From: The Press Democrat
By Julie Johnson & Kevin McCallum 7/7/14
No criminal charges will be filed against a Sonoma County sheriff’s deputy who shot and killed 13-year-old Andy Lopez last year as the boy walked down the street carrying an airsoft BB gun that resembled an AK-47 rifle, District Attorney Jill Ravitch announced Monday.
Calling the Oct. 22 shooting and community upheaval that has followed a “painful, painful chapter in the history of Sonoma County,” Ravitch said her office found that Deputy Erick Gelhaus acted within the law when he shot Lopez.
“While this was absolutely a tragedy, it was not a criminal act,” Ravitch said.
In announcing her decision, Ravitch released a 52-page summary of her findings that includes several new details about the shooting, including that Lopez was likely high on marijuana at the time he was killed.
Blood samples taken from Lopez’s body during the autopsy revealed significant levels of THC, the psychoactive compound in marijuana, according to the report. The levels were consistent with Lopez smoking marijuana 60 to 75 minutes prior to his death, according to Dr. Reese Jones, a specialist hired by the District Attorney’s Office to review the findings.
Lopez also had a joint and a bottle of Visine on his body at the time he was killed, according to the report. The THC levels in Lopez’s system likely affected his behavior that day, Jones said.
“Cognitive and behavioral effects that typically follow marijuana use would likely have been present to a significant degree during the interval following,” Jones wrote, according to the report.
A 13-year-old boy high on marijuana would likely have had suffered “impaired judgment, slowed decision making and increased mental processing time,” the report found, “particularly when having to deal with performance of a sudden, unanticipated tasks, including decisions that needed to be quickly responded to.”
The new information provides potentially important context for the day of the shooting and may help explain why Lopez did not initially drop the gun when ordered and instead turned toward officers.
Gelhaus, a 24-year Sonoma County deputy and Iraq War veteran, told Santa Rosa police investigating the shooting that he thought Lopez was carrying a real assault rifle when he ordered the boy to drop the gun. Lopez did not drop the gun and instead began to turn, the barrel of the airsoft gun rising as he pivoted, according to police. The deputy fired eight rounds, striking him seven times.
Investigators determined Gelhaus feared for his life and prosecutors concluded his response — including the number of shots he fired, in a span of several seconds — was reasonable, Ravitch said.
She noted that Gelhaus’s weapon holds 18 rounds and can fire eight rounds in two seconds.
“The evidence establishes that while in the lawful performance of his duties, Deputy Gelhaus was faced with a highly unpredictable and rapidly evolving situation,” Ravitch said. “Given his training and experience, he believed honestly and reasonably that he was faced with a do-or-die dilemma.”
His options were to wait for Lopez to fire what he believed to be a deadly weapon at him and his partner, or to fire at Lopez “when the threat was turned toward him,” Ravitch said.
“Here the implementation of lethal force was a reasonable response under the circumstances according to all the evidence that we have reviewed,” she said.
The announcement was met with outrage outside the 2 p.m. press conference at the county government administration complex, where protesters denounced Ravitch’s decision and vowed to press for justice for Lopez. One carried a sign that read simply “Shame.”
Jonathan Melrod, an attorney and one of the most vocal activists, said Ravitch’s decision was based on “patent lies.”
He described Lopez as “a boy with a toy gun who did not pose a threat to anyone, to the deputy, to the neighborhood. He was a kid!” Melrod screamed into a scrum of television cameras. “That is an injustice that cannot be permitted!”
He and others who have called for Gelhaus’ prosecution said the shooting was a consequence of the wider militarization of the nation’s police departments.
“The police feel that we the community are their enemy,” Melrod said. “They police us as though they are still in Iraq or Afghanistan.”
Melrod later said he had been unaware that Lopez had marijuana in his system until informed by a reporter. He said the focus on marijuana in the report was a “transparent attempt” to deflect blame away from “the sheriff’s deputy who pulled the trigger and to place it on Andy Lopez.”
“Let’s assume there was THC. Does that justify executing Andy?” said Melrod, who questioned why Ravitch waited until now to raise the issue.
Nicole Guerra, who said her son Antonio was one of Lopez’s best friends, called the idea that Gelhaus didn’t commit a crime “ridiculous.”
“These kids now have to walk around in fear because they know these cops can get away with murder,” Guerra said.
Activists gathered in Roseland Monday afternoon and evening for a march to the Moorland Avenue location where Lopez was killed. They planned a rally for 1 p.m. Tuesday in Old Courthouse Square.
The decision comes eight months after the fatal encounter on the outskirts of southwest Santa Rosa. Word of the decision spread quickly after Ravitch’s office sent out an email announcing the news conference Monday and mistakenly attached a press release detailing her decision.
About 12 p.m., Arnoldo Casillas, the Lopez family’s attorney, said he received a personal phone call from Ravitch informing him of her decision.
“The family and my office are greatly disappointed with the decision,” Casillas said. “If there was ever a case where charges were warranted, it was this one.”
Casillas said the decision would allow the family’s federal civil rights lawsuit against Gelhaus and the county to go forward. The suit accuses the deputy of acting recklessly and seeks unspecified damages.
Sonoma County Sheriff Steve Freitas said that the district attorney’s conclusion mirrored his office’s internal investigation into the shooting. He said he is “absolutely confident that it was a thorough investigation, fair and impartial.”
“In this case I think the evidence shows both deputies absolutely believed they were faced with a real AK-47,” Freitas said.
The other deputy on patrol with Gelhaus, Michael Schemmel, an eight-year veteran with the Marin County Sheriff’s Office who was hired by Sonoma County in September, did not fire his weapon.
