PD Editorial: Deputy and Sonoma County face trial in Andy Lopez's death

The U.S. Supreme Court has steadily limited the ability of victims and survivors to sue individual law enforcement officers for damages in police shooting cases.

Asked to do so once again in the death of 13-year-old Andy Lopez, the justices said no.

The high court's Monday dismissal of an appeal filed on behalf of Sonoma County sheriff's Sgt. Erick Gelhaus isn't a finding of culpability. It is, instead, a decision to allow a jury to determine whether Gelhaus should be held personally liable for damages.

Gelhaus is named along with Sonoma County as defendants in a wrongful death suit filed in U.S. District Court by Lopez's parents.

The next step is likely to be a trial - unless the county is able to settle the case.

Given the facts, including an appellate court's finding that there is sufficient evidence for a jury to conclude Gelhaus wasn't in danger when he shot Lopez, settling probably is in the county's best interest.

Gelhaus and a newly hired deputy were on patrol on the afternoon of Oct. 22, 2013 when he spotted the 5-foot-3 teenager walking alone on Moorland Avenue in Santa Rosa. Lopez was carrying an airsoft BB gun that resembled an AK-47 assault rifle. The orange tip indicating the gun was a toy had been broken off.

Gelhaus radioed for backup, jumped out of the car, crouched behind the door and shouted at Lopez, who was about 65 feet away, to drop the gun. As Lopez turned toward him, Gelhaus fired eight rounds, striking the boy seven times. He died at the scene.

Less than 20 seconds elapsed between Gelhaus' call for assistance and a report to dispatchers that shots had been fired.

District Attorney Jill Ravitch cleared Gelhaus of criminal wrongdoing following an eight-month investigation. Her conclusion was consistent with the high bar set by the U.S. Supreme Court for filing criminal charges against law enforcement officers who must make snap decision about the use of deadly force.

But, as Ravitch pointed out at the time, her review of the shooting didn't extend to police tactics, training or civil liability.

Police officers have “qualified immunity” from civil damages while carrying out their official duties, and the Supreme Court has expanded that protection in several recent cases, including one decided earlier this year. In this case, however, the justices let stand a 9th U.S. Circuit Court of Appeals ruling that a jury should decide whether Gelhaus used reasonable force.

In a trial, jurors probably would hear from a witness who said he recognized the gun Lopez was carrying as a toy. They certainly would see a video of a deposition in which Gelhaus demonstrated Lopez's movements.

After watching the video, a majority of the three-judge appeals court panel that reviewed the case concluded that Lopez never pointed the gun at Gelhaus and may have turned in response to his command.

It's likely that jurors would learn about Gelhaus' writings about aggressive policing, including an online post about how officers should justify shooting someone brandishing a BB gun.

“It's going to come down to YOUR ability to articulate to law enforcement and very likely the Court that you were in fear of death or serious bodily injury,” Gelhaus wrote. “I think we keep coming back to this, articulation - your ability to explain why - will be quite significant.”

If this case isn't settled, the trial may turn on Gelhaus' ability to explain himself.

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