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Killing of Andy Lopez

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The fatal killing of Andy Lopez by Sonoma County sheriff's deputy Erick Gelhaus took place on October 22, 2013, in Santa Rosa, California. 13-year-old Lopez was walking through a vacant lot and carrying an airsoft gun that was designed to resemble an AK-47 assault rifle. Gelhaus opened fire on Lopez, presumably mistaking the airsoft gun for a real firearm. The shooting prompted many protests in Santa Rosa, and throughout California.

Shooting of Andy Lopez
Undated family photo of Andy Lopez
DateOctober 22, 2013 (2013-10-22)
Timec. 3:14 p.m. (PST)
LocationMoorland Avenue and West Robles Avenue, Santa Rosa, California, United States
Coordinates38°23′40″N 122°43′07″W / 38.394466°N 122.718555°W / 38.394466; -122.718555
ParticipantsErick Gelhaus (shooter)
Andy Lopez (death)
DeathsAndy Lopez
ChargesNone filed[1]
LitigationLawsuit against Sonoma County and Gelhaus settled for $3 million

On November 4, 2013, the Lopez family filed a federal civil rights lawsuit at the U.S. District Court.

On July 7, 2014, District Attorney Jill Ravitch announced no charges would be filed against Gelhaus. On July 1, 2015, the FBI announced no criminal charges would be filed against Gelhaus, due to lack of evidence to prove that he violated Lopez's civil rights.

Backgrounds

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Andy Lopez (June 2, 2000[2] – October 22, 2013) was a 13-year-old boy who attended Cook Middle School in Santa Rosa. He was raised in the Moorland Avenue neighborhood in southwest Santa Rosa. He transferred to Lewis Opportunity School from Cook Middle School one week prior to his death.[3]

Erick Gelhaus is a Sonoma County sheriff's deputy, and has worked with the agency for 24 years. He is also an Iraq War veteran. Gelhaus is a firearms instructor and is a contributing writer to gun publications. He began instructing in 2001 at Gunsite Academy, an Arizona-based company that teaches gun-handling, marksmanship, and law enforcement to "elite military personnel, law enforcement officers and free citizens of the U.S," and is listed as active as of 2022[4] He specialized in teaching pistol, carbine, shotgun and rifle lessons.[5] He accidentally shot himself in the leg in 1995 while on duty with the sheriff's office, reportedly while holstering a gun during an attempt at searching a teenager for weapons. In his 24 years in law enforcement, he had never shot a suspect until the shooting of Lopez.[6][7]

Shooting

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According to Santa Rosa Police Lieutenant Paul Henry, two Sonoma County sheriff's deputies (Gelhaus and Michael Schemmel; Schemmel was driving the patrol car)[8] were patrolling the Moorland Avenue neighborhood when they spotted Andy Lopez approximately 25 yards (23 m) ahead carrying an airsoft replica of an AK-47 assault rifle[9] while he was walking on Moorland, just past the corner of West Robles Avenue. The rifle appeared to be a real weapon, since its orange tip had been previously broken off. As the sheriff's deputies approached the child from behind, Gelhaus radioed an observation of "Code 20, two units" at 3:13:58 p.m.[8] Schemmel activated the light bar and briefly sounded the siren as he parked the patrol vehicle, and Gelhaus exited the passenger's side, calling out to demand that Lopez drop the weapon. Lopez turned to his right, towards the deputies and the barrel allegedly began to ascend.[8]

At 3:14 p.m., Gelhaus fired eight shots at Lopez from his department-issued 9mm handgun.[10] The deputies broadcast "shots fired" to dispatch at 3:14:17 p.m., indicating the total time from initial contact to the shooting was seventeen seconds.[8] By Gelhaus's own testimony, he opened fire "a couple seconds" after issuing the command for Lopez to drop the airsoft gun.[11] Seven bullets hit Andy within six seconds. Two of the shots delivered fatal wounds, with one round hitting Lopez on his side while he was turning to face the police, at least four entering from the rear, according to an autopsy. The deputies remained in defensive position until backups arrived, then approached Lopez with guns drawn; after separating the airsoft gun from Lopez he was handcuffed.[8] He was pronounced dead by medical personnel on the scene.[12] Lopez was found to be under the influence of marijuana after an autopsy.[13]

The missing orange tip is a US legal requirement for all toy guns for import.[14] However, airsoft and pellet rifles are exempted from the marking requirements.[15] It is also a violation of California law to "openly display or expose any imitation firearm in a public place unless the entire exterior surface of the imitation firearm is painted with a specified color".[8] The 13 year old friend from whom Lopez had borrowed the replica later reported that he felt responsible "because he allowed Andy to borrow the gun even though the orange tip of the barrel was broken off making it look real, although he'd told his friend not to take it since it was broken."[8]

