Court: Jury should decide whether Andy Lopez posed threat to Sgt. Erick Gelhaus

A federal appeals court ruled Friday there is sufficient evidence that could lead a jury to conclude a Sonoma County sheriff's deputy was not in imminent danger when he shot and killed a Santa Rosa teenager carrying a replica assault rifle in 2013.

The split ruling from a three-judge panel of the 9th U.S. Circuit Court of Appeals means the family of 13-year-old Andy Lopez can continue to pursue a wrongful death claim against sheriff's Sgt. Erick Gelhaus, who mistook the airsoft gun for an AK-47 rifle.

It upholds a lower court's ruling refusing to grant immunity to the veteran lawman, finding there is evidence Lopez never raised the barrel of the gun to a level that posed a threat. A jury should decide whether the shooting was reasonable or violated Lopez's civil rights.

“Gelhaus also shot Andy without having warned Andy that such force would be used and without observing any aggressive behavior,” Judge Milan D. Smith Jr. wrote.

Judge J. Clifford Wallace cast the dissenting vote, arguing that laws at the time did not clearly establish the use of deadly force under the circumstances was objectively unreasonable. The county's lawyers have maintained that the upward motion of the gun barrel, toward a shooting position, is undisputed.

The family's lawyer, Arnoldo Casillas, said the 66-page ruling sends a clear message about the county's chances of success. Settlement talks have so far been unproductive, he said.

“I would hope they come to their senses,” Casillas said. “It's time to put this to rest, whether it's at trial or otherwise.”

Now, the county could appeal to an “en banc” review by all 9th Circuit judges or ask to put the case before the U.S. Supreme Court.

“The county is obviously disappointed in the ruling, which we believe is at odds with several Supreme Court opinions in other officer-involved shootings where qualified immunity was granted in somewhat similar circumstances,” said the county's lawyer, Noah Blechman. “We also believe Judge Wallace got it right in his strong dissenting opinion.”

The Oct. 22, 2013 shooting happened as Lopez, an eighth-grader at Lewis Opportunity School, walked along Moorland Avenue, just north of West Robles Avenue, carrying the airsoft rifle with its orange safety tip removed.

Gelhaus, a passenger in a patrol car driven by Deputy Michael Schemmel, jumped out, shouted a warning for Lopez to drop the gun and then shot Lopez, hitting him seven times. He said he resorted to deadly force when Lopez turned to his right and started to raise the barrel of the gun. A subsequent investigation by District Attorney Jill Ravitch cleared Gelhaus of any wrongdoing.

The Lopez family sued less than a month after the shooting, alleging Gelhaus violated the teen's civil rights.

County appeals have delayed a trial first set for 2015.

In the immediate aftermath of the shooting, a series of protests filled Santa Rosa's streets with critics of police brutality. County supervisors dedicated a $4 million park in Lopez's name near the spot where he was killed.

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

EDITOR'S NOTE: The headline and description of the court's ruling has been updated to more precisely describe its decision.