Gunning Down a Boy with a Toy Gun

Exclusive: The Trayvon Martin case, in which a community watch volunteer killed an unarmed black teen-ager in a hoodie, roiled the U.S. last year. Now, a California deputy has gunned down a Latino boy carrying a toy AK-47, raising other troubling questions, as Dennis J Bernstein reports.

By Dennis J Bernstein

On Oct. 22, at 3:14 in the afternoon, 13-year-old Andy Lopez was walking to a friend’s house on the outskirts of Santa Rosa, California, to return the friend’s toy rifle, when two Sonoma County sheriff deputies drove up behind him in a marked police car and say they mistook the replica AK-47 for a real gun.

Sheriff’s Deputy Erick Gelhaus, a training officer with 24 years experience in the department, later told investigators that he shouted at the boy to drop his “gun” and that when Lopez turned, Gelhaus feared for his life and opened fire, riddling the eighth-grader with seven bullets from a 9 mm Smith & Wesson handgun. According to the other deputy, who was driving the car and who did not open fire, the shooting was over in just a few seconds, even before he had time to move from behind the wheel and take cover behind his door.

The legal question in the aftermath of the slaying is whether Gelhaus, a master marksmen and former military trainer in Iraq, reacted rashly without giving Lopez any reasonable chance to respond to the police order and without properly assessing the actual danger of the situation from his position behind his door of the patrol car.

The slaying also has raised questions about blowback from the U.S. wars in Iraq and Afghanistan where American soldiers often find themselves in dangerous surroundings and develop a tendency to open fire at the first hint of a threat. Now, some of those veterans are returning to jobs in domestic law enforcement sometimes without adequate counseling or screening before they begin patrolling city streets.

The Latino, Chicano and indigenous communities in and around Santa Rosa are still reeling from the slaying, but have moved from mourning at a mass funeral to various actions, demanding justice for the killing. Many see the case as another example of profiling a brown-skinned youth in a hoodie as somehow dangerous and deserving of a shoot-first-and-ask-questions-later response. Almost every day since the killing, there has been some kind of protest, vigil or community meeting.

As details about the shooter and the shooting accumulate, alarm in the community has grown. Signs posted around a makeshift memorial for the popular eighth-grader, who was a member of the school band, read: “Sheriff Wanted for Murder” and “A good cop wouldn’t have shot.”

Gelhaus, 48, is assigned to the patrol division as well as being a senior firearms instructor. Before that, he was part of a gang enforcement team. He and the unnamed deputy who was driving the patrol car are now on administrative leave.

The Shooter

But Eric Gelhaus is a lot more than your typical deputy on the beat. He is a seasoned weapons expert, firearms instructor, veteran trainer in the Sheriff’s Department, and a range master with extensive training in firearms. He also served in Iraq as a combat leader and a weapons trainer.

According to his own bio, Gelhaus was an infantry non-commissioned officer in the California National Guard: “My assignments included operations assistant for a 600+ soldier unit, small arms trainer, and squad leader during a combat employment. While in Iraq, in addition to supervising a heavy weapons squad and being responsible for the soldiers and the equipment, I testified in Iraq courts during the prosecution of insurgents.”

Gelhaus is also an adjunct instructor for various gun-training centers, among them, the Arizona-based Gunsite Academy that provides extensive weapons training for law-enforcement as well as “free citizens of the US” and has close ties to the National Rifle Association and various gun manufacturers. Gelhaus’s LinkedIn page notes that he worked for Aimpoint, a company that develops new technology for a whole assortment of firearms.

Besides his training and other gun expertise, Gelhaus is a columnist and contributor to S.W.A.T Magazine and various other gun-culture forums that deal with the use of deadly force by police. He described his work with law enforcement as a “Contact sport.”

In a 2008 column, entitled “Ambush Reaction in the Kill Zone,” Gelhaus reflected on the need to possess the “mean gene” to survive in “the kill zone,” adding that “Today is the day you may need to kill someone to go home. If you cannot turn on the Mean Gene for yourself, who will?”

Acting as a moderator for “The Firing Line,” an online forum for gun enthusiasts, sponsored by S.W.A.T Magazine, Gelhaus, in his own name, reflected on all aspects having to do with the owning and use of  guns including the use of force if someone fires a BB gun at another person.

Whether Gelhaus will ever have to answer any hard questions as to whether he was trigger-happy when he cut down an eighth-grader with a toy gun in the middle of the afternoon is already in doubt. Given his extensive relationship with the military and his position as a senior police trainer, Gelhaus may be very well insulated.

