9th Circuit: No qualified immunity for deputy who killed teen holding toy gun

A Sonoma County sheriff’s deputy must face a trial for allegedly acting with unreasonable force in shooting and killing a 13-year-old boy holding a toy gun, a split 9th Circuit U.S. Court of Appeals panel ruled Friday.

Considering the case in a light most favorable to the boy’s family, Judge Milan D. Smith Jr. wrote that Sonoma County sheriff’s Deputy Erick Gelhaus was not entitled to qualified immunity for shooting at Andy Lopez immediately after asking the teenager to drop what the officer believed to be a real AK-47 assault rifle.

The panel remanded the case back to U.S. District Judge Phyllis Hamilton of Oakland, ruling that the disputed facts needed to be decided at trial.

The much-publicized incident occurred in 2013, when Gelhaus and another deputy sheriff were patrolling a neighborhood in Santa Rosa. The two deputies saw Lopez holding what they said they believed was a genuine AK-47. Concerned, they “chirped” their patrol car’s siren, exited the car and yelled, “Drop the gun!”

Lopez, whose toy gun was facing the ground, turned and was met by a volley of fatal bullets fired by Gelhaus. Both officers said that Lopez’s gun began to raise as he turned toward them. The toy AK-47 did not have an orange tip required by law to differentiate it from the real weapon.

The totality of the facts that day are disputed, but Smith made it clear in his opinion that, reviewing the summary judgment motion, it was the obligation of the court to view the case in a light most favorable to the Lopez estate. Estate of Lopez v. Gelhaus, 2017 DJDAR 9346.

Smith, who was joined in his opinion by Judge Richard R. Clifton, said that a reasonable jury could find that Lopez was holding the toy AK-47 in a non-threatening manner and that the police acted with unreasonable deadly force.

“Gelhaus deployed deadly force while [Lopez] was standing on the sidewalk holding a gun that was pointed down at the ground,” Smith wrote. “Gelhaus also shot [Lopez] without having warned [Lopez] that such force would be used, and without observing any aggressive behavior.”

But Judge J. Clifford Wallace was not convinced.

In a 21-page dissent, Wallace said the sheriff’s deputy was justified in his actions because there was no clear case law at the time of Lopez’s shooting that established that Gelhaus’ conduct was improper under the Fourth Amendment.

Referring to several cases the majority compared to Lopez’s case, Wallace wrote: “These facts are not sufficiently similar to the facts of George, Harris, or Curnow to have put Deputy Gelhaus on notice that his use of deadly force violated [Lopez’s] Fourth Amendment right to be free from excessive force.”

The case tested the balancing act required by Graham v. Connor, 490 U.S. 386 (1989), which directs courts to consider how severe a Fourth Amendment intrusion is with the government’s interest in such an intrusion.

Lawyers on both sides said that the burden to match fact-specific precedent to current cases is a difficult and at times unclear task.

“I think there’s some confusion and lack of clarity as to how you get to the existing constitutional right,” said Gerald P. Peters, who represented the Lopez estate before the 9th Circuit. “The county and all defendants would like it to be as specific as possible where plaintiffs say you can never have that specificity.”

Noah G. Blechman, who represented Gelhaus and Sonoma County, said Smith’s opinion was too broad in its interpretation of what constitutes a Fourth Amendment violation.

“Unless it’s a very obvious type of Fourth Amendment case, which is not the case here because we had someone with a suspected assault weapon, there have to be similar cases to inform the officer that if he acts, it may be unlawful,” Blechman said. “Judge Wallace lays it out. There were no existing cases like that.”

Blechman faulted how Smith interpreted the facts of the case, particularly the position of Lopez’s toy gun. “If the gun is coming up and around, all cases give officer the benefit of the doubt when they’re using deadly force in that situation,” he said.

Blechman said that the split decision is an indicator that “there is an opportunity to have this looked at en banc.”

Peters, however, was content with the ruling, saying that Smith properly recognized his duty to give more weight to Lopez’s version of the facts.

“I really think the majority did a very good job of understanding what its job was,” he said.