At Center of Nieto Shooting Case, One Witness Is Pitted Against Four S.F. Cops

San Francisco motorcycle police ride in front of about 500 people marching Saturday from San Francisco's Mission District to Bernal Heights Park, where 28-year-old Alejandro Nieto was shot and killed by police officers a week before. (Alex Emslie/KQED) San Francisco motorcycle police ride in front of about 500 people marching Saturday from San Francisco's Mission District to Bernal Heights Park, where 28-year-old Alejandro Nieto was shot and killed by police officers a week before. (Alex Emslie/KQED)

By Alex Emslie
KQED

After a harrowing week in federal court, a group of Alejandro Nieto’s friends and supporters climbed a San Francisco hill Friday to the place where the community college student and aspiring law enforcement officer was shot to death by police two years before.

Friday — March 4 — was Nieto’s birthday. He would have turned 30.

Many in the group of about 20 people have been meeting there since the March 21, 2014, shooting, to remember Nieto and plan the political and legal fight that’s finally led them to a civil rights trial that started last week.

The trial is providing a rare glimpse into the workings of a Police Department besieged by scandals involving racism, calls for greater transparency and outrage over multiple high-profile police shootings. Officers Richard Schiff, Roger Morse, Nate Chew and Lt. Jason Sawyer all testified during the trial’s opening week about their decisions to shoot — and keep shooting — at a man supporters say was casually walking down Bernal Hill to his job as a security guard.

A crime scene investigator, homicide detective, medical examiner and others testified about the investigations that followed, which cleared the officers of any criminal or administrative wrongdoing. The week ahead will likely see expert testimony critiquing the way police handled the shooting and its aftermath.

“I feel like it’s been two years of starving for information,” Adriana Camarena said Friday evening as Nieto’s parents tended a shrine for their son. Now, she said, the details coming out in court are overwhelming.

As the group set up a birthday cake, a lanky, bearded man with dreadlocks approached along the same path Nieto did as he walked toward a police cruiser two years ago.

Antonio Theodore didn’t know anyone at the gathering. He didn’t go to all the meetings and marches that helped make Nieto’s name a hashtag and street tag synonymous in San Francisco’s Mission District with police use of deadly force.

Alejandro Nieto.

Alejandro Nieto.

But what Theodore says he saw the night of the shooting, from a bluff overlooking that access road where Nieto died, is a major reason the case made it to trial. His account contradicts a crucial part of the four officers’ story — that Nieto pointed a Taser stun gun at them from almost 100 feet away.

The officers have all said in either testimony or depositions that they believed Nieto had a handgun and they fired an uninterrupted barrage — as many as 59 rounds — as he went to the ground and into a tactical shooting position, continuing to point the weapon at them.

Theodore swore in court and repeated in an interview Friday night that Nieto’s hands never left his jacket pockets. He said the driver of the first squad car at the scene (another would arrive during the shooting) shouted simply “stop” before firing four shots, then a few seconds’ pause as Nieto fell to the ground, followed by a hail of bullets from all the officers.

‘Dramatically Different Versions’

Federal Judge Nathanael Cousins cited Theodore’s pretrial testimony in a November ruling that allowed the case to go before a jury.

“Here, there are two dramatically different versions of events presented by the parties,” he wrote. “These disputed facts bear directly on whether a reasonable officer would have viewed Nieto as an immediate threat to themselves or others. … If Theodore testifies at trial as he did at his deposition, and the four officers testify consistently with their reports and deposition testimony, then a jury will have to decide whom to believe.”

Officer Richard Schiff was first to testify in the case. The 25-year-old officer, who was about 10 weeks out of the academy when the shooting took place, kept calm and described in detail shouting “show me your hands,” as he and his training officer, then-Sgt. Jason Sawyer, got out of their patrol car with guns drawn.

Schiff said he started to repeat the command when Nieto mimicked it back to him, pulled up his jacket with both hands, then reached for his right hip. That was the moment Schiff decided to fire, he testified, but he didn’t actually get a round off before Nieto had pulled what he thought was a gun emitting a red laser sight.

San Francisco Police Chief Greg Suhr addresses an angry crowd at a town hall meeting four days after police fatally shot Alejandro Nieto.

San Francisco Police Chief Greg Suhr addresses an angry crowd at a town hall meeting four days after police fatally shot Alejandro Nieto.

“I went to fire because he drew the firearm,” Schiff said. “I continued to fire because I saw the laser sight.”

Nieto was shot between 7:18 and 7:19 p.m., according to radio calls by Schiff and Sawyer that the defense played in court.

