Analysis and Evaluation of the DA’s Report Concluding No Charges by Ben Bac Sierra

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Read DA Gascón’s report here: SFPD Incident 140240512

Contributing coalition member Ben Bac Sierra writes:

THE REAL NEWS ABOUT ALEX NIETO! Analysis and evaluation of the San Francisco District Attorney’s report deciding not to file criminal charges against San Francisco police officers who killed Alex Nieto on March 21, 2014.

Welcome to the real news!

Scholarship student and security guard Alex Nieto never pointed a taser at San Francisco Police Officers Sawyer and Schiff. There is at least one witness who saw everything and emphatically confirms that Alex Nieto never pointed a taser at officers. This witness was never interviewed for the district attorney’s report.

But for one moment let’s forget the witness. The district attorney’s report accepts the police department narrative: two veteran San Francisco Police Department (SFPD) police officers have their weapons drawn aiming directly at Alex Nieto who is eating a bag of chips walking down the hill. Both officers KNOW he has a firearm. These two READY police officers then allow Alex to square off with them, reach into his holster (they KNOW he has a gun), and they allow Alex to point this “gun” directly at them BEFORE they finally make the decision to start shooting at him 59 times.

This tale is ridiculous and unbelievable, yet they expect us to accept it.

There was no reason for Alex to have been shot at 59 times! This entire sham is a cover up to hide the SFPD’s incompetence, lack of fire discipline, and illegal and intimidating investigation. They will not take responsibility for killing an innocent, promising young man, Alex Nieto, our brother.

I was Alex’s best friend. For credibility purposes, so that you will not dismiss this as some illogical rant, I must provide you with credentials: I am a combat Marine Corps veteran. I hold a B.A. from U.C. Berkeley, a Master’s in English, and a Juris Doctor degree from U.C. Hastings. I have been a college professor for over a dozen years. I am a published author. You can trust that I have analyzed and evaluated this district attorney’s report not to file criminal charges against San Francisco Police Officers.

I now will begin an investigation into the report:

