SAN FRANCISCO (CN) - A Sonoma County sheriff's officer killed a 13-year-old boy who was holding a toy rifle, the boy's parents claim in Federal Court.
Sonoma County Sheriff's Officer Erick Gelhaus shot Andy Lopez on Oct. 22 as the boy walked along a Santa Rosa sidewalk carrying an "airsoft-type toy rifle" at his side, his parents claim in the civil rights lawsuit.
The parents, Rodrigo Lopez and Sujay Cruz, say their son was walking alone, returning the toy to a friend.
Gelhaus and another deputy saw the boy from their patrol car, pursued him and came to a stop about 35 feet away.
"As they came to a stop, the deputies could tell that Andy Lopez was a young teenager," the parents say in their complaint. "As the vehicle stopped, one of the deputies shouted out one command to Lopez from within the patrol car. The deputies did not identify themselves as police officers.
"The deputies knew that upon hearing their command, Lopez would turn to face them.
"As their patrol car came to a stop, the two deputies opened their doors and simultaneously stepped out of the vehicle. They both drew their sidearms and pointed them at Lopez.
"As they did so, Lopez turned to his right in response to their command. The toy gun was at his side.
"As Lopez was turning to his right, defendant Gelhaus fired his pistol at Lopez.
"From the time that the deputies called out to Lopez until the time that Gelhaus fired his first shot, only three seconds elapsed.
"The first bullet that was fired hit Lopez and he fell to the ground immediately. Defendant Gelhaus continued to fire at Lopez as he lay on the ground.
"Gelhaus shot indiscriminately, with several shots missing Lopez and striking a nearby home.
"Prior to being shot, Lopez was unaware that the deputies were present.
"Prior to being shot, Lopez did not make any threatening gestures or movements.
"The gunshots that struck Lopez caused him great pain and suffering. Some time after being shot, he died on the sidewalk."
Lopez's parents claim Gelhaus violated their son's Fourth Amendment rights and amounted to an unreasonable seizure.
"At the time that Lopez was shot he was not engaging in, nor had he engaged in, any assaultive or threatening conduct," the parents say in the 12-page complaint. "He posed no danger or threat to Gelhaus or anyone else. The shooting and killing of Lopez was unreasonable under the circumstances in every respect."
Of the eight shots Gelhaus fired at Lopez, seven struck the boy, according to the Santa Rosa Press Democrat. Two of the wounds were considered fatal, the newspaper reported.
The family also claims Sonoma County knew - and covered up - Gelhaus' long history of misconduct, often involving his weapon.
"Gelhaus had engaged in a custom and practice of reckless and dangerous use of firearms and other misconduct: a. As far back as 1996, Gelhaus demonstrated unfitness to work as a peace officer when he responded to a call involving Karin Futch. Upon arriving at her home in response to a neighbor dispute she reported, he pulled his firearm and pointed it Ms. Futch who was carrying her young son. He chased her around her vehicle causing her great fear and anxiety; b. In about 1996 also, Gelhaus and his then partner were accused of falsifying police reports in a domestic violence matter. Gelhaus' partner was fired for the misconduct; c. In October of 2013, Gelhaus made a routine traffic stop of Jeffrey Westbrook and recklessly and unnecessarily pointed his pistol at Westbrook's head while he sat in his car; d. In 1995, Gelhaus shot himself in the leg during a stop and search involving a teenager," the parents say in the complaint.
Days after Lopez's death, the FBI announced it would investigate "to see if a federal crime was committed," according to a second report by the Press Democrat. The shooting has spawned several protests, including a vigil with more than 1,000 attendees before the boy's funeral.
Police said the gun Lopez carried looked like an AK-47 assault rifle but was only capable of firing pellets. They claimed the pellet gun lacked an orange muzzle, required by law and used by law enforcement to distinguish between real and toy guns.
The Santa Rosa Police Department - which is conducting the local inquiry - told the Press Democrat that Gelhaus said he believed he and his partner were in danger when Lopez did not comply with commands to drop the gun. The department also said the officers claimed Lopez raised the barrel of the gun while turning toward the deputies.
Sonoma County Counsel Bruce Goldstein called the parents' lawsuit "premature," saying it came only days after filing the required tort claim with the county, without time for the agency to resolve the issue.
"To be doing civil litigation before a criminal investigation is complete has the potential of interfering with the conduct of the full criminal investigation by the Santa Rosa Police Department and the District Attorney's Office," Goldstein told the Press Democrat. "It does a disservice to the dialogue going on where people are trying to in good faith understand what happened and how to prevent such occurrences in the future."
Lopez's parents seek compensatory and punitive damages. They are represented by Arnoldo Casillas, with Casillas, Moreno & Associates, of Montebello.
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