William Estrada, eldest son of the late Fermin Estrada who died of a gunshot wound to the head in mid-March, points to the place where his father fell after being hit by a Shelbyville police officer's bullet. (T-G Photo by Clint Confehr) [Click to enlarge]

Saying they want a full explanation, survivors of the Shelbyville grocer who suffered a fatal bullet wound in March will file a $50 million wrongful death suit today against the city, its police department and the officer who fired his city-provided assault rifle, according to their Memphis-based attorneys.

Fermin Estrada, 47, was shot on his property near his home during a party with out-of-state guests and relatives who were being shown his property where, according to police, he had fired his hand gun into the ground and "did turn and fire toward the officers... Officer [James] Wilkerson did return fire striking the subject and killing him."

Two sons and a daughter of the man who owned a Mexican food store on Belmont Avenue at East Depot Street said their father did not fire at Wilkerson or Officer Bruce Davis who responded to a complaint from Shannon Stephens of Cedar River Road. On the afternoon of March 18, she reported seeing three men at her dog pen where one had a pistol.

Stephens described the men to Wilkerson and Davis who went looking for them in woods between her house and Estrada's home.

James Wilkerson

The officers saw Estrada, shouted several times to get the attention of the three men, but Estrada "began firing his weapon into the ground ... turned and faced off with me and fired another shot," according to Wilkerson. "I believe I fired approximately two or three rounds and I observed him fall."

Estrada's family and guests say they did not hear police shouting to get attention. They claim, and the lawsuit alleges, that Wilkerson shot without warning.

Davis said that he had drawn his pistol because there was an armed suspect when Wilkerson was 10-15 feet in front of him.

At the edge of the woods where Estrada had fired into the ground, he "started raising his weapon in our direction while still firing his weapon," Davis said in a report made that evening for the police department.

Estrada's children, William, Ezekiel, Fermin Jr., Erik and Patricia, are represented by Bogatin Law Firm attorneys Stephen King and Charles Blatteis who are filing the civil rights complaint by Federal Express today to the U.S. District Courthouse in Winchester, King said Thursday afternoon.

City and state officials have said they have anticipated such a lawsuit. Police Chief Austin Swing and Detective Lt. Pat Mathis have noted that Wilkerson maintains his position that Estrada fired at Davis and himself.

William Estrada, eldest son of the deceased proprietor of Tienda Mexicana "Paty" Grocery, has been managing the store and, during one evening recently, he said the family doesn't need the money from such a lawsuit because the store here and the family's other store in Middle Tennessee are profitable and supporting the family well.

The family wants a complete examination of what happened, Estrada said.

Shelbyville City Manager Ed Craig released two CDs prepared by Mathis who is the custodian of the police file in this case.

It includes results of the autopsy on Estrada, listing his blood alcohol level at .18. That's more than twice the level at which the law sees an individual's ability to drive as impaired.

Mathis' incident report lists Wilkerson as a victim because of "assault on officer," and "justifiable homicide" are noted on the report form where the lieutenant checked a box for "attacked police officer and that officer killed criminal."

Wilkerson carried his city AR 15 assault rife as he and Davis walked through a wooded area between Stephens' home and Estrada's.

Estrada had a "concealed carry" permit for his .45 caliber pistol and "fired several rounds into the ground in the backyard in celebration," the lawsuit states.

The complaint also alleges: "Without any warning ... Wilkerson, who was hiding and concealed in the woods ... began firing ... at Estrada who had his back to ... Wilkerson. Hearing ... shots, [Estrada] turned toward the ... sound of gunfire and was struck in the head by one of ... Wilkerson's rounds."

Shelbyville is accused of negligence for allegedly failing to adequately train Wilkerson in the use of an assault rifle.

Ed Craig stated, however, that "All the officers who have been issued those rifles have been properly trained."

They are trained at the city's gun range, located near McClenney Bridge on Duck River, according to Craig.

'I'm not certain but I believe the training is done by Shelbyville Police Lt. Trey Clanton, who also conducts training at the state police academy," said Craig. "Officer Fred Harvey also trains Shelbyville police officers, and he travels across the country for competitive shooting events."

