Close to Home: Andy Lopez and the behavior of law

The Press Democrat editorialized that “no one should be surprised” by District Attorney Jill Ravitch’s decision to relieve Deputy Erick Gelhaus of criminal culpability in the shooting of 13-year-old Andy Lopez (“Lopez case doesn’t end with the D.A.,” Tuesday). That the decision had been expected - as far back as the day of the shooting - is perhaps of even greater interest.

Why? Because rightly or wrongly, there is a widespread perception that the legal system favors law enforcement in the shooting death of an unarmed citizen, regardless of the circumstances.

This is not an entirely illusory perception, either, because it is codified in legal standard. As Hastings law professor Rory Little noted, “The bias, if there is a bias or tilt to the law, it’s in favor of the law enforcement officer not being convicted” (“Law tends to back officers in shooting cases,” Tuesday).

The rationale for this “tilt” is a protective sentiment stemming from the understanding among legal scholars that law enforcement officers often face threatening circumstances that require split-second decisions in highly trying circumstances.

Although Gelhaus mistook the toy gun Andy was carrying for a real one, the district attorney’s decision to exonerate Gelhaus of culpability was based on his statement that he “honestly and reasonably believed that there was an imminent threat of death or serious bodily injury to himself or others” before he fired. In that sense, Ravitch is clearly in line with legal standards.

Virtually everyone understands that there are thousands of police officers throughout the country who do their utmost to protect the public from harm and that theirs is frequently dangerous - and often thankless - work. There is good reason for the legal standards that protect them. There are also legal standards for addressing law enforcement’s use of excessive force, as well as legal norms for disciplining those with a history of impulsive or overly aggressive behavior.

Perhaps the most troubling facet of the Gelhaus investigation is that Andy Lopez was shot seven times within the three seconds it took him to turn around and face the deputy who had ordered him to drop his “gun.” What fuels the frustration of many of those unhappy with Ravitch’s decision is that the legal standard that protects the police in difficult circumstances was selected over standards that address excessive force.

More than three decades ago, a social scientist named Donald Black wrote “The Behavior of Law,” a book that caused a stir in legal circles because of its borne-out hypothesis that legal systems (everywhere and across time) are less rational and less thought-through than they are portrayed to be.

Black concluded that the preponderance of legal cases everywhere primarily serve to reinforce existing social inequalities; that, overwhelmingly, the individual or group with the most economic or social power will prevail over the individual (or group) with less economic or social power; that legal judgments will generally favor members of the more highly valued nationality, race, ethnicity or gender; that they will favor members of the dominant social class, the better educated, the more respected occupation and even those with the more pleasing personal attributes.

It is not always easy for civic authorities to grasp their own tilts; to see that their legal positions may be patterned, more representative of cultural sentiments and values than of broader considerations. It is the sense of inevitability in Ravitch’s decision that has generated so much ire because it underscores the feelings of powerlessness experienced among so many in our community. It reinforces the notion that the legislative dice in the death of Andy Lopez were already loaded; that the decision favored members of a culturally dominant in-group, even before the investigation was announced.

Donna Brasset-Shearer of Petaluma is a cultural-anthropologist with a background in international relations. She has taught courses on Iran at Sonoma State University and is one of two community members of The Press Democrat Editorial Board.