A "Justice for Alex Nieto" banner at Tuesday's rally. Photo by Joe Rivano Barros.

See Mission Local’s full coverage of the Alex Nieto shooting here.

An officer the plaintiffs called a “rookie” took the stand in a federal district courtroom on Wednesday to say that he shot at 28-year-old Alex Nieto on the afternoon of March 21, 2014, “because I was afraid for my life, the lives of Sergeant Sawyer and other officers.”

“As soon as I could I tried to fire,” Richard Schiff told the jury gathered before Judge Nathanael Cousins. Schiff had been on the force just two and a half months the day of the shooting, he testified, and was being evaluated in the field by Sergeant Jason Stewart, another one of the four officers who shot and killed Nieto.

Schiff and Stewart said they shot at Nieto because he was armed with a stun gun that looked like a pistol. Even after the first volley of shots brought Nieto to the ground, he was still a threat because “his head was still up, the gun was still pointing, he was in a position which still represents a serious threat,” Schiff testified.

“Once he was on the ground in the prone position and I could see the gun, [I kept firing],” he said.

Adante Pointer, who is representing Nieto’s parents, said during opening statements on Tuesday that the 59 shots fired were excessive because officers should have recognized Nieto was not firing a pistol. There was no muzzle flash or recoil from Nieto’s weapon, Pointer said on Wednesday, and no bullets coming in the officers’ direction.

“You didn’t hear any rounds making contact with glass, you couldn’t hear any rounds making contact with anything, correct?” Pointer asked Schiff during questioning. He was the first of the pair to be called to the stand by the plaintiffs.

Schiff said he heard the rounds he and Sawyer were shooting and did not know that Nieto wasn’t returning fire until after the incident.

“In fact, he hadn’t fired a single shot,” Pointer said.

“Unless you count firing a taser a shot,” Schiff replied.

Pointer asked whether Schiff saw the taser emit any prongs or confetti, as he said they do when fired.

No, Schiff replied, he did not see anything come out of the stun gun. He continued to fire because he recognized the red laser sight coming from Nieto’s weapon as “a tactical aid for picking up sights” that would have allowed Nieto better accuracy, Schiff testified.

Joining the “rookie and the vet” — as Pointer called Schiff and Sawyer — in court on Wednesday were the other two officers who killed Nieto, Roger Morse and Nathan Chew. Sitting on the right-hand side of the court, the four chatted and occasionally laughed with their counsel during breaks — more jocular than the plaintiffs and their counsel a few feet away.

Pointer and his two-man team were largely silent, ruffling papers and jotting down notes between testimony. They seldom spoke to their clients — Nieto’s parents, Refugio and Elvira — who sat unsmiling in the first row while receiving live translation via headpieces.

But Pointer was more animated on the stand, where he frequently gesticulated while asking for the story of Nieto’s shooting from the two officers who testified Wednesday.

Schiff and Sawyer responded to Bernal Heights Park that day two years ago after receiving a dispatch call about an armed Latino man wearing a red jacket. Both discussed the possibility that the red jacket might mean he was a gang member, but Sawyer said they didn’t “assume” so.

After arriving at the park, Schiff drove their patrol car up a paved road onto Bernal Hill and stopped some 30 yards from Nieto, who he testified was walking towards them down the hill “purposefully” from around a bend.

“When you stopped the car…yourself and Sergeant Sawyer immediately opened the car doors and got out with your firearms drawn?” asked Pointer.

“Yes, I pulled out my firearm as soon as possible,” Schiff replied.

“No one had called out to this person before you got out of your car?” Pointer asked, referring to the car’s megaphone.

Schiff said it wasn’t used — nor were the squad car’s lights or sirens deployed — because it would have revealed the officers’ location. He testified, however, that the officers did shout for Nieto to show his hands, which were at his side.

“To the best of my recollection, I was only able to yell ‘Show me your hands, show me your hands,’” Schiff said. “I’m not sure I was able to finish it the second time.”

Schiff testified that Nieto responded “‘No, show me your hands,’” which he took to mean Nieto had heard him.

At that point, Schiff testified, Nieto’s hands went to his hip and then came up to chest level in a “fighting stance” that indicated Nieto was going to shoot. The entire exchange lasted a second and a half, Schiff said in later testimony.  

Both Schiff and Sawyer reacted by emptying their clips, Pointer said, firing 13 bullets, reloading their magazines, and firing part of another clip each. Schiff fired 23 shots total and Sawyer 20, according to Pointer, who specified that the semi-automatic weapons required a trigger pull for every shot.

“Every one of those squeezes of the trigger, you actually have to be justified in pulling the trigger?” Pointer asked.

“Absolutely,” Schiff said. “I’m responsible for every single round.”

Rebecca Bers, a deputy city attorney and one of Schiff’s lawyers, began her own questioning by asking the officer about his motivations for being on the force and about his family. Schiff’s father is a police officer, he testified, a fact that Pointer remarked upon after Bers’s brief questioning.

“Given your father’s a member of the police department…wouldn’t you be embarrassed if you killed a person with no justification?” Pointer asked.

“Absolutely,” Schiff replied.

“Doesn’t that give you a justification for concocting a story?” Pointer asked.

“Absolutely not,” Schiff answered.

Pointer then began questioning Lieutenant Sawyer — promoted from sergeant since the shooting — whose examination revealed little new information but did reveal differences in testimony between the two officers.

In what seemed a different description of Nieto walking towards the pair, Sawyer testified that Nieto was eating from a bag of chips while coming down the hill. That appeared to contradict Schiff, who said Nieto’s hands were at his sides.

Sawyer continued, “He throws the bag of chips down and says ‘You show me your hands.’ He pulls up the right side of his jacket, pulls out a gun, and points it at us.” That description was slightly different than Schiff’s, who did not mention a bag of chips and said Nieto brought both hands up to his chest to aim the gun.

Sawyer then repeated Schiff’s testimony: The pair opened fire, Nieto hit the ground in a prone position while still grasping his gun, and both officers continued firing.

“I don’t recall at what point he hit the ground,” he said. “As long as the weapon was pointing at me, I kept firing.”

Margaret Baumgartner, a deputy city attorney also representing the officers, got Sawyer to expand on that response.

Sawyer told her that Nieto did not “stop [or] pause” after the verbal warnings and did not “wince or drop the gun” after the first few shots.

“There was no reaction [from Nieto], no visible reaction at all,” Sawyer said. “Initially I thought it was possible he could’ve had a bulletproof vest.”

Baumgartner asked whether that changed Sawyer’s approach.

“Once I realized there was no reaction, I picked up my sights and aimed for the head,” Sawyer said. “It was only once we weren’t having any success at all that I changed it and aimed for the head.”

The Medical Examiner’s report shows Nieto was shot twice in the head. He suffered 14 or 15 gunshot wounds from at least 10 bullets, the report states, and was also shot in the chest, arms, legs, shoulders, hands, and back.

Sawyer ended the day saying that only when Nieto’s “head went down and body went limp” did he know the threat was over. He never second-guessed Nieto’s intentions, Sawyer said.

“I had no doubt,” he testified. “I had no doubt that he was trying to shoot us.”

On Thursday, Sawyer will finish his testimony. The other two officers — Morse and Chew — are also scheduled to appear, along with expert witnesses. The trial could last until next Friday, when the jury of eight will have to decide on a verdict.

A criminal trial against the officers was dismissed last February by the city attorney, so the jury’s verdict will not render criminal charges against the officers. Instead, the jury will decide whether to award an as-yet unspecified amount of financial damages to the Nieto family.

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