***Warning: The video above may be disturbing to some viewers. Discretion is advised.***
HOUSTON, Texas — A video released Monday shows a 24-year-old man who died after a confrontation with a Harris County deputy's husband outside a Denny's restaurant struggling on the ground while being put in a chokehold, PIX11 sister station CW39 reports .
The footage was captured by a concerned citizen who recorded the May 28 incident despite being told by the deputy to stop filming. The video is confirmation of a cover up, according to the family attorney for John Hernandez.
"This is what witnesses have been saying all along," said Randall Kallinen, a civil rights lawyer. "The Harris County deputies actively tried to cover up the killing at the scene and let a killer go free because he was married to a deputy."
Hernandez died May 31, three days after the encounter, after being taken off life support at Lyndon B. Johnson Hospital. His family made the decision to remove breathing tubes after doctors ruled that Hernandez was brain dead.
The family is now seeking justice and feels that his death could have been prevented.
Investigators said the deputy's husband drove up to a Denny's restaurant at about 11:40 p.m. Sunday in the 17700 block of the Crosby Freeway. His children were in the car with him as they waited to meet with his wife, an HCSO deputy who was off-duty at the time.
While waiting in the parking lot, deputies said the husband saw Hernandez urinating in public and went to verbally confront the man about his behavior. Officers said the argument escalated to a physical altercation. Moments later, the deputy, who was off-duty at the time, arrived in a separate vehicle.
Video shows the deputy's husband on top of Hernandez's back with a chokehold around his neck. Hernandez is seen on the video kicking his back legs, and making audible sounds of struggle.
The husband would not let go. The deputy began telling the person capturing footage of the fight to stop recording her husband because it was "illegal."
The deputy allegedly called the sheriff’s office for backup and emergency medical services before helping her husband restrain Hernandez, investigators said.
The man did not get off of Hernandez until the 24-year-old stopped moving. When the deputy realized Hernandez was not breathing, she began to perform CPR on him until paramedics arrived, witnesses said.
Neither the deputy nor her husband were injured during the altercation, authorities said. No charges have been filed at this time. The deputy will remain on active duty while Internal Affairs investigates her involvement in the incident, the sheriff's office said.
The Hernandez family is left in disbelief, and says the attack happened in front of Hernandez's young daughter.
"John's 3-year-old daughter witnessed the killing and begged the killer to stop hitting her daddy," the girl's mother Maria Toral said.
Kallinen has demanded the sheriff’s office allow an independent outside investigation of the incident.
Sheriff Ed Gonzalez didn't beat around the bush regarding how the internal investigation may look to the public, but added that he's confident in the office's ability to be transparent, thorough and unbiased. He said the deputy's husband was not receiving preferential treatment because of his wife's position.
Gonzalez said the investigation is still in its early stages, and the sheriff's office does not want to rush to any judgments.
It "was an altercation that occurred between two parties, and obviously, it was fatal for Mr. Hernandez, unfortunately," Gonzalez said.
"But part of [the investigation] is to see what led to that. What was the actual cause? That’s why we could look at video footage, but a medical examiner needs to tell us this was cause of death, this is what led to the death. Not, yes, he died. But, he was on top? Was there another health issue? There’s different factors in this type of case."
Attorneys for the Hernandez family and several witnesses said the video leaves no doubt as to what caused the young father's death.
"An anonymous concerned citizen brought me the video because he said it shows murder," criminal defense lawyer Jack Carroll said. "I concur."
The Harris County Sheriff's Office released the following statement:
"Harris County Sheriff’s Office investigators are aware of the cell phone video that was made public today. The investigation into the death of John Hernandez remains a high priority and will be referred to the Harris County District Attorney’s Office for consideration in a timely manner."