- THE WEAPON Is this a real AK-47 or a toy replica?*
A lawsuit filed by the parents of Andy Lopez enters its next phase on May 10, when a three-judge panel at the U.S Court of Appeals for the 9th Circuit in Pasadena will consider an appeal filed by defense attorneys on contract with Sonoma County.
At issue is the liability of the Sonoma County Sheriff's Office employee involved in the 2013 shooting of the 13-year-old, and whether Sgt. Erick Gelhaus should be granted qualified immunity as the family seeks damages for the death of the boy.
Lopez was shot seven times and killed while carrying a replica AK-47 pellet gun and a replica handgun along Moorland Avenue in Santa Rosa. The county has argued that Gelhaus' use of deadly force was reasonable and constitutional under the rapidly unfolding circumstances.
One issue that the Pasadena court may confront as it hears arguments was highlighted by 9th District Judge Phyllis J. Hamilton in a January 2016 ruling at the U.S. District Court in Oakland, and revolves around the position of the barrel of the replica at the time Gelhaus fired his weapon at the boy. The court may consider whether the county's version of events is consistent with what the officer himself told investigators with the Santa Rosa Police Department in the aftermath of the shooting.
Lawyers for the county asked for a multi-point summary judgment from Hamilton on the civil suit against the county and Gelhaus. Hamilton granted three of the county's requests and denied two, and said the issue of whether the shooting was reasonable ought to be determined by a jury, which prompted the county's appeal to the Pasadena district court.
Hamilton wrote that in asking for a summary judgment and dismissal, defendants never established that "Andy actually threatened the officers with the rifle that he was holding" and never pointed it at anyone. She noted that Gelhaus, in his declaration, only said that as Lopez turned to face the officers, "the barrel of the weapon was coming up."
In their appeal to the Hamilton ruling, the defendants' attorneys stressed that Gelhaus, a military veteran, had confiscated actual AK-47s within blocks of the Lopez shooting, as they highlighted the weapon's 30-round lethality and Lopez's failure to comply with Gelhaus' demand to "drop the gun."
They wrote that he also "started to raise the gun up and towards the deputy and his partner." Hamilton said the county oversold this argument in its request for a summary judgment with "carefully phrased language," such as that Lopez "turned and began to point" the weapon and "that he was 'in the process of pointing [it] at the deputies'" (Hamilton's emphasis).
The FBI was on-scene in the aftermath of the Oct. 25 shooting, and in an unclassified assessment of the incident says that "as Lopez was turning around, Deputies said the gun was being raised into a position directed at them."
Both sides in the case agree that the barrel was pointed downward as Lopez began to turn and face the deputies, but in her ruling Hamilton said there was no way the officers could have known he would continue to move the weapon up and in their direction. Nobody disputes that Lopez was shot within three seconds of Gelhaus' exiting his patrol car driven by Deputy Michael Schemmel, who did not fire his weapon.
In their appeal, the county's lawyers said Hamilton had erred in allowing hindsight to guide her, rather than the totality of the circumstances that led to the shooting. Of course, they argued, if Gelhaus knew that Lopez was 13 years old and the weapon was a replica, he would not have shot him.
The Pasadena oral arguments begin at 9am, and Sonoma County residents can check the website for a live video and/or audio feed from the court at www.ca9.uscourts.gov/media.
*It's a replica.