The federal civil rights trial against the city and county of San Francisco for the fatal police shooting of Alejandro Nieto in 2014 is set to move forward March 1 with witness testimony that contradicts the police department’s story, court records show.
City attorneys on Wednesday tried but failed to push the trial back one or two weeks because an expert witness who could back up the police narrative — that four officers shot and killed Nieto on Bernal Hill when he pointed a handgun-like Taser at them — will be out of the country, according to court records.
The decision by U.S. District Court Judge Nathanael M. Cousins is the first development in the Nieto case since November 2015, when The City unsuccessfully attempted to prevent the case from going to trial by asking for summary judgement on all claims made by the Nieto family, court records show.
“They were hoping that the court would dismiss,” said Adante Pointer, an attorney for the Nieto family. “The judge decided that he would not take it out of the jury’s hands.”
In that motion, city attorneys disputed the claims of an eyewitness brought forward by the Nieto family, according to court records. A spokesperson for the City Attorney’s Office declined to comment on the case.
As first reported by 48 Hills, witness Antonio Theodore said in his deposition what Cousins would later call a “dramatically different” story than the police account, according to court records.
Theodore was walking his dog on Bernal Hill when he saw the police encounter with Nieto, court records show.
While the officers testified that Nieto was marching toward them as they took cover behind a patrol car and shouted for him to show his hands, Theodore said he saw Nieto walking “pretty cool and casual” and only heard one officer shout “stop,” according to court records.
“It’s clear that the witness contradicts what the officers say,” said Pointer. “Even setting aside what Theodore says, the officers stories frankly are absurd.”
Police said Nieto unholstered his stun gun and pointed it at officers with both hands, dropping to the ground on his stomach and pulling the trigger three times.
Theodore, on the other had, said Nieto had both of his hands in his jacket pockets until he was shot and fell to his knees, and never saw Nieto point anything at the officers.
Craig Fries, the expert witness for whom the city attorneys wanted to delay the trial, reconstructed the scene and analyzed the trajectories of the bullets fired at Nieto, court records show. City attorneys said his report confirms the police department’s story.
The Nieto case has reemerged in the public spotlight in recent weeks with protesters rallying against police in response to the death of Mario Woods, who was shot and killed by officers in the Bayview on Dec. 2, 2015.
Supporters of both Woods and Nieto have denounced the police narratives of the killings at public meetings and protests, calling for the resignation or firing of Chief Greg Suhr.
Last Sunday, Nieto supporters premiered a movie — “Lowrider Lawyers: Putting a City on Trial” — that criticizes the police account of the shooting.
City attorneys on Wednesday asked the judge to take another look at their request to delay the trial, Pointer said. A hearing for that matter has been set for Jan. 20.
“I think that if the jury relies upon their common sense then the jury should return a verdict in favor of Mr. Nieto’s parents,” Pointer said.
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