A federal appeals court refused Friday to throw out a lawsuit against a Sonoma County sheriff's deputy who killed a boy after mistaking his plastic airsoft gun for an assault weapon.
A three-judge panel of the U.S. 9th Circuit Court of Appeals decided 2-1 to clear the way for a jury to determine whether Sonoma County Sheriff's Deputy Erick Gelhaus used excessive force when he fatally shot Andy Lopez, a 13-year-old eighth grader.
Gelhaus was training a new deputy when he spotted Lopez walking along a sidewalk at 3:15 p.m. in Santa Rosa in October 2013. Gelhaus said he mistook the boy's pellet gun for an AK-47.
The patrol car stopped and Gelhaus crouched behind the car's door. He said he shouted, "Drop the gun."
Lopez, who was 5-foot-3 and weighed 140 pounds, was about 65 feet away.
When Lopez turned toward him, Gelhaus fired off eight shots. Seven hit the boy, and he died at the scene.
The boy's parents sued Sonoma County and Gelhaus two weeks later.
Attorneys for the county asked a trial judge to rule that Gelhaus had acted reasonably, which would have ended the federal lawsuit. The trial judge refused, and the county appealed to the 9th Circuit.
The 9th Circuit said a reasonable jury could conclude that Gelhaus used excessive force.
"Gelhaus indisputably had time to issue a warning, but never notified Andy that he would be fired upon if he either turned or failed to drop the gun," Judge Milan D. Smith Jr. , appointed by former President George W. Bush, wrote for the majority.
Smith also noted that the evidence so far shows that Andy never pointed the gun at Gelhaus, nor did the boy behave in a threatening or erratic way.
At most, the plastic gun that Andy had been pointing toward the ground may have risen as he turned in response to the call, the court said.
"The only reasonable inference is that Andy was turning naturally and non-aggressively to look at the person who shouted from behind," the court said.
"If anything," the panel added, "Gelhaus should have expected Andy's turn, for it did not contravene Gelhaus's command, and it may have been an effort to comply."
The evidence shows that "Andy did not pose an immediate threat" to the deputies, the court concluded.
Andy's gun, which shot rubber pellets, was missing the orange tip required by federal law to distinguish it from a lethal weapon.
In a dissent, Judge J. Clifford Wallace, a Nixon appointee, said he would have ruled for the county because the gun was rising as the boy turned.
"Deputy Gelhaus reasonably believed that Andy was carrying an AK-47," he wrote.
Arnoldo Casillas, who represents the boy's parents, called the decision "66 pages of the best legal reading you have ever had."
He said the case would be tried in district court in Oakland. Similar cases have resulted in $4 million to $6 million in compensation, he said.
Casillas said he read parts of the ruling to Andy's parents.
"They were just overcome with emotion, truly," he said.
The lawyer who argued the case for the county could not be reached for comment.
Sonoma County prosecutors declined to bring criminal charges against Gelhaus, who has since been promoted to sergeant.
3:40 p.m.: This article was updated with reaction and additional details from the ruling.