13-year-old Andy Lopez Cruz was walking on a street near his house in southwest Santa Rosa around 3:00 pm on October 22 when Deputy Erick Gelhaus, who was in the passenger seat of a patrol car, and another unnamed deputy, who was driving, saw the eighth grader, who was carrying a toy gun.
Within just a few minutes, the middle-schooler would be dead after Gelhaus fired at him. Within a few days, many would be calling for Gelhaus to be arrested in almost daily protests (1,500 participated in one held the day after Andy’s funeral). A Facebook page, Justice For Andy Lopez, has been set up in memory of the middle schooler.
Andy’s family says that the deputy used “excessive force” in shooting at their son. The question is also being asked: shouldn’t it be easier to identify that a toy gun is indeed just that, especially when a middle-school-aged child is carrying one?
Did Deputy Gelhaus Use “Excessive Force”?
Lt. Paul Henry gives this account in the Mercury-News about what happened after Gelhaus saw Andy on October 22:
… Gelhaus said he knows he yelled at least once to Lopez to drop the rifle, but Gelhaus said he is unsure whether he identified himself as a sheriff’s deputy.
The hood was down on the sweatshirt Lopez was wearing and he was not wearing headphones or earbuds, Henry said.
A witness has said that he was driving in front of the deputies’ car and, on seeing Andy, “yelled at him ‘to put away the gun because police were coming.’”
Gelhaus fired eight bullets in ten seconds. Seven struck Lopez; two were fatal. Gelhaus handcuffed Lopez and saw that he had a plastic toy handgun in his waistband. The deputy performed CPR but Lopez died at the scene.
Gelhaus, a 24-year veteran, and the unnamed deputy, who has 11 years of law enforcement experience and was hired about a month ago, have both been placed on paid administrative leave. The Sonoma County police have been carrying out an investigation, which the FBI is also participating in.
Andy’s family filed a legal claim against Sonoma county in which they allege negligence and excessive force on the part of Gelhaus. They also say that he shot the teenager “without cause or provocation” due to training that “encourages deputies to prematurely shoot suspects who pose no threat or danger to deputies or the public at large.” The Sonoma County sheriff’s office was aware that “such tactics” were dangerous, as a result of “repeated incidences where deputies had unnecessarily and unjustifiably discharged their firearms.”
In a statement, a spokesman for Sonoma County stated that it was premature to file the lawsuit and that doing so has the “potential to interfere” with ongoing investigations into the shooting “which are key to providing an understanding of the events surrounding the tragedy.”
A Toy Gun That Looked Real
The shooting of Andy occurred the day after a middle schooler, 12-year-old Jose Reyes, brought a semi-automatic 9-mm pistol to Sparks Middle School in Nevada and fatally shot math teacher Michael Landsberry and wounded two students before killing himself. In the same week, on October 24, an 11-year-old middle school boy was arrested after bringing 400 rounds of ammunition, multiple knives and a handgun to Frontier Middle School.
Andy was carrying a pellet gun but Gelhaus, by his own account, “thought the gun was real and … felt threatened when the boy turned toward him.” Only after the deputy fired eight bullets in ten seconds at the 13-year-old did he realize that the gun was an airsoft rifle which fired plastic BBs.
Such replica guns that look exactly like real ones are not banned in California but they are elsewhere. Arkansas has banned replica guns that look like the real thing outright, the result of police killing 12-year-old Erik Sammis in West Memphis in 2007. New York City requires that replica guns be made in bright colors; in 1994, a 13-year-old boy carrying a toy gun like Andy’s was shot to death by law enforcement officers.
Back in 2011, California State Senator Kevin de León proposed a bill like New York City’s that would have required the BB guns to be brightly colored and clearly distinguishable from the real guns. As Think Progress points out, the NRA waged a fierce, and successful, campaign against the bill, claiming that it “would ban all air guns or would preempt federal law.” In the wake of Andy’s death, De León has been trying to reintroduce the bill.
On Monday, an attorney for the family is filing a civil rights lawsuit in U.S. District Court in San Francisco. But justice for Andy may be a long time coming: an analysis by SGGate.com has found that prosecutions of law enforcement officers in line-of-duty shootings are rare, including in cases involving boys the same age as Andy; in cases in which boys were holding toy guns.
Photo from Thinkstock