Investigation

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On October 26, 2013, the Federal Bureau of Investigation started to conduct an independent investigation in Lopez's death. Sonoma County Sheriff Steve Freitas announced in a statement on October 25 that he would cooperate fully with federal investigators.[16] It is the first time the FBI has investigated an officer-involved shooting in Sonoma County since the 1997 shooting death of Kuanchung Kao in Rohnert Park.[17]

Investigators said Gelhaus feared for the safety of himself and his partner, and had to make an immediate decision to shoot when Lopez turned around and allegedly began raising the apparent assault weapon in their direction. The gun was later found to be an AK-47 replica air-soft pellet gun with the orange barrel tip marking broken off. Gelhaus was in a deputy sheriff's uniform and marked sheriff's patrol car; however, Lopez would not have seen the uniform or patrol car since the officers approached him from behind;[10]

In the autopsy, Lopez was found to have significant levels of THC in his blood, consistent with smoking marijuana 60 to 75 minutes previously; he was also found to have a joint in his pocket. 'A 13-year-old boy high on marijuana would likely have suffered "impaired judgment, slowed decision making and increased mental processing time, particularly when having to deal with performance of a sudden, unanticipated tasks, including decisions that needed to be quickly responded to.'"[18]

Gelhaus was cleared to return to duty on December 9, 2013, but was able to work at his desk and not on patrol. On July 7, 2014, District Attorney Jill Ravitch announced no charges would be filed against Gelhaus.[1] In August 2014, Gelhaus was allowed to return to patrolling the streets.[19]

The district attorney, Jill Ravich, referred the completed investigative report to the Sonoma County Grand Jury, but the civil Grand Jury declined to review it, citing lack of expertise.[20]

On July 1, 2015, the U.S. Department of Justice announced that it would not file criminal charges of violating one's civil rights against Gelhaus. According to a Justice Department spokesman, the decision to not file charges against Gelhaus was due to insufficient evidence that he willfully used excessive force that resulted in Lopez's death. A group of federal prosecutors and FBI agents reviewed the case and determine there was a lack of evidence Gelhaus violated Andy Lopez's civil rights.[21]

Aftermath

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Civil action

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Arnoldo Casillas, the lawyer representing Lopez's family, said that the shooting was unconstitutional because it violated the Fourth Amendment's limits on police authority. On November 4, the Lopez family filed a lawsuit at the U.S. District Court in San Francisco, claiming that Deputy Erick Gelhaus shot Lopez "without reasonable cause."[22][23][24]

The civil action trial was initially scheduled to start in April 2016.[21] In February 2016, the trial was delayed by Sonoma County's challenge to the January ruling by U.S. District Court Judge Phyllis Jean Hamilton that allowed the case brought by the parents of Andy Lopez to go forward. Hamilton had dismissed three of the five claims that Gelhaus violated Lopez's civil rights but said she would leave it to a jury to decide whether he acted unreasonably. Steven Mitchell, the attorney who would have defended Sonoma County in the federal lawsuit filed by Lopez's parents, committed suicide two weeks after the decision to delay the case was made.[25][26]

On June 25, 2018, the U.S. Supreme Court denied Sonoma County's petition, clearing the way for the case against the Sonoma County sheriff's deputy to proceed toward a trial.[27] In December 2018, the lawsuit was settled for $3 million.[28]

Protests

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"Justice 4 Andy" rally in Santa Rosa, California, November 09, 2013

A series of protests were organized and held following Lopez's death. The protests were mainly organized by immigrant, religious and community groups and activists.[29] Many protesters have stated that Lopez's shooting was a case of police brutality, and that Lopez, who was Latino, was a victim of racial profiling by the deputies. On October 25, 2013, more than 100 people, consisting mostly of middle school and high school students, protested at the Santa Rosa City Hall.[16] On October 29, over 1,000 people attended a protest in downtown Santa Rosa, in the form of a mass march. The march initiated in the Courthouse Square in downtown Santa Rosa, and ended at the Sonoma County Sheriff's Office. Lawyer John Burris, who represented the family of police shooting victim Oscar Grant, gave a speech at the rally. Attendees traveled from all over the San Francisco Bay Area to attend the event. Many protesters held picket signs demanding justice.[30][31][32][2][6] Up to 200 people attended a march in Santa Rosa on November 5, 2013, including activist Cindy Sheehan.[33] They also demanded that District Attorney Jill Ravitch issue an arrest warrant for Gelhaus or put together a grand jury, but she declined to do either until the fact gathering investigation was complete, stating that the investigation would take time.[34]

