Why 50 Shots is Not Excessive

Last week, a federal jury found that firing more than 50 bullets is not excessive force.

In March 2014, four San Francisco police officers responding to a 911 call reporting a man with a gun encountered 28-year old security guard Alex Nieto, who was armed with a Taser and wearing a 49ers jacket as he ate a burrito in Bernal Heights Park.

After a brief verbal exchange, a one-sided firefight ensued, leaving Nieto dead by over a dozen bullet wounds. Police later testified in court that they thought he was a gang member with a gun — making that determination from a distance of over 100 feet.

One police officer, a 25-year-old rookie, testified that he emptied his service pistol's entire 13-round magazine, reloaded, and fired 10 more times at an already-prone, and quite probably dead Nieto.

That sounds like the definition of excessive; why was such force deemed justifiable in court?

“There are two parts to the Nieto case,” says Hadar Aviram, a law professor at UC Hastings who followed the case closely. “One part is what the law requires. The other part is how that interacts with politics, behavior issues, and biases.”

In terms of the law, jurors had a very limited role: They were to consider whether the police “acted under color of law,” and if police “deprived [Nieto]” of his Fourth Amendment rights when they shot and killed him.

In a precedent-setting case from the 1980s, the Supreme Court found that a cop who believes his or her safety — or the safety of the public — is in jeopardy is allowed to use lethal force. And once lethal force is deployed, police training manuals allow it to be used, repeatedly if need be, until the “threat” is “neutralized.”

While jurors have not spoken publicly about what they discussed in the jury room, that standard — if a “reasonable” police officer would have found his or her safety at risk when encountering Nieto — seemed to be the key when jurors considered. (That also meant that later questions on the jury's verdict form, such as whether police continued to fire even after Nieto was clearly incapacitated or dead, were never addressed.)

“It seemed to me to be excessive,” says Aviram, who noted that juries who are white tend to side more often with the police if the defendant is of color. (Nieto is Latino; all the jurors were either white or Asian.) “But the standard is vague.”

Other legal scholars found issue not with the jury, but with their instructions.

“Was it one police response, or was it 50 responses?” asked Franklin Zimring, an outspoken professor of law at UC Berkeley's Boalt Hall. “Isn't each shot a separate act? The acts are all separate; you aggregate them if you want to.”

In the Nieto case, U.S. Magistrate Judge Nathanael Cousins apparently chose to aggregate. That's not rare, Zimring says.

Under the law, generally, “[i]f the first shot is justified, all the shots are justified,” he says. “That sounds like it's very wrong, but it's very common.”

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