Peter and Andrea Cukor. Photo: Matthew Sumner

The family of Peter Cukor, killed outside his Berkeley hills home on February 18, took steps Wednesday to sue the city of Berkeley for wrongful death.

R. Lewis Van Blois, the Cukor family attorney, filed a claim against Berkeley and its police department for wrongful death and severe emotional distress. The city has 45 days to respond to the claim. After that a lawsuit can be filed.

The claim includes new details about the attack that 23-year old Daniel DeWitt allegedly made against Cukor around 8:45 pm on February 18.

Peter Cukor and his wife Andrea returned to their home at 2 Park Gate around 8:40 pm where they encountered Dewitt inside their garage, according to the claim. Cukor told Dewitt to leave, but the 23-year old responded that he lived there, he was looking for Zoey, and a psychic told him he could find her if he entered the house. Dewitt eventually left, but returned a short time later and entered a gate that led to a patio at the front of the house. Cukor told him to leave a second time.

“Fearing for his safety and the safety of his wife and the immediate threat to their lives, Peter Cukor called the Berkeley Police Department emergency number and gave a clear, unambiguous account of the intruder’s actions and emphatically and firmly requested an officer to come right away,” said the claim.

Cukor did not call 911 but 510-981-5911, a number that a neighborhood group had told local residents to program into their cell phones for emergencies. Cukor spoke with a police dispatcher, who did not consider the situation a Priority 1 emergency and ranked it a Priority 2. But the Berkeley police department was in the middle of a shift change and was getting ready to discuss an Occupy march that was supposed to come to the city. Police officials had determined not to respond immediately to any Priority 2 calls.  But the dispatcher told Cukor that an officer would be coming soon, said the claim.

“Soon after the emergency call had been made, Peter Cukor saw DeWitt leave the patio through the front gate, go down the driveway to the road and turn left leaving the property. After several more minutes had passed, he was concerned that the policeman could not find the driveway to the house that was difficult to find and went down the driveway toward the fire station expecting to meet a policeman trying to locate his home. Instead of finding a policeman on the road searching for his driveway, Peter Cukor encountered DeWitt who had returned again to try to get into the Cukor house. Although Peter Cukor attempted to get back into the safety of his home, he was viciously attacked by DeWitt, knocked to the ground and struck in the head with a blunt instrument while Andrea Cukor watched from an upstairs window. She immediately screamed at DeWitt to stop striking her husband, yelled for help and then called 911. DeWitt then came through the gate and banged on windows and the French doors trying to get into the house. “

Police did eventually respond to Cukor, but they found him unconscious. He died later that night.

Police arrested DeWitt within 20 minutes. He was charged with Cukor’s murder, but an Alameda County Superior Court judge suspended the charges because she ruled that DeWitt, who suffers from schizophrenia, was not competent to stand trial. He is being held at Napa State Hospital.

Andrea Cukor and her two sons, Christopher Cukor, 37, and Alexander Cukor, 34, filed the claim.

“The Berkeley Police Department and their dispatchers were grossly negligent, breached their duty of care to claimants and committed actionable torts in affirmatively representing to Peter Cukor in bad faith that a police officer would be sent to the Cukor home,” said the claim. “The affirmative conduct of the dispatchers was in direct violation of accepted public safety standards. The affirmative conduct of the dispatchers was directly contrary to the specialized training which enables public safety agencies, including those operated by the City of Berkeley, to provide effective emergency assistance to citizens at risk. Mr. Cukor provided clear and unambiguous information that he was currently encountering an intruder at his home who was acting in a bizarre manner and requested police assistance right away.”

The Berkeley Police Department declined to comment on the claim, saying it is pending litigation. Previously, Chief Michael Meehan said that the department responded appropriately to Cukor’s call.

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman Created California, published in November...