Officer Cleared in Fatal Shooting During Tussle : Slaying: Critics say the decision proves the district attorney’s inability to review police accountability.

The district attorney cleared a San Diego policeman of criminal wrongdoing in the shooting death of a 21-year-old Ocean Beach man during a scuffle last September, saying the use of deadly force was “legally justified,” according to a eight-page letter released Wednesday.

Police said that Anthony Tumminia was shot by officer John Cain, 29, after Tumminia grabbed Cain’s martial arts nunchakus and struck another officer with them.

Cain shot the young man in the chest. Witnesses to the shooting, however, have disputed this account, saying force was unnecessary.

“I saw total rage in his (Tumminia’s) eyes,” Cain told the district attorney’s office. “I was was afraid for my life. This was the only way to stop him.”

In a letter, dated April 2, addressed to San Diego Police Chief Bob Burgreen, Dist. Atty. Edwin Miller said his office had reviewed reports, interviewed witnesses, visited the scene and “evaluated numerous critical comments made in the news media by relatives and friends” of Tumminia.

“We conclude that Officer Cain’s use of deadly force was legally justified,” wrote Miller.

At the time of the Ocean Beach shooting, Cain had been a patrol officer 1 1/2 years. A year ago February, he shot and killed an alleged purse snatcher after the man started to point an unloaded .22-caliber pistol at him. The district attorney cleared Cain in that shooting also.

Burgreen, whose office was rocked in 1990 when police shot 28 people, 12 of them fatally, welcomed Miller’s pronouncement, saying he “had made the appropriate findings. We will be reviewing the shooting internally to make sure it is within department policy, which is really tighter than the law.”

Cain’s case, Burgreen said, will be one of the first to be reviewed under the department’s revamped shooting review board, which--for the first time--includes a civilian.

The suspect’s mother, Diane Tumminia, and civil rights advocates were dismayed by the conclusion reached by Miller’s office, which has not prosecuted a police officer since 1984.

“It just brings back the pain. I know from witnesses’ reports that the shooting wasn’t justified,” said Tumminia, a sociologist. “No mother expects their child to die. On the day he was killed, I was waiting for him. We were going to sign him up for the Marines. That was his future. But his future and mine were destroyed.”

Betty Wheeler, legal director of the American Civil Liberties Union of San Diego and Imperial Counties, said: “It’s been our view for some time that the D.A.’s office is not an effective source for outside review and accountability of the Police Department.”

Much of Miller’s seven-page letter includes a description of the younger Tumminia, a former pizza delivery man, as aggressive and unruly--a depiction that his friends deny.

Miller’s letter describes several other violent incidents involving Tumminia, including one on July 30 when a young black man reported he had been chased by four men in a pickup truck who insulted him with racial slurs. According to Miller, the victim identified Tumminia from photographs as the man who charged him swinging a tire iron.

At about 9 a.m. on Sept. 13, Cain and a detective arrived at the door of Anthony Tumminia’s apartment to investigate an assault that had occurred several days before. Tumminia, who answered the door with a towel wrapped around his waist, was described as “hostile and aggressive.”

When the young man joined the officers minutes later fully-dressed in the adjoining parking lot, Cain described him as “cooperative, but still offensive and defiant.” As the officers began to search Tumminia’s truck, he began “resisting violently,” according to the district attorney’s report.

According to police accounts, Tumminia seized Cain’s nunchakus and began attacking. As Cain tumbled backwards to the ground, he shot Tumminia, who was lunging towards him. Witnesses, however, disputed this account, saying force was unnecessary.