Gelhaus, a firearms instructor who returned to work Dec. 10, has been on duty in the department’s armory and not on patrol in the community. Freitas said his commanders will talk with Gelhaus and make a decision about whether his assignment will change. Gelhaus’ safety will be a factor in that decision, he said.
Gelhaus’ attorney Terry Leoni said she was notified at about 11 a.m. Monday that her client will not face criminal charges. She called Gelhaus, who is out of the area on a prescheduled vacation, and said he was “very relieved.”
“This has been an extremely difficult time for Erick. He has certainly grieved for the Lopez family,” Leoni said. “It hasn’t been easy for him in terms of the media and public scrutiny but also for the loss of this child.”
Leoni said that she and her client had been “in the dark” throughout much of the investigation, although they cooperated by providing statements and information when needed.
“You’re always concerned whether the charging agency or District Attorney’s Office is going to make the right choice, look at the law, apply the facts of the law,” Leoni said. “There’s always a concern that they will be swayed by the political aspects or mob mentality. We are glad the District Attorney’s Office took (its) time.”
Santa Rosa Police Chief Hank Schreeder said that his officers didn’t recommend an outcome when they handed their investigation to the District Attorney’s Office on Jan. 29.
“The District Attorney has to decide on the points of law. We are just the fact finders,” Schreeder said.
Ravitch, who has faced criticism over the length of her inquiry, called her review of the police investigation into the shooting “exhaustive and thorough,” resulting in reports that totaled more than 1,000 pages. District Attorney investigators responded to the scene Oct. 22 and worked alongside Santa Rosa police called in to investigate, with assistance from Petaluma police.
Ravitch said she assigned an attorney and an investigator who both have significant homicide experience to conduct her office’s review and ensure any additional investigative steps took place. She said she chose people who don’t have longstanding ties to Sonoma County law enforcement to ensure neutrality.
The bulk of their work began after receiving the Santa Rosa Police Department’s report on the shooting. That report included interviews with about 200 witnesses, 200 hours of recorded interviews and 175 items of evidence, among other materials, Ravitch told reporters at the press conference Monday. The investigative team re-interviewed witnesses and spoke with a pathologist hired by the Lopez family who conducted an additional autopsy.
They also consulted with numerous outside sources, including people with expertise in how people perform in high-stress encounters, and an weapons expert who estimated it would take two seconds to fire eight rounds with the type of gun Gelhaus used.
The office even hired a company to do a 3D analysis of the trajectory of the eight shots Gelhaus fired. It concluded that the first shot likely missed Lopez, hitting a home behind him. The next one likely struck him in the upper left arm as he was “directly facing” the deputy, the report found. The remaining six shots probably hit him as he was turning, falling down or had hit the ground, the report found. A total of 19 seconds elapsed from the time of the initial call for backup to the time “shots fired” was first reported to dispatchers, Ravitch said.
Schemmel, a trainee who was at the wheel of the patrol car, was still getting into a defensive position when Gelhaus fired his weapon from behind an open passenger-side door, the report stated.
Ravitch said she released a synopsis of the shooting inquiry to address public concerns about transparency. She described her investigation as a limited inquiry into criminal liability of the deputy. “Police tactics, training, and civil liability are not matters to be addressed by our office or this report,” she said.
The Sonoma County Grand Jury will receive the district attorney’s full report and all exhibits, as well as the Santa Rosa Police Department’s investigative reports. A copy of the report will also be sent to U.S. Department of Justice representatives at the FBI and the U.S. Attorney’s Office which are involved in a federal civil rights review.
The state Attorney General’s Office declined to review the report because it found no conflict or other cause that called for an independent review, Ravitch said.
Ravitch said she is aware the decision will not alleviate the pain felt by the Lopez family and others in the community.
“It is incumbent upon us to move forward to address the many layers of concern uncovered by this tragedy, and work together to rebuild trust and support for all members of this community,” she said in a statement.
In a statement expressing sympathy for the Lopez family and friends and others involved in the incident, Freitas suggested one way the community could come together was to support legislation requiring imitation firearms such as the one Lopez was carrying be made of either brightly colored or translucent materials.
California Senate Bill 199, co-authored by state Sen. Noreen Evans, D-Santa Rosa, would expand the federal law that requires imitation firearms be sold with an orange tip, a feature that had been removed from the gun Lopez was carrying when he was shot.
A section of the gun Lopez was carrying was made with translucent plastic, but the difference is difficult to notice at a distance. The new law would require enough translucent material to allow “unmistakable observation of the device’s complete contents,” Freitas said.
The sheriff said a review of deputy-involved shootings over the past 10 years — something he said he ordered in March 2013, before Lopez was shot — should be completed and made public by the end of the year.
“Going forward, I am hopeful that through meaningful collaborative effort, we can assemble the building blocks of prevention, improved communication, and community trust and confidence in the Sheriff’s Office and our staff,” he said.
On Monday, local law enforcement agencies were alerted that Ravitch was planning to announce her decision and told to prepare for a potential public response. Freitas and Schreeder said that deputies and officers were prepared to make sure demonstrators are safe and peaceful.
“We will defend people’s right to assemble, and arrest anyone who commits acts of vandalism and violence,” Freitas said.
Local political leaders, including Santa Rosa Mayor Scott Bartley, urged demonstrators to remain peaceful.
Ravitch said the community would never again be the same.
“The events of Oct. 22, 2013, are absolutely tragic,” Ravitch said. “A 13-year-old boy was killed by an experienced law enforcement officer. The loss of this young life under these circumstances is a loss for all of us. This community will be forever changed by what happened that afternoon.”