Friends warned Andy Lopez that plastic gun looked real, legal filing says

Thirteen-year-old Andy Lopez appeared to acknowledge the risk of carrying an airsoft pellet rifle resembling an AK-47 in the days before he was shot to death by a Sonoma County sheriff’s deputy as the teen walked down the street carrying the plastic gun.

Depositions?from two friends filed Wednesday in federal court suggest the Santa Rosa youth tried to repair the gun to make it look less “real” after its bright orange safety tip broke off. And he took steps to conceal it, hiding it under his sweater after friends told him it was “dangerous” to carry it in the open.

The day Lopez was killed, he talked about transporting it in a backpack or grocery bag because he didn’t want “the gun to get seen by other people,” a friend identified only by his initials said.

But Lopez couldn’t find a backpack and the gun wouldn’t fit in a bag so he carried it from his house without any cover, the friend said.

Minutes after he left, Lopez was confronted by Deputy Erick Gelhaus as the teen walked along Moorland Avenue in southwest Santa Rosa. Gelhaus said he mistook the gun for an assault rifle and ordered Lopez to drop it, opening fire when the teen turned to face him.

Lopez’s family sued, alleging the veteran lawman acted in haste in resorting to deadly force. An investigation by the District Attorney’s Office found Gelhaus was not criminally liable.

In civil court papers this week, the county’s lawyers argue Gelhaus acted reasonably given the gun’s resemblance to an AK-47. They are asking to have the suit thrown out in a request for summary judgment that includes photo comparisons of the two guns and a mock-up of what Lopez would look like to deputies walking down the street.

Also, the county cites sworn statements about the similarities from the gun’s manufacturer as well as testimony from Lopez’s friends about their own concerns that it could be perceived as a real firearm.

“It’s just further evidence that it’s understandable this replica weapon could be believed to be a real weapon,” Steven Mitchell, one of the county’s lawyers, said Thursday. “The kids even acknowledge that.”

Lopez family attorney Arnoldo Casillas did not return calls Thursday seeking comment.

A hearing is set for Dec. 9 in U.S. District Court in Oakland before Judge Phyllis J. Hamilton. If she grants the motion, the lawsuit is dismissed. If not, the case will proceed to trial, now set for April.

The depositions, taken this spring, shed new light on what happened in the days leading up to the Oct. 22, 2013, shooting.

Witnesses describe playing with the gun two days before the shooting and dropping it, accidentally breaking off the orange tip that identified it as an airsoft gun.

They describe failed attempts by Lopez and his friends to tape the tip back on and talk of returning it to the Big 5 Sporting Goods store to have it fixed. One boy said they didn’t have a car and a parent wasn’t available to drive them to the store.

The next day, Lopez returned to his friend’s house and asked to take the gun home with him, according to the depositions. The friend was reluctant, saying it was broken and he was going to paint it, but let Lopez have it anyway, urging him to be careful because it could be confused with a real gun, the depositions said.

Lopez left with the gun, hiding it under his sweater, the boy told lawyers in the case.

A day later, Lopez was killed. Before the shooting, Lopez told another friend he planned to take the gun back to its owner, whose name was redacted from court papers.

Lopez and his friend talked over a phone about concealing the gun in a backpack or bag.

“He said he was going to cover it up because - because he don’t want, like, the gun to get seen by other people,” the boy said in his deposition.

Ultimately, Lopez couldn’t find a backpack and the gun ripped through a bag so “he just like walked over,” the boy said.

Gelhaus said in his own deposition that Lopez was carrying what he thought was an assault rifle in his left hand when the deputy and a partner drove up behind him. Gelhaus told investigators that he ordered Lopez to drop the rifle, but the teen turned, the barrel of the gun rising as he did so. Gelhaus fired eight shots, striking Lopez seven times.

“The fact that these teenagers realized that without an orange tip it looked too real and could be confused for a real AK-47 is just more evidence as to why it was reasonable for Deputy Gelhaus to have formed that same conclusion,” Mitchell said.

You can reach Staff Writer Paul Payne at 568-5312 or paul.?payne@pressdemocrat.com.?On Twitter @ppayne.