Jury in Nieto trial finds SF cops did not use excessive force

Alex Nieto was shot by police during an encounter in 2014. A federal jury found that four San Francisco police officers did not use excessive force when they shot and killed Nieto in Bernal Heights Park after they said he pointed what they believed to be a handgun at them. less Alex Nieto was shot by police during an encounter in 2014. A federal jury found that four San Francisco police officers did not use excessive force when they shot and killed Nieto in Bernal Heights Park after ... more Photo: Justice4alexnietodotorg Photo: Justice4alexnietodotorg Image 1 of / 25 Caption Close Jury in Nieto trial finds SF cops did not use excessive force 1 / 25 Back to Gallery

Four San Francisco police officers did not use excessive force in 2014 when they shot and killed a man who allegedly pointed a stun gun at them that they mistook for a pistol, a federal jury found Thursday in a lawsuit filed by the man’s family.

The eight-member jury decided that the officers had not violated the constitutional rights of Alejandro “Alex” Nieto, a 27-year-old City College of San Francisco student and security guard, when they fired multiple shots at him in Bernal Heights Park.

Officers Richard Schiff, Nathan Chew and Roger Morse and Lt. Jason Sawyer fired at least 48 shots after they said Nieto pointed what they believed was a handgun at them, but which later turned out to be a Taser stun gun. Attorneys for Nieto’s parents, Elvira and Refugio Nieto, filed the suit in August 2014, saying the actual number of shots fired was 59 and claiming the officers had deprived Nieto of his right to due process and right to be protected from unreasonable or deadly force.

“I am pleased the jury saw the facts the way we presented them,” Deputy City Attorney Margaret Baumgartner said outside the courthouse.

“Everybody here, including the officers, understands that the Nietos must be very sad to lose a child like that,” she added. “But my officers didn’t do anything wrong.”

The trial came amid a national debate and protests over police shootings and tactics, and just three months after the controversial San Francisco police shooting of Mario Woods in the Bayview neighborhood.

The fatal shooting of Woods, who refused to drop a knife after being surrounded by officers, spurred a U.S. Justice Department review of the Police Department’s practices.

Parents weep

The Nieto family’s attorneys, Adante Pointer and Lateef Gray, comforted their clients after the jury’s verdict was read, while city attorneys exchanged hugs with the four defendants. Nieto’s parents were in tears as they left court.

“The verdict was not what the Nietos deserve, and it’s not what the city deserves,” Pointer said outside the courthouse. “What you have here is a green light to fire 59 shots in a public park. It’s a sad day for the city and county of San Francisco.”

Later in the evening, Nieto’s parents joined supporters at the Mission Cultural Center for Latino Arts, where they spoke on the verdict.

“It’s a shame on the city,” his father, Refugio Nieto, told a crowd in Spanish. “We need to understand this is a danger to all of us.”

The jury’s verdict, delivered on the second day of deliberations after eight days of testimony, was the final chapter in a nearly two-year saga.

The fateful encounter with police happened on the evening of March 21, 2014, when Nieto, armed with a Taser that he carried for his job as a security guard, went to Bernal Heights Park to eat a burrito. Much of what happened after he got there was in dispute.

“It was a hard case,” one juror, who did not give her name, said as she left the courtroom after the verdict.

Asked if there was one piece of evidence the jury focused on, she said, “No, we looked at all of it.”

None of the other jurors spoke with reporters.

In the months and years after the killing, protesters marched through San Francisco, denouncing what they perceived to be a miscarriage of justice. An investigation into the shooting by the district attorney’s office, though, cleared the officers of any criminal wrongdoing in February 2015.

Last legal recourse

The federal civil suit was the family’s final recourse in holding the Police Department accountable for what they said was an unprovoked shooting.

Unlike a criminal trial, where defendants must be found guilty beyond a reasonable doubt, jurors needed only to find that the plaintiffs’ claims were “more probably true than not true,” Magistrate Judge Nathanael Cousins said in his instructions to the panel. But the jury concluded that the Nieto family’s attorneys hadn’t reached that standard.

