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Sister Wants to Rescind Deal on Police Killing

SAN FRANCISCO (CN) - The sister of a man killed by Oakland police pleaded with a federal judge Monday to rescind a $450,000 settlement so she can put the city and police officers on trial.

Hernan Jaramillo, 51, died of asphyxiation under five police officers in front of his house on the 2300 block of 21st Street in Oakland on July 8, 2013.

"We want to go to trial to claim justice for my own brother," Jaramillo's sister, Ana Biocini, told the judge. "We want everyone to see the truth."

In the hearing before U.S. District Judge Thelton Henderson, Biocini said she felt especially guilty about her brother's death because she's the one who called police that night.

Fearing an intruder had broken into their home and attacked her brother, Biocini called for help. Upon entering the home, police mistook her brother for an intruder, forced him outside, threw him to the ground and pushed their combined weight on him, ignoring his cries for help, according to Biocini and a leaked video.

Jaramillo can be heard shouting, "I can't breathe!" and, "They're killing me!" repeatedly, in a police body cam video released this year. Officers responded by saying, "We're not killing you," "Calm down," and "Relax," before Jaramillo died.

"When he was alive, he was telling these words very clearly - 'You are killing me. I cannot breathe,'" Biocini said in court. "I believe in my brother. My brother's truth has to be known in the courts to challenge that, to make justice for him."

Biocini said she never wanted to settle but reluctantly agreed because she thought that's what her five family members and co-plaintiffs wanted. Unbeknownst to the family's attorneys, not all family members were on board with the agreement.

Biocini's attorneys, John Burris and Dewitt Lacy, said there was a miscommunication when they told U.S. Magistrate Judge Laurel Beeler that all five family members had accepted the settlement.

Some family members, who live in Miami and Columbia, lost their Skype connection during an in-chambers hearing on the proposed settlement with Beeler, Lacy said.

Two family members - Felipe and Teresa Jaramillo - also thought they'd get the chance to discuss the settlement without a judge or attorneys present before they gave their final blessing, Lacy added.

"We're asking in many ways extraordinary relief on grounds that there appear to have been some miscommunication and misunderstanding on the part of the brothers and sisters," Burris said.

The family has major hurdles to overcome in seeking to set aside the approved settlement, Henderson said, as he already dismissed the case and may lack jurisdiction to rescind the agreement.

The judge said the family's attorneys also improperly rely on a state law provision - Code Civic Proc. § 664.6 - that governs enforcement and rescinding of a settlement.

"I think it applies in the enforcement of the settlement," Lacy replied. "How 664 would apply would only be through the enforcement mechanism the defendants would use to enforce the terms of the settlement."

Oakland City Attorney David Pereda said that though the city sympathizes with Biocini and her family, the family undisputedly agreed to accept the settlement offer on Jan. 8 when it was approved.

"I think the record clearly shows objective manifestations of consent," Pereda said.

Before ending the hearing, Biocini delivered a final appeal to the judge, saying she believed the settlement would not be final until she and other family members physically signed the papers.

"I didn't understand it was final," she said.

After about 20 minutes of discussion, Henderson said he would take the motion under consideration.

Speaking to reporters outside the Federal Courthouse, a tearful Biocini showed photos of her brother that she carried in a large binder. She said she wants police to be held responsible for killing her brother and ignoring his pleas for help.

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