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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.