A California sheriff’s deputy who shot and killed a 13-year-old boy after mistaking a plastic pellet gun for an AK-47 will stand trial after the U.S. Supreme Court refused to grant a hearing for his appeal Monday.
Sonoma County sheriff’s deputy Erick Gelhaus claimed the boy was pointing the toy at him, making him fear for his life, which was he was claiming qualified immunity.
But the U.S. Supreme Court rejected his bid for qualified immunity, meaning the deputy will now face trial in the lawsuit brought against him and the department accusing him of excessive force and Fourth Amendment violations.
Gelhaus shot the boy, Andy Lopez, seven times on October 23, 2013 after deputies spotted him carrying an airsoft gun designed to look like an AK-47, sparking several weeks of protests in the Santa Rosa area.
The deputy, who has been on the force for more than two decades, was cleared of any criminal charges, but the boy’s parents, Rodrigo Lopez and Sujay Cruz, filed a wrongful death suit in November 2015.
The deputy appealed the suit, claiming qualified immunity, but a federal judge rejected his motion, ruling the issue should be decided by a jury.
Gelhaus then attempted to appeal the case at the Ninth Circuit Court of Appeals but that court affirmed the lower court’s decision in a 2-1 decision.
Judge Milan D. Smith stated that there was enough evidence for a jury to conclude that Gelhaus was not in imminent danger when he shot and killed Lopez, according to LA Times.
Gelhaus tried to use qualified immunity which is a a doctrine developed by the Supreme Court that protects police officers. He argued that he should be safeguarded from the lawsuit because he considered Lopez a threat when he turned towards him.
According to LA Times,
Their patrol car swung behind Andy. From 60 feet away, Gelhaus jumped out, crouched behind the door and shouted “Drop the gun!” As Andy began to turn toward him, Gelhaus fired eight shots, killing the boy.
All four motions to leave filed by International Municipal Lawyers Association, Peace Officers’ Research Association of California, Force Litigation Consulting LLC, and California State Sheriffs’ Association can be found here.
Noah Blechman, the county’s lawyer, believes that this case could have national implications for the fact that the Ninth Circuit Court of Appeals decision goes against other court decisions.
In a statement given to Press Democrat, Blechman stated:
“They’re thrown into situations where they have to make split-second judgments in defense of their life or others’ (lives), and we want to protect officers in those moments and not second-guess them.”
The attorney for the Lopez family, Arnoldo Casillas, said last month that he would expect the trial to take place within a year.
