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Nieto case heads to jurors after contradictory stories are presented in court

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Alejandro Nieto was shot and killed by San Francisco police at Bernal Heights Park on March 21, 2014. (Mike Koozmin/S.F. Examiner file photo)

An innocent man who never posed a threat was gunned down in cold blood by a group of San Francisco police officers.

Or, a man armed with a taser was killed by police who were protecting themselves after he refused their orders and aimed what officers thought was a gun at them.

Such were the two versions of events told to a jury Wednesday in the closing arguments of the wrongful death suit filed in federal court by the family of Alex Nieto against the officers and San Francisco.

“What brings us here today,” said Nieto family lawyer Adante Pointer in his closing argument, “are 59 shots… fired during the course of a one-sided firefight.”

Nearly two years after the March 21, 2014, fatal shooting of Nieto at the hands of four officers atop Bernal Heights Park, the nearly two-week civil trial brought together for the first time all of the contradictory stories around what unfolded that day.

Over the course of the trial, the eight-person jury in Judge Nathanael Cousins courtroom heard from the four officers who fired their guns, civilian witnesses to the shooting and a handful of experts — medical, ballistic and tactical — whose opinions and rulings were shaped and molded by each side in the case.

The plaintiff’s narrative was simple: the four officers charged up a hill after responding to a call about a man with a gun. With little to no warning they opened fire on Nieto, killing him in a hail of bullets. The officers made no plan of attack and Nieto did not pull out his stun gun.

“The taser was never on,” said Pointer, “because Alex never pulled and fired that taser.”

Several independent witnesses said Nieto was not acting abnormal, said Pointer, who added that a third saw the shooting and said the officers fired with little warning and Nieto did nothing to prompt the violence.

Pointer dwelled on the internal clock inside the stun gun, which originally marked the trigger being pulling minutes before the officers fired their weapons indicating that Nieto never pulled the trigger as officers said he did.

Another key argument in his closing remarks was that the autopsy indicated Nieto’s hands were in his pockets when he was hit with bullets, and not aiming the stun gun at the officers. A bone fragment found in Nieto’s pocket, said Pointer, backs up that theory since Nieto’s wounds seemed to indicate his hands were inside his pockets.

The defense’s closing argument kept narrowly close to the same story told since soon after the incident: that the officers acted reasonably when confronted with a man they thought had a gun. When Nieto did not obey orders and instead pulled out a stun gun the officers had one choice to make.

“Can you use lethal force against a man with a gun aimed at them? …The answer is yes,” said defense attorney Margaret Baumgartner, adding that police “have the authority [and]… the duty to use lethal force. They are not trained to run away from the threat to death. Here, they faced a man with a gun who demonstrated his willingness to point it at a group of officers.”

The four officers’ testimony not only corroborated that version of events, but so too did the recalibrated stun gun timer, which an expert witness said had drifted. When recalibrated, said Baumgartner, it showed that Nieto pulled the trigger just after shots were fired.

The one plaintiff’s witness who saw the shooting admitted on the stand he had issue with his memory, said Baumgartner, adding that his testimony should be disregarded.

Other inconsistencies in the story, such as the stun gun being turned off after the shooting, and the bone fragment found in Nieto’s jacket pocket, should be dismissed as well, Baumgartner said. She added that the testimony of the doctor who performed the autopsy contradicted the idea that Nieto’s hands were in his pockets because she said there was no damage from passing bullets to his jacket.

The jury will have to reach several conclusions, including whether the officers acted reasonably when they opened fire. If the jury decides they did, then the rest of the allegations in the case — regarding the amount of harm done to Nieto, his family and their future happiness — will not be considered. The jury may also decide whether — and how much — the family deserves monetary compensation for their loss.

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