Last month in Sonoma County, Calif., in an area known as Southwest Santa Rosa, a 13-year-old boy walked down the street. He was carrying a friend’s airsoft gun.
At about 3:15 p.m., the boy was spotted by deputies of the Sonoma County Sheriff’s Department. Seeing what they believed to be an AK-47 in the subject’s hands and knowing they were in a neighborhood plagued by gangs, the deputies called for back up, parked their car about 30 feet from the subject, got out, took cover behind its doors, drew their service weapons, and told the subject to drop the gun.
What happened next, according to police, is that the subject turned around and the muzzle of the “AK” swung toward the deputies. One of the deputies, Erick Gelhaus, fired eight shots at the subject.
Andy Lopez was hit seven times. He was pronounced dead at the scene. And it was only after handcuffing him that the deputies discovered that “AK” was actually an airsoft replica. The barrel that was supposed to carry the telltale orange plastic tip was broken.
Lopez’s family is grief-stricken, angry, and lawyered up. Dep. Gelhaus is not commenting, but it doesn’t take much empathy to know he is suffering. The community is holding vigils and protest marches and demanding “justice.” And the Sonoma SD is doing all it can to explain the incident and defuse the situation, which is under investigation by the Santa Rosa Police Department and the FBI.
But the situation can’t be defused. Lopez was a Latino in a predominantly impoverished and immigrant neighborhood. He was killed by a white deputy. And the situation is likely to get worse when the public learns that legally the shooting was justified.
Dep. Gelhaus is an Iraq War veteran, a 24-year veteran of the Sonoma SD, and has testified as an expert on gang activity. So he’s had plenty of experience with the AK. And what he saw in the boy’s hand that day was to him an AK, not an airsoft gun. He believed in that split-second that he was facing a semi-automatic or even automatic rifle with the power to shred his patrol car, punch through his and his partner’s body armor, and kill civilians who happened to be downrange. So he fired. And he kept firing until the “threat” was down.
Under Graham v. Connor that is going to be a justified shooting, although a terribly tragic one. And probably every investigator on this case knows it. But still the FBI has been asked by somebody up the chain (Holder?) to come in and probe whether the case involves a violation of Lopez’s civil rights.
And the local second-guessers are having a field day.
Some, including the local newspaper editorial board, are saying that Gelhaus should have noted the boy’s age and decided to use less-lethal force instead. Maybe they know of some less-lethal tool that individual patrol officers carry on their person that has a range of 10 yards and is effective against someone who is wielding a 7.62 x 39mm rifle, but I don’t and I’ve been privy to developments in the field of law enforcement weaponry for 12 years now.
As for Lopez’s age, since when is a 13-year-old boy carrying an AK any less dangerous than a full-grown adult with such a weapon? Ever heard of preteen gang members who do the shooting for their cliques because it's hard for the law to prosecute them? Ever heard of 10-year-old child soldiers who murder, maim, and rape while carrying AKs?
The sad truth is that sometimes officers make justified mistakes based on the circumstances at the time. I’m certain that given the facts now known, Gelhaus would tell you he wished he hadn’t fired. But I can also say with some certainty that given the same circumstances and information presented at the time of the incident, he would shoot again.
Which is what the veteran deputy will likely say to the investigators or at any grand jury hearing or trial that may occur. “Given the totality of the circumstances at the time, I would not do anything differently.”
That’s going to be a hard thing for the local newspaper, the ACLU, the Southwest Santa Rosa community, and the family of Andy Lopez to hear. But it’s the law of the land. Because of the circumstances known at the time, Lopez was perceived as a deadly “threat.”
Don’t believe me? Then ask yourself what might have happened if the subject had been a gang member, the AK had been real, and the deputy hadn’t taken action.