By Kurtis Alexander and John King 7/7/14
The fatal shooting by a Sonoma County sheriff’s deputy of a 13-year-old boy holding a replica AK-47 was “absolutely tragic,” according to the county investigation of the incident, but the officer involved will not be prosecuted.
Instead, the report by the district attorney’s office described the use of lethal force in October as “a reasonable response,” because the officer “honestly and reasonably” believed he was in danger.
“The law provides for a complete defense of anyone who defends himself or others,” District Attorney Jill Ravitch said at an afternoon news conference in Santa Rosa while several dozen protesters dismayed by the findings converged outside.
The investigation concerned the actions of Erick Gelhaus, a 24-year veteran of the Sonoma County Sheriff’s Office who shot Andy Lopez seven times in an unincorporated area just outside Santa Rosa on Oct. 22.
Gelhaus and a colleague encountered the eighth-grader shortly after 3 p.m. as Andy was walking to a friend’s house after school.
According to the report, Gelhaus was on a shift with a deputy in training, Michael Schemmel, in a patrol vehicle when the pair saw Andy from the back, the replica AK-47 at his side. Schemmel pulled over and “blipped” the siren while Gelhaus jumped out of the car and called out to drop the weapon. Instead, Andy turned while raising his arm that held the plastic weapon.
Gelhaus fired eight times at the boy and hit him with all but one shot, the investigation found. Gelhaus was 67 feet away when he fired at Andy, who was 5-foot-2 and weighed 135 pounds. The entire incident took less than 20 seconds.
Investigators said the pellet gun that Andy was carrying did not feature an orange tip, which is required under federal law to help officers distinguish it as a replica.
“He absolutely believed his life and the life of his partner were in mortal danger,” Terry Leoni, Gelhaus’ attorney, said Monday. “The D.A.’s office took the time to do a thorough investigation and it came to the right conclusion.”
The shooting prompted outrage in Santa Rosa and beyond, with critics saying Gelhaus overreacted to a situation that did not require deadly force.
That anger also was palpable at a rally and march later Monday in unincorporated Roseland, a heavily Latino neighborhood south of Santa Rosa. The march concluded at the field where Andy died; there, a makeshift memorial included a large canopy that covered altars filled with flowers and crosses.
Gelhaus “took a life. There has to be punishment for that,” said Guillermo Ortiz, 19, who said he had known the victim. “There was nothing to lead anyone to believe that Andy was pointing a gun at him.”
Another march will be held Tuesday afternoon, organizers said Monday evening.
At the news conference, Ravitch alluded to the widespread anger.
“I had to set aside the emotional pain and look at this from a professional viewpoint,” she said. “This county will be forever changed by what happened that afternoon.”
Protesters demand charges
Some protesters, though, said charges were needed to send a message about the use of force by police.
“Our (district attorney) is literally letting these cops get away with murder,” said Nicole Guerra, 31, a friend of the Lopez family. “These kids now have to walk around in fear.”
Andy’s family has filed a federal lawsuit alleging civil rights violations. The FBI is conducting an independent inquiry to determine whether Andy’s civil rights were violated.
After October’s fatal shooting, a review by The Chronicle found that of 10 shootings in the past 25 years where the victim was holding a toy gun, none resulted in criminal charges. However, several resulted in civil payouts of as much as $24 million.