COMPLAINT FOR WRONGFUL DEATH AND VIOLATION OF CIVIL RIGHTS
Update: The trial will begin March 1st, 2016. Please check Case Status regularly for procedural updates.
CLICK LINK FOR PDF FILE: NIETO REFUGIO NIETO and ELVIRA NIETO (Plaintiffs) vs. CITY AND COUNTY OF SF, Police Chief GREG SUHR & Police Officers DOES 1-50 (Defendants) (Filed by Law Offices of John Burris)
(Please find below an excerpt of the basis for the complaint, emphasis is our own.)
Case3:14-cv-03823 Filed 08/22/14
REFUGIO NIETO and ELVIRA NIETO, individually and as the Co-Successors in Interest to ALEJANDRO NIETO; Plaintiffs,
CITY AND COUNTY OF SAN FRANCISCO, Police Chief GREG SUHR in his individual capacity & DOES 1-50, individually and in their official capacities as a Police Officer for the City and County of San Francisco, inclusive. Defendants.
1. This claim arises out of an incident that took place on Friday, March 21, 2014 at approximately 7:00 p.m. at Bernal Heights Park in the City of San Francisco, California wherein Decedent, Alejandro “Alex” Nieto was unlawfully shot and killed by several yet to be identified San Francisco Police Officers.
2. In the aftermath of the incident, the City and County of San Francisco (“CCSF”) and the involved Officers claimed Alex defied Officers’ orders and pointed a taser at them. The Officers claimed they mistook the taser for a handgun, causing them to fear for their lives and as a result shot and killed him. After an independent investigation led by the community and the Law Offices of John L. Burris, witnesses along with physical evidence was uncovered which contradicts CCSF’s version of the events.
3. To date, CCSF has refused to release the involved Officers’ names. Instead, CCSF has engaged in a media campaign to besmirch Alex’s reputation as a well known San Francisco resident who never sustained a single arrest, was an active community organizer, college student, and local law enforcement volunteer.
STATEMENT OF FACTS
11. On Friday, March 21, 2014, Mr. Alejandro Nieto began his evening at the home he shared with his mother, father and younger brother. He left the family home intent on getting some food before he went to work as a security guard at a nearby restaurant. To that end, Mr. Nieto bought a burrito and went to Bernal Heights Park to enjoy his meal and the view of the City and neighborhood he loved. Once he arrived at the Park he found a bench and began eating his dinner.
12. Witnesses recount seeing Mr. Nieto at the park peacefully sitting alone on the bench enjoying his burrito. A yet to be identified person called 911 and erroneously reported Mr. Nieto as having a black gun on his hip. The caller mistook the black and yellow taser Mr. Nieto lawfully carried for use on his security job for a gun. However, the caller did not claim Mr. Nieto was bothering anyone or making any type of threatening gestures with the reported “gun.
13. Several SFPD Officers converged on the park determined to investigate the call and confront the reported “gunman.” An SFPD Patrol car entered the park and drove up a fire trail before stopping approximately 75 to 100 feet away from Mr. Nieto who at that time was casually walking down the jogging trail to the Park’s entrance. Two Officers emerged from the patrol car and immediately took cover using their car for protection. Several other Officers had also gathered on the jogging path, appeared to be carrying rifle-type guns and were positioned behind Mr. Nieto. One of the Officers behind the patrol car called out and ordered Mr. Nieto to “stop.”
14. Within seconds a quick volley of bullets were fired at Mr. Nieto. No additional orders or any other verbal communication was heard between the first Officer yelling “stop” and the initial volley of gunfire that rang out. Mr. Nieto fell to the ground. After a brief pause of just a second or two, a second barrage of shots were fired. The Officers’ bullets struck Mr. Nieto in his forehead and at least nine other places leaving his body grossly disfigured and mortally wounded.
15. In the aftermath of the incident, SFPD claims Mr. Nieto refused to comply with Officers’ requests for him to show them his hands and instead pointed the taser at them, challenged their authority forcing the Officers to shoot him. However, the ear and eye witness’ revelations undermine SFPD’s claims. Based upon the witnesses’ accounts there, in fact, was no justification for this unwarranted use of deadly force as contrary to the Defendants’ claims, they did not hear Mr. Nieto threaten anyone or see him attempt to grab or point any object at the Officers prior to being shot.
16. The above-described intentional and/or negligent conduct by defendants was a factual and proximate cause of Decedent’s death and Plaintiff’s damages.
17. Plaintiffs are informed and believe and thereon allege that CCSF, Chief Suhr and DOES 26-49, inclusive, breached their duty of care to the public in that they have failed to discipline defendant John Doe SFPD Officers 1-25 inclusive, for their respective misconduct and involvement in the incident described herein. Their failure to discipline defendant John Doe SFPD Officers 1-25 inclusive, demonstrates the existence of an entrenched culture, policy or practice of promoting, tolerating and/or ratifying with deliberate indifference, the use of excessive and/or deadly force and the fabrication of official reports to cover up defendant John Doe SFPD Officers 1-25’s inclusive, misconduct.
18. Plaintiffs are informed and believe and thereon allege that members of the San Francisco Police Department, including, but not limited to DOES 1 -25 and/or each of them, have individually and/or while acting in concert with one another used excessive, arbitrary and/or unreasonable force against decedent, ALEJANDRO NIETO.
19. Plaintiffs’ are further informed, believe and therein allege that as a matter of official policy — rooted in an entrenched posture of deliberate indifference to the constitutional rights of persons who live, work or visit the City of San Francisco, SFPD has allowed persons to be abuse by its Police Officers including defendant DOES 1-25 and/or each of them, individually and/or while acting in concert with one another.
20. Plaintiffs’ are informed, believe and therein allege that SFPD Police Officers exhibit a pattern and practice of using excessive and/or deadly force against citizens, as evidenced by the 97 SFPD Officer involved shootings that have occurred since 2000. Of those 97 shootings, 33 people have died and 35 people have been injured. In each and every one of the shooting cases wherein a person died as a result of the Officers’ use of deadly force, SFPD has found the Officer used deadly force within policy even under the most questionable of circumstances. SFPD’s failure to discipline or retrain any of the involved Officers is evidence of an official policy, entrenched culture and posture of deliberate indifference toward protecting citizen’s rights and the resulting deaths and injuries is a proximate result of SFPD’s failure to properly supervise its Police Officers and ratify their unconstitutional conduct.
21. Plaintiffs are informed, believe and therein allege that CCSF knew, had reason to know by way of actual or constructive notice of the aforementioned policy, culture, pattern and/or practice and the complained of conduct and resultant injuries/violations.
22. Plaintiffs are ignorant of the true names and capacities of Defendants DOES 1 through 25, inclusive, and therefore sue these defendants by such fictitious names. Plaintiffs are informed, believe, and thereon allege that each defendant so named is responsible in some manner for the injuries and damages sustained by plaintiffs as set forth herein. Plaintiffs will amend their complaint to state the names and capacities of DOES 1-50, inclusive, when they have been ascertained.