Two Versions of Alex Nieto Shooting Emerge at Trial

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

The civil trial for the case of Alex Nieto, who was killed by police in March 2014, began Tuesday in downtown San Francisco, with the plaintiffs and defense offering opening statements that gave the jury different versions of that spring day on Bernal Hill.

“We’re here today because of 59 gunshots,” said Adante Pointer, who is representing Nieto’s parents for the Law Offices of John Burris — a well-known civil rights firm. His opening statement painted the four officers who killed Nieto as overzealous and singled out Richard Schiff, a rookie who was undergoing field training that day. He was training under another officer involved in Nieto’s shooting, Jason Sawyer.

“[Schiff] emptied the entire clip, 12 bullets, plus the one in the chamber, reloaded, and kept firing,” Pointer said to a jury of six men and two women. All four officers — Schiff, Sawyer, Roger Morse, and Nathan Chew — were in the courtroom on Tuesday, as were Nieto’s parents, Refugio and Elvira.

Pointer said Schiff and Sawyer — “the rookie and the vet” — received a dispatch call about a man armed with a gun at Bernal Heights Park. Nieto was carrying a stun gun, which he used on his job as a security officer.

A man walking his dog called 911 to report Nieto, Pointer said, and described him as a Latino man wearing a red jacket.

Margaret Baumgartner, who is representing the four officers, said later in court that the red jacket — a 49ers jacket favored by Nieto — may have led responding officers to believe that Nieto was a gang member.

Schiff and Sawyer arrived at Bernal Heights Park soon after the 911 call, Pointer said telling the jury that an independent witness saw Nieto with his hands in his pockets “cooly and casually” walking down the hill towards the police. At that point, Pointer said, the officers fired.

“What [the witness] saw was Alex walking down this hill, the officers getting out of their car [and] yelling ‘Stop,’ and moments later shots ringing out,” he said.

After the first volley, Nieto fell to the ground. The other two responding officers — Morse and Chew — began firing only when Nieto was down, Pointer said. “They continued to fire at Alex even while he was on the ground,” he said.

The police version of events indicates that the officers did so because Nieto continued to aim his work-issued taser at the officers even after he fell. Pointer dismissed the possibility that Nieto could have posed a threat after being shot at 59 times.

“There’s no one else to corroborate that version of the events other than the officers themselves,” Pointer said.

Baumgartner offered the jury a different version of  the afternoon’s shooting.  She said the man who called 911 felt threatened by Nieto, who the caller said, pulled a gun and aimed it at his dog. When officers arrived, they too saw a man armed with a gun who refused to show his hands after being ordered to do so, Baumgartner said.

“What he did instead was say ‘Show me your hands’ [to the officers], and he pulled out a gun and aimed directly at them,” she said. “He aimed directly at them, [and] fearing for their lives, these officers fired.”

The red laser sight on the stun gun convinced officers that the shooter could be accurate, Baumgartner said, and they had no evidence that the weapon was anything other than a pistol.

“When he pointed a gun at them, aimed at them with a red laser sight, all that they knew was this was a man with a gun who had aimed it at them,” she said.

As to the eyewitness cited by Pointer, Baumgartner said forensic evidence will prove that it would have been impossible for Nieto to sustain the wounds he did if his hands were in his pockets. The witness, she told the jury, could not have accurately seen what was happening from 75 feet up a hill, around a bend.

Baumgartner also promised to introduce evidence from an internal clock in Nieto’s stun gun that will show it was fired at the time of the shooting. Pointer, in turn, seeks to cast doubt on that evidence because the times were recalculated by a technician to account for drift, a common correction according to Baumgartner.

But Baumgartner left the details for another day.

“We will have days to analyze all this evidence, but these officers had no time at all to figure out what they had to do,” she said.

Officers will take the stand on Wednesday, starting with Schiff, and the trial may last until next Friday. On Tuesday, the court was mostly occupied with jury selection, which winnowed a pool of some 30 potential jurors down to eight by mid-afternoon. Of the six women and two men, none are Latino or black.

Activism around the killings of Nieto and other young men of color have centered on a discussion of racism within the police department. Fifteen stories below the courthouse, more than 150 people rallied to the beat of Aztec drumming, many of whom were upset that the trial was coming so long after the shooting and had not resulted in use of force reform.

“It’s been two years and still the family has not received any justice,” said 19-year-old Violeta Vasquez, a student at San Francisco City College, where Nieto went to school. Comparing Nieto’s shooting to that of Mario Woods by police last December, Vasquez said “it’s easier to uncover lies when you have video evidence.”

Dozens of marches and protests for Nieto over the last two years could not match the effect that 30 seconds of video had for Woods. Protests after his death recently pushed Police Chief Greg Suhr and Mayor Ed Lee to announce police reform and a federal probe into the department.

A fact not lost on Latinos in San Francisco. Supervisors David Campos and John Avalos, the two Latinos on the Board of Supervisors who both represent Latino districts, have said that the planned reform of the police department is a step forward but two years too late.

Nieto’s death should have been the catalyst for police use of force reform, they and others say, to say nothing of the killing of Amilcar Perez Lopez, an undocumented 21-year-old Guatemalan immigrant who was shot by police in the Mission District last February.

Edwin Lindo, a candidate for District 9 supervisor, noted he is currently the same age that Nieto was when he was shot and said it could have been him on that hill.

“Alex Nieto was every one of us,” Lindo said.

Others at the rally said the delay was simply endemic to the justice system and that having a civil trial two years later was better than nothing at all.

“That’s how long it takes the courts to move,” said Kathe Burck, a teacher at City College. “But I don’t think anything should stop the pursuit of this.”

Nieto’s parents are seeking an unspecified sum in damages for what they claim was wrongful death at the hands of police and civil rights violations under both state and federal law. Pointer did not know whether those funds would come from the officers themselves or city coffers, but did say “generally the employer is responsible for the acts of an employee.”

Correction: A previous version of this article misspelled Officer Richard Schiff’s last name. It is Schiff, not Shiff.