Rallies were held statewide on November 9, 2013, in Santa Rosa, Oakland, San Francisco, Los Angeles, Sacramento, and Merced.[35]

 
2013 "Justice 4 Andy" rally

On November 26, 2013, several people were detained during protests in Santa Rosa. A dozen demonstrators were cited for blocking traffic, and one demonstrator was arrested and booked for resisting arrest. There were 80 people attending that protest, consisting of local middle and high-school students, and several members of By Any Means Necessary (BAMN), a Bay Area-based civil rights group.[36]

On December 3, 2013, protesters targeted Ravitch at her re-election fundraiser.[37]

On December 9, 2013, Gelhaus was cleared to return to duty, which resulted in additional protests.[38]

A 31-year-old man was arrested for battery on a police officer for allegedly punching a police officer and hitting another officer with a picket sign during a protest at the Santa Rosa City Hall on December 10, 2013. Charges were dropped against him in May 2014.[39] A second person was arrested for obstructing a police officer and violating probation. Multiple protesters vandalized the front door of the Sonoma County Jail, breaking its glass.[40][41]

On February 17, 2014, protesters for Andy Lopez gathered at the Santa Rosa Plaza food court to eat lunch while wearing shirts displaying "RIP Andy Lopez". Several mall security guards came up to them and asked them to remove their T-shirts or leave the mall. The attorney for Simon Malls, owner of Santa Rosa Plaza, apologized in a letter issued to relatives of Andy Lopez, stating that they were disappointed that the security guards did not comply with the mall's policies and procedures. The head of security for Santa Rosa Plaza was fired one month later in connection with the incident.[42]

On July 12, 2014, more than 100 protesters held a rally at the Old Courthouse Square in Santa Rosa, demonstrating their disapproval with prosecutors' decision to not file charges against Erick Gelhaus. A small group of protesters marched onto northbound Highway 101, blocking traffic.[43]

On June 2, 2020, a memorial and march was held in Santa Rosa in Lopez’s honor, on what would have been his 20th birthday, and coinciding with the George Floyd protests.

Tributes

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A memorial park was created for Lopez in December 2013, located near the site of his death.[44]

In March 2016, the Sonoma County Board of Supervisors approved an additional $1.2 million of fund money for the park and a name for it. The park is named "Andy's Unity Park" and encompasses 4.22 acres. The park's estimated cost was $4 million, with $3 million for the construction.[45] The park was opened in June 2018 with a final cost of $3.7 million.[28] LandPaths, a Sonoma county non-profit, helped create Andy’s Unity Park Community Garden and maintains the park along with community involvement.[46]

