SANTA ANA – An Orange County judge has tentatively declined to dismiss the case against two former Fullerton police officers accused in the death of a homeless man.

A hearing on the motion by officers Manuel Ramos and Jay Cicinelli is set for Jan. 18 before Superior Court Judge William Froeberg, who said in his tentative ruling issued Jan. 4 that “both officers’ use of force could be determined to be proximate causes of the death of Kelly Thomas.”

But a jury and not the court must decide whether “the officers used reasonable or unreasonable force to detain or arrest Mr. Thomas,” Froeberg wrote in his 10-page ruling.

Click here to watch an eight-minute segment of the surveillance video of the incident.

The judge will hear arguments from both sides at next week’s hearing, when he is expected to issue a final ruling.

“We look forward to arguing the merits of the motion at the hearing,” Susan Kang Schroeder, the Orange District Attorney’s chief of staff said Friday.

Ramos instigated the confrontation that led to the death of the mentally ill Thomas in July 2011 with an unlawful threat of excessive force and then did nothing to prevent the peril he created, Orange County prosecutors said in court documents.

“There was no justification for any threat of violence,” Deputy District Attorney Keith Bogardus wrote in his response to the defense motion to dismiss charges.

Bogardus also wrote that Thomas, 37, acted in lawful self-defense when he attempted to escape after Ramos threatened to “f— you up” during the encounter July 5, 2011, “and was killed in the process.”

“If excessive force is used or threatened against an arrestee, then the arrestee has a right to self-defense,” the prosecutor said in a previous interview.

When a proper constitutional test is applied, Ramos’ “threat” to Thomas that he would “f—” him up with his fists if he did not “start listening” was not unlawful and did not give Thomas a right to self-defense, Ramos’ attorney John Barnett said in court documents.

“The district attorney’s case is based entirely on the false premise that the defendant made an unlawful threat of violence to the alleged victim, who then lawfully fled from that threat,” Barnett wrote.

A surveillance video of the confrontation shows Ramos and fellow officer Joseph Wolfe questioning Thomas about 15 minutes before the encounter escalated into violence. Four other officers, including Cicinelli, arrived and piled on, prosecutors said. Thomas is heard on the videotape screaming for help, yelling that he couldn’t breathe and calling out for his father.

Thomas died July 10, 2011, when life support was turned off five days after the confrontation with six Fullerton police officers in the parking lot at the Fullerton Transportation Center.

Ramos faces second-degree murder and involuntary manslaughter charges.

Co-defendant and former Fullerton policeman Cicinelli was charged with involuntary manslaughter and excessive force under color of authority for his role in the incident that began with a call about a man pulling on the handles of locked cars and ended with an unconscious and bloody Thomas being rushed to a hospital.

The Orange County grand jury later indicted Wolfe on involuntary manslaughter and excessive-force charges.

The question of guilt or innocence of the officers is not before him, nor whether evidence produced at a preliminary hearing is sufficient to sustain a conviction, Froeberg said in his ruling.

For the dismissal motion, Froeberg reviewed whether there was a lack of evidence to show that a crime occurred and the defendants’ connection with it.

The judge tentatively believes there wasn’t.

Contact the writer: 714-834-3773 or vjolly@ocregister.com