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Sonoma County will ask the U.S. Supreme Court to decide whether a sheriff’s deputy should be immune from civil liability after he shot and killed a Santa Rosa teenager in 2013 after mistaking a pellet gun he was carrying for an assault rifle.

The Board of Supervisors on Tuesday directed its attorney to file legal papers requesting a review of the 9th Circuit Court of Appeals’ September decision that 13-year-old Andy Lopez posed no immediate threat to then-Deputy Erick Gelhaus and that a jury should determine if the deputy used excessive force.

Attorney Noah Blechman said the county would argue the 9th Circuit’s dissenting opinion, from Judge Clifford Wallace, who said Lopez’s airsoft pellet gun was rising as he turned toward Gelhaus and a partner and the deputy acted reasonably under the circumstances.

If the high court considers the case, it would be clarifying a critical legal issue faced by police agencies nationwide, Blechman said.

“We do believe this case, as it’s framed, has far-reaching implications,” Blechman said. “We hope the Supreme Court wants to basically clear up the issue.”

But just whether the Supreme Court will reverse two lower courts is uncertain. And chances are it might not agree to hear the case.

Its calendar is packed with weighty issues and the justices do not typically delve into matters involving civil damages, said Franklin Zimring, professor at UC Berkeley School of Law.

“The odds are generally rather low of the county getting a review,” Zimring said.

If the Supreme Court doesn’t take the case, it would go back to U.S. District Court in Oakland and proceed toward trial.

At most, the bid will delay resolution of the case, the Lopez family attorney has said. He did not return calls Wednesday seeking comment.

The Supreme Court is expected to say whether it will accept the case by the end of its current term in June, said Bruce Goldstein, county counsel.

He said legal fees so far for the county are estimated at about $1 million. No settlement offer has been extended, he said.

The shooting happened the afternoon of Oct. 22, 2013, as Gelhaus and Deputy Michael Schemmel drove along Moorland Avenue in southwest Santa Rosa.

They stopped their car after spotting Lopez walking on the sidewalk carrying an airsoft BB gun resembling an AK-47. The bright orange tip indicating the gun was a toy had been broken off.

Gelhaus jumped out, crouched behind his door and shouted to Lopez who was 65 feet away to drop the gun.

When Lopez turned, Gelhaus fired, hitting the teen seven times. Lopez died at the scene.

Two weeks later, his parents sued in federal court, accusing Gelhaus of excessive force and violating their son’s civil rights.

U.S. District Court Judge Phyllis Jean Hamilton denied the county’s initial request for summary judgment, disagreeing that Gelhaus’ response was justified.

The county appealed to the 9th Circuit, which also refused in September to throw out the lawsuit.

In remanding the case back to the lower court for trial, a majority of the three-judge panel found Lopez never pointed the gun at Gelhaus and may have turned in response to his command.

It listed a series of disputed facts it said challenge Gelhaus’ claim he is entitled to immunity often afforded to police officers acting in the line of duty.

“Gelhaus deployed deadly force without knowing if Andy’s finger was on the trigger, without having identified himself as a police officer, and without ever having warned Andy that deadly force would be used,” the majority wrote. “Andy was shot while standing next to an open field with no other people around ... and Gelhaus knew it was possible to use less-intrusive force, given his prior experience at the park.”

The dissenting judge called Lopez’s death “the heartbreaking result of a miscalculation.” But he maintained it was reasonable and Gelhaus should not be punished.

Sonoma County District Attorney Jill Ravitch ruled that Gelhaus acted within the law and declined to bring criminal charges against him. He was subsequently promoted to sergeant.

Blechman said the case should hinge on just one material fact.

“And that is, what movements Mr. Lopez makes once he is ordered to drop the gun,” Blechman said. “We believe it is undisputed and on the record in both courts that he turned and started to raise the barrel of the weapon up toward the officers.

“Deputy Gelhaus should have been provided with qualified immunity for his split-second decision to fire in self-defense,” Blechman said.

You can reach Staff Writer Paul Payne at 707-568-5312 or paul.payne@pressdemocrat.com. On Twitter @ppayne.

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