Five Months After Nieto Killing, New Witnesses

Posters of his face have plastered the Mission for months, but his name is one rarely spoken outside the Bay Area even though—like Michael Brown in Ferguson, Eric Gardner in New York, Oscar Grant in Oakland—he, too, died at the hands of local law enforcement. That name is Alejandro Nieto, a 28-year-old who on March 21 was shot by San Francisco Police Department officers on Bernal Hill.

Today, Nieto’s family and friends will march from the place on Bernal Hill where he died to the San Francisco Federal Building to file a federal civil suit to elevate his case, if not into the national conversation, to a higher court. The suit’s filing comes a day after the family delivered a 1,000-signature petition calling Attorney General Eric Holder, among others, to launch a federal investigation into the shooting.

In the five months since the incident, the question of whether police officers were justified in discharging their weapons has mainly centered around one fact. Nieto was carrying a Taser that, according to police, he aimed at officers who confused it with an actual handgun and fired in self defense. Up until now, the police account has been the only version available detailing what exactly happened that day.

However, this week the lawyers of the Nieto family announced they have new testimony from eyewitnesses who saw the events leading up to the shooting. Nieto, the new witnesses have told his family, never pointed his Taser at the officers.

“This is an opportunity for the family to have a day in court and have some answers” said John Burris, the attorney whose firm is taking on Nieto’s case. “What the police claimed happened was so incongruent with who Alex was. Alex was not someone who would point a Taser at armed officers…We have people who will say that this wouldn’t happen the way police describe.”

This account is in direct conflict with the version of events detailed by Chief of Police Greg Suhr at a community meeting held in March days after Nieto’s death.

The conflicting narratives make it impossible to know what exactly happened on the day. What is known is that on Friday, March 21, before heading to his work as a security guard at El Toro night club, Alex Nieto went to the top of Bernal Hill to eat his dinner. A little after 7 p.m., an encounter with San Francisco police officers ended the 28-year-old’s life.

At the March meeting following the shooting, Suhr said that officers arrived to the park responding to a 911 call from someone who had seen Nieto in Bernal Heights Park resting his hands on what the reportee believed was a gun.

“When the officers asked [Nieto] to show his hands he produced the weapon, and the officers say they saw a red light from the Taser, and they believed it to be firearm,” said Suhr at the meeting, where he demonstrated the Taser’s red tracking light to the gathered crowd of about 200. Suhr said four officers discharged their weapons and when Nieto went to the ground, he continued to track the officers with the red laser sight of the Taser.

“They fired in defense of their own lives,” Suhr said. The police haven’t stated how many bullets were fired, but the legal team of the Nieto family say that, according to audio from a neighbor’s surveillance camera, there was a volley of at least 10 shots. The website 48Hills has the audio in question.

For Benjamin Bac Sierra, a good friend of Nieto and one of the organizers of the activist group Justice and Amor for Alex Nieto Committee, the police department’s story never made sense. Nieto, he says, was a trained security guard and would have never pointed a weapon at the police. Now, he says the Committee’s lawyers have eyewitnesses to back up this belief.

“We have witnesses that say the police came from multiple angles and that Alex never pulled his Taser out and was threatening,” Bac Sierra said. “That right there will inspire the whole public that we can’t leave this to San Francisco to decide—we need a federal inquiry.”

After a preliminary investigation immediately following the shooting, the officers involved have returned to work—their names have yet to be publicly released. However, there are four ongoing local investigations into the incident, all of which are waiting on the finished report from the Medical Examiner, which has yet to be released.

The Office of the District Attorney as well as the Office of Citizen Complaint are both investigating the incident. The internal affairs unit of the police department is conducting both an administrative investigation, to determine if proper protocol was followed, and a criminal one.

The status of these investigations and when they’ll be complete is murky.

“The investigation continues, there’s a lot of different elements,” said Officer Albie Esparza, a spokesperson for the police. Esparza explains that the department’s investigations are happening at the same time as the district attorney’s but are also dependent on the outcome of the latter. “We have to wait for the District Attorney’s office to determine if it was lawful or unlawful shooting before we can even finish our investigation.”

Family and friends of Nieto have lost faith in local efforts. After a May meeting with District Attorney George Gascón in which they say he promised to expedite the filing of the Medical Examiner’s report—which is necessary for the completion of all the ongoing investigations—nothing seemed to happen.

Neither the District Attorney’s Office nor the Medical Examiner’s Office responded to requests for interviews for this story.

