Tales of Two Americas
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Tech companies created multimillionaires and billionaires whose influence warped local politics, pushing for policies that served the new industry and their employees at the expense of the rest of the population. None of the money sloshing around the city trickled down to preserve the center for homeless youth that closed in 2013, or the oldest black-owned, black-focused bookstore in the country, which closed in 2014, or San Francisco’s last lesbian bar, which folded in 2015, or the Latino drag and trans bar that closed the year before. As the Nieto trial unfolded, the uniquely San Franciscan African Orthodox Church of St. John Coltrane faced eviction from the home it found after an earlier eviction during the late-1990s dot-com boom. Resentments rose. And cultures clashed.
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At 7:12 p.m. on the evening of March 21, 2014, the police dispatcher who had spoken to Fritz put out a call. Some police officers began establishing a periphery, a standard way to de-escalate a potentially dangerous situation. One police car shot through the periphery to create a confrontation. In it were Lieutenant Jason Sawyer and Officer Richard Schiff, a rookie who had been on the job for less than three months. They headed for Bernal Heights Park when they got the call, tried first to enter it in their patrol car from the south side, the side where Alex’s parents lived, then turned around and drove in from the north side, going around the barrier that keeps vehicles out and heading up the road that is often full of runners, walkers, and dogs at that time of day. They moved rapidly, but without lights or sirens; they were not heading into an emergency. But they were rushing past their fellow officers and the periphery without coordinating a plan.
At 7:17:40 p.m., Alejandro Nieto came walking downhill around a bend in the road, according to the 911 operator’s conversation with Fritz. At 7:18:08 p.m., another policeman in the park, but not at the scene, broadcast: “Got a guy in a red shirt coming toward you.” Schiff testified in court, “Red could be related to a gang involvement. Red is a Norteño color.” Schiff testified that from about ninety feet away he shouted, “Show me your hands,” and that Nieto had replied, “No, show me your hands,” then drew his Taser, assuming a fighting stance, holding the weapon in both hands pointed at the police. The officers claim that the Taser projected a red light, which they assumed was the laser sight of a handgun, and feared for their lives. At 7:18:43 p.m., Schiff and Sawyer began barraging Nieto with .40-caliber bullets.
At 7:18:55 p.m., Schiff shouted, “Red,” a police code word for out of ammunition. He had emptied a whole clip at Nieto. He reloaded, and began shooting again, firing twenty-three bullets in all. Sawyer was also blazing away. He fired twenty bullets. Their aim appears to have been sloppy, because Fritz, who had taken refuge in a grove of eucalyptus trees below the road, can be heard shouting, “Help! Help!” on his call to the 911 operator, as bullets fired by the police were “hitting the trees above me, breaking things and just coming at me.” Sawyer said: “Once I realized there was no reaction, none at all, after being shot, I picked up my sights and aimed for the head.” Nieto was hit just above the lip by a bullet that shattered his right upper jaw and teeth. Another ripped through both bones of his lower right leg. Though the officers testify that he remained facing them, that latter bullet went in the side of his leg, as though he had turned away. That while so agonizingly injured he remained focused on pretending to menace the police with a useless device that drew fire to him is hard to believe.
Two more officers, Roger Morse and Nate Chew, drove up to the first patrol car, got out, and drew their guns. There were no plan, no communications, no strategy to contain the person they were pursuing or capture him alive if he proved to be a menace, to avoid a potentially dangerous confrontation in a popular park where bystanders could be hit. Morse testified in court: “When I first arrived I saw what appeared to be muzzle flash. I aimed at him and began shooting.” Tasers produce nothing that resembles muzzle flash. Chew, in contrast to his partner officer’s account, testified that Nieto was already on the ground when they arrived. He fired five shots at the man on the ground. He told the court he stopped when he “saw the suspect’s head fall down to the pavement.”
Several more bullets hit Nieto while he was on the ground—at least fourteen struck him, according to the city autopsy report. Only one out of four of the bullets the officers fired reached their target—they fired fifty-nine in all. They were shooting to kill, and to overkill. One went into his left temple and tore through his head toward his neck. Several hit him in the back, chest, and shoulders. One more went into the small of his back, severing his spinal cord.
The officers approached Nieto at 7:19:20 p.m., less than two minutes after it had all begun. Morse was the first to get there; he says that Nieto’s eyes were open and that he was gasping and gurgling. He says that he kicked the Taser out of the dying man’s hands. Schiff says he “handcuffed him, rolled him over, and said, ‘Sarge, he’s got a pulse.’” By the time the ambulance arrived, Alejandro Nieto was dead.
Nieto’s funeral, on April 1, 2014, packed the little church in Bernal Heights that his mother had taken him to as a child. I went with my friend Adriana Camarena, a civic-minded lawyer from Mexico City who lives in the Mission District, the neighborhood on Bernal’s north flank that has been a capital of Latino culture since the 1960s. She had met Alex briefly; I never had. We sat near a trio of African American women who had lost their own sons in police killings and routinely attend the funerals of other such victims. In the months that followed, Adriana became close to Refugio and Elvira Nieto. Their son had been their ambassador to the English-speaking world, and gradually Adriana was drawn into their grief and their need. She stepped in as an interpreter, advocate, counsel, and friend. Benjamin Bac Sierra, a novelist and former marine who teaches writing at San Francisco’s community college, was a devoted friend of and mentor to Alex. He has become the other leader of a small coalition named Justice for Alex Nieto.
