Andy Lopez’ family can proceed with lawsuit against Sonoma County sheriff’s deputy, judge rules

The family of 13-year-old Andy Lopez, who was shot and killed by a Sonoma County sheriff’s deputy in 2013 while carrying an airsoft BB gun, can take their wrongful death lawsuit to trial, a federal judge ruled Wednesday.

U.S. District Judge Phyllis Hamilton rejected the county’s motion to dismiss the case on grounds Deputy Erick Gelhaus believed the gun was a real AK-47 and that Lopez moved it toward him in a threatening manner.

On the contrary, Hamilton said, the deputy’s own account showed Lopez turned around when ordered to drop the gun and the barrel was “in the process” of coming up when the youth was shot.

She said there was no “sudden movement” toward Gelhaus and his partner, Deputy Michael Schemmel.

“And given that (the gun) 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,” the judge wrote in her 19-page ruling.

Also, Hamilton said, the shooting may not have been justified even if Gelhaus believed Lopez was carrying a real gun. Case law suggests mere possession isn’t enough to justify the use of lethal force, she said.

The judge granted a portion of the county’s request for summary judgment, ruling Gelhaus did not act with a purpose to harm Lopez unrelated to law enforcement purpose.

But she said the case could proceed to trial, now set for April 11 in Oakland.

The Oct. 22, 2013 shooting, which led to police brutality protests and calls for Gelhaus to be fired, happened as Lopez walked along Moorland Avenue with the replica gun. An orange safety tip designed to identify it as a toy had broken off a few days earlier, witnesses said.

The two deputies spotted him during a routine patrol of the area, pulled up behind him and ordered him to drop what they believed was a real firearm.

Gelhaus, a department veteran, shot Lopez as he turned with the rifle in his hand. The youth was hit by seven bullets and died on the sidewalk.

His family sued in federal court, alleging violations of his civil rights.

The county has alleged Gelhaus acted reasonably and was in fear for his and his partner’s lives.

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