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Witness: Alex Nieto's Hands In Pockets When Fatally Shot By SFPD

SAN FRANCISCO (CBS SF) -- A musician who was jogging with his dog in a San Francisco park when a 28-year-old man was fatally shot by police testified in federal court Thursday that he never saw the man point anything at the officers.

Antonio Theodore also testified that Alejandro "Alex" Nieto had his hands in his pockets during the shooting, even after he fell forward onto the ground after the fourth shot. The officers then continued firing, he said.

"It was very shocking," Theodore told a civil jury in the court of U.S. Magistrate Judge Nathanael Cousins in San Francisco in the trial of a wrongful death lawsuit filed by Nieto's parents.

"I didn't mind the first four shots, but the rest was very scary. He was already on the ground...I felt really disturbed by the situation," he said.

Nieto was shot in Bernal Heights Park shortly after 7 p.m. on March 21, 2014, by four officers who were responding to a report of a man with a gun. The officers fired a total of 59 bullets in 30 seconds, of which at least 10 hit Nieto.

Nieto, who had eaten a burrito in the park, was planning to go to his job as a security guard at a San Francisco nightclub and was carrying a Taser stun gun in a holster.

The officers contend that Nieto pointed the device directly at them and that they thought it was a real gun and their lives were in danger.

The lawsuit by Nieto's parents, Elvira and Refugio Nieto, is based on claims of wrongful death, unconstitutional excessive use of force and loss of familial relationship.

Theodore, a songwriter and performer, was called to the stand Thursday by Adante Pointer, a lawyer for the parents.

His account contradicted the testimony given by Lt. Jason Sawyer and Officer Richard Schiff to the eight-member jury on Wednesday.

Sawyer, who was a sergeant then, and Schiff were the first officers to encounter Nieto and fired 43 of the gunshots.

The other defendants in the case, Officers Roger Morse and Nathan Chew, had arrived as backup and also participated in the shooting.

Sawyer and Schiff testified that they both shouted, "Show me your hands," at Nieto from 25 to 30 yards away and that he answered, "No, show me your hands," and then pointed what they believed to be a gun, with a red laser
light used for sighting, at them.

They said they kept shooting even after Nieto was prone on the ground because he continued to point the weapon at them.

Theodore said he heard the officers say "stop" but heard no other words before the shooting started. He said he never saw a red light and never saw Nieto holding an object.

Theodore said he had been jogging with his dog on a trail on a hillside above the access road where the officers encountered Nieto.

Nieto was walking down the road in a "very calm and casual manner," Theodore said.

Even after Nieto fell to the ground after the fourth shot, "His hands were still in his pockets. He wasn't holding anything with his hands," Theodore testified.

Theodore will be cross-examined by city lawyers representing the officers when the trial resumes on Friday.

Deputy City Attorney Margaret Baumgartner said in her opening statement at the trial on Tuesday that Theodore "did not have a complete or clear view" from the trail 25 yards up the hillside.

She said the city will present autopsy evidence indicating that Nieto could not have received the wounds shown on his hands if his hands had been in his pockets, and evidence from a Taser expert showing that the stun gun was fired three times at the time of the shooting.

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