9th Cir.;

The court of appeals affirmed a district court order. The court held that a deputy sheriff was not entitled to qualified immunity for the fatal shooting of a 13-year old holding a plastic gun.

Sonoma County sheriff’s deputies patrolling in Santa Rosa in mid-afternoon spotted an individual carrying what appeared to be an AK-47. There was no one else in the immediate vicinity. The deputies stopped their patrol car. Deputy Gelhaus got out of the car, knelt behind the open door, and yelled to the individual to put down the gun. The individual turned toward Gelhaus. As he turned, Gelhaus saw him raise the rifle. Gelhaus immediately fired eight shots in rapid succession, striking the individual in the chest and killing him instantly. The decedent was subsequently identified as 13-year old Andy Lopez, and the “AK-47” was identified as nothing more than a plastic replica. Andy’s estate sued Gelhaus and the county under 42 U.S.C. §1983 for violation of Andy’s Fourth Amendment rights.

Gelhaus and the county moved for summary judgment. The district court denied the motion, finding that under the circumstances presented, Gelhaus’ use of deadly force was unreasonable.

The court of appeals affirmed, holding that the law was clearly established at the time of the shooting that Gelhaus’ conduct was unconstitutional. On interlocutory appeal, the court was compelled to accept the district court’s factual findings as true. Those findings, based on Gelhaus’ contradictory and less than fully credible testimony, the second deputy’s testimony, and the testimony of a passerby who had observed Andy walking with the gun a few minutes earlier, included the district court’s conclusion that, at the time Andy turned towards the deputies, the position of his gun barrel posed no threat to either deputy. Under those circumstances, Gelhaus’ use of deadly force was unreasonable. The district court did not find, as the dissent argued, that Andy raised the rifle as he turned. Because Gelhaus’ entitlement to qualified immunity ultimately depended on disputed factual issues, summary judgment was not appropriate. Judge Wallace dissented, finding that because Andy raised the gun barrel as he turned towards the deputies, Gelhaus was entitled to qualified immunity.