Family Sues After Deputy Kills Boy, 13, With Toy Rifle

By Lisa Fernandez and Jodi Hernandez
|  Tuesday, Nov 5, 2013  |  Updated 10:56 AM EDT
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The parents of a 13-year-old Santa Rosa boy killed by a sheriff's deputy who thought the airsoft rifle he was carrying was real has filed a lawsuit over their son's death, claiming the deputy who shot him used excessive force and had a history of

The parents of a 13-year-old Santa Rosa boy killed by a sheriff's deputy who thought the airsoft rifle he was carrying was real has filed a lawsuit over their son's death, claiming the deputy who shot him used excessive force and had a history of "reckless" acts. Jodi Hernandez reports.

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Day of the Dead Remembers Andy Lopez

The attorney for the family of 13-year-old Andy Lopez has filed three wrongful death claims seeking damages against Sonoma County in connection with the fatal shooting of the teen by Sonoma County sheriff's Deputy Erick Gelhaus last month. Monte Francis reports.
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The parents of a 13-year-old Santa Rosa boy killed by a sheriff's deputy who thought the airsoft rifle he was carrying was real has filed a lawsuit over their son's death, claiming the deputy who shot him used excessive force and had a history of "reckless" acts.

Andy Lopez was a "charismatic kid" who was "shot without provocation or cause," in violation of his Fourth Amendment rights, according to the suit (PDF), which Rodrigo Lopez and Sujey Cruz Casarez filed Monday in San Francisco federal court.

They are represented by Casillas, Moreno and Associates, based in Montebello, Calif., which won a $24 million verdict after a Los Angeles police officer there shot a 13-year-old boy playing cops and robbers, leaving him paralyzed.

At a news conference with their lawyers, Andy's father asked for "justice," and relatives wiped away tears. Attorney Arnoldo Casillas said the lawsuit over Andy Lopez's death will ensure an "honest" investigation into what happened.

The suit names Sonoma County and Deputy Erick Gelhaus, the sheriff's deputy who fatally shot Andy on Oct. 22. Gelhaus's attorney said in an interview with NBC Bay Area on Monday that his client only fired because he was staring down the barrel of a rifle that looked real.

MORE: Andy Lopez Family Files Claim vs. Sonoma County

In their suit, the Lopez family contends that Gelhaus has acted in a "reckless" manner dating back to 1996, and they say Andy was returning the toy gun to a friend.

They also bring up a point of contention: While Gelhaus's attorney and police investigators say Andy did not heed the deputies' commands and pointed the barrel of his rifle at them, the lawsuit alleges that Andy was indeed listening to the deputies. He was turning toward them as they ordered him to put the gun down, the suit says.

"The deputies knew that upon hearing their command, Andy Lopez would turn to face them," the suit alleges.

Andy died at the scene, about a half mile from his home. Deputies learned the rifle was a replica after Andy was dead.

The Lopez family's suit also formally claims unreasonable seizure and unconstitutional practices, in language similar to that of claims they filed against the county last month.

In an interview with NBC Bay Area on Monday morning, Casillas said he is also alleging that Gelhaus has been involved in prior instances of "excessive force." His suit alleges that in 1996, a woman named Karin Futch reported that Gelhaus pulled out a gun and pointed it at her when he was called out to help with a neighborhood dispute.

During that same year, the suit also alleges that Gelhaus and his then-partner were accused of falsifying police reports. And last month, the suit alleges that Sonoma County resident Jeffrey Westbrook claimed Gelhaus "recklessly and unnecessarily" pointed his pistol at Westbrook's head during a routine traffic stop.

But Gelhaus' attorney, Terry Leoni, of the Pleasant Hill firm Rains Lucia Stern, where high-profile Michael Rains is a partner, said she has no information linking her client to those claims of force.

In her first interview with NBC Bay Area on Monday, Leoni said that Gelhaus only shot at Andy because the boy turned toward him with the barrel of the gun raised at him. Though the suit alleges that the deputies did not identify themselves, Leoni says Gelhaus' partner had turned on his emergency lights as an act of identification.

"He is very emotional," Leoni said by phone of her client, a 24-year veteran of the department. "He feels for the family and for the community. This is a tragic situation."

MORE: Sonoma County Deputy ID'd Writes About "Mean Gene"

While there are those supporting Gelhaus and police who have to make life-and-death split-second decisions, Andy's death has sparked community outrage far beyond Santa Rosa, especially because he was a Latino boy in a poor neighborhood. Protesters, who have held vigils nearly every day since the eighth grader's death, argue this wouldn't have happened if it were a white teen in a rich neighborhood.

Leoni disputed any such claims.

"Race and age had nothing to do with it," Leoni said. "The only reason he fired his weapon was because of the threat of a very real-looking AK-47. There was nothing to indicate it was a replica."

The federal lawsuit follows on the heels of three wrongful death claims (PDF) Andy's parents filed Oct. 28 against Sonoma County. They contain similar language.

According to the claims and the suit, Andy was walking "lawfully" about 3:15 p.m. near Moorland and West Robles avenues with a "toy gun" when two deputies on "routine duty" approached him. Andy's back was to the deputies, the claim states, and he had "not violated any law and posed no risk or threat to the deputies or any other persons."

Within 10 seconds – according to a timetable released by Santa Rosa police – the deputy fired his handgun at Andy.

"The shooting was unreasonable and unjustified under the law," one of the claims states. Of the eight rounds Gelhaus fired, seven struck Andy and the boy died of massive internal injuries, according to the claim (PDF). The claim also alleges that after Andy was shot, no "meaningful medical attention" was given to him.

The use of force by the deputies "was condoned by the sheriff's department," the claims state. "The training encourages deputies to prematurely shoot suspects who pose no threat or danger to deputies or the public at large."

The claims also assert that the sheriff's department has "failed to develop and implement policies, procedures and training regarding the use of deadly force and proper tactics for pedestrian stops," and that deputies, including Gelhaus, have been "negligently hired and retained."

On Friday, Sonoma County supervisor David Rabbit told NBC Bay Area he couldn't comment on the claims. But he did say that Andy's death has been "really rough" on the community. "To lose a child, and in this way, is devastating," Rabbit said.

For her part, Leoni has not yet seen the claims or suit naming her client, but in general, she said that the Sonoma County Sheriff's Department "takes pride" in training their deputies, and she has "confidence" the department "more than adequately" trains their staff.

In December 2012, the same law firm now representing Andy Lopez's family won a $24 million jury verdict against the Los Angeles Police Department after officers shot 13-year-old Rohayent "Ryan" Gomez-Eriza, who was playing cops and robbers with an airsoft gun, leaving him paralyzed. That award is believed to be the largest ever awarded against the LAPD involving a wrongful shooting.

Gabriela Márdero, a spokeswoman for the Consulate General of Mexico in San Francisco, said Monday that it was her agency that referred Andy's parents to the firm over the "reprehensible" killing of the teen. The Consulate General also paid for Andy's funeral.

NBC Bay Area's Monte Francis contributed to this report.

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