All three judges on the appeals panel indicated at the Wednesday hearing that a jury would need to decide whether sheriff’s Officer Erick Gelhaus was justified in killing Andy Lopez, because the two sides disagree about what happened — and even Gelhaus himself was not sure.
“There is no license for police to kill teenagers within three seconds when even that officer said that the gun was not pointing at him or even coming up to point at him and others say the same thing. That’s not the law,” Ninth Circuit Judge Milan Smith told Gelhaus’s attorney Noah Blechman.
Lopez was walking along a Santa Rosa sidewalk on Oct. 22, 2013 carrying a toy gun that looked like an AK-47 rifle when Gelhaus and another deputy, from their patrol car, ordered him to “Drop the gun!”
The toy gun’s orange tip, required by law to indicate that it is not a weapon, was missing, and Gelhaus mistook it for the real thing.
Gelhaus and his partner did not identify themselves as police officers, and when Lopez turned to see who was shouting at him, Gelhaus fired seven shots and killed him. Only three seconds elapsed between the time the deputies called out to Lopez and Gelhaus’s firing his pistol.
Lopez’s parents sued Gelhaus and the county the following month for use of deadly force, for wrongful death, Fourth Amendment violations and other claims.
The defendants sought summary judgment two years later, arguing that even if Lopez was not a threat, the officer perceived him to be because Lopez had begun to raise the gun toward the officers as he turned to face them.
Andy’s parents say the gun was pointing toward the ground while Lopez turned.
Gelhaus also claimed he was protected by qualified immunity.
U.S. District Judge Phyllis Hamilton denied Gelhaus’s motion for qualified immunity in January 2016, ruling that the law is “clearly established” that it is unreasonable for officers to shoot a suspect who, among other things, has not pointed a weapon at them.
Judge Hamilton disagreed with the defendants’ contention that Lopez had begun to raise the barrel of the gun as he turned, writing that “Andy was already holding a weapon pointing down at his side, and merely turned around in response to an officer’s command, with no ‘sudden movement’ towards the weapon.”
The disagreement over whether Lopez pointed the toy rifle at the officers or kept it by his side was a critical element at the Wednesday hearing, with the panel signaling that the case would have to go to trial to determine what actually happened when Lopez was shot.
“The question is, what are the facts? And in this case, the facts vary — at least six material facts,” Judge Smith told Gerald Peters, who represents Andy Lopez’s estate. “And when we have that kind of thing, we have to assume the facts most favorable to your client and remand to the district court for trial.”
Senior Circuit Judge Richard Clifton added: “Officer Gelhaus himself testified at his deposition he didn’t know where the gun was pointing. That seems to me to open the door to a jury concluding that maybe he wasn’t ‘looking down the barrel of a gun.’ Maybe I could conclude as a juror that the dangerous threat that would justify the use of deadly force just wasn’t there.”
Though Gelhaus’s attorney Blechman insisted throughout the hearing that “when he starts turning and the barrel starts raising, deadly force is reasonable,” the judges repeatedly reminded him that Gelhaus did not know where the toy gun was pointing.
“Under those circumstances,” Smith said, referring to the conflicting stories, “couldn’t a reasonable jury find that Officer Gelhaus violated the Fourth Amendment rights of Andy Lopez by using excessive force?”
Senior Circuit Judge J. Clifford Wallace also sat on the panel.
Blechman is with McNamara, Ney, Beatty, Slattery, Borges & Ambacher in Walnut Creek; Peters practices in Thousand Oaks.