In that springtime of Nieto’s death, I had begun to believe that what was tearing my city apart was not only a conflict pitting long-term tenants against affluent newcomers and the landlords, estate agents, house flippers, and developers seeking to open up room for them by shoving everyone else out. It was a conflict between two different visions of the city.
What I felt strongly at the funeral was the vital force of real community: people who experienced where they lived as a fabric woven from memory, ritual and habit, affection and love. This was a measure of place that had nothing to do with money and ownership and everything to do with connection. Adriana and I turned around in our pew and met Oscar Salinas, a big man born and raised in the Mission. He told us that when someone in the community is hurt, the Mission comes together. “We take care of each other.” To him, the Mission meant the people who shared Latino identity and a commitment to a set of values, and to one another, all held together by place. It was a beautiful vision that many shared.
The sense of community people were trying to hang on to was about the things that money cannot buy. It was about home as a whole neighborhood and the neighbors in it, not just the real estate you held title to or paid rent on. It was not only the treasure of Latinos; white, black, Asian, and Native American residents of San Francisco had long-term relationships with people, institutions, traditions, particular locations. Disruption has been a favorite word of the new tech economy, but old-timers saw homes, communities, traditions, and relationships being disrupted. Many of the people being evicted and priced out were the people who held us all together: teachers, nurses, counselors, social workers, carpenters and mechanics, volunteers and activists. When, for example, someone who worked with gang kids got driven out, those kids were abandoned. How many threads could you pull out before the social fabric disintegrated?
Two months before the funeral, the real estate website Redfin looked at the statistics and concluded that 83 percent of California’s homes, and 100 percent of San Francisco’s, were unaffordable on a teacher’s salary. What happens
to a place when the most vital workers cannot afford to live in it? Displacement has contributed to deaths, particularly of the elderly—and many in their eighties and nineties have been targeted with eviction from their homes of many decades. In the two years since Nieto’s death, there have been multiple stories of seniors who died during or immediately after their eviction. A survey reported that 71 percent of the homeless in San Francisco used to be housed there. Losing their homes makes them vulnerable to a host of conditions, some of them deadly. Gentrification can be fatal.
It also brings white newcomers to neighborhoods with nonwhite populations, sometimes with appalling consequences. Local newspaper the East Bay Express recently reported that in Oakland, recently arrived white people sometimes regard “people of color who are walking, driving, hanging out, or living in the neighborhood” as “criminal suspects.” Some use the website Nextdoor.com to post comments “labeling Black people as suspects simply for walking down the street, driving a car, or knocking on a door.” The same thing happens in the Mission, where people post things on Nextdoor such as “I called the police a few times when is more then three kids standing like soldiers in the corner,” chat with one another about homeless people as dangers who need to be removed, and justify police killings others see as criminal. What’s clear in the case of Nieto’s death is that a series of white men perceived him as more dangerous than he was and that he died from it.
On March 1, 2016, the day the trial began, hundreds of students at San Francisco public schools walked out of class to protest Nieto’s killing. A big demonstration was held in front of the federal courthouse, with drummers, Aztec dancers in feathered regalia, people holding signs, and a TV station interviewing Nieto’s friend Benjamin Bac Sierra. Nieto’s face on posters, banners, T-shirts, and murals had become a familiar sight in the Mission; a few videos about the case had been made; demonstrations and memorials had been held. For some, Nieto stood for victims of police brutality and for a Latino community that felt imperiled by gentrification, by the wave of evictions and the people who regarded them as menaces and intruders in their own neighborhood. Many people who cared about the Nietos came to the trial each day, and the courtroom was usually nearly full.
Trials are theater, and this one had its dramas. Adante Pointer, a black lawyer with the Oakland firm of John Burris, which handles a lot of local police-killing lawsuits, represented Refugio and Elvira Nieto, the plaintiffs. Their star witness, Antonio Theodore, had come forward months after the killing. Theodore is an immigrant from Trinidad, a musician in the band Afrolicious, and a resident of the Bernal area. An elegant man with neat shoulder-length dreads who came to court in a suit, he said he had been on a trail above the road, walking a dog, and that he had seen the whole series of events unfold. He testified that Nieto’s hands were in his pockets—that he had not pointed his Taser at the officers, there was no red laser light; the officers had just shouted “stop” and then opened fire.
When Pointer asked him why he had not come forward earlier, he replied: “Just think: it would be hard to tell an officer that I just saw fellow officers shooting up somebody. I didn’t trust the police.” Theodore testified cogently under questioning from Pointer. But the next morning, when city attorney Margaret Baumgartner, an imposing white woman with a resentful air, questioned him, he fell apart. He contradicted his earlier testimony about where he had been and where the shooting took place, then declared that he was an alcoholic with memory problems. He seemed to be trying to make himself safe by making himself useless. Pointer questioned him again, and he said: “I don’t care to be here right now. I feel threatened.” When witnesses are mistrustful or fearful of police, justice is hard to come by, and Theodore seemed terrified of them.