In the initial stages of the investigation, it was announced that the Federal Bureau of Investigation (FBI) would be conducting a thorough and independent probe to see if there was cause for federal civil rights charges to be filed.

On Oct. 25, three days after the slaying, FBI spokesman Peter Lee told local reporters that the Bureau had begun a “shooting review,” calling the incident “a civil-rights type of case.” But last week, Lee was non-committal and said nothing about any kind of independent investigation that the FBI would do.

According to the Press Democrat in Santa Rosa, Lee “refused multiple queries to describe what exactly agents would be doing in Sonoma County, or whether they would be truly autonomous or working side-by-side with local police or even conducting their own interviews with the deputies involved and witnesses.”

Indications were that local officials would head up at least the initial investigation. “My understanding is simply that [FBI officiials are] here for support but not actively engaged in an investigation,” said Santa Rosa District Attorney Jill Ravish  “The only investigations currently occurring are the sheriff’s review for their own internal affairs and the criminal investigation being conducted by the Santa Rosa Police Department.”

A Difficult Case

Senior officials in the Sonoma County Sheriff’s Department have described Gelhaus as a “solid employee” with “a lot of credibility in the department,” according to local news reports. Gelhaus has testified as an expert on narcotics trafficking and gang-related activities. According to law enforcement records, Gelhaus has never killed anyone before in his capacity as a Sheriff’s deputy.

But there were some warning signs in his record. According to local press reports, Gelhaus got into a scuffle with a couple of minors in 1997 and apparently battered them with a flashlight. But a jury later found that Gelhaus and the Sheriff’s Office were not liable in a civil lawsuit alleging excessive force against the two minors, Karla and Israel Salazar.

Legal experts say it is rare for a police officer to be charged criminally in a shooting when a claim can be made about a life-threatening situation, even when the threat turns out to be non-existent. A greater legal opening can be available to victims and their families in civil actions claiming wrongful injury or death.

On Monday, the attorney for the Lopez family, Arnoldo Casillas, announced that the Lopez family had filed three separate wrongful death claims, seeking damages against Gelhaus and the Sonoma County Sheriff’s Department.

Casillas said the lawsuit, filed in Federal Court in the Northern District of California, alleges that “without cause or provocation, Erick Gelhaus shot and killed Andy Lopez on October 22, 2013, as he walked along a rural residential neighborhood sidewalk. The shooting was absolutely unjustified and its plaintiffs’ goal here is to show that the killing of Andy Lopez was a senseless and unwarranted act of police abuse.”

Casillas said he did not wait to file the lawsuit because it appears that the Sheriff’s Department is already involved in a cover-up, trying to withhold crucial information from the public, and suggesting in various ways that the killing of Lopez was justified. Casillas said Gelhaus acted in a “super reckless way with no regard for public’s safety. He unloaded his gun in a public area in an uncontrolled way.”

The lawsuit states that Lopez was unarmed and posed no risk or threat to the deputies or others and was shot without cause or provocation, a overzealous use of force condoned by the Sheriff’s Office.

“The Sheriff’s Department’s training encourages deputies to prematurely shoot suspects who pose no threat or danger to deputies or the public at large,” the lawsuit states. It also alleges that the Sheriff’s Office failed to create and implement policies and training to set out clear guidelines for the use of deadly force and proper tactics for pedestrian stops.

Lopez’s parents of the slain child were at the press conference and were asked what they wanted in terms of justice for their slain son. The mother, who is undocumented along with her husband, noted that their son was a full citizen of the United States.

“Me and my husband came to this country for a better life and to raise a family in the riches and most powerful country on earth,” Lopez’s mother said. “We were attracted by its freedom and justice and equality. We raised our family believing this, and now I have to live with the death of my son forever and that’s never going to go away and no money can replace him or cure the pain.”

Murder Charge?

At an Oct. 29 protest against the killing in Santa Rosa, I spoke to civil rights and human rights attorney John Burris, who has specialized in police shootings particularly in communities of color. Burris said he believes the slaying of Lopez was an “unlawful police shooting” and that Gelhaus should be prosecuted under some type of murder charge.

“What is alleged to happen is that Andy was walking down the street with what appeared to be an AK-47 in his hand. The police come up behind him, jump out of the car and say, ‘Drop it.’  When he doesn’t comply right away, but turns back to look, I imagine, he was shot numerous times by one officer hitting him on his back side three or four times, and on his side three or four times.”

Burris continued, “Certainly, from my perspective, this was an unlawful shooting. This young man was walking. There were no reports of a man with a gun. There were no reports of any illegal activity. The officers pull up behind him, not on the side or in front. They immediately jump out and tell him to drop the gun.

