Supreme Court rules family of slain teen can sue deputy
The Supreme Court cleared the way Monday for a trial in a lawsuit by the family of Andy Lopez, a 13-year-old boy fatally shot by a Sonoma County sheriff ’s deputy in 2013 while holding a toy rifle.
Lawyers for the county and for Deputy Erick Gelhaus argued that the suit should be dismissed because Gelhaus believed the plastic toy was an
Sujey Lopez clutches the coffin of her son, Andy Lopez, as her husband, Rodrigo Lopez, consoles her at Andy’s funeral, days after he was shot dead in 2013.
AK-47 assault rifle and reasonably feared for his life when the youngster turned around and started to raise his gun.
The Supreme Court has often deferred to law enforcement officers’ judgment, even if mistaken, that deadly force was needed to protect themselves or others. One recent case involved a police officer in Tucson who shot and wounded a woman as she was holding a
knife in her driveway and walking toward her housemate. The housemate later said she had not felt threatened, but the court voted 7-2 in April to dismiss the wounded woman’s lawsuit.
On Monday, however, the justices, without comment, denied review of an appeal by Gelhaus and the county that had employed him as a deputy for 24 years. The order left intact a federal appeals court ruling in September that said a jury should decide whether Gelhaus acted unreasonably.
“This was the best possible result,” said Gerald Peters, a lawyer for the family. He said an officer’s discretion to decide whether lives are in danger “doesn’t mean the officer has a free ride to keep on shooting indiscriminately,” referring to the seven shots fired into the youngster’s body.
Noah Blechman, a lawyer for Sonoma County, said the court’s action was disappointing.
“This was a split-second decision in a tense and dynamic and dangerous situation, and this is exactly the type of scenario” where the court has shielded police from lawsuits, Blechman said.
Statewide law enforcement organizations also asked the
Supreme Court to review the appeals court decision. Their lawyer, James Touchstone, said the court’s order, by exposing officers to possible liability, could cause them to “hesitate in using deadly force to stop what appears to be a threat of death or serious bodily injury and potentially lose their lives.”
Gelhaus and another deputy, Michael Schemmel, came across Lopez on an afternoon in October 2013 as the youth, who stood 5 feet, 4 inches, was walking on a sidewalk past a vacant lot near his home. He was carrying a replica AK-47 from which the orange plastic tip, which would have identified it as a toy, had been removed.
The officers stopped their patrol car 35 to 40 feet behind him, Schemmel beeped the car’s siren, and Gelhaus shouted to Andy to drop the gun. The boy, who had been walking with his back to the patrol car, paused, then started to turn around, holding the gun in one hand. Gelhaus fired eight shots, seven of which hit Lopez, who died at the scene.
Gelhaus said Lopez was starting to raise the gun as he turned, but when asked to simulate the youth’s actions at a videotaped deposition, he pointed his arm toward the ground. A passerby who had spotted the youth shortly before the incident said he thought Lopez was carrying a BB gun.
In light of the disputed facts, a federal judge ruled in 2016 that a jury should decide whether Gelhaus had used excessive force. A divided panel of the Ninth U.S. Circuit Court of Appeals agreed in September.
“A reasonable jury could conclude that Andy did not pose an immediate threat to the safety of the officers or others,” Judge Milan Smith said in the 2-1 ruling. He said the youth was not pointing the gun at the officer or acting aggressively, Gelhaus never warned him he would be shot if he failed to drop the gun, and the officer opened fire only three seconds after shouting his warning.
Judge J. Clifford Wallace dissented, saying Gelhaus reasonably believed Lopez was carrying a real gun and was entitled to fear for his life when the youth began to raise the barrel while turning toward him.
The case is Gelhaus vs. Estate of Andy Lopez, 17-1354.