OAKLAND (CBS SF) -- The wife and two sons of a 67-year-old man who was killed outside his home in the Berkeley Hills in February filed a wrongful death lawsuit against the city Thursday, alleging that it was negligent in the way it handled the situation.
Peter Cukor, who owned a logistics consulting firm, was killed outside his home at 2 Park Gate Road around 9 p.m. on Feb. 18.
Daniel Jordan Dewitt, 23, who grew up in Alameda, has been charged with murder for allegedly killing Cukor with a flowerpot but a judge ruled in March that he is mentally incompetent to stand trial.
Dewitt's attorney, Brian Bloom said Thursday that Dewitt is being state mental hospital and he's due back on court on Jan. 25 for a progress report on his mental health.
The suit on behalf of Andrea, Christopher and Alexander Cukor, filed in Alameda County Superior Court, says that when Peter and Andrea Cukor saw a suspicious trespasser, later identified as Dewitt, on their property shortly before 8:45 p.m. on Feb. 18, Peter Cukor called the Berkeley Police Department's emergency number to ask that an officer be sent to their home right away.
The suit says a dispatcher told Cukor that an officer would be sent to his home "soon" but alleges that the dispatcher acted "with gross negligence and in bad faith" because the dispatcher knew officers wouldn't respond.
R. Lewis Van Blois, the attorney who filed the suit on behalf of the Cukors, said Thursday that the Police Department had "plenty of officers" on duty that night but the department's priority was to have them monitor Occupy Wall Street protesters who were marching from Oakland to Berkeley.
Van Blois said an officer who heard Cukor's call offered to go to Cukor's home but was told by his superiors not to respond.
Van Blois said the Police Department has the right not to send an officer to a potential emergency situation but in Cukor's situation they should have told him they weren't sending someone immediately but if the threat continued he should call them back.
The suit alleges that Cukor relied on the dispatcher's representation that an officer would be responding so when no officers came after several minutes he went outside to see if police were having trouble finding his house, as that had happened on a previous occasion when an officer had been dispatched there.
The suit says, "Peter Cukor would not have gone outside if he did not believe that a trained and armed professional police officer was approaching his home and would arrive at any moment or was in the street near the home but needed assistance to find the driveway."
When Cukor went outside with a flashlight, Dewitt confronted him and ultimately killed him, according to the suit.
Andrea Cukor saw a flashlight coming up the driveway and believed that her husband was approaching the house with an officer but she eventually saw that the second man was the intruder and he was attacking her husband, the suit says.
Andrea Cukor then saw and heard the blows that killed her husband, according to the suit.
"She saw it and heard it and it was devastating," Van Blois said.
The suit seeks unspecified damages, including for the "emotional upset, distress and anguish" it says Andrea Cukor suffered.
City of Berkeley spokeswoman Mary Kay Clunies-Ross declined to comment on the lawsuit today, saying the city doesn't comment on pending litigation.
Berkeley Police Chief Michael Meehan claimed at a March 8 community forum that Peter Cukor called a non-emergency police phone number at 8:47 p.m. on Feb. 18 reporting a strange man on his property.
The police chief said Cukor's wife then made an emergency call at 9:01 p.m. to report that a suspect was attacking her husband.
At the forum, Meehan denied allegations that police responded too slowly to the initial call, saying they had no way of knowing Dewitt would wind up attacking Cukor with a flower pot.
However, the lawsuit says the number Peter Cukor called is the one that the Police Department tells citizens to call to report immediate threats to life and property.
Christopher Cukor said at a news conference at Van Blois' office on April 13 that, "My father called the correct Berkeley police emergency number that is listed on their website."
Cukor said he found Meehan's statement that his father only called a non-emergency number "very disturbing" and said, "other citizens should be concerned as well."
Dewitt's parents have said he has suffered from mental illness for more than four years but they were never able to get him into a permanent treatment program.
(Copyright 2012 by CBS San Francisco and Bay City News Service. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)
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