SACRAMENTO (CBS13) — A year after 38-year-old Augustine Morales was shot and killed by Sacramento police—candles were still lit in his memory at the scene of the shooting.

“My brother is no longer with us because he was misidentified, I want to make that clear that he was not the shooter,” explained Marysa Morales.

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Augustine’s mother, Roxanne Morales, is now suing the city of Sacramento for wrongful death.

“I use to trust and believe in our judicial system and I no longer trust in our system or our force anymore,” she said.

Sacramento police say someone fired a shot inside a North Sacramento warehouse last November during a boxing event. Security footage shows Augustine with a gun in his hand. Video then shows a sergeant running and shooting Augustine.

“He wasn’t trying to endanger anybody, it was more of a self-defense,” explained Marysa.

“He had not pointed at anyone and, in fact, the clip from his gun was found 75 feet away,” said Adante Pointer, the lawyer representing the family.

He claims the gun Morales was carrying had a magazine safety, was unloaded and couldn’t have shot anyone.

“Without the clip, the gun does not function,” he explained. “So he was holding a gun that is a gun by name but was not a gun by practice in the sense that he could not fire any bullets and in fact had the gun if you will down at his side, turned away from the officer when the officer crept up from behind him, shot him multiple times in the back without giving him the decency of a warning or any commands,” said Pointer.

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In the lawsuit filed on November 10, four days before the one-year anniversary of the shooting, the family’s lawyer explains why the gun could not have been used as a weapon.

“It is a factual impossibility that Mr. Morales fired the shots heard by Sgt. Jarvis,” the lawsuit states. “Furthermore, none of the shell casings at the scene came from Mr. Morales’ firearm, and a gunshot reside test taken on Mr. Morales found that he had not fired a weapon.”

CBS13 asked Sacramento attorney Mark Reichel that, if it’s true that Augustine’s gun did not have the ability to be fired, if it could have any impact on the case.

“Unless they knew that it had a detached magazine and couldn’t fire, unless they could see that or knew that, that’s not the most important thing,” he said.

Mark believes what’s more important is how fast the sergeant decided to fire his weapon.

“It’s not knee-jerk, see a gun, shoot. That’s not allowed,” he explained. “This gets the justice system in the hands of the jury and says look, there were no de-escalation tactics made. They showed up, sure they saw someone with a gun but there are good people with guns as well.”

With a lawsuit now filed against the city, Augustine’s family hopes it will bring them closure.

“It’s not going to bring my brother back, a father back, a brother back, a son back. If we could take back that day, that is what we would want, but we can’t,” Marysa explained. “So, in any type of legal way that we can get some sort of accountability from our justice system, then we have to try to do something.”

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Sacramento police have still not identified the shooter from that day. City officials were not immediately available for comment at the time this story was published.