The officers' defense attorney, Deputy City Attorney Margaret Baumgartner, told the jury they would spend several days scrutinizing an incident that played out in about 11 minutes between the first 911 call reporting a man with a gun and the time Nieto was shot -- looking especially closely at about 45 seconds "in which these officers actually engaged Mr. Nieto."
Recently sworn officer Richard Schiff was with his training officer, then-Sgt. Jason Sawyer, when they responded to the call shortly after 7 p.m. Schiff pulled their squad car around a metal gate blocking an access road up Bernal Hill and drove toward a lone man in a red jacket and black hat matching the description they'd received from dispatch, according to the city's trial brief. Schiff stopped about 30 yards away and both officers got out of the car.
The city argues the officers shouted at Nieto to "show me your hands," and he responded "no, show me your hands."
The eyewitness says he heard officers simply say "stop" before immediately opening fire while Nieto's hands were still in his pockets, according to the plaintiff's amended complaint.
Police say Nieto drew what looked like a gun before Sawyer and Schiff started firing, and the officers could see the Taser's red laser sight pointing at them. Officers Nathan Chew and Roger Morse pulled up next to Sawyer and Schiff's squad car as they were shooting at Nieto, now lying prone, and also said they saw the red laser sight and began firing, according to the city's trial brief.
Investigators recovered 48 shell casings from the scene, a total that does not match the 59 rounds emptied from officers' magazines and guns.
Pointer told the jury in his opening statement that Schiff fired 13 rounds, then reloaded and fired 10 more. Sgt. Sawyer also reloaded and fired a total of 20 rounds at Nieto. Chew fired five times, and Morse fired 11 shots, Pointer said.
"It'll be up for the jury to decide and make these credibility determinations whether Mr. Nieto was just a super human that could take shots to his temple, into his mouth, into his chest, into his spine, and still maintain the type of activity that they claim he did," Pointer said. "There's no compelling physical evidence to corroborate the story that Alex somehow maintained his position of pointing something out while receiving gunshots from his temple down to his leg."
Baumgartner told the jury that all four officers saw a laser sight coming from what they thought was a gun in Nieto's hands, and they all kept firing until he stopped pointing it and his head drooped to the street.
"Although there were a large number of shots fired, only a small percentage of those shots actually hit Mr. Nieto," she said, "and we don't know when most of them hit him."
Nieto died from 14 or 15 gunshot wounds, possibly caused by as few as 10 bullets, according to the San Francisco medical examiner's report.
Baumgartner said the officers feared for their lives even after Sawyer shouted "cease fire" and they walked over about 90 feet to Nieto's body.
"Officer Morse approached, he kicked the gun out of the man's hand and it was at that point they saw the yellow markings on the side of the gun," she said. "And it was only at that point that they realized what this man had been pointing at them was a Taser, and was not a gun."
