Estate Of Andy Lopez, by and through successors in interest, Rodrigo Lopez and Sujay Cruz; Rodrigo Lopez; Sujay Cruz, Plaintiffs-Appellees,
Erick Gelhaus; County Of Sonoma, Defendants-Appellants.
and Submitted May 10, 2017 Pasadena, California
from the United States District Court No. 4:13-cv-05124-PJH
for the Northern District of California Phyllis J. Hamilton,
Chief District Judge, Presiding
G. Blechman (argued) and James V. Fitzgerald III, McNamara
Ney Beatty Slattery Borges & Ambacher LLP, Walnut Creek,
California; Jesse F. Ruiz, Robinson & Wood Inc., San
Jose, California; for Defendants-Appellants.
P. Peters (argued), Law Office of Gerald Philip Peters,
Thousand Oaks, California, for Plaintiffs-Appellees.
Before: J. CLIFFORD WALLACE, RICHARD R. CLIFTON, and MILAN D.
SMITH, JR., Circuit Judges.
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.
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.
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
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'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
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.
SMITH, CIRCUIT JUDGE.
County and Sheriff's Deputy Erick Gelhaus appeal from an
order denying their motion for summary judgment on the
defense of qualified immunity in an action alleging that
Gelhaus deployed excessive force when he fatally shot
thirteen-year-old Andy Lopez in October 2013. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we
AND PROCEDURAL BACKGROUND
Jose Licea Drives by Andy Lopez Prior to the
October 22, 2013, at approximately 3:15 p.m., Jose Licea, a
civilian with no connection to any of the parties to this
litigation, was driving northbound on Moorland Avenue in
Santa Rosa, California. He noticed a person later identified
as Andy Lopez walking on the sidewalk a few hundred feet
in front of him. Licea couldn't tell Andy's age,
"but by the height, [Licea] was figuring it was a
Licea got within approximately 150 feet of Andy, he saw that
Andy was holding an object that looked like an AK-47. The gun
was in Andy's left hand, the barrel was pointed at the
ground, and Licea "could see it just swinging."
Licea thought this was odd: "at that time in the
afternoon, you know, someone walking around with an AK-47, to
me, just - I couldn't see somebody doing that."
Indeed, at "th[at] time of the day, " he said,
"someone is not going to be carrying a real rifle."
Licea got within approximately fifty feet of Andy, he slowed
down to look at the gun. When he saw it, he thought "it
look[ed] fake." He suspected it was a BB gun because his
mother-in-law had seen some children with them in the area
several weeks earlier. Licea did not fear for his life or
call the police; he continued on his way.
Deputies Gelhaus and Schemmel See Andy
same time, Sonoma County Sheriff's Deputies Erick Gelhaus
and Michael Schemmel were on routine patrol in a marked
police car driving northbound on Moorland Avenue. Gelhaus was
training Schemmel because Schemmel had just transferred to
Sonoma from a nearby police department. Gelhaus was aware
that they were patrolling a part of the county known for gang
activity and violent crime. Still, he had not worked in the
area in the last few years, it was the middle of the day, and
there was no activity on the police radio.
Schemmel at the wheel and Gelhaus in the passenger seat, the
officers approached a stop sign at West Robles Drive. That is
when Gelhaus noticed Andy walking in a direction away from
the officers along the west sidewalk on Moorland Avenue. Andy
was "[w]alking at a normal speed" and, according to
Gelhaus, his motions did not appear aggressive. Andy was not
"trying to get away from us, " Gelhaus recounts,
"he was just walking away from us."
could not determine Andy's age-Andy was about 100 feet
away and was wearing a hooded sweatshirt. To Gelhaus, Andy
nonetheless appeared to be "[s]omebody in their mid to
late teens, " and did not appear to be a gang member.
noticed Andy's gun, which he believed to be an AK-47.
Gelhaus believed this in part because he had previously
confiscated an AK-47 within one mile of Andy's location.
