Ninth Circuit Court of Appeals declares Erik Gelhaus used excessive force
This has been a long journey from the 3-second decision by Sheriff Gelhaus to kill Andy Lopez - until today when the judge stated that this 3 seconds was simply too short to assess the situation and take action...which those of us who call this murder have been saying all along. Perhaps not intentional murder, but certainly not self-defense. An experienced sheriff should know better than to react with lethal force with so little information on which to base his decision. The court document below has the full story of the OPINION (beow) ~ Vesta
Blue Coast Films director Ron Rogers took this video of this announcement:
LINK to video: US COURT OF APPEALS - Estate of Andy Lopez et al v. Erick Gelhaus et al
Appeal from the United States District Court for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
Argued and Submitted May 10, 2017 Pasadena, California
Filed September 22, 2017
Before: J. CLIFFORD WALLACE, RICHARD R.
CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Wallace
Civil Rights
The panel affirmed the district court’s order denying defendants’ motion for summary judgment on the defense of qualified immunity in an action brought pursuant to 42 U.S.C. § 1983 alleging that Sonoma County Sheriff’s Deputy Erik Gelhaus deployed excessive force when he fatally shot thirteen-year-old Andy Lopez.
Gelhaus shot Andy after witnessing Andy walking down the street with an object that looked like an AK-47 rifle. Andy did not comply with Gelhaus’s directive to “drop the gun.” The object turned out to be a plastic gun designed to replicate an AK-47, with the bright orange tip removed.
The panel held that viewing the facts in the light most favorable to plaintiffs, as the panel was required to do at this stage of the proceedings, Gelhaus deployed deadly force while Andy was standing on the sidewalk holding a gun that was pointed down at the ground. Gelhaus also shot Andy without having warned Andy that such force would be used, and without observing any aggressive behavior. Pursuant to Graham v. Connor, 490 U.S. 386 (1989), a reasonable jury could find that Gelhaus’s use of deadly force was not objectively reasonable.
The panel further held that taking the facts as it was required to do on interlocutory appeal, Andy did not pose an immediate threat to law enforcement officials and therefore the law was clearly established at the time of the shooting that Gelhaus’s conduct was unconstitutional. The panel held that ultimately, Gelhaus’s entitlement to qualified immunity depended on disputed facts that needed to be resolved by a jury, and the panel therefore remanded the case for trial.
Dissenting, Judge Wallace stated that at the time of the shooting, legal precedent did not clearly establish that the use of deadly force under the circumstances was objectively unreasonable.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
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.
OPINION
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.
FACTUAL AND PROCEDURAL BACKGROUND
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 Lopez 1 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.”