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The Appeal

Qualified immunity considered for SCSO officer involved in 2013 shooting of Andy Lopez

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DAY IN COURT  The May 10 Ninth Circuit Court hearing was prompted by Sonoma County’s appeal for qualified immunity for Sgt. Erick Gelhaus. A lower court previously rejected the request.
  • DAY IN COURT The May 10 Ninth Circuit Court hearing was prompted by Sonoma County‚Äôs appeal for qualified immunity for Sgt. Erick Gelhaus. A lower court previously rejected the request.

On Wednesday, May 10, a three-judge federal appeals panel in Pasadena heard from plaintiff and defendant lawyers in a civil lawsuit centered on the 2013 officer-involved shooting death of Andy Lopez.

The 37-minute-long proceeding at the United States Court of Appeals for the Ninth Circuit was prompted after attorneys for Sonoma County Sheriff's Office Sgt. Erick Gelhaus appealed a December decision in U.S. District Court which rejected a summary judgment request for qualified immunity for Gelhaus, who shot Lopez on Oct. 22, 2013, while the youth was carrying a replica AK-47 on Moorland Avenue in Santa Rosa.

The court met to consider the appeal and whether conflicting witness testimony over issues of material fact were in dispute — and if so, whether they should uphold the lower court's ruling or overturn it. They did not meet to pass judgment on Gelhaus or Lopez, but to consider whether a jury trial was the appropriate legal venue to sort out the conflicting witness accounts.

The main takeaway from the proceeding: Given the arc and tone of the questioning and observations from the judges, a 2–1 vote to reject the appeal and send it back to the district court for trial would not be surprising.

Justice Milan Dale Smith, a George W. Bush appointee, said there were six issues of material fact that were contested by witness accounts of the tragedy—including by Gelhaus' own deposition about the shooting.

Smith peppered Gelhaus lawyer Noah Blechman with questions and observations as he highlighted that the lower court had ruled there was "no threat to officer Gelhaus based on where the gun was pointing when Andy turned."

The Sonoma County Sheriff's Office veteran had said "he didn't know where the gun was pointed" when he used lethal force, Smith said.

Blechman countered that the officer had ordered Lopez to drop the gun, and that he instead started to turn toward the officers.

"The law allows him to use deadly force," Blechman said. "They said they saw the gun coming up and around. They don't have to point the weapon [at the officers]. [Gelhaus] is looking at his sights. He is not looking at the hand or where the gun is pointing."

This was a "harrowing gesture," Blechman said, and lethal force was justified.

Smith and Justice Richard Clifton, also a Bush appointee, both noted the court's role in the proceeding, given "major conflicted facts" and the absence of a live defendant. Smith did most of the questioning of Blechman while Clifton offered occasional observations and questions directed at Blechman.

Given the absence of testimony from Lopez himself, as the court rules on the appeal and considers the conflicting testimony, the judges are bound to consider the facts as presented in the most favorable light to Lopez. Their job is to determine whether a jury could reasonably decide that Gelhaus violated Lopez's Fourth Amendment rights against unreasonable searches and seizures.

Through his questioning of plaintiff's lawyer Gerald Peters, John Clifford Wallace appeared to indicate support for the defendant's argument that Gelhaus acted appropriately and constitutionally under the quickly unfolding circumstances, which involved a replica AK-47 in a neighborhood where Gelhaus said he had encountered real ones.

Wallace, appointed to the appeals court by Richard Nixon in 1972, asked attorney Gerald Peters to account for the officers' use of their hailing system to emit a short "chirp" at Lopez, and the order to "drop the gun," which was not abided.

Peters said the officers had never identified themselves or used their public address system to hail the youth.

The police were under no obligation to do either, Wallace said, even if it was unfortunate, in retrospect, that they had not done so. "There [were] police around, and somebody yelled at him, 'Drop the gun.'"

Peters told the judges that Lopez's casualness in facing the officers indicated that the youth had made no immediate connection that the deputies were chirping at him from across an intersection, 120 feet away.

He was shot when the officers were about 40 feet from him. In that situation, Peters said, it would be reasonable to conclude that Andy turned around to see who was yelling at him.

Gelhaus ordered him to "Drop the gun" and shot the youth within three seconds of the command. "Andy was never given an opportunity to comply with the order," Peters said.

Blechman argued that qualified immunity was justified and offered a broad array of cases where officers had been justified in the use of deadly force for reaching for a weapon or making a gesture toward one.

But, he said, his client's case was so unique—the potential deadliness of the weapon, the split-second necessity as Lopez faced the officers—that "there's no case" he could cite to provide a direct precedent.

Smith said the case was not unique at all, and that the court saw cases of toy guns and police interacting in tragic cases all the time.

"You're saying this is unique? This is not unique. That's the problem. . . . There is no license for police to kill teenagers within three seconds. That is not the law."

Blechman said that he agreed with Smith that toy guns are a social problem, but argued that Gelhaus should "not have to pay the price for the social problem of toy guns."

Smith tellingly remarked to the Lopez family lawyer Gerald Peters: "I think you have a very strong case on the facts that you are not arguing."

Peters said he had those facts, but that Judge Wallace's questions had prevented him from offering them to the court.

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