That said, he had never seen a person walk down the street in
broad daylight carrying an AK-47. Moreover, he had also
confiscated what turned out to be toy guns on three prior
occasions while on patrol. During the most recent of those
occasions, Gelhaus responded to a call involving subjects
with rifles in a park. He used his loudspeaker from a
distance of 100 yards to direct the individuals to put down
their guns. The suspects complied, and the incident was
resolved without charges.
saw Andy holding the gun in his left hand, "by the
pistol grip, down at his side, " with the muzzle pointed
towards the ground. Schemmel reported he saw Andy holding the
gun in his right hand, and Schemmel's subsequent
declaration does not specify in which hand the gun was held.
As Andy was walking, "the weapon would swing somewhat,
" but Gelhaus could not see if Andy's finger was on
the trigger. Once Gelhaus noticed Andy's
gun, he quickly alerted Schemmel, then called in a "Code
20, " which is used to request that all available units
report immediately on an emergency basis.
Schemmel trained his attention on Andy, he drove past the
stop sign and crossed the intersection with West Robles
Drive. Simultaneously, he flipped on the emergency lights and
"chirped" the patrol car's siren. Schemmel
believes he saw Andy "briefly glance backwards"
over his right shoulder at this point. Gelhaus did not see
Andy make any such turn, nor does he recall ever hearing the
patrol car's "chirp."
Schemmel cleared the intersection, he veered into the
southbound lane and stopped at a forty-five degree angle with
the west sidewalk. As the car was slowing down, Gelhaus
removed his seatbelt, drew his pistol, and opened the
passenger side door. The deputies were parked approximately
forty feet behind Andy at this point. Once stopped, Gelhaus
situated himself at the V of his open door, and knelt on the
outside, Gelhaus aimed his pistol at Andy and yelled loudly
at least one time, "Drop the gun!" Andy had been
walking this whole time, so he was about sixty-five feet from
the officers when Gelhaus shouted. Andy did not drop the gun;
he paused a few seconds and began to rotate his body
clockwise. Gelhaus then "saw the gun come around"
as Andy's torso turned. The parties dispute what happened
to Gelhaus's declaration, "[w]ith the weapon still
in [Andy's] left hand swinging around and toward [the
officers], and with the barrel of the weapon coming up,
" Gelhaus fired eight shots in rapid succession, seven
of which hit Andy. In his videotaped deposition, however,
Gelhaus stated that Andy "didn't turn towards me
when I shot him."Gelhaus shot Andy in the chest, so Andy was
facing the officers when Gelhaus opened fire. Gelhaus
concedes that he does not know where Andy was pointing the
rifle at the time that he was shot. Nor does Gelhaus know if
Andy's gun was ever actually pointed at him.
deposition, Gelhaus was asked to reenact how Andy was holding
the gun, "his turning motion, " and "what you
saw him do." The video depicts the gun in Gelhaus's
fully-extended arm and at his side as he turns, consistently
pointed straight down towards the ground.
defendants' experts opined that it was "likely"
that Andy "partially raised" the gun.
Plaintiffs' experts disagreed. They created
three-dimensional models of Andy's movements, and in each
of the re-creations, Andy's gun barrel is pointed down at
the ground throughout Andy's turn. One expert further
insisted that from the physical evidence alone "[i]t
cannot be determined . . . if the [rifle] was held in the
left or right hand . . . or if the [rifle] was elevated or
pointed at the officers prior to the shooting."
Schemmel was the driver, he insists he was unable to get into
position until Gelhaus had already stopped firing. According
to Schemmel's declaration, "[Andy] turned to his
right with his whole body toward us, and as he did so, the
gun was turning with him and it was raising and turning
toward us." Asked in his deposition, however, if
"[a]t any time before [he] heard gunshots, [he saw]
[Andy's] left hand move, " Schemmel
responded, "I don't recall."
collapsed after the shots and Deputies Gelhaus and Schemmel
remained crouched behind their car doors. Once other deputies
arrived, Gelhaus and two other officers approached Andy with
their guns pulled. As he was standing over Andy, Gelhaus
realized for the first time that the gun's coloring was
different from that of a real AK-47. When he moved the weapon
away, he also noticed that Andy's gun was much lighter.