See also

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References

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  1. ^ a b "Sonoma County D.A.: No criminal charges for deputy in Lopez shooting". 7 July 2014. Archived from the original on 8 July 2014. Retrieved 7 July 2014.
  2. ^ a b "Protest Over Andy Lopez Killing 10.29.13". Press Democrat. October 29, 2013. Archived from the original on October 31, 2013. Retrieved October 30, 2013.
  3. ^ Johnson, Julie (October 27, 2013). "Mourners wearing white honor Andy Lopez at visitation service". Press Democrat. Archived from the original on November 1, 2013. Retrieved October 29, 2013.
  4. ^ "Erick Gelhaus". n.d. Retrieved 2022-07-26.
  5. ^ Joseph, Channing (October 28, 2013). "Deputy who shot Calif. teen is a gun instructor". San Francisco Chronicle. Archived from the original on 2013-11-01. Retrieved October 31, 2013.{{cite news}}: CS1 maint: bot: original URL status unknown (link)
  6. ^ a b Alexander, Kurtis (October 29, 2013). "Big rally in Santa Rosa over toy gun killing". San Francisco Chronicle. Archived from the original on October 30, 2013. Retrieved October 29, 2013.
  7. ^ Murdock, Sebastian (October 29, 2013). "Erick Gelhaus Identified As Cop Who Killed Teenager Andy Lopez". Huffington Post. Archived from the original on November 1, 2013. Retrieved October 29, 2013.
  8. ^ a b c d e f g Law enforcement employee-involved fatal incident report (PDF) (Report). Sonoma County District Attorney's Office. 2014. Archived (PDF) from the original on 9 December 2014. Retrieved 29 January 2015.
  9. ^ Wilkey, Robin (October 23, 2013). "Police Shoot And Kill Andy Lopez, 13-Year-Old Boy Carrying Pellet Gun". Huffington Post. Archived from the original on October 28, 2013. Retrieved October 30, 2013.
  10. ^ a b "Report: Calif. boy shot before 2nd deputy left car". CBS News. October 30, 2013. Archived from the original on October 31, 2013. Retrieved October 31, 2013.
  11. ^ United States Court of Appeals, Ninth Circuit. "Estate of Casillas v. City of Fresno". casetext.com. Retrieved 11 January 2023.
  12. ^ Winter, Michael (October 29, 2013). "Hundreds protest police killing of Calif. teen". USA Today. Archived from the original on October 30, 2013. Retrieved October 29, 2013.
  13. ^ Alexander, Kurtis (July 8, 2014). "Boy with toy gun said to be high when shot by cop". San Francisco Chronicle. Archived from the original on July 9, 2014. Retrieved July 9, 2014.
  14. ^ "15 C.F.R. Part 272—Marking of Toy, Look-Alike and Imitation Firearms". Electronic Code of Federal Regulations. 1 January 2014. Archived from the original on 2 July 2016. Retrieved 6 January 2015.
    §272.3 Approved markings.
    The following markings are approved by the Secretary of Commerce:
    1. A blaze orange (Fed-Std-595B 12199) or orange color brighter than that specified by the federal standard color number, solid plug permanently affixed to the muzzle end of the barrel as an integral part of the entire device and recessed no more than 6 millimeters from the muzzle end of the barrel.
    2. A blaze orange (Fed-Std-595B 12199) or orange color brighter than that specified by the Federal Standard color number, marking permanently affixed to the exterior surface of the barrel, covering the circumference of the barrel from the muzzle end for a depth of at least 6 millimeters.
    3. Construction of the device entirely of transparent or translucent materials which permits unmistakable observation of the device's complete contents.
    4. Coloration of the entire exterior surface of the device in white, bright red, bright orange, bright yellow, bright green, bright blue, bright pink, or bright purple, either singly or as the predominant color in combination with other colors in any pattern.
  15. ^ "15 C.F.R. Part 272—Marking of Toy, Look-Alike and Imitation Firearms". Electronic Code of Federal Regulations. 23 January 2013. Archived from the original on 2 July 2016. Retrieved 14 June 2016.
    §272.1 Applicability.
    This part applies to toy, look-alike, and imitation firearms ("devices") having the appearance, shape, and/or configuration of a firearm and produced or manufactured and entered into commerce on or after May 5, 1989, including devices modelled on real firearms manufactured, designed, and produced since 1898. This part does not apply to:
    1. Non-firing collector replica antique firearms, which look authentic and may be a scale model but are not intended as toys modelled on real firearms designed, manufactured, and produced prior to 1898;
    2. Traditional B-B, paint-ball, or pellet-firing air guns that expel a projectile through the force of compressed air, compressed gas or mechanical spring action, or any combination thereof, as described in American Society for Testing and Materials standard F 589-85, Standard Consumer Safety Specification for Non-Powder Guns, June 28, 1985. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A copy is available for inspection in the Office of the Chief Counsel for NIST, National Institute of Standards and Technology, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA or go to: https://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    3. Decorative, ornamental, and miniature objects having the appearance, shape and/or configuration of a firearm, including those intended to be displayed on a desk or worn on bracelets, necklaces, key chains, and so on, provided that the objects measure no more than thirty-eight (38) millimeters in height by seventy (70) millimeters in length, the length measurement excluding any gun stock length measurement.
