This combination of photos provided by the family via The Press Democrat and the Sonoma County Sheriff's Department shows an undated photo of 13-year-old Andy Lopez and the replica assault rifle he was holding when he was shot and killed by two Sonoma County deputies in Santa Rosa, Calif. on Oct. 22.
Photo credit: AP Photo/Family via The Press Democrat, Sonoma County Sheriff's Department
A Sonoma County sheriff's deputy who shot and killed a 13-year-old Santa Rosa boy after mistaking a BB gun he was carrying for an assault rifle will return to duty next week, a sheriff's spokesman said Friday.
Dep. Erick Gelhaus has been on leave since the Oct. 22 shooting of Andy Lopez. Gelhaus underwent mental health screening and will come back to work in an administrative capacity, said Assistant Sheriff Lorenzo Duenas.
He will remain on the desk assignment until District Attorney Jill Ravitch reviews an investigative report and makes a finding about whether he committed criminal wrongdoing, Duenas said.
"He's cleared to come back to duty from a fitness standpoint but won't be returning to patrol," Duenas said.
Gelhaus has been off the job since shooting Lopez seven times when he and another deputy spotted the teen walking along Moorland Avenue in southwest Santa Rosa carrying what looked like an AK-47.
According to police investigators, Gelhaus, who is a 28-year veteran and a department armorer, and the other deputy drove up behind Lopez in a patrol car and shouted at him to stop.
Police said Gelhaus told them he opened fire when Lopez turned, raising the barrel of the gun. The rifle turned out to be a plastic airsoft gun that shoots plastic BBs.
Outrage over the shooting spread from the largely Latino neighborhood through the city and beyond. Protesters have staged a number of rallies, decrying what they said is a case of excessive force. Many are calling on Ravitch to charge Gelhaus with manslaughter or murder.
The news of Gelhaus' return shocked those who have been protesting in the streets for weeks since the Lopez shooting.
"This is very, very, very bad news," said Michael Rothenberg, a member of the Andy Lopez Organizing Group. "A large part of Sonoma County think of Gelhaus as a murderer. They think he's dangerous. And we've seen through investigation that he's had problems out on the street."
Rothenberg said the act of putting Gelhaus back on duty, even at a desk job, would likely bring large crowds of young people back to the streets. The number of people participating in marches and rallies has slowly decreased in recent weeks. Rothenberg called the move "a slap in the face" to a community that has been reeling over the death of the boy.
"It shatters any hope for the time being that there's going to be justice," he said.
Lopez's family has filed a federal civil rights lawsuit seeking damages. Their lawyer did not return calls Friday seeking comment.
Meanwhile, Gelhaus has received threats, Duenas said. He's been checked out by mental health professionals and was deemed fit for full duty, Duenas said.
"The department was informed yesterday he was cleared for duty," Duenas said.
An internal Sheriff's Office review of his conduct is ongoing, Duenas said. It is not expected to be complete until a separate criminal investigation by the Santa Rosa Police Department is done, Duenas said.
His leave status prevented him from testifying in several trials, a lawyer said. It delayed the trial of former Santa Rosa resident Alan Macfarlane, 60, who is charged with having an illegal assault rifle. His trial was to start Friday.
Macfarlane contends he didn't know his Kel-Tec SU-16CA was on a list of weapons that are banned in California. He wants Gelhaus to testify because he said Gelhaus looked at the gun and couldn't determine if it was legal.
Macfarlane's lawyer, Steve Spiegelman, said that if a department armorer can't identify an illegal weapon, his client can't be expected to. The gun was ultimately shipped to state Department of Justice experts who said it was not legal.
Spiegelman said he subpoenaed Gelhaus twice since November. The Sheriff's Office rejected both requests, he said. The last time was Wednesday, when a department official said Gelhaus could be available in 60 days, he said.
The situation seemed to perplex Judge Robert LaForge, who was presiding over Macfarlane's trial Friday. LaForge said the Sheriff's Office cited no legal grounds for why Gelhaus couldn't receive a subpoena and ordered the County Counsel's Office to come back to court Monday morning to explain.
But Duenas said Gelhaus will be available starting next week. His desk assignment could include court testimony, he said.
Copyright 2013 - The Press Democrat, Santa Rosa, Calif.
McClatchy-Tribune News Service