Slaying Made Father an Activist : Prisons: Outrage replaced grief when he learned a guard shot son--in the back. Lawsuit may shed light on use-of-force rules.

He was known as Angry Bear, and the name seemed a fitting emblem for his turbulent life.

Half Apache Indian, he was devoutly spiritual as a boy, taking solitary treks to sacred mountain peaks and embracing other traditions of his people.

But along the way Anthony Nieto veered down a path toward trouble, and ran afoul of the law. In 1988, his brief life ended in Folsom State Prison. At 26, the Apache reared in the mountains southeast of Riverside was shot by a guard during a melee in the prison yard.

At first Angry Bear’s father accepted his son’s fate, spelled out in a prison telegram that said he was shot in the chest while attacking another inmate.

But then Joe (Tony) Nieto received letters from prisoners who said Angry Bear was actually shot in the back while defending himself against punches. When an autopsy confirmed the bullet’s entry route, the father’s grief was quickly edged aside by outrage.

Since then, Nieto has waged a feverish campaign from his modest Mira Loma home, working to uncover the full truth about his son’s death and force changes in regulations governing the use of firearms in California’s prisons.

Now that crusade is nearing a climax. Within weeks, a federal court jury in Sacramento may begin considering a lawsuit filed by Nieto against the state Department of Corrections and the guard who shot Angry Bear.

“They thought I was asleep in the tepee on the reservation,” said Nieto, a man of “59 winters” who wears his thick, graying hair in a neat ponytail. “They figured I’d just accept my son’s death, no questions asked, and that would be it. They were dead wrong. They made an activist out of me.”

The lawsuit, which also names former state Director of Corrections James Rowland and Folsom State Prison Warden Robert Borg as defendants, claims that guard Moises Guerrero violated Anthony Nieto’s civil rights by using excessive force in responding to the prison yard fight.

Guerrero, the lawsuit charges, fired his weapon hastily without first issuing a warning or attempting other, less hazardous measures to calm the altercation.

The lawsuit also alleges that Guerrero and prison authorities “engaged in an attempted cover-up” by claiming that Nieto was shot in the chest and distorting other circumstances of the shooting to justify the guard’s action.

The suit is expected to shine a rare spotlight on rules regulating the use of weapons by corrections officers in the state’s penal institutions. The lawsuit alleges that Angry Bear died because of an “informal” policy that encourages guards “to shoot to kill without warning and in those circumstances where there is no reasonable threat of great bodily harm or death.”

“I have the feeling that none of those (officers) out there using rifles have any idea of when they can and when they can’t shoot,” said Tito Torres, Nieto’s San Francisco attorney. “They see the prison as a free-fire zone. To me, that’s the only thing that explains the complete indifference this guy (Guerrero) showed for human life.”

Guerrero, a 10-year corrections department employee who was promoted to sergeant about six months after the shooting, could not be reached for comment.

Corrections officials deny Guerrero used excessive force in shooting Nieto’s son and defend prison policies.

“The policy has always been shoot to disable, not shoot to kill, and the officers receive extensive training about that,” said Cammy Voss, a Folsom spokeswoman. “We always (try to) prevent the loss of life. . . . But the gunman can’t control the movement of the target.”

Voss said Nieto was the only inmate killed by gunfire at Folsom Prison in 1988. Another 17 were injured. In 1989, there were two shooting deaths and 17 injuries at Folsom, and in 1990 one inmate was killed and six others injured by gunfire.

Statewide, two inmates were killed and 25 wounded by officer gunfire in the system’s 21 prisons in 1988. Three inmates were killed and 47 injured in 1989. Three more deaths occurred in 1990; injury statistics for that year were not available. The highest number of fatal shootings in a single year was recorded in 1987, when six inmates died.

Angry Bear Nieto died on June 2, 1988, in the exercise yard outside the security housing unit at Folsom, a 7,200-inmate prison near Sacramento. A self-styled “jail house lawyer” and advocate for inmate rights, he was serving a 10-year sentence for armed robbery--his second term in state prison.

Folsom officials said Nieto was shot while making a stabbing motion during a fight involving as many as 12 inmates belonging to rival gangs.

In a sworn deposition obtained by The Times, Guerrero said he did not see any knives or other weapons used by the scuffling inmates, a fact confirmed by an internal investigation that failed to turn up any such evidence.

Nonetheless, Guerrero said he fired two shots with his high-powered rifle because he believed “a life-threatening situation existed” on the yard below his gun post. The officer said Anthony Nieto was about 10 yards away from him and that he aimed at his left arm.

Initial accounts released by the prison said Angry Bear had been shot once in the chest. Later, however, the Sacramento County coroner determined the bullet struck the inmate in the back, entering through a Gothic-style “R” in a tattoo that said “Red Power.”

Voss said the discrepancy resulted from “the premature release” of incorrect information. In a telephone interview, she also said that Nieto failed to heed “several verbal warnings” from Guerrero.

But Guerrero said in his deposition that he never issued a warning of any kind. He issued no verbal warning “because of the number of people that were involved and the altercation that was occurring,” he said. Firing warning shots is prohibited in the recreation yard, he said, because of the danger that bullets might ricochet off concrete surfaces.

Troubled by conflicting evidence in the case, state Sen. Robert Presley (D-Riverside), chairman of the Legislature’s Joint Committee on Prison Construction and Operations, requested an investigation of the shooting by the Sacramento County district attorney.

Supervising Deputy Dist. Atty. Albert Locher concluded in a 7-page report that Guerrero’s action was not “unreasonable” and ruled the shooting justified.

Voss said the shooting was also declared appropriate by the Department of Corrections’ shooting review board, a three-member panel that evaluates such incidents and makes a report to the director.

Torres, Nieto’s attorney, disputes those findings.

“It would have been a lot different if (the guard) had seen (Angry Bear) with a knife in his hand, or a sharpened toothbrush, or any sort of jail dagger,” Torres said. “But he didn’t and he fired anyway. And I think that suggests there is something wrong with the policy and the training these officers receive,” including “how to discern between a situation where there is a chance of death and those situations where it will be just bumps and bruises.

“Did this situation warrant lethal force?” Torres asked. “I don’t think so.”

Corrections officials said officers who staff gun posts receive quarterly training in addition to their initial work at the peace officers academy.

Christine May, a department spokeswoman in Sacramento, said the training includes requalification in weapons handling on the gunnery range as well as instruction on rules covering the proper conditions for use of firearms.

“The policy regarding lethal force very clearly establishes that force should be used to disable, not to kill,” May said. “It is made very clear to (officers) that shooting is the last resort.”

At home in Mira Loma, Tony Nieto waits eagerly for his day in court, the day a jury will weigh facts he long ago committed to memory. Surrounded by boxes and scrapbooks brimming with his eldest son’s letters, photographs and other keepsakes, Nieto said resolution of the lawsuit will close a painful chapter--but not end his story.

“I used to be a typical man, working every day and just living my life,” said Nieto, a security coordinator at a Riverside citrus packing plant. “But when they shot my son in the back, they turned me into a fighter.

“I know what I do won’t bring back Angry Bear. But it might help other inmates and their families. It might stop the bullets from flying next time.”