Swing substantiated the city manager's assessment of the training for city officers in how to use weapons.

"Every one of the officers who carries one of those rifles is certified and qualified in the use of a police patrol rifle," said the police chief. "I think the qualification date for Officer Wilkerson was May 2005, or almost one year before the incident with Mr. Estrada."

Shelbyville police officers are not to carry any weapon that they are not qualified to use, he said.

"If they carry anything else, they've broken our rules," Swing said. "With anything Shelbyville Police Department issues to the officers, they are trained, qualified and certified to use. If the training exists, they get it."

The complaint going to the federal court describes Estrada as someone who is well-known as a leader of the Hispanic business community to city police, including Wilkerson. Fermin Estrada had, on numerous occasions, acted as a translator for the police and courts to translate between governmental officials and Spanish speaking residents, the complaint states.

The Hispanic grocer had the right to be secure at his home "and free from the use of unreasonable force," the suit claims, alleging that malice and that, through Wilkerson, the city deprived Estrada of "his most fundamental right -- his right to life."

The suit alleges, "It was the custom of defendants to racially profile Hispanic citizens as being involved in criminal activity." Estrada was of Mexican decent and Wilkerson knew he was entering Estrada's property, the suit claims. It also alleges trespassing by the officers.

The shooting death occurred during a backyard barbecue and Estrada's son, William, ran to his father, threw the pistol from where it fell, and sought help.

The son and Wilkerson both say so, and the officer told his department, "I immediately retrieved the firearm and dispatched an ambulance in an attempt to hopefully save the suspect's life."

The lawsuit asks the federal court to award $25 million from the city, its police department and Wilkerson to compensate for damages for loss of their father and because of emotional distress they continue to suffer. Punitive damages in the amount of $25 million are sought to punish the defendants and "to deter them from future misconduct."

William Estrada said during a meeting with the Times-Gazette and WTVF Channel 5 that "It's going to seem like we want money."

During the gathering at the Cedar River Road home of the Estrada family on Oct. 22, Erik Estrada, 14, a freshman at Shelbyville Central High School, said he heard his father fire shots in the ground, "Then, I felt, oh no, something is telling me to turn around to the woods and I saw the cops, like Army."

He said he then saw the officer shoot at his father.

"I didn't really know if he was going to shoot my father," he said. "Then, when I turned to see my dad, that's when I saw him fall down."

Tyson Foods employee Rafael De la Paz of Shelbyville was with Fermin Estrada when he was shot. With attorney Blatteis interpreting, De la Paz said while he and the Estrada brothers were walking back from Stephens' home, they found a basketball in the woods, kicked it around and at the edge of the woods they smelled the barbecue and saw his host fire bullets in the ground.

"After that, we heard two additional shots ... and turned around...," De la Paz said. "I saw Fermin fall and ... then saw two officers with guns... I raised my hands and yelled 'Why? Why?' And they were pointing their guns at us. Fermin was dead. They were .... indicating for us to move..."

De la Paz was interviewed by officers at the police station where he asked why Estrada had to be shot in the head instead of an arm, the Shelbyville resident said.

"I did not see him shoot at the police, or see him turn around," De la Paz said.

Blatteis said the lawsuit is to provide the Estrada family "peace of mind" and to "vindicate Mr. Estrada."

Blatteis and his associate, King, have said District Attorney Chuck Crawford had agreed to provide them with a redacted copy of a report on the shooting death as written by the Tennessee Bureau of Investigation. They say they've not received a copy. Nor has WTVF or the Times-Gazette, although Crawford spoke with the newspaper twice about the shooting.

"It's tragic whenever a person loses their life," Crawford said. "However, upon reviewing the TBI investigation, [it seems] the officer's actions were reasonable.

"We may never know if James Wilkerson's conclusions about Mr. Estrada's intentions were correct," the district attorney said.

TBI's spokeswoman Jennifer Johnson says "TBI case files ... are not public record."

If they're subpoenaed during a court case, then they'll be released, she said. They can't be given to the people involved.

"The only person who can get a copy is the DA," Johnson said. District attorneys "have the authority to write a summary and release that. Some DAs have done that."