Brothers claim they heard the moments just before a fatal shooting by an officer in Mira Mesa

Witnesses say they were hiding in a nearby shed

SAN DIEGO - Two people told Team 10 they were just feet away when a San Diego police officer shot a suspect -- a suspect they said was in handcuffs.

Phillip Owen and his younger brother, Ryan, said they were inside a shed the day Victor Ortega was shot and killed by SDPD Officer Jonathan McCarthy in their Mira Mesa neighborhood.

McCarthy chased Ortega from his home following a domestic violence call, police said after the June 2012 shooting.

The San Diego County Medical Examiner's report stated McCarthy was in his patrol car, Ortega was on foot and they met in an alley up to 500 yards from Ortega's home.

Police said McCarthy tried to "get Victor under control" and that "his secondary weapon fell out of the left ankle holster onto the ground" as McCarthy wrestled Ortega face down to the ground.

Police investigators told the medical examiner's office the officer kicked the secondary gun away, and Ortega tried to grab the primary gun. That's when police said McCarthy feared for his life and shot Ortega.

The police account immediately following the shooting said McCarthy only got one handcuff onto Ortega.

However, the autopsy report mentions marks on both of Ortega's wrists. It states in part, Ortega's "right wrist has … impressions made by the handcuffs … the left wrist has a similar impression presumably made by the removed handcuff."

Detectives told medical investigators for the report "medics removed a handcuff to render (CPR)."

The Owen brothers told Team 10 they believe Ortega was handcuffed when shot.

The brothers said what they heard started with a struggle. Both brothers said they were close enough to hear details of what happened in the moments leading up to the shooting.

"It sounded like they were on the ground rustling around," Phillip said.

Then Phillip said he heard handcuffs go on.  

"I heard a couple of footsteps and then two shots," Phillip said.

The Owen brothers did not know Ortega.

Detectives questioned both brothers separately. Ryan said detectives were skeptical over what the brothers said they heard.

"They [kind of] mentioned that I didn't know it was handcuffs, there was no way to tell it was handcuffs without seeing it … it could have been anything is what they told me," Ryan said.

Attorney Christina Denning represents Ortega's family in a civil rights lawsuit filed in federal court.  

"None of the witnesses heard the officer warn he was going to open fire," Denning said. "You would think he would have warned, 'Hey, I'm going to shoot you.'"

Ortega's family said the San Diego County District Attorney's Office met with them and the investigation is ongoing.

There is a protest planned at federal court Wednesday morning, with Ortega's family calling for answers on the questions surrounding the fatal shooting.

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