Officer Must Face Jury Over Shooting of Child With Toy Gun

The Sonoma County sheriff’s deputy must face a civil jury trial over whether he used excessive force in shooting a 13-year-old boy as he walked down the street carrying a toy assault rifle, a federal appeals court ruled Friday.

Andy Lopez

The 9th U.S. Circuit Court of Appeals upheld a trial judge’s finding that Sgt. Erick Gelhaus must face trial on potential liability for claims of use of excessive force by the family of Andy Lopez.

The three-judge panel held 2-1 that evidence suggests Gelhaus killed Lopez as he stood on a sidewalk holding a replica assault rifle as it was pointed down at the ground. Gelhaus shot the youngster without warning him deadly force would be used and without seeing any aggressive behavior.

“A reasonable jury could find that Gelhauss’s use of deadly force was not objectively reasonable,” wrote judge Milan Smith, joined by Judge Richard Clifton.

Lopez was shot in October 2013. Gelhaus and his partner Michael Schemmel were on a routine patrol in an area known for gang activity.

Prior to the shooting, a driver witnessed Lopez walking with what looked like an AK-47 and thought it was a child. As the driver approached Lopez from about 50 feet away he saw it and thought it “looked fake,” according to the court.  He did not feel threatened and did not report Lopez.

During the officers’ patrol they spotted Lopez with the rifle and pulled the patrol car to 45 feet away, parked at a 45-degree angle and Gelhaus got out, crouching behind the car door, pistol drawn and ordered Lopez to drop the gun.

Lopez, who had continued walking, was now roughly 65-feet away and turned in the direction of the officers. At that point stories diverged. Lopez rotated his body and the officers say they saw the weapon come around and the barrel coming up. At that point Gelhaus fired eight shots in rapid succession. Seven hit Lopez.

It was only after the officers approached Lopez that they saw the gun was made of plastic and designed to replicate an AK-47 but did not have an orange tip at the end of the barrel, indicating it was a toy.

The Lopez family sued and a trial judge refused to dismiss the lawsuit or grant Gelhaus immunity from prosecution.

In dissent, Judge Clifford Wallace said it is understandable that the family wants to hold Gelhaus liable in this tragic case. But case law requires that it was clearly settled that shootings in similar circumstances have been found unreasonable. No such case law existed at the time of the Lopez shooting in 2013, Wallace said.  He found that Gelhaus should have been given qualified immunity.

Case: Estate of Lopez v. Gelhaus, No. 16-15175

 

 

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