A three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled today that the Oct. 22, 2013 shooting of Andy Lopez by a Sonoma County Sheriff’s Office deputy may have been an unconstitutional abridgment of Lopez’ rights, as it ruled against an appeal filed by Sonoma County and lawyers for the officer.
In its ruling, the panel sent the case back to the lower U.S. District Court and called for a jury trial to determine whether officer Erick Gelhaus should be entitled to qualified immunity in the ongoing federal civil rights lawsuit that followed the shooting. Lopez was 13 at the time of his death. As the court reiterated in its summary of the facts, Lopez was shot and killed on Moorland Avenue in Santa Rosa while carrying a plastic replica of an AK-47 with its bright-orange tip removed. He was also carrying a replica handgun.
Gelhaus remains an officer with SCSO as the case moves to a next and uncertain phase. For now, the ruling represents a rebuke to the Sonoma County Counsel’s office (despite the fact that the court was not unanimous in its decision).
The Ninth Circuit court issued its opinion after defense lawyers appealed an earlier ruling in the Lopez family’s suit against Gelhaus and Sonoma County. In their appeal of the lower U.S. District Court’s ruling, the county argued that the shooting was justified—and that because it was justified, Gelhaus ought to be entitled to qualified immunity in the proceedings.
In January, District Court Judge Phyllis Hamilton rejected a county request for a summary judgment to dismiss the federal suit. She said it was an open question whether the shooting was justified, as she ruled against the county, which prompted the appeal.
The three-judge Pasadena circuit court heard the case on May 10, and two of the three judges essentially made the same observation that Hamilton did: “Defendants have not established that Andy actually threatened the officers with the rifle that he was holding.”
And today the appeals court ruled 2-1 that a decision over qualified immunity should be made by a jury—given that there are facts about the incident that are in question and ought to be sorted out by a citizen panel.
Judge Clifford Wallace, an appointee of U.S. President Richard M. Nixon, dissented from Richard Clifton and Milan Smith, both of whom were appointed by George W. Bush; Smith wrote the opinion. The 71-page ruling was issued this morning; what follows is a key summary paragraph that lays out the court’s majority view finding that a jury could rule that Lopez’ civil rights were violated in the shooting.
Emphasis added, since it’s critical to understand that the appeals court did not rule that Lopez’ civil rights were violated. As the judges noted during the hearing and in today’s opinion, the court’s role in this proceeding was to view the facts most favorable to the plaintiff (since Lopez was obviously not able to present those facts himself), and then make a determination whether there were outstanding questions that only a jury could resolve.
The opinion reads, in part, “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 conduct was unconstitutional. The panel held that ultimately, Gelhaus 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.”
Translated, the court’s ruling means that the suit, Estate of Andy Lopez v. Erick Gelhaus; County of Sonoma, has been sent back to the United States District Court for the Northern District of California, in Oakland, where (absent a cash settlement between the county and the Lopez family) a civilian jury would be be charged with sorting out the details of the officer-involved shooting incident.
A jury trial could represent another big-ticket budget item for Sonoma County, which has already dedicated more than $2 million to fight against the Lopez suit—and is so far 0-2 in court for all the money spent.
Repercussions from the shooting continue to bedevil Sonoma County and Santa Rosa as the SCSO has struggled to gain the trust of local Latino and police accountability groups outraged by the 2013 shooting. Former Sonoma County Sheriff Steve Freitas, citing health concerns, retired from his post this summer as local activists set organized a recall election to remove him from office over support for Gelhaus, which include Freitas promoting him to sergeant in 2016.
Anxious for a “healing moment” and to move on from the Lopez shooting, Sonoma County officials now have to decide whether to appeal this Ninth Circuit Court decision, deploy further taxpayer dollars to defend Gelhaus and the county before a citizen jury at the U.S. District Court, or cut its losses and settle with the Lopez family.
Should the county choose the appeal route, the next step could be the United State Supreme Court. A more likely route, should the county chose the appeals option, is for county lawyers to ask for a re-hearing at the Ninth and seek a favorable “en banc” ruling where a panel of eleven judges would issue its opinion.