States following the George Floyd killing in Minneapolis in May 2020, police have now lost their presumed edge of automatic legal advantage/invulnerability. Fontana is apparently not immune from societal trends.
At the same time, it has not been lost upon those who have long decried the Fontana Police Department as a bastion of racism and presumed white privilege, that when it at last threw a police officer under the bus and compromised his vaunted status as a representative of law and authority who need not justify his actions, that officer was not white but rather of Tongan extraction, a so-called member of the protected minority class of Pacific Islanders.
-Mark Gutglueck