The excessive force lawsuit filed Tuesday alleges negligence in the handling of the arrest of 39-year-old Luis Manuel Garcia on Aug. 9.
Garcia was sleeping in bushes in the 15400 block of Williams Avenue when officers asked him to come out.
Video from a body-worn camera shows Garcia bursting out of the bushes and showing them a bag of cans for recycling and a stick he used to pick up the discarded trash.
Dale Galipo, an attorney representing Garcia's family, said Garcia was already attached to a stun gun and had been subjected to a charge when he was fatally shot.
Tustin police said they could not comment on pending litigation.
The shooting is also still under investigation by the Orange County District Attorney's Office.
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"You've got a homeless guy who may have mental issues and instead of de-escalating the situation they clearly escalated it,'' Galipo told City News Service. "In many ways the shooting was totally unnecessary... I'm hoping Tustin will do the right thing and step up and settle this case.''
Even though the video shows Garcia bursting through some bushes when police summoned him it does not justify the shooting, according to Galipo.
"Just because someone does something arguably that could have put police on a threat alert it doesn't rise to a deadly threat'' that justifies deadly force, Galipo said.
"There's the disconnect... Where was the threat? He had a stick. You can't shoot someone for that. You can't even shoot someone with a gun or a knife in hand, and he has recyclables in one hand and a stick in the other hand.''
Police had shot Garcia with a stun gun and he was "locking up'' when police opened fire, Galipo said.
"As soon as the cycle finishes or maybe during the cycle they shoot him,'' Galipo said. "He was already under the control of the Taser. All they had to do was press the trigger again. That's even more reason for her not to shoot.''
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