SAN FRANCISCO (CN) - A jury will decide whether a police officer was justified in killing a 13-year-old boy who was holding a toy gun, a federal judge ruled.
Only three seconds elapsed between the time Sonoma County Sheriff's deputies called out to Andy Lopez and when deputy Erick Gelhaus fired seven shots that killed the teen as he turned to face them, according to a 12-page complaint filed by the boy's parents in Federal Court.
The incident occurred on Oct. 22, 2013, as Lopez walked along the sidewalk of a residential neighborhood in rural Sonoma County, holding an "airsoft-type toy rifle."
Defendants describe the rifle as a toy gun made to resemble an AK-47 and claim that the red tip required by law to indicate it is not a weapon had been removed.
The boy's parents, Rodrigo and Sujey Lopez, say their son was unjustifiably shot by Gelhaus, who claims the gun was "com[ing] up and towards them" - causing him to believe Andy posed a "significant threat" to him and his partner.
Gelhaus, who has been the focus of previous officer-involved shooting investigations, fired a total of eight shots at Lopez, hitting him seven times. Two of the shots were fatal.
The boy's parents sued Gelhaus and the Sonoma County in November 2013 for unreasonable seizure under the federal civil rights code and Fourth Amendment violations, municipal liability for unconstitutional customs and practices, interference with familial integrity - styled as substantive due process - and wrongful death, in addition to a "survivorship" claim.
Gelhaus and the county filed a motion for summary judgment in November 2015, with Gelhaus arguing in part that even if Lopez was not a threat, the officer perceived him to be a threat. Gelhaus also claimed he is protected from litigation under the doctrine of qualified immunity.
U.S. District Judge Phyllis Hamilton questioned Gelhaus' assessment of Lopez as he turned around.
"The court can conclude only that the rifle barrel was beginning to rise; and given that it started in a position where it was pointed down at the ground, it could have been raised to a slightly higher level without posing any threat to the officers," she said in a 19-page order issued Wednesday. "Defendants have not shown that summary judgment is warranted, as there remains a triable issue of fact as to whether defendant Gelhaus' use of deadly force was reasonable."
Hamilton acknowledged that police officers are "often forced to make split-second decisions" under duress, but that "the question of reasonableness is best resolved by a jury, not by the court on summary judgment."
She also rejected Gelhaus' argument for quailed immunity, applying a formula that asks whether, under the specific circumstance, it was clearly established that it was unreasonable to use deadly force "where the suspect appears to be carrying an AK-47, but where officers have received no reports of the suspect using the weapon or expressing an intention to use the weapon, where the suspect does not point the weapon at the officers or otherwise threaten them with it, where the suspect does not 'come at' the officers or make any sudden movements towards the officers, and where there are no reports of erratic, aggressive or threatening behavior."
She said that "the court finds it was clearly established, and thus, qualified immunity does not shield Gelhaus from liability."
Hamilton granted summary judgment in favor of the county, as well as on the parents' survivorship claim.
"Because the first cause of action already provides a mechanism to seek damages for the harm suffered by Andy, including pre-death pain and suffering, the fifth cause of action is duplicative," she said.
The parents' attorney, Arnoldo Casillas of Casillas, Moreno & Associates in Montebello, California, said that although it does not bring their son back, Rodrigo and Sujey are relieved that they might see some degree of justice.
"The Lopez family was certainly disappointed when the district attorney decided not to pursue criminal charges; it was like killing their son all over again," Casillas said. "But Judge Hamilton's order yesterday offered them some hope that Gelhaus will be held accountable for his actions, and I believe a jury will find that he unreasonably used deadly force when he killed Andy."
Casillas said that Gelhaus is an Iraq war veteran who suffers from post-traumatic stress disorder.
A trial date has been set for April 11.
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