Early Morning News

Jury Selection Begins in the Civil Trial for Fatal Shooting of Alex Nieto

SAN FRANCISCO-Hundreds turned out in front of the Phillip Burton Federal Building at 450 Golden Gate Ave. where the city of San Francisco is facing a civil lawsuit for the gunning down of a Latino San Francisco security guard in 2014. The unexpected size of the turnout in support of the Alex Nieto family, led the presiding U.S. Magistrate Judge Nathanael Cousins to call a recess prior to jury selection and opening statements apparently to search for a larger courtroom to hold courtroom observers.

Twenty-eight year old Nieto was shot 15 times on March 21, 2014 by four officers in a hail of 59 bullets, a report that drew outrage by San Franciscans who have called the incident “a baseless and blatant overkill.”

During jury selection, one prospective juror held back tears as he described that he was the neighbor of the family of 13-year old Andy Lopez who was also fatally shot by police in nearby Santa Rosa, California on October 22, 2013. A civil action trial is scheduled to begin next month in that incident where Lopez family representatives are citing the unconstitutionality of the shooting based on the Fourth Amendment involving the probable cause that should proceed a warrant. In that case, plaintiffs are defending a child’s right to play with a toy gun. The prospective juror was dismissed in court during jury selection this morning.

Another prospective juror was the wife of a police officer who works in the same department as the officers who killed Nieto. She was also dismissed after she testified that she relies on police testimony and believes “everything an officer claims.”

After the fatal shooting of Nieto and after the San Francisco District Attorney failed to file charges against the officers, the city of San Francisco attempted to block the current civil action by submitting a summary judgment to federal court, but a federal district court judge rejected the attempt on November 6, 2015. Nieto’s parents especially wanted to proceed with a civil suit when they learned that a civil trial is often the only way that a family can obtain independent evidence into a police shooting of a family member.

Evidence raised before today’s proceeding includes the timestamp of Nieto’s Taser that was part of his gear as a security guard, a job he held and where he was headed at the time of the shooting. Police have said that Nieto pointed his Taser and continued to point it at them even after he had been shot, but attorney for the Nieto family Adante Pointer told reporters after today’s hearing that, “It will be up to the jury to decide and make these credibility determinations whether Mr. Nieto was just a superhuman that could take shots to his temple, into his mouth, and to his chest, into his spine, and still maintain the activity they claim he did. The police officers clearly have an interest in justifying their conduct.”

When asked about the significance of a red indicator light that shines when a Taser is on and which police claim was in an on position, Pointer responded, “I can tell you what they claim they saw. They claim they saw a red laser light from a Taser. From what I’ve seen, it doesn’t seem probable given what the independent witness says, and given what the state of the physical evidence as I understand it to be.” Photo evidence presented at the trial all showed that the Taser’s red light was not on.

The defense for police officers said that the time stamp is a faulty element in the physical structure of Tasers and that in this case distorted the timing of the incident a point that Nieto attorney Pointer raised at the post-hearing press conference, “From our position the time stamps were recalculated and retrofitted to fit a story. That’s not from me, that’s from the expert that they hired.”

But a witness to the shooting says that the Taser is inconsequential since he says Nieto was simply eating a burrito immediately before the shooting had his hands in his pockets and did not point anything at the officers at the time of the incident and that he saw no Taser before Nieto was shot.

Opening statements by counsel representing police suggested that police approached the scene of a potential gang member based on the color of his red jacket-the color disignating local gang affiliation- but skeptics point to racial profiling saying that many San Franciscans were wearing red jackets at the time in support of the San Franscisco 49er’s inaugural season playing home games at Levi Stadium in Santa Clara. His family said that Nieto never had gang affiliations and to the contrary, was a scholarship student at the City College of San Francisco earning a degree in criminal justice.

An autopsy report released 6 months after the shooting said that eleven out of the fifteen shots caused downward trajectory wounds. Eleven shots were fired from above Nieto into his face, temple, chest, shoulders, and back according to the report. Of those eleven, seven shots were in a head to toe downward trajectory suggesting that Nieto was shot after falling to the ground when officers fatally wounded him. In other similar cases, the direction of the shots has lent to a suggestion of criminal intent and murder.

Civil rights attorney John Burris, whose offices have represented 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.”

After today’s hearing Deputy City Attorney Margaret Baumgartner who is attempting to relieve the city of San Francisco from responsibility said that police on the scene had no reason [to believe] that [Nieto] had any intent but to harm them immediately drawing a reaction from a bystander at the press conference who responded, “There was nothing fired, so why did they keep shooting 59 times?”

Today’s hearing raised a discrepancy in officer testimony whose fired guns showed that 59 bullets were missing yet officer reports claim that 48 bullet casings were recovered from the scene.

A witness to the incident is expected to testify at a future date and has said that Nieto had his hands in his jacket pockets the entire time, a key issue that attorney Pointer expects to raise, “We think the physical evidence is going to show that Alex’s hands were not in the position the officers claim which is holding a Taser, pointing at them, and maintain that Taser at them while taking all of the shots across his body.”

“Those officers are trained to fire and reassess. When you have officers who empty a whole clip, reload, and continue firing at a person who is not holding a Taser, that’s a serious issue, that’s a serious problem. That’s not a credible or reasonable threat,” Noble added, “Fifty-nine bullets was fifty-nine bullets too many. It was like a shooting gallery once they get started.”

Those close to the Nieto family have criticized the San Francisco Police Department for failing to notify the family of crucial details of the case, but instead have gone to the media before notifying next of kin. One of those notifications involved the naming of the four officers who shot their son: Sgt. Jason Sawyer (then lieutenant), Officer Roger Morse, Officer Richard Schiff, and Officer Nathan Chew. The family learned of the names from media reports.

Pointer concluded the conference by saying,

“If I was a tax paying resident of San Francisco, I would be concerned that the people I pay are doing these types of things.”

Audio footage of the press conference following day 1 of the trial: Deputy City Attorney Margaret Baumgartner of the defense, Attorney Adante Pointer representing the Nieto family, and Nieto family supporter who identified herself as Tanya: