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S.F. Police Killing Headed for Jury Trial

SAN FRANCISCO (CN) - Parents who sued San Francisco police for shooting their son to death after allegedly mistaking his Taser for a gun will take their case to a jury, a federal judge ruled Monday.

The family of Alejandro "Alex" Nieto sued the City and County of San Francisco, Police Chief Greg Suhr and four police officers in August 2014, alleging wrongful death and civil rights violations.

U.S. Magistrate Judge Nathanael Cousins on Monday rejected the city's motion for summary judgment on all claims, except the allegation that it failed to adequately train its officers. Cousins said he would rule on that, but did not indicate which way he would rule.

Nieto, a City College student, was walking to his job as a security guard at a restaurant on March 21, 2014, with the black and yellow Taser he carried for work on his hip. He stopped to buy a burrito and eat it at Bernal Heights Park in southeastern San Francisco.

Police got a call saying someone had entered the park with a gun on his hip. They fired 48 shots at Nieto, 14 to 15 of which hit and killed him, according to Cousins' ruling.

Police claimed Nieto pulled his Taser out and pointed it at them after they commanded him to "show me your hands," but a witness said the officers only said "stop," shot Nieto before he could react, and that Nieto never took his hands out of his pockets.

Cousins said the disputed facts preclude him from granting summary judgment.

"Here, there are two dramatically different versions of events presented by the parties," Cousins wrote.

Had the incident been captured on video, Cousins said, he could rely on the recording, but no such video exists.

Police Officers Richard Schiff and Jason Sawyer, who first arrived at the park and took cover behind their patrol car doors, said Nieto was walking briskly toward them "with purpose" and that he was holding what looked like a black gun with a red light resembling a laser sight beaming from it.

But Antonio Theodore, a witness who was walking his dog in the park, testified that Nieto was walking "casually and coolly" as if he had no clue that police were after him. Theodore said police said "stop" and nothing else, and that Nieto did nothing to respond.

Another witness testified he had seen Nieto in the park earlier and had easily identified his Taser as not being a gun, according to Cousins' ruling.

Officers Schiff and Sawyer fired four shots at Nieto before two other officers, Nathan Chew and Roger Morse, arrived. The officers said that after the first shots were fired Nieto did not go down immediately, and that he assumed a "tactical position" on the ground, pointing what looked like a gun at the officers with his head raised toward them.

But Theodore said that after the first four shots were fired, Nieto fell to his knees, his hands still tucked in his pockets, and that he looked as if he was trying to take his hands out to raise them in the air.

"If Theodore testifies at trial as he did at his deposition, and the four officers testify consistently with their reports and deposition testimony, then a jury will have to decide whom to believe," Cousins wrote.

In deciding whether the officers are entitled to qualified immunity, Cousins said, the court must decide if a constitutional right was violated and if a reasonable officer would clearly understand the conduct was unlawful.

"When these disputed material facts are resolved, the officers may be entitled to qualified immunity," Cousins wrote. "However, it would be premature to make that determination now."

Regarding state claims of battery and wrongful death, the city said the officers are entitled to statutory privilege under California law, which states that police should not be deemed the "aggressor" or lose the right to self-defense for carrying out the duties of their jobs.

Cousins found the test for privilege under California law mirrors the standards for determining when the use of deadly force is reasonable under the Fourth Amendment.

"Because state law and state immunity laws require the same factual inquiry, summary judgment is likewise inappropriate on their state law claims," Cousins wrote.

Nieto's parents, Refugio and Elvira, seek punitive damages for wrongful death, violation of the Fourth Amendment, other civil rights charges, battery, negligence, and funeral expenses.

A jury trial has been set for March 1, 2016.

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