It turns out that Andy was holding a plastic gun designed to
replicate an AK-47. The toy did not have an orange tip at the
end of the barrel, and defendants' experts submit that it
was not possible for Gelhaus to visually distinguish
Andy's weapon from a real AK-47 at the distance involved
in this case.
time of the shooting, Andy was standing next to an open field
in a residential neighborhood. The site of the shooting is
also close to three schools and the shooting occurred when
school was out of session. There were no other people present
at the shooting. There were a few individuals outside in the
surrounding neighborhood. Andy had been walking in the
general direction of several houses before Gelhaus shouted,
and Gelhaus submits that he did not want to let Andy get near
stated that he was aware at the time of the shooting that
rounds from an assault rifle can penetrate car doors. Thus,
when Gelhaus fired, he did not believe that he had any cover
the total elapsed time from the "chirp" to the
shots was approximately twenty seconds. Andy died on site
from his wounds.
estate brought suit on November 4, 2013, asserting, among
other things, a claim against Gelhaus pursuant to 42 U.S.C.
§ 1983 for a Fourth Amendment violation. Gelhaus and
Sonoma County filed a motion for summary judgment on the
basis of qualified immunity. The district court denied the
motion in relevant part on January 20, 2016. See Estate
of Lopez v. Gelhaus, 149 F.Supp.3d 1154, 1158‒65
(N.D. Cal. 2016).
first step of the qualified immunity analysis, the district
court held that a jury could find that Gelhaus acted
unreasonably when viewing the evidence in the light most
favorable to Andy. Id. at 1162. In particular, after
reviewing the relevant evidence, the court held that it could
"conclude only that the rifle barrel was beginning to
rise; and given that it started in a position where it was
pointed down at the ground, it could have been raised to a
slightly-higher level without posing any threat to the
officers." Id. In light of that finding, the
record did not compel the conclusion that Gelhaus was
threatened with imminent harm. The court distinguished
Gelhaus's authority as involving suspects who either (1)
physically assaulted an officer, (2) pointed a weapon at
officers or others, (3) made a sudden movement towards what
officers believed to be a weapon, or (4) exhibited some other
threatening, aggressive, or erratic behavior. Id.
concluded that the plaintiffs could show a constitutional
deprivation, the court turned to step two. It asked
"whether the law was clearly established such that an
officer would know that the use of deadly force is
unreasonable where the suspect appears to be carrying an
AK-47, " but where "officers have received no
reports of the suspect using the weapon or expressing an
intention to use the weapon, " "the suspect does
not point the weapon at the officers or otherwise threaten
them with it, " "the suspect does not 'come
at' the officers or make any sudden movements towards the
officers, " and "there are no reports of erratic,
aggressive, or threatening behavior." Id. at
1164. The court said that the law was clearly established
that under those "specific circumstances, " the use
of deadly force was unreasonable. Id. at
1164‒65. The court did not directly identify a
precedent that put Gelhaus on notice that his conduct was
filed a timely notice of appeal on February 4, 2016.
review summary judgment determinations de novo. Glenn v.
Wash. Cty., 673 F.3d 864, 870 (9th Cir. 2011). We also
review de novo a defendant officer's entitlement
to qualified immunity. Id.
doctrine of qualified immunity protects government officials
'from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). "Qualified immunity gives government
officials breathing room to make reasonable but mistaken
judgments about open legal questions. When properly applied,
it protects 'all but the plainly incompetent or those who
knowingly violate the law.'" Ashcroft v.
al‒Kidd, 563 U.S. 731, 743 (2011) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
insists he is entitled to qualified immunity on
plaintiffs' Fourth Amendment claim. "In determining
whether an officer is entitled to qualified immunity, we
consider (1) whether there has been a violation of a
constitutional right; and (2) whether that right was clearly
established at the time of the officer's alleged
misconduct."Lal v. California, 746 F.3d 1112,
1116 (9th Cir. 2014) (citing Pearson, 555 U.S. at
232). Here, taking the facts as we must regard them on this
interlocutory appeal, a reasonable jury could conclude that
Gelhaus deployed excessive force in violation of the Fourth
Amendment. Additionally, the alleged violation of Andy's
Fourth Amendment right was clearly established at the time of
Step One-Whether a constitutional right was
assert that Gelhaus deployed excessive force in violation of
the Fourth Amendment. This claim is governed by an
"objective reasonableness standard, " which
requires a "careful balancing of the nature and quality
of the intrusion on the individual's Fourth Amendment
interests against the countervailing governmental interests
at stake." Graham v. Connor, 490 U.S. 386, 388,
396 (1989) (internal quotation marks omitted). The calculus
"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-about the amount of force that is necessary in a
particular situation." Id. at 396‒97. We
therefore judge reasonableness "from the perspective of
a reasonable officer on the scene, rather than with the 20/20
vision of hindsight." Id. at 396.