“This shows that the San Francisco Police Department can shoot 59 shots and get away with it,” said a friend of the family, Oscar Salinas. “We’re still going to continue fighting, and we’re happy that Alex’s story was told, and now the evidence is out and the public can decide for themselves.”

Elvira and Refugio Nieto sat in the front row for most of the trial, just feet from the four officers at the defense table. Pointer and Gray questioned a parade of witnesses, including the officers and people who encountered Nieto before the killing. Experts on stun guns and police tactics, the medical examiner who performed the autopsy and Elvira Nieto also testified.

Officers’ stories

The officers, Schiff and Sawyer, who were first on the scene, and Morse and Chew, who arrived after the shooting had started, came to the stand with nearly identical stories. They each said they had heard a call on the police radio that a man in the park had a gun. When they responded, they said, they were forced to open fire when faced with what they believed was a lethal threat.

“It was tragic,” Schiff testified. “But unfortunately, I was forced.”

One plaintiffs’ witness, Antonio Theodore, carried much of the weight of the Nieto family’s claim that the officers had used excessive force.

He was the only person, other than the officers, to witness the shooting, and he told the jury that Nieto had his hands in his pockets when the officers first opened fire. His testimony contradicted the officers’ assertions that Nieto had pulled the Taser and pointed it at them.

Theodore’s contention, the plaintiffs’ attorneys argued, was backed up by a bone fragment from Nieto’s wrist that was found in his jacket pocket.

“To claim a man’s hand was in front of him but there’s a wrist bone in his pocket, just doesn’t add up,” Pointer said after Thursday’s verdict.

But Baumgartner, the attorney for the city, poked holes in Theodore’s credibility. She questioned him on cross-examination about a deposition he gave in May 2015, in which some of his answers were purportedly different from the ones he gave in court.

Unprompted, Theodore admitted that he’d become an alcoholic since the incident and had memory problems. But he was adamant about what he said he had seen in the park.

Baumgartner told the jury in her closing statement that Theodore’s testimony was unreliable because he had been too far from the shooting to know what happened — he said he had been roughly 115 feet away — and that he has astigmatism and wasn’t wearing his glasses at the time.

Craig Fries, a forensics expert called by the defense, created a three-dimensional model of the shooting scene based on evidence collected at the park, witness testimony and the autopsy report.

“The evidence suggests that Mr. Nieto did not, in fact, have his hands in his pockets,” Fries said.

Testimony challenged

Pointer attempted to cast doubt on that testimony, however, by pointing out that Fries had never analyzed a scenario in which Nieto was standing with his arms outstretched toward the officers.

Evan Snow, who encountered Nieto about 20 minutes before the shooting, told the jury that the young man had pointed the Taser at him because his dog had been attracted by Nieto’s burrito.

“I thought it was the grip of a pistol, and I was incredibly frightened at that time. I froze in my tracks,” Snow said, adding, “I thought, ‘I’m going to get shot. I’m going to die right now.’”

Gray took Snow to task in cross-examination, however, saying he had admitted to prejudging Nieto as a gang member because he was wearing a red jacket, had been distracted by an attractive jogger and had used racial slurs in text messages about the incident and indicated that he wished he could have shot Nieto.

The most emotional testimony came from Elvira Nieto, who at one point had to leave the courtroom as lawyers displayed autopsy photos of her son. She recounted the good times she had shared with him and how proud she had been when he received his associate’s degree from City College, a degree mailed to her home weeks after his death.

“I got it in the mail,” she testified in Spanish through an interpreter. “When I got this, I felt very sad and I began to cry, but my husband told me it was a gift from him. This was the outcome of all the effort he had put into this.”

Kale Williams , Bob Egelko and Evan Sernoffsky are San Francisco Chronicle staff writers. Email: kwilliams@sfchronicle.com, begelko@sfchronicle.com, esernoffsky@sfchronicle.com Twitter: @SFKale @egelko @Evan Sernoffsky