    • During an April 2014 meeting with me, the lawyer for the case, the Nieto family and the district attorney (D.A.) and his subordinates, San Francisco D.A. Gascon promised a thorough investigation regarding the entire shooting and its aftermath. He promised he would investigate the totality of the crimes involved with this shooting.
    • The DA did not thoroughly investigate or question the shooting itself, nor did he investigate the action of SFPD after the shooting—the illegal interrogation of the Nietos, the unlawful extraction of confidential medical records, the attempted warrantless search of the Nietos’ residence, the robbery and warrantless search of Alex Nieto’s car. Why did the police act in such a secretive manipulative manner if the shooting was justified? Why did the police claim to the media incorrect statements that Alex had a gun when they immediately knew, according to the DA report, that Alex had only a taser? This evidence must be examined and looked at as part of the totality of the crimes committed.
    • On page one and two of the report, there is a section dedicated to explaining an encounter with a dog owner witness who saw Alex on the day he was killed. This male witness has absolutely nothing to do with any police reporting about Alex. He never called 911. No police officers knew anything about this witness, so he should have no bearing on the officers’ response to the hill that day. Is the witness a licensed psychiatrist to determine whether a person who looks around at his environment is acting erratically? A trial would have led to this witness’s cross examination. I repeat: he does not contribute in any way to the police coming because he never contacted the police, and the police knew nothing about this witness or an altercation when they came with a military mindset to kill Alex.
    • On page one and two, an exchange between Alex and an uncontrollable dog is described. It is completely reasonable that Alex would have felt threatened by a large dog that was “following” and harassing him and not under the control of the owner. Alex even moved away from the dog to another set of benches in order to avoid conflict with the dog. Yet the dog persisted in harassing him. Alex even tried to wave the dog away. The dog barked aggressively and could not be controlled by the irresponsible owner. Aggressive dogs that do not pay attention to their owners can be a lethal threat to a person. Alex would have been fully justified in attempting to defend himself from this uncontrollable dog. This was a giant dog, yet its description is nowhere mentioned in the report. The DA report simply accepts the owner’s account of what happened, which is biased, and MOST IMPORTANTLY, completely irrelevant to the shooting because this owner never contacted police, perhaps because he knew he was to blame for his aggressive, uncontrollable, unleashed dog. Police knew nothing about this dog owner witness.
    • Alex must have been justifiably shaken from this dog attack.
    • According to page two of the report, two witnesses see Alex and believe he has a gun. He did not brandish it or point it. In fact according to the DA report, Alex did absolutely NOTHING to these two male witnesses who actually called the police. The witnesses do not even claim that Alex ever even looked at them!
  • According to the bottom of page two, no 911 call or radio dispatch claims Alex Nieto is doing anything that is erratic or violent. We now have confirmed evidence that Alex never threatened anyone, yet the SFPD rushed up to Bernal Hill in an aggressive military manner to kill someone.
  • On page three, according to Officer Sawyer, as Alex walked down the hill, he continued eating from his bag of chips. Consider Alex’s intent and mindset: he had no clue that anyone had called the police on him because he had done nothing wrong. He was minding his own business eating his chips. He did not imagine that the police were there for him. Any reasonable police officer seeing someone eating a bag of chips should have known that this person is not a violent threat. Yet they approach him in a daunting, life threatening manner with their guns drawn on him.
  • On page three of the report it states that when officers see Alex they believe he is the suspect. Officer Sawyer believes he sees a bulge under his jacket that may be a gun. Officer Schiff certainly sees what he believes is a holstered weapon.
  • Officers exit their patrol car with guns drawn on Alex.
    • They state that then Alex lifted his arms and exposed what appeared to them to be a holstered weapon.
  • Let’s review: They both now know that Alex Nieto has a pistol and they have their own guns aimed right at him; their weapons are drawn.
    • They then claim that Alex takes his weapon out of his holster and points it at both of the ready and trained officers, and the officers allow him to do this.
    • For argument’s sake, let us accept this narrative yet question it. If Alex had drawn his weapon, and the veteran police officers have their own pistols aimed right at him, and they justifiably believe he has a gun, why did they not immediately shoot when Alex even attempted to reach for his weapon? Why would trained police officers allow themselves to be tracked by someone with a gun?
    • This narrative is completely unbelievable. Once Alex would have reached for his weapon, officers would have immediately fired, especially since they already had their weapons drawn and pointed at him.
    • Why would Alex Nieto even point a taser at police officers when he has done nothing wrong? He is ready for work as a security guard (he’s scheduled in less than two hours). He has no criminal history and has never been arrested in his life.
    • On page three, why does the report reference the first shots fired by Officers Sawyer and Schiff as “a number of shots?” Why can’t they say exactly how many shots they fired at that moment and who fired first?
    • This D.A report’s summary of the shooting is completely inconsistent with the audio. There were first two shots and then there was a seven second pause. Then there was more firing, what we now know was a total of 59 shots!
  • On page four, why did Officer Morse “kick” the taser out of Alex’s hands? Why not take a picture at that moment?
  • According to page five, the police started shooting Alex at 7:18:40, and they claim that according to a memory device inside of the taser, that it was discharged at 7:18:45, 7:18:52, and 7:19:02. If this is accurate, and they claim that Alex is standing (from page three) during at least the 7:18:45 taser discharge, why didn’t police officers Sawyer and Schiff see that Alex would have discharged a taser that shot out a wire and darts, not bullets? Did Alex Nieto ever point a taser at officers if they could not see that he would have discharged an electric taser? Can it be possible that once the police began shooting, Alex then attempted to defend himself but did not even point the taser at the officers? Perhaps a bullet struck the taser?
  • Is lack of fire discipline by these police officers the real problem that occurred? Throughout this entire shooting, they did not have fire discipline and thought they were at the Wild West and could not tell they were in absolutely no danger from Alex.
  • On page four, Officer Morse states he thought “Mr. Nieto was firing at them when he heard popping sounds and saw what he thought were muzzle flashes.” Officer Morse cannot tell that it is only officers who are shooting because no one is taking responsibility for fire control or calling for a cease fire. Officer Morse completely imagines that there are muzzle flashes coming from Alex, but that is impossible because Alex Nieto does not have a firearm.
  • The San Francisco Police Officers were reckless in the way they fired their weapons, not taking into account possible civilian victims. They could not even find all of their bullet casings or other evidence from the taser.
  • Now we move onto the SFPD’s cover up and illegal investigation:
  • After the killing of Alex Nieto, why did SFPD tell the media that Alex had a gun when they knew that he only had a taser? They knew then that that was a lie, but it was a way to buy time for their cover up, which began in earnest after the unlawful killing.
  • There were only two officers who supposedly saw Alex draw his taser. We know of at least one witness who states certainly that Alex Nieto never pointed a taser. Why didn’t the district attorney interview this witness?
  • On page six of the report, the police claim that Alex should have known not to point a taser at officers because he owned a CD version of the taser’s operating manual “that was located in Mr. Nieto’s car.” How did police obtain that CD? The day after the unlawful killing SFPD stole Alex Nieto’s car and performed a warrantless search of it. THE D.A. IS USING AN ILLEGALLY OBTAINED CD FROM ALEX’S CAR AS EVIDENCE FOR WHY THEY WILL NOT PROSECUTE OFFICERS AND TO FURTHER DEFAME ALEX NIETO! Why isn’t the police department’s stealing of Alex’s car seen as suspicious?
  • The day after the killing, SFPD investigators are sent to intimidate the Nieto family. They attempt a warrantless search of the residence and extract information that they use to slander and smear Alex Nieto. Through their intimidating investigation of the Nietos, the SFPD found that Alex had medical records at San Francisco General Hospital.
  • How did confidential medical records get released in less than three days (for Chief of Police Greg Suhr’s town hall meeting on Tuesday, March 25, 2014) without authorization? Who authorized this release of confidential medical records? Releasing confidential medical information is a crime.
  • We were guaranteed that the D.A. would investigate the totality of the crimes involved, yet he focused on the singular shooting AND Alex’s irrelevant past. The officers knew nothing about Alex when they approached him on March 21. Now it is confirmed: No broadcast to police or 911 call gives any negative description about Alex Nieto.

I have had less than 20 hours to prepare this statement. The San Francisco District Attorney had 10 months to investigate and to write a flawed eight page report.

This is the real news.

Amor for Alex,

Benjamin Bac Sierra, M.A., J.D.

Alex Nieto at Accion Latina

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