Estate of Andy Lopez v. Gelhaus, No. 16-15175 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit affirmed the district court's denial of defendants' motion for summary judgment in an action brought under 42 U.S.C. 1983, alleging the use of excessive force. In this case, a sheriff's deputy fatally shot Andy Lopez, a thirteen-year-old who was holding a toy gun. The panel held that the deputy deployed deadly force while Andy was standing on the sidewalk holding a gun that was pointed down at the ground; the deputy shot Andy without having warned Andy that such force would be used, and without observing any aggressive behavior; and thus a reasonable jury could find that the deputy'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, the law was clearly established at the time of the shooting that the deputy's conduct was unconstitutional. Accordingly, the panel remanded for trial.
Court Description: Civil Rights. The panel affirmed the district court’s order denying defendants’ motion for summary judgment on the defense of qualified immunity in an action brought pursuant to 42 U.S.C. § 1983 alleging that Sonoma County Sheriff’s Deputy Erik Gelhaus deployed excessive force when he fatally shot thirteen-year-old Andy Lopez. Gelhaus shot Andy after witnessing Andy walking down the street with an object that looked like an AK-47 rifle. Andy did not comply with Gelhaus’s directive to “drop the gun.” The object turned out to be a plastic gun designed to replicate an AK-47, with the bright orange tip removed. The panel held that viewing the facts in the light most favorable to plaintiffs, as the panel was required to do at this stage of the proceedings, 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 ESTATE OF LOPEZ V. GELHAUS 3 the law was clearly established at the time of the shooting that Gelhaus’s conduct was unconstitutional. The panel held that ultimately, Gelhaus’s 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. Dissenting, Judge Wallace stated that at the time of the shooting, legal precedent did not clearly establish that the use of deadly force under the circumstances was objectively unreasonable.
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