Justices: Deadly threat ‘not there’ in Andy Lopez shooting

Ninth U.S. Circuit Court of Appeals judges suggested this week that a jury should decide the 2013 case of a Sonoma County sheriff’s deputy who killed 13-year-old Andy Lopez as he walked down a street carrying a replica assault rifle.

The three-judge panel’s sentiment emerged Wednesday in a civil lawsuit against Sgt. Erick Gelhaus, who is being sued by Lopez’s family for the Oct. 22, 2013, shooting they say was excessive force.

Lawyers for Gelhaus argued the veteran lawman should receive qualified immunity because he believed Lopez posed a deadly threat when he turned in his direction after the deputy shouted, “Drop the gun!”

But the justices said Gelhaus’ own statements suggest he didn’t know if Lopez actually pointed the airsoft rifle at him before he started shooting at the teenager three seconds later.

And the panel said Gelhaus’ lawyer presented no legal precedent for allowing immunity to a police officer in a similar situation.

“That seems to me to open the door to a jury concluding, ‘You know, maybe he wasn’t actually looking down the barrel of a gun,’?” Senior Judge Richard Clifton told Gelhaus attorney Noah Blechman. “Maybe I could conclude as a juror that the dangerous threat that would justify the use of deadly force wasn’t there.”

Judge Milan Smith questioned Blechman’s suggestion that Gelhaus could not have known his use of force was unsupported under the law because the circumstances were unique.

On the contrary, Smith said, the court hears cases of children being killed holding toy guns “all the time.”

“I’m having trouble with what you’re saying, frankly, because there is no license for police to kill teenagers within three seconds when even that officer says the gun was not pointing at him or even coming up to point at him, and others say the same thing,” Smith said.

Following the 37-minute hearing in federal court in Pasadena, the judges took the matter under submission. They could rule to dismiss claims that Gelhaus violated the teenager’s Fourth Amendment rights or find there are factual issues that must go before a jury.

A decision could take up to a year.

If the county were to lose the civil suit ruling, it could appeal to the U.S. Supreme Court.

Bruce Goldstein, Sonoma County Counsel, said it was difficult to predict the outcome based on questions at the hearing.

“I know there’s a lot of tarot card-reading,” Goldstein said. “I don’t think the panel as a whole was leaning one way or the other. We believe the deputy’s arguments were well presented.”

But Lopez family attorney Arnoldo Casillas said Thursday the judges questions and comments hinted at a favorable outcome for his clients.

“Their comments were extraordinary,” Casillas said. “Never have I heard judges so forcefully challenge defense arguments.”

Lopez’s parents attended the public hearing.

The Lopez family filed the civil lawsuit against Gelhaus and the County of Sonoma two weeks after the shooting, seeking unspecified damages. Gelhaus was cleared of any criminal wrongdoing and was later promoted to sergeant.

The 9th Circuit reviewed the case after lawyers for Gelhaus appealed U.S. District Judge Phyllis Hamilton’s ruling last year that Gelhaus could not receive immunity.

Hamilton said the law has established it is unreasonable for officers to shoot at someone who has not pointed a gun at them, disagreeing with Gelhaus’ lawyers about the facts of the case. They maintain Lopez was turning and his gun was beginning to rise when Gelhaus fired.

Justices on Wednesday questioned Blechman and the family’s appeals lawyer, Gerald Peters, about what the evidence shows happened leading up to the deadly encounter.

Judge Smith seemed to conclude there was so much in dispute it would have to be decided by a jury.

“The question is, what are the facts?,” Smith told Peters. “And in this case, the facts vary. At least six material facts. And when we have that kind of thing, we have to assume the facts most favorable to your client and remand to the district court for trial.”