Someone saw the holstered Taser and called police, according to Suhr's statements and SFPD scanner traffic from the night of the shooting.
Suhr told an angry crowd at a March 25 town hall meeting that officers approached Nieto and asked him to show his hands. He said Nieto drew his Taser, which automatically emits a laser sight. Officers only shot after they noticed the red dot "on them, tracking," Suhr said.
"They believed it to be a firearm, and they fired at Mr. Nieto," Suhr said. "Mr. Nieto went to the ground. He assumed a prone position, again he acquired the dot, continued to track as other officers arrived."
Suhr said at the time Nieto was prohibited from owning a firearm "for mental health reasons," a statement also disputed by his supporters.
Oakland-based attorneys John Burris and Adante Pointer are representing Nieto's parents. Pointer said sustained protests in the Mission District compelled witnesses to contact their office.
"The notion that he was waving a Taser, displaying a Taser, acting out violently with this Taser in any way toward the officers just flies in the face of what independent parties have come forward to say," Pointer said.
Potential witnesses are not named in the lawsuit. Burris said their identities will be revealed to the city through the discovery process.
From the federal complaint:
"[T]he 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."
Based on unnamed witness accounts, Burris said Nieto "really never had a chance to do anything. He was told to stop and as he made a minor, minor move, he was shot multiple times."
Suhr also mentioned a restraining order against Nieto allegedly stemming from a fight with a former friend in which Nieto had used his Taser. Supporters have said Nieto was pursuing his own restraining order in the matter. Pointer said the dispute appeared to be one "between competing lovers."
A stalled medical examiner's report on Nieto's death is compounding anger in the neighborhood. A spokesman for the office would only say that the examiner's investigation is pending and that no other agency has requested that the report be sealed. The spokesman declined to give any reason for the unfinished report, which generally would include a description of an autopsy's findings and results of a toxicology screening.
"It's been five months, and the medical examiner has not finished their report — what does that smell like?" Roberto Hernandez asked during the march. "Because it's a brown young man, they don't care."
Hernandez and others wondered how the city attorney's office could have denied a wrongful death claim filed against the city in April without the medical examiner's findings. The claim was denied on May 27, according to city attorney spokesman Matt Dorsey.
"Claimants can't sue for most causes of action without going through the claims process," Dorsey wrote in a statement to KQED. He said state law requires a claim to be filed before a lawsuit in most cases.
"In many cases, when we know the claimant is really looking to pursue their legal challenge in court, we don't impede the court process by drawing out the claims stage," Dorsey wrote. "Rather, we issue the denial so that the path is clear for the claimant to file suit and move along in the process."
The city attorney's office denied the claim 43 days after it was filed, two days before a deadline for the city set by state law. Dorsey said if a settlement was being negotiated, the city may wait to respond to a claim beyond 45 days.
Read the lawsuit filed Friday below:
Refugio Nieto and Elvira Nieto v. City and County of San Francisco et al. 8/22/2014