Supreme Court's decision in Graham identified
several factors to consider when evaluating the strength of
the government's interest in the force used: (1)
"the severity of the crime at issue, " (2)
"whether the suspect poses an immediate threat to the
safety of the officers or others, " and (3)
"whether [the suspect] is actively resisting arrest or
attempting to evade arrest by flight." Id. The
"'most important' factor under Graham
is whether the suspect posed an 'immediate threat to the
safety of the officers or others.'" George v.
Morris, 736 F.3d 829, 838 (9th Cir. 2013) (quoting
Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir.
2010)). These factors are non-exhaustive. Bryan, 630
F.3d at 826. Courts still must "examine the totality of
the circumstances and consider whatever specific factors may
be appropriate in a particular case, whether or not listed in
Graham" Id. (internal quotation marks
omitted). "Other relevant factors may include the
availability of less intrusive force, whether proper warnings
were given, and whether it should have been apparent to the
officer that the subject of the force used was mentally
disturbed." Hughes v. Kisela, 841 F.3d 1081,
1085 (9th Cir. 2016). "With respect to the possibility
of less intrusive force, officers need not employ the least
intrusive means available[, ] so long as they act within a
range of reasonable conduct." Id.
held that "summary judgment should be granted sparingly
in excessive force cases." Gonzalez v. City of
Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) (en banc).
"This principle applies with particular force where,
" as here, "the only witness other than the
officers was killed during the encounter." Id.
"In such cases, we must ensure that the officer is not
taking advantage of the fact that the witness most likely to
contradict his story-the person shot dead- is unable to
testify." Id. (internal quotation marks
omitted). "Accordingly, we carefully examine all the
evidence in the record, such as medical reports,
contemporaneous statements by the officer and the available
physical evidence, . . . to determine whether the
officer's story is internally consistent and consistent
with other known facts." Id. (internal
quotation marks omitted). "We must also examine
circumstantial evidence that, if believed, would tend to
discredit the police officer's story." Id.
(internal quotation marks omitted).
we must view the facts in the light most favorable to the
nonmoving party, when considering qualified immunity, we are
also limited to considering what facts the officer could have
known at the time of the incident." Davis v. United
States, 854 F.3d 594, 598 (9th Cir. 2017) (citing
White v. Pauly, 137 S.Ct. 548, 550 (2017)).
Ultimately, in this interlocutory appeal, we ask
"whether the defendants would be entitled to qualified
immunity as a matter of law, assuming all factual disputes
are resolved, and all reasonable inferences are drawn, in
plaintiff's favor." George, 736 F.3d at 836
(internal quotation marks and alteration omitted).
To assess whether a reasonable jury could find a Fourth
Amendment violation, we must first resolve several factual
Graham, Andy was not committing a serious crime or
attempting to evade arrest by flight. The first and third
factors thus weigh clearly in Andy's favor. We therefore
are left with the "most important" factor-whether
Andy posed an "immediate threat to the safety of the
officers or others." George, 736 F.3d at 838
(internal quotation marks omitted). To make that
determination, we must resolve a number of genuine factual
disputes, considering the evidence in the light most
favorable to the nonmoving party-here, the plaintiffs.
because Schemmel and Gelhaus disagree as to whether Andy
"briefly glance[d] backwards" over his right
shoulder after the patrol car's "chirp, " we
must assume that Andy did not briefly glance
backwards and therefore was unaware that someone was behind
him until Deputy Gelhaus shouted "drop the gun."
See Saucier v. Katz, 533 U.S. 194, 207 (2001)
("Excessive force claims . . . are evaluated for
objective reasonableness based upon the information the
officer had when the conduct occurred."); Moreno
v. Baca, 431 F.3d 633, 642 (9th Cir. 2005) (stating that
courts may consider only the facts that were known to the
defendant officer). This disputed fact is significant because
it sheds light on Andy's possible motivations in turning
to face the officers. In particular, Andy's subsequent
turn appears less ...