“The problem with that, of course, is the young man didn’t have a gun, so he wouldn’t have known if the police were talking to him or not. When he finally turns around, he was immediately shot, with no opportunity to make any statements, to tell them it wasn’t a gun. He was immediately fired upon, which was an overreaction on the part of the police.

“The worst part is the police officers, both of them, were in a position of safety,” Burris added. “They jumped out of their car, stayed behind the doors, in a position with a hard object, and could have had some communication with this kid as he was turning around, such as what was he doing, why was he there, what did he have in his hands. But they did not. So within 10 seconds of stopping him, this young man was shot to death

“It was excessive from my point of view, just thinking about [Gelhaus] firing his gun in rapid succession, particularly because it was without knowing, a supposition, basically an overreaction, making an assumption based on facts that he did not have.

“A military person, trained marksmen, knows how to shoot his weapon, but he also knows about cover, and this is the part that is most disturbing to me. He was in a position of cover, which would have given him ample opportunity to react and talk to this young man before he fired his gun. He said that the gun looked like an AK-47, but there was some different color on it.

“The officer never, ever had an opportunity to view this particular weapon because he approached the person from behind. He saw what might have been a weapon, but he did not see it, and more importantly, the kid did not react to him as if he had a weapon. So there are many conditions that would suggest this officer overreacted.

“The question is whether an objective reasonable police officer would have reacted the same way, or would he have used other tactics, which clearly were available.”

Burris suggested that the shooter could be prosecuted at “two levels that make sense to me. Second degree murder, which is a reckless disregard for human life or involuntary manslaughter, which is a negligent act on his part, either from the manner in which he was stopped or the manner in which he reacted to the events.”

Community Protests

At a mass march and rally in front of the Sonoma Country’s Sheriffs Department on Oct. 29, community members, teachers, students, activists spoke out against the shooting, and one after another called for justice for Andy Lopez. There were tears, laments, and cries for justice

“Why did they kill our friend, he was so beautiful and funny and now he has been taken away from us,” said one 13-year-old Latino girl at a memorial service. Another young girl standing right next to her with tears in her eyes said, “He was the sweetest kid you will ever see. We really miss him. and they don’t even apologize, they just sent more sheriffs and more police and more guns to scare us kids.”

Nell, a classmate of Lopez, said, “Andy was our friend. The family is very devastated. I want to tell the cop who killed Andy that it wasn’t fair. He was just a kid.”

Another young schoolmate said, “I have smaller siblings so I wouldn’t want that to happen to them. I miss him so much. It’s not right for a cop to do that seven times to a 13-year-old. We don’t want that to keep on happening. I’m 14. Yeah I knew him a lot. He was a great kid, He played instruments, and he did sports.”

Also at the protest, many parents protested alongside their kids. One parent, Christina, would only give her first name, held her daughter close, as she said, on the verge of tears, “I’m a parent and I’m upset by the 13-year-old boy got shot. With 7 shots. I have a daughter who’s 13 and it is just unfair and I want to know why.”

Miguel Gavilan Molina, a former farmworker from Santa Rosa who worked with Cesar Chavez, spoke to the students, declaring: “we know that peace and unity will triumph over violence and hatred. But it is time for the militarized, heavily armed police and sheriffs to stop coming into our neighborhood and killing out children.”

Molina told me later that this is a “new day” in a California, where brown folks are “rising up for their rights with a new militancy as the new majority. We are the new majority, and we are feeling our power, especially with the passage of recent legislation such as the Trust Act, and the Domestic Workers Bill of Rights.

“All these brown kids you see in the street today, were in baby carriages ten years ago, as their parents began this struggle. And as you can see today, these kids are no longer willing to just stand by and let one of their own be cut down.”

As Molina spoke, there were police helicopters in the air and fully armed and heavily equipped sharpshooters peering down from the roof of the Sheriff’s Department. There was also an armored personnel carrier nearby.

Michael Rothenberg, a local poet and activist, is working with a small group of community people who are helping the Lopez family navigate the various aspects of the massive outpouring from the community, as well as helping them communicate with the lawyers, the public and law enforcement in the aftermath of the killing.

“It was murder,” Rothenberg said in a written statement, “Sheriff deputies shot and killed 13-year-old Andy Lopez for carrying a toy gun. A cop who fancied himself, promoted himself, as an expert and skilled killer took only seconds to come to a judgment on the life of Andy Lopez. He assassinated an innocent child. We can never have real peace unless the police are held responsible for their crimes against the community.”

Dennis J Bernstein is a host of “Flashpoints” on the Pacifica radio network and the author of Special Ed: Voices from a Hidden Classroom.