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August 8, 2003

Family files claim against San Jose in cop shooting

By Rodney Foo

(Mercury News) - In a precursor to a lawsuit, the family of Bich Cau Thi Tran has filed a claim against the city of San Jose, alleging the officer who shot and killed her acted unreasonably and used excessive force.

The claim, filed with the city clerk's office, seeks more than $10,000. It also demands that police and prosecutors preserve critical evidence including 911 tapes, radio and telephone communications, ballistic and coroner's reports, and witness statements -- evidence that has not yet been turned over to Tran's survivors.

The claim was filed Monday by attorney James B. Chanin on behalf of Tran's sons, Tommy Bui, 2, and Tony Bui, 4; the boys' father, Dang Quang Bui; and Tran's father, Kim Mahn Tran.

The plaintiffs ``have suffered and will continue to suffer extreme emotional distress and psychological injuries as a result of the shooting,'' the claim said.

While acknowledging the claim was aimed at getting compensation for Tran's survivors, Chanin said it was also intended to get facts about the July 13 shooting out in the open.

``This was not our choice,'' Chanin said Thursday. ``But it was just so obvious we were not getting the information'' from authorities ``and the community was not getting information that this is the only alternative.''

Police and the district attorney's office have withheld disclosure of evidence until a pending open grand jury hearing into the shooting at 570 E. Taylor St. is conducted.

``Right now, the matter is being investigated by the district attorney and the criminal grand jury,'' said City Attorney Rick Doyle, and there are exceptions in the California Public Records Act ``in order to maintain and protect the integrity of the investigation.''

Doyle said his staff is reviewing the claim and reserved comment on its merits. ``This is very early,'' he said.

The 9:30 p.m. shooting July 13 unfolded as officers Chad Marshall and Tom Mun responded to a call that a child who lived at the house was wandering unsupervised in traffic. When officers arrived they saw no child so they knocked on the door of the home. They were met by Dang Quang Bui, who indicated Tran was upset, police said.

Shortly afterward, Marshall entered the house and saw Tran, 25, in her kitchen. She was holding a dao bao, a vegetable peeler commonly used in Southeast Asian households, and police say she threatened Marshall with it.

Marshall warned to her to drop the peeler, which has a six-inch blade and resembles a cleaver, before he fired one shot, killing her, police said.

But Tran's family and Vietnamese-American community activists outraged by the shooting say neither the diminutive woman nor the peeler posed a threat to Marshall.

Their suspicions have led to doubts within the community about whether authorities can hold a fair and impartial hearing as promised.

The city has a 45-day deadline to accept or reject a claim. A claim must be filed with the city within six months of an incident and before filing a lawsuit.

Contact Rodney Foo at rfoo@mercurynews.com or (408) 975-9346.

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