(ANTIMEDIA) Sonoma County, CA — On October 22, 2013, police officer Erick Gelhaus shot and killed 13-year-old Andy Lopez, who was walking to his friend’s house carrying a toy rifle. Ten months later, Gelhaus was back on patrol and subsequently promoted despite a clear history of misconduct. Almost four years later, the Ninth Circuit court has decided that Erick Gelhaus will face trial for the killing.
Three judges on the appeals panel made the unanimous decision at a hearing Wednesday. “There is no license for police to kill teenagers within three seconds when even that officer said that the gun was not pointing at him or even coming up to point at him and others say the same thing. That’s not the law,” Ninth Circuit Judge Milan Smith explained.
Gelhaus was on patrol with trainee Deputy Michael Schemmel on October 22, 2013, when he observed Andy Lopez walking on a Santa Rosa sidewalk with a toy rifle, which the cop thought was an AK-47. According to reports, Gelhaus and his deputy yelled for Lopez to drop the gun, and as the boy turned to see who was shouting at him, Gelhaus shot him seven times. Neither Gelhaus nor Schemmel identified themselves as police officers. The cop opened fire within three seconds of yelling at the young boy.
Whether or not Andy Lopez raised the toy gun slightly as he turned was the focus of the hearing Wednesday, which came as a result of Lopez’ parents’ lawsuit against Erick Gelhaus and the county for several claims including use of deadly force, wrongful death, and Fourth Amendment violations. Gelhaus claimed he was protected by qualified immunity, but U.S. District Judge Phyllis Hamilton denied his motion for immunity in January 2016, pointing out that it is unreasonable for a police officer to shoot a suspect who is not pointing a weapon at them. “Andy was already holding a weapon pointing down at his side, and merely turned around in response to an officer’s command, with no ‘sudden movement’ towards the weapon,” she said.
According to Courthouse News, Gelhaus’ attorney, Noah Blechman, “insisted throughout the hearing that ‘when he starts turning and the barrel starts raising, deadly force is reasonable,’” but “the judges repeatedly reminded him that Gelhaus did not know where the toy gun was pointing.”
“Officer Gelhaus himself testified at his deposition he didn’t know where the gun was pointing. That seems to me to open the door to a jury concluding that maybe he wasn’t ‘looking down the barrel of a gun.’ Maybe I could conclude as a juror that the dangerous threat that would justify the use of deadly force just wasn’t there,” Senior Circuit Judge Richard Clifton contended.
Perhaps the most alarming aspect of this case is a claim made by the family of Andy Lopez that Sonoma County knowingly covered up Erick Gelhaus’ history of misconduct and ignored a clear pattern of recklessness with his firearm. The complaint reads:
“Gelhaus had engaged in a custom and practice of reckless and dangerous use of firearms and other misconduct: a. As far back as 1996, Gelhaus demonstrated unfitness to work as a peace officer when he responded to a call involving Karin Futch. Upon arriving at her home in response to a neighbor dispute she reported, he pulled his firearm and pointed it Ms. Futch who was carrying her young son. He chased her around her vehicle causing her great fear and anxiety; b. In about 1996 also, Gelhaus and his then partner were accused of falsifying police reports in a domestic violence matter. Gelhaus’ partner was fired for the misconduct; c. In October of 2013, Gelhaus made a routine traffic stop of Jeffrey Westbrook and recklessly and unnecessarily pointed his pistol at Westbrook’s head while he sat in his car; d. In 1995, Gelhaus shot himself in the leg during a stop and search involving a teenager.”
While the complaints were not addressed at Wednesday’s hearing, the family is hopeful that Gelhaus will be held accountable for his actions when the case goes to trial.
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