Now that criminal investigators have cleared a Sonoma County sheriff’s deputy in the shooting death of 13-year-old Andy Lopez, the focus shifts to the family’s civil lawsuit and the pursuit of millions of dollars in damages.
Recently released depositions of the deputy, Erick Gelhaus, and his partner, Michael Schemmel, provide more detail than ever about the moments before Lopez was killed in 2013 as he walked along a Santa Rosa street with an airsoft BB gun resembling an assault rifle.
Both sides maintain the accounts work in their favor. The county’s lawyers say the depositions support a conclusion that the deputies acted out of a reasonable fear they could be shot by a gun-toting man.
But the family’s attorney says the statements highlight important factual discrepancies. For example, Gelhaus said Lopez carried the gun in his left hand; Schemmel said it was in his right. Also, Schemmel said Lopez turned and kept walking when Schemmel “chirped” his siren. Gelhaus recalls him turning only once before Gelhaus shot him seven times.
Arnoldo Casillas, the Lopez family attorney, also said the depositions show an evolution in the deputies’ accounts. Just after the shooting, both described Lopez as a “man” but now appear to refer to him as a teenager, Casillas said.
He accused them of changing their story because jurors won’t buy the idea that someone with Lopez’s small stature could be mistaken for an adult.
“Their scripted and well-polished version of events is inconsistent with physical evidence as well as eyewitness accounts,” Casillas said. “They have to acknowledge he was a boy.”
Attorney Steven Mitchell, who represents the county and Gelhaus, denied that the deputies altered their accounts. They continued to maintain Lopez was an adult and estimated only after the shooting he was in his mid-to-late teens, Mitchell said.
Any factual differences were insignificant, he said.
“The similarities are much more important,” Mitchell said. “They both see what they absolutely perceive to be an AK-47. They see Lopez turn and the gun coming up. Those are the critical factors.”
The depositions, taken in April by Casillas, were released following a public records request by The Press Democrat. They could be introduced at trial, set for April 2016.
The Lopez family maintains in the federal lawsuit that Gelhaus acted recklessly in shooting Lopez and faults the Sheriff’s Office for “encouraging, accommodating or ratifying” the use of deadly force.
Schemmel is not named in the lawsuit.
It remains on track despite Wednesday’s announcement from the Sheriff’s Office that a federal review found no violations of Lopez’s civil rights. The Justice Department findings mirror local reviews concluding Gelhaus didn’t violate state law or Sheriff’s Office policies.
Casillas said the lack of criminal charges will have no bearing on the civil case, citing a lower standard of proof. Two years ago, Casillas won $24 million for the family of a Los Angeles boy who was shot and paralyzed by police while playing with an airsoft gun.
Casillas’ deposition of Schemmel on April 27 and Gelhaus the following day filled about 430 pages. Portions relating to confidential information were redacted.
Both deputies were asked about their careers and training. Schemmel, then 41, worked as a Concord police officer and Marin County sheriff’s deputy before being hired as a Sonoma County deputy weeks before the shooting.
Gelhaus, 50, said he had been a Sonoma County deputy for 23 years at the time of the shooting. The onetime range master and field training officer was described as having a reputation for being a “challenging” trainer. He said he instructed deputies and trainees on use-of-force issues within a month of the deposition.
Gelhaus was grilled about his participation in the Arizona-based Gunsite Academy and his interest in its late founder, Jeff Cooper, who has been criticized for comments about Los Angeles being a “Third World country formerly occupied by Americans.”
Gelhaus also was questioned about a bumper sticker he removed from his car that played on the popular “coexist” sticker. In the place of religious symbols, the sticker featured crosshairs and a skull and crossbones.
Gelhaus denied it suggested racial intolerance, calling it personal commentary against radical Islam. He served in the National Guard in Iraq in 2005.
Each deputy recounted the shooting, which happened Oct. 22, 2013, in southwest Santa Rosa as they were driving to a coffee break.
Schemmel said Gelhaus was the first to spot Lopez with his back to them on the sidewalk and called attention to his gun in a loud tone of voice.
“Do you see that?” Schemmel said Gelhaus asked him.
The younger deputy acknowledged Gelhaus and quickly pulled their car north across West Robles Avenue to a spot in the southbound lane of Moorland Avenue, about 65 feet behind Lopez.
Schemmel said he saw the side of Lopez’s face when he turned in response to the siren chirp but could not tell exactly how old he was before Lopez kept walking.
Gelhaus didn’t recall the chirp, although it was captured on a recording of his call to dispatchers.
Moments later, Gelhaus was out of the car with his gun drawn, yelling at Lopez to drop the gun, both said.
Gelhaus said he started firing a “couple of seconds” after he made the command and Lopez started to turn.
Asked if he ever wondered why Schemmel didn’t shoot, Gelhaus responded that he did “for a few seconds” before realizing his partner was focused on parking the car.
“I had fewer tasks to perform on my side of the car, so I was farther ahead of him,” Gelhaus said.
Both said they walked up to Lopez’s body. Gelhaus put handcuffs on him as he lay on the ground, Schemmel said.
Schemmel recalled being sequestered after the shooting in a hotel room, apart from Gelhaus. Both gave statements to Santa Rosa police officers who led an investigation under a protocol for officer-involved incidents.
About a year later, Schemmel said, the two deputies met for coffee and talked about what happened. Schemmel said he started the conversation by thanking Gelhaus for “saving my life.”
“The threat was serious and it was real, and I was scared,” Schemmel said.
Mitchell, the county attorney, downplayed a suggestion that Gelhaus criticized Schemmel for driving too close to Lopez and hitting the siren, forcing a confrontation. Mitchell said the 25-year law enforcement and Iraq War veteran was concerned they could be exposed to automatic gunfire, although Gelhaus declined to complain about Schemmel when asked by the Lopez family’s lawyer.
Mitchell said the candid statements, including an admission from Gelhaus that he cried several times and feared he would be prosecuted, support a conclusion the shooting was legally justified.
“They honestly, and with a lot of professionalism and composure, answered the questions under tough circumstances,” Mitchell said. “If need be, they’ll do it at trial.”
You can reach Staff Writer Paul Payne at 568-5312 or email@example.com. On Twitter @ppayne.
Source Press Democrat: http://www.pressdemocrat.com/news/4138310-181/deputies-depositions-fill-in-details?page=0