Estate of Lopez v. Gelhaus

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation871 F.3d 998
Docket NumberNo. 16-15175.,16-15175.
Parties ESTATE OF Andy LOPEZ, BY AND THROUGH successors in interest, Rodrigo LOPEZ and Sujay Cruz; Rodrigo Lopez ; Sujay Cruz, Plaintiffs-Appellees, v. Erick GELHAUS; County of Sonoma, Defendants-Appellants.
Decision Date22 September 2017

871 F.3d 998

ESTATE OF Andy LOPEZ, BY AND THROUGH successors in interest, Rodrigo LOPEZ and Sujay Cruz; Rodrigo Lopez ; Sujay Cruz, Plaintiffs-Appellees,
Erick GELHAUS; County of Sonoma, Defendants-Appellants.

No. 16-15175.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2017 Pasadena, California
Filed September 22, 2017

Noah G. Blechman (argued) and James V. Fitzgerald III, McNamara Ney Beatty Slattery Borges & Ambacher LLP, Walnut Creek, California; Jesse F. Ruiz, Robinson & Wood Inc., San Jose, California; for Defendants-Appellants.

Gerald P. Peters (argued), Law Office of Gerald Philip Peters, Thousand Oaks, California, for Plaintiffs-Appellees.


Dissent by Judge Wallace


M. SMITH, Circuit Judge:

Sonoma County and Sheriff's Deputy Erick Gelhaus appeal from an order denying their motion for summary judgment on the defense of qualified immunity in an action alleging that Gelhaus deployed excessive force when he fatally shot thirteen-year-old Andy Lopez in October 2013. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


A. Jose Licea Drives by Andy Lopez Prior to the Shooting

On October 22, 2013, at approximately 3:15 p.m., Jose Licea, a civilian with no connection to any of the parties to this litigation, was driving northbound on Moorland Avenue in Santa Rosa, California. He noticed a person later identified as Andy Lopez1 walking on the sidewalk a few hundred feet in front of him. Licea couldn't tell Andy's age, "but by the height, [Licea] was figuring it was a kid."2

When Licea got within approximately 150 feet of Andy, he saw that Andy was holding an object that looked like an AK-47. The gun was in Andy's left hand, the barrel was pointed at the ground, and Licea "could see it just swinging." Licea thought this was odd: "at that time in the afternoon, you know, someone walking around with an AK-47, to me, just—I couldn't see somebody doing that." Indeed, at "th[at] time of the day," he said, "someone is not going to be carrying a real rifle."

When Licea got within approximately fifty feet of Andy, he slowed down to look at the gun. When he saw it, he thought "it look[ed] fake." He suspected it was a BB gun because his mother-in-law had seen some children with them in the area several weeks earlier. Licea did not fear for his life or call the police; he continued on his way.

871 F.3d 1002

B. Deputies Gelhaus and Schemmel See Andy

At the same time, Sonoma County Sheriff's Deputies Erick Gelhaus and Michael Schemmel were on routine patrol in a marked police car driving northbound on Moorland Avenue. Gelhaus was training Schemmel because Schemmel had just transferred to Sonoma from a nearby police department. Gelhaus was aware that they were patrolling a part of the county known for gang activity and violent crime. Still, he had not worked in the area in the last few years, it was the middle of the day, and there was no activity on the police radio.

With Schemmel at the wheel and Gelhaus in the passenger seat, the officers approached a stop sign at West Robles Drive. That is when Gelhaus noticed Andy walking in a direction away from the officers along the west sidewalk on Moorland Avenue. Andy was "[w]alking at a normal speed" and, according to Gelhaus, his motions did not appear aggressive. Andy was not "trying to get away from us," Gelhaus recounts, "he was just walking away from us."

Gelhaus could not determine Andy's age—Andy was about 100 feet away and was wearing a hooded sweatshirt. To Gelhaus, Andy nonetheless appeared to be "[s]omebody in their mid to late teens," and did not appear to be a gang member.

Gelhaus noticed Andy's gun, which he believed to be an AK-47. Gelhaus believed this in part because he had previously confiscated an AK-47 within one mile of Andy's location. That said, he had never seen a person walk down the street in broad daylight carrying an AK-47. Moreover, he had also confiscated what turned out to be toy guns on three prior occasions while on patrol. During the most recent of those occasions, Gelhaus responded to a call involving subjects with rifles in a park. He used his loudspeaker from a distance of 100 yards to direct the individuals to put down their guns. The suspects complied, and the incident was resolved without charges.

