California deputy may face jury in civil suit for killing of teen with toy gun

A three-judge panel signaled on Wednesday that a California deputy who shot and killed a teen holding a toy rifle should stand trial.

The Ninth U.S. Circuit Court of Appeals judges indicated a jury would have to decide whether Sonoma County sheriff’s deputy Erick Gelhaus was justified in killing 13-year-old Andy Lopez nearly four years ago.

Lopez was walking along a road in Santa Rosa, California on Oct. 22, 2013, holding a toy gun that looked like an AK-47. The orange tip of the replica — which signifies it’s a toy —  was missing, leading Gelhaus to believe the gun was real. The deputies pulled up behind Lopez, and, without announcing they were officers, they ordered him to “Drop the gun!” Three seconds later, Gelhaus opened fire, shooting at the teen seven times. Lopez died at the scene.

Gelhaus’ lawyers argue that as the teenager turned to face the deputies, he was starting to raise the barrel of the toy rifle, leading Gelhaus to perceive him as a threat. Lawyers for Lopez’s family say the toy gun was still pointing at the ground as the teen turned around. Noah Blechman, an attorney for Gelhaus, faced questions Wednesday from the judges about that point.

“Is the jury compelled to find that (Gelhaus) was staring down the barrel? The description ‘starting to raise’ is pretty vague,” said Senior Circuit Judge Richard Clifton. “And Officer Gelhaus himself testified at one point that he didn’t know where the gun was pointed. So would a jury be compelled to conclude that he faced a dangerous threat?”

“When he turns towards the deputy, if he makes any movement with that firearm, under the law, deadly force can be reasonable,” said Blechman, responding to Judge Clifton.

U.S. Circuit Judge Milan Smith asked Blechman whether a reasonable jury would find that Gelhaus violated Fourth Amendment rights of Lopez by using excessive force.

“The Fourth Amendment does not require officers to delay their fire until a suspect turns a weapon on them,” said Blechman, citing language from another case.

Later, Senior Circuit Judge J. Clifford Wallace questioned a Lopez family attorney, asking whether the deputy has to “wait until the first shot before he can defend himself?”

“I think he has to get to the point where it is apparent that Andy has intentionally directed the weapon at him,” said Gerald Peters, an attorney for the Lopez estate.

Blechman, noting prior case law, reiterated a point to the panel which he outlined in a supplemental brief provided to the court. “As stated in White, when a case ‘presents a unique set of facts and circumstances,’ it is an important indication that it does not fall under a ‘clearly established’ constitutional right,” says the brief.

“If you have a unique set of facts and circumstances, which is what I believe we have here,” said Blechman during the hearing.

“You serious?” interrupted Judge Smith.

“You think this is unique? We get these terrible cases all the time. These kids being killed with artificial guns. This is not unique. That’s the problem. And the question is, whether these other cases — and we have disputed facts — are enough to apply qualified immunity when the law is not clear. So I’m having trouble with what you’re saying, frankly, because there is no license for police to kill teenagers with three seconds when even that officer says that the gun was not pointing at him, or were not even coming up to point at him. And others say the same thing,” he said.

The Lopez family filed the civil suit within weeks of the shooting. Gelhaus was previously cleared of criminal wrongdoing and has since been promoted to sergeant.