Court Rules Family of Boy Fatally Shot by California Deputy Can Sue

SONOMA COUNTY, California -- A federal appeals court in San Francisco ruled Friday that the family of a 13-year-old boy who was shot to death by a Sonoma County sheriff’s deputy while holding a toy rifle can take their wrongful-death suit to trial.

The decision, by two of the three judges on the panel, would allow a jury to determine whether the shooting of Andy Lopez in 2013 amounted to excessive force.

Given the split decision, though, lawyers for the county and Deputy Erick Gelhaus said they are considering appealing the case to the U.S. Supreme Court or filing a petition asking for an 11-judge appeals court review.

Noah Blechman, the co-lead counsel for Sonoma County and the deputy, argued that the suit should be dismissed because Gelhaus believed the toy was an AK-47 assault rifle and reasonably feared for his life when the youngster turned around and started to raise the gun.

“We’re obviously disappointed in the ruling because we believe it is at odds with Supreme Court precedent in other deadly force cases,” Blechman said. “It is undisputed that, when he turned around, the gun turned around and was pointing upwards, and in that situation deadly force is justified and qualified immunity exists.”

Gelhaus and another deputy, Michael Schemmel, spotted Andy Lopez on the afternoon of Oct. 22, 2013, as the youngster walked past a vacant lot near his home. He was carrying a plastic replica of an AK-47, which was missing the orange plastic tip that would have identified it as a toy.

The officers stopped their patrol car 35 to 40 feet away from Andy, and Gelhaus shouted at him to drop the gun. He turned toward them and, the officers said, started to raise the gun, which had been pointing downward.

Gelhaus fired eight times, hitting the youth with seven shots.

Justices Richard Clifton and Milan Smith ruled that a jury should decide whether Gelhaus had reason to believe that Andy posed an immediate threat given that the gun was pointed toward the ground and the boy hadn’t made any sudden movements or behaved aggressively before he was shot.

Judge J. Clifford Wallace disagreed, saying there was no evidence that the use of deadly force was “objectively unreasonable” in the split second the deputy had to determine whether a deadly threat existed.

The decision to remand the case for trial upholds the 2016 ruling by U.S. District Judge Phyllis Hamilton, who questioned whether the shooting would have been justified even if the gun had been real. The boy’s family says the officer should have known the gun was a toy.

Hamilton dismissed a claim that the officer had deliberately violated the youth’s constitutional rights, saying Gelhaus had no time for reflection and believed he was acting for legitimate law enforcement purposes.

The family’s lawyer, Arnoldo Casillas, was not immediately available for comment Friday.

Gelhaus, a sheriff’s deputy since 1989, was briefly suspended with pay but returned to patrol after the county district attorney declined to file criminal charges against him. The FBI also declined to file charges. Gelhaus was promoted to sergeant in 2016 and is still on the force.

Peter Fimrite is a San Francisco Chronicle staff writer. Email: [email protected] Twitter: @pfimrite

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