How This California Police Officer Escaped Charges for Shooting a 13-Year-Old Dead

By Nicole Flatow, ThinkProgress

09 July 14

ast October, protests erupted over the fatal, racially charged police shooting of 13-year-old Andy Lopez in Santa Rosa, California, after his BB gun was mistaken for a real AK47. But the officer, Deputy Erick Gelhaus won’t face any criminal charges, the Sonoma County District Attorney announced late Tuesday. In fact, the sheriff’s office’s investigation concluded that Gelhaus did not even violate any internal policies and procedures and will not face discipline, other than the suspension he already faced while the investigation was pending, a spokesperson told ThinkProgress.

In many ways, this outcome is little surprise. Limited available data suggests officers are rarely held accountable for their use of force, least of all with criminal charges. But a 52-page legal memo released by District Attorney Jill Ravitch in announcing her decision — “the first time a report as detailed as this has been made public in Sonoma County,” — sheds light on how a 13-year-old walking along the road with a BB gun came to die at the hands of a longtime police officer, and how the laws and policies operate to protect that officer:

Andy Lopez was carrying a toy gun that looked remarkably real.

13-year-old Andy Lopez was carrying a BB gun made to look like an AK47 when he walked down the street the day of his death, on his way to a friend’s house. But officers said they didn’t know it, because it retained the shape and look of the real thing from a distance. Toy guns should are supposed to be differentiated by a bright orange plug at the end of the barrel, but a friend of Lopez’s who spoke to investigators during the DA investigation said the tip on Lopez’s gun broke off when he dropped the gun. Another classmate of Lopez’s came to school admnistrators crying the day after Lopez’s death, saying that the gun was his and he never should have let Lopez borrow it with the tip broken off.

It’s possible that if the tip had been intact Gelhaus would have seen it and known the BB gun to be a fake. But what if he didn’t view the gun from the right angle, or could not see the color from that distance? A bill introduced since Lopez’s death would require BB and air guns to be more clearly marked as toys with distinguishing features throughout, such as brightly colored plastic. While some other fake guns are required to be marked as such, that California law requirement does not currently apply to BB and air guns.

Officers got no closer to Lopez than 20 yards away.

Deputy Erick Gelhaus was riding as a passenger with Deputy Michael Schemmel doing what the DA report described as some “proactive police work” on the day of October 22. They first saw Andy about 25 yards ahead of them on Moorland Avenue. Gelhaus, a firearms instructor and Iraq war veteran, believed the object Lopez was carrying to be an AK47 and radioed in his observation.

Although Gelhaus had radioed for assistance, the two deputies on the scene acted quickly in the moments that followed. Schemmel parked his vehicle about 20 yards from Lopez, at which point they yelled to Lopez to put down his gun, with Lopez’s back still to the officers. This was the closest they got to Lopez, and seemingly never got close enough to see that Lopez was a child, or that he was carrying something that looked slightly different from an AK47 in key respects. It was from that vantage point — the equivalent of 60 feet — that Gelhaus fired an estimated 8 shots after Lopez began to turn toward the officers and the barrel of the gun “which had been pointed down, began to ascend.” Several witnesses who drove past Andy reported that they believed Lopez to be as young as 11 and though the gun was likely a toy. But the District Attorney’s summary concluded, “Although some [other witnesses] who saw that Andy was a teenaged boy assumed that the weapon was fake, it appears from the evidence that Deputy Gelhaus did not get a good enough view of Andy to determine he was a teenager.”

Some witnesses also reported that they didn’t hear or misheard what the officers said when they asked Lopez to put the gun down, contributing to the possibility, particularly given that distance, that Lopez did not hear their specific command either or comprehend what he was being told.

Officers acted quickly without first exploring other less deadly options.

The DA’s narrative tells the story of officers who moved in a matter of seconds from spotting what they believed in their professional expertise to be an AK47 to shooting their deadly weapons. They had in their tool belts Tasers and pepper spray, in addition to their vehicles. And they were located at what could have been perceived as a safe distance behind the person just walking down the road. But Gelhaus didn’t attempt to deploy any of these options or to get closer to Lopez before firing his gun. This is in part on account of the distinct destructive capacity of AK47s. He knew its bullets could pierce the deputy’s body armor or the body of a car. And an expert testified that Lopez would have been able to aim, point, and fire the weapon in less than a second.

Officers are permitted by law to meet deadly force with deadly force when they reasonably fear for their lives or others’. And meeting an AK47 with gunshots could, by some measures, come closer to proportional force than using gunshots to respond to someone carrying a shovel or a watering hose — scenarios that prompted deadly police force in other recent incidents. But all of these cases involve dramatic misperception by officers.

Laws and policies are extremely deferential to officers.

Courts have given officers a significant amount of leeway in cases of misperception, in part because they are reacting within seconds without the benefit of 20/20 hindsight. As the U.S. Supreme Court explained in a 1989 case, the determination of reasonableness “must embody allowance for the fact that police officers are often forced to make split-second judgments–in circumstances that are tense, uncertain, and rapidly evolving.” The California courts have gone even farther. In a 2009 California Court of Appeals case cited in the DA memo, the judges said, “the defendant police officer is in the exercise of the privilege of protecting the public peace and order [and] he is entitled to the even greater use of force than might be in the same circumstances required for self-defense. … The test is highly deferential to the police officer’s need to protect himself and others…”

But when does officer misperception become unreasonable? That question remains mostly unanswered in the courts. Perhaps more significant than the fact that Gelhaus won’t face criminal charges (unless the FBI intervenes) is that he won’t face any discipline by the sheriff’s department, either. Training and policies have the power to shape day-to-day officer responses, and should be attuned to the inclinations and biases of officers. For example, officers are exposed to a disproportionate amount of violence, meaning they sometimes react to life events through that skewed lens and require the restraint of the law and training to curb that instinct.

As Philadelphia Commissioner Charles Ramsey said in a report on police use of force, “When you ride around all day long and you’re dealing with shootings, you’re dealing with robberies, you’re dealing with all this violent crime that’s constantly going on, that’s going to also influence how you respond in certain situations. And we have to take that into account in our training. We teach our officers to try to interact with people and realize that not everybody in a given neighborhood is a thug or a criminal, they’re not all out to hurt you. These are important things that I think we’ve got to face head on.”

Data suggests that current training is only exacerbating this psychological bias. Psychology Professor Dennis Rosenbaum is studying officers and has found that they come out of police academy already having a bias toward use of force.