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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.

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