Schiff said Nieto went to the ground in a “tactical prone” position — on his stomach with his hands in front of him — after he fired his first 13 rounds, which appeared to have no effect. Sawyer testified that he thought Nieto might be wearing body armor and began aiming for the head. Both officers said they reloaded and kept firing.

Theodore testified he was walking his dog in the park that evening, as he still does most days. He’d arrived about 7 p.m. and noticed Nieto near the access road before he jogged up to a pathway overlooking it. He said he stopped and watched a police car drive slowly up the road.

Theodore said he was a little over 100 feet behind the officers and on an elevated path on their left when they stopped and raised their guns at Nieto, who was about another 100 feet up the road.

Theodore said he heard the taller officer on the driver’s side of the squad car — which would be Schiff — say “stop,” then immediately fire four shots. He said Nieto fell to his knees after the third shot, then to his face after the fourth, never removing his hands from his front jacket pockets.

“They paused for a little moment and after that they just rapidly opened fire on him while he’s already on the ground,” Theodore said Friday evening, repeating what he said in court. “That’s the part that really angered me and frustrated me.”

Witness Repeatedly Impeached

During cross-examination, the officers’ defense counsel, Deputy City Attorney Margaret Baumgartner, pressed Theodore on the timing of events following the shooting.

His memory was vague about when he’d spoken to a district attorney’s investigator versus one hired by the plaintiffs, for example, or when he publicly announced at a concert that he’d seen the shooting.

“It’s been long,” Theodore said on the stand. “My memory’s not right. I’ve been kind of an alcoholic since.”

Theodore said in the interview Friday evening that he had trouble sleeping and eating since witnessing the incident, and it drove him to drink.

“I don’t think I function pretty well,” he said. “I kind of like been heavily drinking most days after that. I do not eat much. … I never wanted to have to go to the court.”

But he said there’s no doubt in his mind that the core of his testimony is true.

“I’m 100 percent clear on what I saw,” he said, “and I would say it over and over.”

Questions About a Bone Fragment

The jury could interpret some physical evidence and other testimony as backing Theodore’s version of events.

Schiff and Sawyer have testified that their shooting was continuous, and when Schiff ran empty, he shouted a code word, “red,” to Sawyer, who responded “covering.” The defense played a recording of police dispatch audio in court that captured Sawyer’s response.

But other witnesses who heard, but didn’t see the shooting have testified that they heard the four shot burst, a pause, and then a sustained volley. There’s also audio recorded from a nearby surveillance camera that appears to back this account, according to local news website 48 Hills.

And there’s the matter of a small bone fragment the medical examiner found in Nieto’s left pocket. He was shot through the left wrist, and plaintiffs’ attorneys argue it suggests Nieto’s hands were in his pockets when he was shot.

“You didn’t put that bone in his pocket, did you?” plaintiff’s attorney Adante Pointer asked city medical examiner Amy Hart after he revealed the bone fragment’s existence to the jury.

“No,” she said, adding that she didn’t try to determine where it came from, but that it could be a piece of Nieto’s left wrist or hand. There was a matching tear on Nieto’s jacket sleeve, she said, but no bullet holes in his clothing, and no gunshot wounds to his abdomen.

There’s also a gunshot wound to Nieto’s right lower leg that fractured both bones, Hart testified, and bruising on his left leg. She said his right leg couldn’t have supported his weight after the shot, and it was possible that Nieto fell to his left knee after it struck him.

Officers Morse and Chew got to the scene after Schiff and Sawyer started firing. Morse is scheduled to continue testifying Monday. He said Friday that he never saw the red laser sight the other officers said drove them to keep firing, but added he still believed Nieto was shooting a firearm.

Pointer has argued that photos of Nieto’s Taser on the scene appear to show it with its safety engaged, meaning it was off and and no power was flowing to the laser sight.

The officers’ attorneys have not addressed the Taser’s on-off switch yet, but the jury will likely hear a lot more about it on Monday, when the defense is scheduled to call an expert from Taser International.

What the Jury Won’t Hear

The jury won’t hear from a psychiatric expert the defense hoped would introduce Nieto’s medical history and whether it was likely that a man with a history of depression and a potential diagnosis of schizophrenia (which Nieto disputed when he was still alive, according to journal entries excluded from the case) was attempting to commit “suicide by cop” that night on Bernal Hill.

That’s all information the officers couldn’t have known at the time they decided to use deadly force, Cousins ruled, and so is immaterial to the jury’s decision on whether that force was reasonable or excessive.

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