In June, the City Attorney’s office denied a claim made by the family’s legal team that there was any wrongdoing by the city.

“We don’t have original 911 calls, we don’t have transcripts, we don’t have any autopsy or any police reports, they have not revealed the names of the officers involved,” said Adriana Camarena, a neighborhood activist working with the Justice and Amor for Alex Nieto Committee. “This leaves the Nieto family with little choice. If they want any answers, they have to file a federal civil lawsuit.”

In addition to the suit, friends and family of Nieto have gathered over a 1,000 signatures for a petition directed at Attorney General Eric Holder asking that the Justice Department conduct its own independent criminal investigation. Yesterday, on the five-month anniversary of Nieto’s death, they delivered this petition to an FBI agent in the San Francisco Federal Building.

The petition argues that local authorities, particularly the District Attorney, have a significant conflict of interest that will hamper any meaningful local investigation.

“George Gascón has been a police officer since 1972, most recently serving as the Chief of Police of San Francisco from 2009 to 2011 before being designated District Attorney of San Francisco in April 2011. He has a serious conflict of interest and lifelong career bias in favor of police officers,” reads the petition’s text.

With national attention on Attorney General Holder as he visits Ferguson, Missouri this week, it’s tempting to think the Justice Department is ready to take on the issue of excessive police force throughout the country. But civil rights experts remain skeptical.

Longtime civil rights attorney Walter Riley, a board member of the San Francisco chapter of the National Lawyer’s Guild, isn’t sure Holder, despite the publicized visit to Missouri, will fully intervene in Michael Brown’s case, much less Nieto’s.

“There’s no indication that this Justice Department under Holder has asked its personnel to do anything yet,” Riley said earlier this week. “It’s good to file the complaint and we should file with the hope that they do their job, but to the fact that [the Justice Department] is going to do anything right now is holding up hope against hope.”

In his time as a civil rights lawyer, Riley has seen local government unwilling to prosecute their local law enforcement. A San Francisco Examiner investigation from earlier this year found that since 1990 there were 61 deaths from officer involved shootings in San Francisco. With the exception of the Johannes Mehserle in the shooting death of Oscar Grant, few have been convicted of anything.

In an op-ed earlier this month, San Francisco Chronicle staff writer Caille Millner expressed sadness and disappointment at San Francisco’s sluggishness to investigate the Nieto case. But without video evidence and the kind of furor present elsewhere, Millner isn’t sure this local incident of police violence will rise to the level of public awareness or scrutiny of Ferguson. But she does think local officials could be doing much more.

“The mayor still hasn’t said anything to anyone, that’s kind of shocking,” said Millner to Mission Local. “The Supervisors haven’t made this an issue either. This should really be a citywide issue, yet we haven’t seen much of it.”

Officer Esparza says that the local investigations are going at the pace they are in order to be thorough. “We don’t think the public would want a rushed investigation,” Esparza said. “When there’s something serious like an officer-involved shooting, you want every piece of evidence collected thoroughly, you don’t want to rush it.”

As a precursor to today’s actions, and to honor the five-month anniversary of the day Nieto died, the Justice and Amor for Alex Nieto Committee held a sunset vigil last night on Bernal Hill. It lasted until midnight and renewed once more at sunrise this morning—all opening ceremonies to today’s march at noon.

An altar with photos and offerings marked the spot on the North side of the hill where Nieto lived his final moments. Even as a cold wind blew and a wall of fog creeped from the West, a group of about 40 community members and friends, including Nieto’s parents Elvira and Refugio, gathered on the hillside for the vigil, which opened with a ceremony that mixed indigenous traditions and Buddhist practices. (Before his death, Nieto was a practicing Buddhist.)

Supervisor David Campos was in the crowd. In terms of what he thought the best means for uncovering the whole story leading up to Nieto’s death, Campos was vague. “We want the truth to come out as quickly as possible, but there’s a lot of different ways for that to happen,” he said.

As the sun disappeared behind the fog, Lorena de la Rosa, a friend of Nieto’s, held up a chalice of burning sage and led the crowd through a ritual in which they faced the East, West, North, and South and then towards the ground.

“Let’s touch the earth so that we may remember the work that we’re here doing and who we’re doing it for. Let’s remember Alex, and Andy Lopez, and Trayvon,” said de la Rosa before asking the crowd to join her in reciting more names. What followed over the course of the next several minutes was a painful litany, the subjects of recent histories, most rife with a lingering sense of injustice and questions still waiting to be answered.