As we noted long ago in the aftermath of a shooting that left a 13-year-old Sonoma County boy dead in possession of a toy replica assault rifle, there is no way this case ends well. But there are final outcomes that are worse than others, and one may involve the county appealing a ruling in the wrongful death lawsuit filed by the family of Andy Lopez, who was killed in 2013 by a sheriff’s deputy.
Last month, the county suffered another setback in its argument that the deputy, Erick Gelhaus, had reasonable belief that he was in imminent danger when he shot and killed Lopez after pulling up behind him that October afternoon. A federal appeals court, in a 2-1 decision, rejected the county’s argument for granting immunity to Gelhaus and, last month, also turned down the county’s petition to have the decision reviewed by an 11-judge panel of the 9th U.S. Circuit Court of Appeals. The county now has until March 22 to decide whether to appeal the decision to the U.S. Supreme Court.
It shouldn’t. It’s time for the county to put this case to rest and move toward a settlement. Little good could come from dragging this case on any longer.
The county claims that Gelhaus had reasonable cause to fear for his life when the youth turned toward him after the deputy directed Lopez to drop his weapon. Gelhaus fired his gun, hitting Lopez seven times. The central argument is whether the way in which the gun barrel rose as Lopez turned could be perceived as an imminent threat. The 9th Circuit panel found that there is sufficient evidence for a jury to conclude Gelhaus was not in danger when he shot and killed Lopez.
From the evidence provided so far, including a video of a deposition in which Gelhaus demonstrates how Lopez turned (the video, which is part of the court record, is available on Vimeo), we believe the court was correct. Appealing the decision is likely, at best, to drive up legal costs with little chance of the county prevailing and, at worst, inflame an ongoing national debate about officer-involved shootings and the extent to which those in uniform are protected in their use of lethal force.
There’s no question that those in public safety have a difficult job and sometimes face split-second life-or-death decisions. But it’s also true that not all officer-involved shootings are defensible.
The stakes involved in this debate were further dramatized in a recent shooting in Wichita, Kansas where a 28-year-old man was shot after a false “swatting” report was made concerning a shooting and hostage situation at his home on Dec. 29.
Wichita Police Deputy Chief Troy Livingston said the responding officers shot the man, Andrew Finch, because he moved his hands toward his waist. Finch was found to be unarmed, and no one in his home was either at risk or had been harmed. As with the Lopez case, the Wichita shooting leaves the public wondering whether officers can be found negligent in a case like this.
On that issue, the Supreme Court could side with the county, upholding broad discretion for deputies to fire their weapons when they feel threatened. Or it could rule against the county, increasing the cost of this legal battle. Neither outcome is appealing.