Supreme Court Refuses to Review Police Shooting Appeal

(CN) – The U.S. Supreme Court turned down a Sonoma County sheriff’s bid to toss a lawsuit over the 2013 killing of a 13-year-old boy carrying a toy rifle, clearing the way for a trial in Oakland, California.

The county and sheriff’s Officer Erick Gelhaus had appealed after the Ninth Circuit ruled last September that Gelhaus must face civil claims for shooting the boy, Andy Lopez. He argued his actions were justified because he believed the toy was an AK-47 assault rifle and that he had acted in self-defense when he saw Lopez allegedly raise the gun toward him.

Lopez was walking along a Santa Rosa sidewalk to his friend’s house on Oct. 22, 2013 carrying the toy rifle when Gelhaus ordered him to drop the weapon and then fired eight shots, killing him.

In January 2016, Chief U.S. District Judge Phyllis Hamilton denied Gelhaus qualified immunity in a lawsuit filed by Lopez’s family, ruling that a jury must decide whether Gelhaus acted unreasonably.

In making her ruling, Hamilton disagreed with the defendants’ argument that Lopez had begun to raise the barrel of the gun as he turned. The law, she noted, prohibits officers from firing at suspects who haven’t pointed a weapon at them.

A divided Ninth Circuit panel affirmed Hamilton last September, finding that a reasonable jury could conclude that Lopez’s gun “never rose to a position that posed any threat to the officers.”

But Senior U.S. Circuit Judge J. Clifford Wallace wrote in a dissent that the majority had improperly discounted evidence that the barrel of Lopez’s toy gun was beginning to rise as he turned.

Noah Blechman, an attorney for the defendants with McNamara Ney Beatty Slattery Borges & Ambacher, said the Supreme Court’s decision was disappointing.

“It was important to get the Supreme Court to weigh in and provide some clarity and guidance to law enforcement locally and nationally with regard to how they can react in a split-second, life-or-death type of scenario,” Blechman said by phone, “especially in our fact pattern and case where it was undisputed that the apparent AK-47 assault weapon was turning and rising towards the involved deputies.”

He added: “[The Supreme Court] leaves this question unanswered as to whether the lower court’s denial of qualified immunity conflicts with Ninth Circuit precedent and recent Supreme Court precedent,” including April 2018’s Kisela v. Hughes.

In Kisela, the Supreme Court reversed the Ninth Circuit and ruled that an officer was entitled to qualified immunity because his actions didn’t violate clearly established rights.

Gerald Peters, a lawyer for the Lopez family, said the Supreme Court’s action “was the best possible result for my clients,” in light of Kisela.

“The Supreme Court has been increasingly hostile to the denial of qualified immunity to police officers in shooting cases,” he said by phone. “The danger was that they would apply that presumption against both Ninth Circuit cases and police shooting cases to this case.”

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