The civil lawsuit against the city and county of San Francisco for the incident in which officers shot and killed Alex Nieto in 2014 will go to trial on March 1, 2016, according to Benjamin Bac Sierra, a Nieto family friend and City College instructor.

Bac Sierra made the announcement at a press conference held on Monday in front of the Phillip Burton Federal Building at 450 Golden Gate Ave. He called the development in the case “a victory.”

“A full-blown trial in court, in front of jurors, means that there is enough evidence that Alex’s case could not be dismissed as a matter of law,” said Bac Sierra.

On November 6, a federal district judge rejected a summary judgement motion by the city that aimed to dismiss the wrongful death suit brought by Nieto’s parents.

Alejandro “Alex” Nieto was shot and killed on top of Bernal Hill by members of the San Francisco Police Department on March 21, 2014.

“Starting March 1, all of the officers will have to undergo direct and cross examination, as well as the witnesses,” said Bac Sierra. “The supposed “scientific evidence” will be scrutinized, and the public will be allowed to hear the facts in this case without a distortion of only the police narrative.”

Nieto was reportedly eating a burrito on top of Bernal Hill before beginning his shift at a local nightclub on the evening he was killed. Police confronted him following a call by a dog walker who claimed that Nieto was “flashing a gun.” The encounter proved fatal when the officers allegedly mistook the Taser for a firearm. As a professional security guard Nieto was legally permitted to carry a Taser.

Nieto’s autopsy report, released six months after the 28-year-old’s death, revealed that he was shot at least 15 times and the family’s representatives said that approximately 48 bullets were fired by four police officers that evening.  

Bac Sierra said the evidence will show a set of Taser timestamps, which document the times at which the taser that Nieto allegedly pointed at the involved officers prompting them to open fire was activated.

“The City is failing to mention that these timestamps they rely upon are actually a set of recalculated timestamps, that differ from those an expert initially reported to the city,” said Bac Sierra.

Benjamin Bac Sierra (second from right) called a federal district judge's decision to proceed with a civll trial in the case of Alex Nieto's death "a victory." Photo by Laura Waxmann

Benjamin Bac Sierra (second from right) called a federal district judge’s decision to proceed with a civll trial in the case of Alex Nieto’s death “a victory.” Photo by Laura Waxmann

In a letter to Police Chief Greg Suhr in February, San Francisco District Attorney George Gascon’s investigation found that Nieto’s Taser was activated three times his office decided not to press criminal charges against the officers.

“The district attorney works for the city of San Francisco, and so does the SFPD. So to me, in some sense, they are trying to reduce liability,” said Patrick Buelna, of John Burris Law Offices. “Day to day, the district attorney asks the police to help them to prosecute crimes. So when police commit a crime, he can’t all of a sudden flip roles.”

Civil rights attorney John Burris, whose offices are representing the Nieto family, said they wanted a criminal trial.  “There were nearly 50 shots fired none by Nieto. They essentially shot a person a number of times, continued to shoot after reloading their guns, under circumstances where he was unarmed. To me that’s unconscionable and its criminal conduct these officers should have been prosecuted.”

In August 2015, the police department closed its homicide investigation of the four officers involved in the shooting, determining that they acted within department policy.

But Bac Sierra and the family’s attorney, Adante Pointer, said that major discrepancies in the police narrative are motivating the civil lawsuit, which was first filed in August 2014.

Pointer explained that when the Taser allegedly used in the incident was inspected by its manufacturer, Taser International an expert with no prior knowledge of the case produced timestamps that “did not match up” with the police’s account of when the Taser was activated during the incident.

“Timestamps work much like a phone’s call log. When they were inspected, they didn’t correlate with the time that officers say the taser was used while they confronted Nieto,” said Pointer. He added that a lieutenant for the District Attorney requested that the Taser employee recalculate the timestamps, stating that “Somebody’s story didn’t match up.” The district attorney’s office did not return calls for comment.

At the press conference, Bac Sierra also revealed that a “neutral third party witness” has delivered sworn testimony that Nieto never brandished or activated a Taser at officers. The eye witness decided to step forward because “the truth weighed heavily on his conscience,” stated Bac Sierra.

“We wouldn’t be out here if we didn’t think we had a strong case,” said Pointer, who estimates that the trial will last 2-3 weeks. “This may be the last and best opportunity for the family to get justice and for the community to understand what the true facts are.”

Pointer stated that once the case goes to trial, the jury will decide on the monetary recovery for the family. The San Francisco City Attorney’s office did not comment on the lawsuit.

As Nieto’s supporters chanted “Amor for Alex,” at Monday’s press conference, his mother looked on, quietly.
“I hope that there will be justice for my son,” said Elvira Nieto. “And that no other family has to experience what we experienced.”