A witness to the deadly 2013 shooting of 13-year-old Andy Lopez by a Sonoma County sheriff’s deputy contradicts a key element of what law enforcement says happened, the Lopez family says.
In legal papers supporting their lawsuit against the county and Deputy Erick Gelhaus, the family said a man walking in the area at the time of the shooting saw Gelhaus’ partner, Michael Schemmel, get out of their patrol car first and draw his weapon.
The account from Jordan Walker conflicts with depositions in which both deputies say Gelhaus exited before Schemmel. Gelhaus, who said he mistook an airsoft BB gun Lopez was carrying for an assault rifle, shot the youth after yelling at him to drop the gun, he said.
But Walker’s version, which has Schemmel pointing his gun at Lopez and not firing, casts doubt on whether it was reasonable for Gelhaus to suspect Lopez posed a danger, the family’s attorney says.
In court documents, attorney Arnoldo Casillas said it suggests Schemmel recognized Lopez “was a young boy” and the rifle he carried as he walked along Moorland Avenue was “a toy.” It also supports allegations that Gelhaus acted in haste.
“What is clear is that his partner, Michael Schemmel, who was out of the patrol car first and was pointing his gun at Andy Lopez during the entire encounter outside the vehicle, did not consider Andy Lopez to be a threat,” Casillas wrote. “He did not shoot.”
The county’s attorney, Steven Mitchell, had a different understanding of statements attributed to Walker, a grocery store night manager. Walker was describing what he saw after shots were fired when Schemmel got out of the car and pulled his gun, Mitchell said.
“Mr. Walker has been thoroughly deposed,” Mitchell said. “We’re confident the gist of his testimony is consistent with what the deputies say.”
Both sides will get to argue the point Dec. 9 in U.S. District Court in Oakland. The county is seeking to have the lawsuit thrown out on the grounds that Lopez’s gun closely resembled an AK-47 rifle. County lawyers said given what he believed at the time, Gelhaus was justified in killing Lopez.
The family has argued otherwise, saying others who saw Lopez that day could tell he was a kid with a play firearm. They are suing for unspecified damages that experts have said could run into the millions of dollars.
Judge Phyllis Hamilton could dismiss parts of the family’s lawsuit, which alleges their son’s civil rights were violated. She also could throw it all out or send parts of it back to state court.
Lopez, a Cook Middle School eighth-grader, was killed Oct. 22, 2013, while walking in southwest Santa Rosa with the airsoft gun.
The two deputies have said they spotted him from their patrol car and pulled up behind him. Gelhaus said he got out of the car, drew his gun and ordered Lopez to drop the rifle while Schemmel parked the car. He fired seven shots after Lopez turned toward him, he said, and raised the gun in his direction.
It wasn’t until Lopez lay mortally wounded on the sidewalk that he realized the gun was not a real assault rifle, Gelhaus said.
An investigation by the District Attorney’s Office concluded he acted with reasonable force.