  16. ^ a b "Andy Lopez fatal shooting by Santa Rosa police to be investigated by FBI". Associated Press. October 26, 2013. Archived from the original on October 29, 2013. Retrieved October 30, 2013.
  17. ^ Wilkinson, Brett (October 25, 2013). "FBI to investigate Andy Lopez shooting". Press Democrat. Archived from the original on October 28, 2013. Retrieved October 30, 2013.
  18. ^ Julie Johnson and Kevin McCallum (July 8, 2014). "Ravitch: No criminal charges warranted in Andy Lopez shooting". Press Democrat. Archived from the original on August 2, 2018. Retrieved August 2, 2018.
  19. ^ Johnson, Julie. Deputy in Andy Lopez shooting returning to patrol Archived 2015-04-14 at the Wayback Machine, Press Democrat, August 15, 2014.
  20. ^ Lori A Carter (July 12, 2014). "Sonoma County Grand Jury may not review Andy Lopez case". Press Democrat. Archived from the original on August 3, 2018. Retrieved August 2, 2018.
  21. ^ a b Hansen, Jamie; Johnson, Julie. FBI finds no civil rights violations in Andy Lopez's death Archived 2015-07-02 at the Wayback Machine, Press Democrat, July 1, 2015.
  22. ^ Espinoza, Martin (November 1, 2013). "Lopez attorney: Sheriff's office 'encourages' use of deadly force". Press Democrat. Archived from the original on November 3, 2013. Retrieved November 2, 2013.
  23. ^ "Andy Lopez Family Files Federal Lawsuit, Claiming Violation of Fourth Amendment". 4 November 2013. Archived from the original on 2013-11-07. Retrieved 2013-11-07.
  24. ^ "Archived copy" (PDF). Archived (PDF) from the original on 2014-01-23. Retrieved 2013-11-07.{{cite web}}: CS1 maint: archived copy as title (link)
  25. ^ Payne, Paul (February 8, 2016). "Sonoma County filing could delay Lopez family's lawsuit by a year". Press Democrat. Archived from the original on April 13, 2016. Retrieved April 22, 2016.
  26. ^ Payne, Paul (February 19, 2016). "Missing Santa Rosa attorney believed dead". Press Democrat. Archived from the original on April 24, 2016. Retrieved April 22, 2016.
  27. ^ url=https://www.pressdemocrat.com/news/8470096-181/us-supreme-court-denies-sonoma Archived 2018-10-15 at the Wayback Machine
  28. ^ a b "Sonoma County to pay $3 million to settle lawsuit over Andy Lopez shooting". 18 December 2018. Archived from the original on 27 March 2019. Retrieved 27 March 2019.
  29. ^ Scully, Sean (November 2, 2013). "Community discovering new unity after Lopez shooting". Press Democrat. Archived from the original on November 11, 2013. Retrieved November 2, 2013.
  30. ^ "News Fix Archives | KQED News". Archived from the original on 2013-10-31. Retrieved 2013-10-30.
  31. ^ Johnson, Julie (October 29, 2013). "Police: Second deputy still in car when Andy Lopez shot". Press Democrat. Archived from the original on November 1, 2013. Retrieved October 29, 2013.
  32. ^ Johnson, Julie (October 29, 2013). "Protests on Andy Lopez killing end without incident". Press Democrat. Archived from the original on October 31, 2013. Retrieved October 29, 2013.
  33. ^ "Marchers gather in Santa Rosa to protest Andy Lopez killing". Press Democrat. November 5, 2013. Retrieved November 5, 2013.
  34. ^ "Protesters vow independent Andy Lopez investigation". 5 November 2013. Archived from the original on 8 November 2013. Retrieved 6 November 2013.
  35. ^ "Multiple Bay Area Protests Saturday Over Andy Lopez Shooting". CBS News. November 8, 2013. Archived from the original on November 9, 2013. Retrieved November 8, 2013.
  36. ^ Espinoza, Martin (November 26, 2013). "Several Andy Lopez demonstrators detained, cited". Press Democrat. Archived from the original on November 29, 2013. Retrieved November 26, 2013.
  37. ^ "District Attorney Jill Ravitch defends Andy Lopez inquiry amid pair of protests". 4 December 2013. Archived from the original on 17 December 2013. Retrieved 17 December 2013.
  38. ^ "California Deputy Who Shot Teen Returning to Duty - ABC News". ABC News. Archived from the original on 2013-12-17. Retrieved 2020-06-28.
  39. ^ Payne, Paul. Prosecutors drop charges against Andy Lopez protester Archived 2014-05-13 at the Wayback Machine, Press Democrat, May 9, 2014.
  40. ^ Espionza, Martin; Johnson, Julie (December 11, 2013). "Two arrested as Lopez protest halts meetings". Press Democrat. Archived from the original on December 13, 2013. Retrieved December 11, 2013.
  41. ^ "Tensions high at Tuesday's Andy Lopez protest". Press Democrat. December 10, 2013. Archived from the original on December 13, 2013. Retrieved December 10, 2013.
  42. ^ Security guard says he was fired over Lopez t-shirt flap Archived 2014-07-29 at the Wayback Machine, KTVU, March 2, 2014.
  43. ^ Protesters Demanding Justice For Slain 13-Year-Old Andy Lopez Block Hwy 101, Santa Rosa Archived 2014-08-08 at the Wayback Machine, CBS News, July 12, 2014.
  44. ^ "Supervisors Study Turning Park into Memorial for Andy Lopez, Teen Killed Carrying Replica Rifle". 3 December 2013. Archived from the original on 2013-12-17. Retrieved 2013-12-17.
  45. ^ "Sonoma Supervisors give name, funding boost to park in memory of Andy Lopez". KTVU. March 16, 2016. Archived from the original on March 18, 2016. Retrieved March 16, 2016.
  46. ^ "Andy's Unity Park Community Garden". Archived from the original on 2020-08-03. Retrieved 2020-06-01.
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