Gelhaus saw Andy holding the gun in his left hand, "by the pistol grip, down at his side," with the muzzle pointed towards the ground. Schemmel reported he saw Andy holding the gun in his right hand, and Schemmel's subsequent declaration does not specify in which hand the gun was held. As Andy was walking, "the weapon would swing somewhat," but Gelhaus could not see if Andy's finger was on the trigger. Once Gelhaus noticed Andy's gun, he quickly alerted Schemmel, then called in a "Code 20," which is used to request that all available units report immediately on an emergency basis.

C. The Incident

As Schemmel trained his attention on Andy, he drove past the stop sign and crossed the intersection with West Robles Drive. Simultaneously, he flipped on the emergency lights and "chirped" the patrol car's siren. Schemmel believes he saw Andy "briefly glance backwards" over his right shoulder at this point. Gelhaus did not see Andy make any such turn, nor does he recall ever hearing the patrol car's "chirp."

Once Schemmel cleared the intersection, he veered into the southbound lane and stopped at a forty-five degree angle with the west sidewalk. As the car was slowing down, Gelhaus removed his seatbelt, drew his pistol, and opened the passenger side door. The deputies were parked approximately forty feet behind Andy at this point. Once stopped, Gelhaus situated himself at the V of his open door, and knelt on the ground.

Now outside, Gelhaus aimed his pistol at Andy and yelled loudly at least one time, "Drop the gun!" Andy had been walking

871 F.3d 1003

this whole time, so he was about sixty-five feet from the officers when Gelhaus shouted. Andy did not drop the gun; he paused a few seconds and began to rotate his body clockwise. Gelhaus then "saw the gun come around" as Andy's torso turned. The parties dispute what happened next.

According to Gelhaus's declaration, "[w]ith the weapon still in [Andy's] left hand swinging around and toward [the officers], and with the barrel of the weapon coming up," Gelhaus fired eight shots in rapid succession, seven of which hit Andy. In his videotaped deposition, however, Gelhaus stated that Andy "didn't turn towards me when I shot him."3 Gelhaus shot Andy in the chest, so Andy was facing the officers when Gelhaus opened fire. Gelhaus concedes that he does not know where Andy was pointing the rifle at the time that he was shot. Nor does Gelhaus know if Andy's gun was ever actually pointed at him.

At his deposition, Gelhaus was asked to reenact how Andy was holding the gun, "his turning motion," and "what you saw him do." The video depicts the gun in Gelhaus's fully-extended arm and at his side as he turns, consistently pointed straight down towards the ground.4

The defendants' experts opined that it was "likely" that Andy "partially raised" the gun. Plaintiffs' experts disagreed. They created three-dimensional models of Andy's movements, and in each of the re-creations, Andy's gun barrel is pointed down at the ground throughout Andy's turn. One expert further insisted that from the physical evidence alone "[i]t cannot be determined ... if the [rifle] was held in the left or right hand ... or if the [rifle] was elevated or pointed at the officers prior to the shooting."

Because Schemmel was the driver, he insists he was unable to get into position until Gelhaus had already stopped firing. According to Schemmel's declaration, "[Andy] turned to his right with his whole body toward us, and as he did so, the gun was turning with him and it was raising and turning toward us." Asked in his deposition, however, if "[a]t any time before [he] heard gunshots, [he saw] [Andy's] left hand move," Schemmel responded, "I don't recall."

Andy collapsed after the shots and Deputies Gelhaus and Schemmel remained crouched behind their car doors. Once other deputies arrived, Gelhaus and two other officers approached Andy with their guns pulled. As he was standing over Andy, Gelhaus realized for the first time that the gun's coloring was different from that of a real AK-47. When he moved the weapon away, he also noticed that Andy's gun was much lighter. It turns out that Andy was holding a plastic gun designed to replicate an AK-47. The toy did not have an orange tip at the end of the barrel, and defendants' experts submit that it was not possible for Gelhaus to visually distinguish Andy's weapon from a real AK-47 at the distance involved in this case.

At the time of the shooting, Andy was standing next to an open field in a residential

871 F.3d 1004

neighborhood. The site of the shooting is also close to three...

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