U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Officer to Stand Trial for Shooting Teen

Thirteen-year-old Andy Lopez died with a plastic gun in his hand.

Sonoma County Sheriff's Deputy Erik Gelhaus said he thought it was an assault rifle. It was a pellet gun.

The U.S. Ninth Circuit Court of Appeals said the officer should face trial for shooting the boy in Estate of Andy Lopez v. Gelhaus.

No Qualified Immunity

The case turned on whether the officer was entitled to qualified immunity. A trial judge said it was not clear as a matter of fact.

It became an issue four years ago after Jose Licea saw Lopez walking on the sidewalk with a gun. Licea, who was driving by, said "it looked like a fake." Another witness contracted the police account.

Officers reported that they drove up to an intersection when they saw Lopez. Gelhaus said Lopez walking away from them and thought he was carrying an AK-47.

The officers stopped and Gelhaus got out with his pistol in hand. He yelled, "Drop the gun!" The boy turned around, and Gelhaus shot him seven times.

Never in Danger

The boy's estate sued for civil rights violations and other claims. The officer and the county filed a motion for summary judgment, but the trial judge denied the motion.

On appeal, the court considered whether the officer acted reasonably. The Ninth Circuit affirmed the ruling because the officer was never in danger, and remanded the case for a jury to consider other facts.

"Gelhaus indisputably had time to issue a warning, but never notified Andy that he would be fired upon if he either turned or failed to drop the gun," the majority noted.

In dissent, Judge J. Clifford Wallace said it was not clear that the use of deadly force under the circumstances at the time was objectively unreasonable. Gelhaus, who was not charged with a crime in the killing, was later promoted.

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