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Monday, September 25, 2017


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Ninth Circuit Denies Qualified Immunity in Fatal Shooting of 13-Year-Old Boy

Majority Says That Viewing Facts in Light Most Favorable to Estate, Toy Rifle, Which Deputy Assumed To Be Real, Was Not Raised High Enough to Place Him in Imminent Danger If It Had Been Real


By a MetNews Staff Writer



Shooting victim

The Ninth U.S. Circuit Court of Appeals on Friday affirmed an order denying summary judgment, on the issue of qualified immunity, to the County of Sonoma and a deputy sheriff in an action brought by the estate of a 13-year-old boy who was fatally shot while walking down the street carrying a toy rifle.

The incident took place Oct. 22, 2013. Sheriff’s Deputy Erik Gelhaus fired eight shots at Andy Lopez, with seven hitting him, after the boy failed to obey a command Gelhaus shouted to him to “drop the gun!” According to the deputy’s deposition testimony, the boy paused and started turning toward him, with the rifle, which had been pointing to the ground, becoming elevated.

What the boy was carrying was a plastic replica of a AK-47 rifle, with the orange tip, which set it apart as a toy, removed.

Judge Milan D. Smith Jr. wrote for himself and Richard R. Clifton in affirming. Judge J. Clifford Wallace dissented.

Reasonable Jury

Smith wrote:

“[V]iewing the facts in the light most favorable to plaintiffs, as we must at this stage of the proceedings. Gelhaus deployed deadly force while Andy was standing on the sidewalk holding a gun that was pointed down at the ground. Gelhaus also shot Andy without having warned Andy that such force would be used, and without observing any aggressive behavior….[A] reasonable jury could find that Gelhaus’s use of deadly force was not objectively reasonable. Plaintiffs therefore can demonstrate a constitutional violation assuming, again as we must at this stage of the proceedings, that factual disputes are resolved and reasonable inferences are drawn in plaintiffs’ favor.”

Smith relied heavily on the finding by U.S. District Court Chief Judge Phyllis J. Hamilton of the Northern District of California that “the rifle barrel was beginning to rise; and given that it started in a position where it was pointed down at the ground, it could have been raised to a slightly-higher level without posing any threat to the officers.”

Finding Makes Sense

He commented:

“As a practical matter, this finding makes sense. Neither officer ever stated how much the barrel ‘began’ to rise as Andy commenced his turn, despite having the opportunity to do so. Moreover, one would expect the barrel to rise an inch or so as the momentum of Andy’s clockwise turn moved his left arm slightly away from his body. But that incidental movement alone would not compel a jury to conclude that Gelhaus faced imminent danger given the starting position of the gun. Furthermore, this interpretation is bolstered by Gelhaus’s admission that the weapon would benignly ‘swing somewhat’ with each step that Andy took.”

Hamilton’s finding, he said, satisfies the first inquiry that needs to be made: whether a jury could find unreasonableness in the conduct of the officer, thus giving rise to a constitutional deprivation. The second step, he noted, is whether the state of the law was such that the officer should have appreciated the unreasonableness of the conduct.

Hamilton ought to have pointed to specific cases in finding that Gelhaus’ conduct could be viewed as unreasonable under established law, Smith said, but went on to cite cases upon which she could have relied.

Smith signaled at oral argument on May 10 how he would be voting, remarking:

“[T]here 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,”

Determinative Fact

Dissenting, Wallace said:

“One critical fact—the upward motion of the fake gun—resolves the qualified immunity issue in Deputy Gelhaus’s favor,” adding:

“The majority has… identified no evidence that even suggests that the gun had stopped rising at the time Deputy Gelhaus resorted to deadly force. This dearth of support might explain why the plaintiffs themselves have never made such an argument, preferring instead to contest whether the gun began to rise at all.”

Deputy’s Vantage Point

Wallace went on to say:

“The majority also fails to appreciate the apparent threat posed by the gun from Deputy Gelhaus’s perspective. The record is replete with evidence that Deputy Gelhaus did not realize and could not have discerned that Andy was carrying a fake gun instead of an authentic AK-47. First, it is undisputed that the gun was missing the bright orange tip required by federal law….This tip immediately would have identified the gun as a fake: conversely, its absence would suggest to an observer that the gun was real.

“Second, Deputy Gelhaus. who had experience with AK- 47s both as a deputy and during his time serving in the United States Army, testified that he believed Andy was carrying a real AK-47….Furthermore, he testified that it was not until after the shooting, when he was close to the gun, that he was able to recognize that it was not a real rifle.”

As he sized it up:

 “Taking together the district court’s findings and undisputed facts, this case involves the use of deadly force against a hooded individual armed with a replica assault rifle indistinguishable from a real one, who turned to face an officer while raising the rifle after the officer had activated his patrol car lights and siren and yelled at the individual to drop the rifle.”

In the majority opinion, Smith accused Wallace of inaccurately reciting the facts, creating the impression that there was a “duel.”

The case is Estate of Andy Lopez v. Gelhaus, No. 16-15175.


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