PASADENA, Calif. (CN) – A Sonoma County sheriff’s deputy must face civil claims from the family of a 13-year-old boy he killed after mistaking the boy’s toy rifle for an AK-47, the Ninth Circuit ruled Friday.
On Oct. 22, 2013, the afternoon he was shot and killed, school was out for the day and Andy Lopez was walking on a Santa Rosa sidewalk to his friend’s house.
The toy gun Lopez was swinging at his side was missing the orange tip that designates it as a replica, but expert witnesses for the police in the case have conceded that officers were far enough away at the time of the shooting that they would be unable to distinguish the tip in any case.
Sheriff’s Deputy Erick Gelhaus was on a routine patrol with his partner when he observed Lopez from a distance of 100 yards.
In 20 seconds, Gelhaus’ partner had spun their vehicle around and chirped the siren while Gelhaus propelled himself from the car, ordered Lopez to drop the weapon, and fired eight shots.
Seven of those shots hit Lopez in the chest, and he died at the scene.
After Chief U.S. District Judge Phillis Hamilton advanced civil claims by Lopez’s family against Gelhaus in Oakland last year, the deputy appealed to the Ninth Circuit.
Rejecting that bid Friday, a divided three-judge panel determined that “a reasonable jury could conclude that Gelhaus deployed excessive force in violation of the Fourth Amendment.”
“Additionally, the alleged violation of Andy’s Fourth Amendment right was clearly established at the time of Gelhaus’s conduct,” U.S. Circuit Judge Milan Smith Jr. wrote for the majority.
Senior U.S. Circuit Judge J. Clifford Wallace wrote in dissent that the majority improperly discounted evidence that the barrel of Lopez’s toy gun was beginning to rise as he turned around to look at Gelhaus.
Wallace accuses the majority of employing a “distorted reading” of the lower court’s decision, emphasizing that that court had found that the gun “was beginning to rise” as the boy turned to face Gelhaus and his partner, which lead the officer to believe they were in “imminent danger.”
“The majority opinion exhaustively recounts the facts of the case, but for me, they are largely irrelevant,” Wallace wrote. “One critical fact — the upward motion of the fake gun — resolves the qualified immunity issue in Deputy Gelhaus’s favor.”
Smith’s opinion meanwhile says a reasonable jury could conclude that Lopez’s gun “never rose to a position that posed any threat to the officers.”
“The dissent’s accusations are as seismic as they are unconvincing,” the majority opinion states.
Smith accused Wallace of falsely reframing the incident as a “duel” between the teen and deputy, who “avoided imminent peril only by firing at Andy just before Andy fired at him.”
He chided Wallace as well for ignoring the evidence that Lopez had not threatened or acted aggressively toward Gelhaus and his partner.
“The dissent also apparently believes that the district court not only made this factual finding, but then made the rather inexplicable decision to ignore this obvious threat in its qualified immunity analysis,” Smith said with regard to the “duel.”
“To be sure, if those were the facts, it would be hard to see how the district court could have denied summary judgment on the Fourth Amendment claim and on qualified immunity,” Smith added. “But those were not the facts the district court found.”
Noah Blechman, an attorney for Gelhaus with McNamara Ney Beatty Slattery Borges & Ambacher, disagreed with the majority’s assessment.
“In this scenario there was no time for the officers to determine exactly his intentions before he turned around and the gun started coming up and around towards the officers,” Walnut Creek-based Blechman said in an interview.
The dissent by Wallace claims that there was no evidence to support “speculation,” based on three-dimensional models of Lopez’s movements presented by an expert for the family, that the gun had stopped rising by the time Gelhaus fired.
“In reaching the opposite conclusion, the majority accuses me of making an assumption regarding this fact that is improper at the summary judgment stage,” Wallace said. “I have done no such thing. In fact … it is the majority whose position is unsupported by the record.”
Gerald Peters, an attorney for the Lopez family based in Thousand Oaks, blasted the dissent as coming from a “law-and-order judge appointed by Richard Nixon.”
“The justice didn’t consider at all that Gelhaus shot Andy seven times, which was sort of remarkable,” Peters said of Wallace. “It was purely the gun coming up, therefore he had the right to shoot.”
U.S. Circuit Judge Richard Clifton concurred with Smith.