The details of what had happened were hotly debated and often contradictory, especially with regard to the Taser. The police had testified as though Nieto had been a superhuman or inhuman opponent, facing them off even as they fired into his body again and again, then dropping to a “tactical sniper posture” on the ground, still holding the Taser with its red laser pointing at them. The city lawyers brought in a Taser expert whose official testimony seemed to favor them, but when he was asked by Pointer to look at the crime-scene photos, he said the Taser was off and that it was not something easily or accidentally turned on or off. Was Nieto busy toggling the small on-off switch while also busy having his body hammered by the bullets that killed him on the spot? The light is on only when the Taser is on. Officer Morse had testified that when he arrived to kick it out of Nieto’s hands there were no red light or wires coming from it. The Taser wires are, however, visible in the police photographs documenting the scene.
The Taser expert told the court that Nieto’s Taser’s internal record said the trigger had been pulled three times. The Taser’s internal clock said these trigger pulls had happened on March 22, after Nieto was dead. The expert witness also said it was set to Greenwich mean time and recalculated the time to place these trigger pulls at 7:14 p.m. the night he died. The police didn’t have contact with him until 7:17 p.m. The Taser expert then created a new theory of “clock drift,” under which Nieto’s Taser fired at exactly the right time to corroborate the police version that the Taser was on and used at the time they shot him. Even if the trigger was pulled, it is not evidence that he was pointing the Taser at them. When a Taser is fired, confetti-like marker tags are ejected; none were found at the scene of the crime. Taser has, incidentally, just negotiated a $2 million contract with the police department.
One piece of evidence produced was a fragment of bone found in the pocket of Nieto’s jacket. Some thought this proved that his hands had been in his pockets, as Theodore said. Dr. Amy Hart, the city coroner, said in the trial on Friday, March 4, that there were no photographs of his red 49ers jacket, which must have been full of bullet holes. The following Monday, an expert witness for the city mentioned the photographs of the jacket that the city had supplied him. The jurors were shown photographs of Nieto’s hat, which had a bullet hole in it that corresponded to the hole in his temple, and of his broken sunglasses lying next to a puddle of blood. The coroner testified to abrasions on Nieto’s face consistent with Nieto wearing glasses. Before this evidence was shown, Officer Richard Schiff had testified under oath that he made eye contact with Nieto and saw his forehead pucker up in a frown. If the dead man had been wearing a hat and dark glasses, then Schiff could not have seen these things. Finally, how could four police officers fire fifty-nine bullets at someone without noticing that he was not firing back? And what are we to make of their reports of “muzzle flash” from an object incapable of producing muzzle flashes?
When Elvira Nieto testified about her devastation at the death of her son, Pointer asked her about her husband’s feelings as well. “Objection,” shouted Baumgartner, as though what a wife said about her husband’s grief should be disqualified as hearsay. The judge overruled her. At another point, Justin Fritz apologized to the Nietos for the outcome of his 911 call and seemed distressed. Refugio Nieto allowed Fritz to hug him; his wife did not. “Refugio later said that at that moment he was reminded of Alex’s words,” Adriana told me, “that even with the people that we have conflict with, we need to take the higher ground and show the best of ourselves.”
Adriana sat with the Nietos every day of the trial, translating for them when the court-appointed translator was off duty. Bac Sierra, in an impeccable suit and tie, was right behind them every day, in the first of three rows of benches usually full of friends and supporters. Nieto’s uncle often attended, as did Ely Flores, another young Latino who was Nieto’s best friend and a fellow Buddhist. Flores later told me that he and Alex had been friends who tried to support each other in living up to their vows and ideals. He said that they wanted to be “pure lotuses” in their communities, a reference to the key Buddhist phrase about being “a pure lotus in muddy water,” something spiritual that arises from the messiness of everyday life.
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sp; Flores had been studying to be a police officer at City College, seeing this as the way he could be of service to his community, but when Nieto was killed, he told me he realized he could never wear a badge or carry a gun. He abandoned the career he’d worked toward for years and started over, training in a culinary academy as a chef. He suggested that Nieto didn’t see the police as adversaries and thought that he might instead not have understood that they were coming for him when he walked around the bend in the road that evening, not acted according to the rules for men who are considered suspects and menaces in everyday life.
It was a civil trial, so the standard was not “beyond a reasonable doubt,” just the “preponderance of evidence.” No one was facing prison, but if the city and officers were found liable, there could be a large financial settlement and it could affect the careers of the policemen. The trial was covered by many journalists from local TV stations and newspapers. On Thursday, March 10, 2016, after an afternoon and morning of deliberations, the eight jurors—five white, one Asian woman, and two Asian men, none black, none Latino—unanimously ruled in favor of the police on all counts. Flores wept in the hallway. The American Civil Liberties Union of Northern California published a response to the verdict headlined WOULD ALEX NIETO STILL BE ALIVE IF HE WERE WHITE? Police are now investigating claims that Officer Morse posted a sneering attack on Nieto on a friend’s Facebook page that night.