By Jamie Hansen and Julie Johnson
The Press Democrat
SANTA ROSA, Calif. — The U.S. Justice Department announced late Wednesday that it will not file criminal charges against a Sonoma County sheriff’s deputy who shot 13-year-old Andy Lopez, ending a federal civil rights investigation into the 2013 shooting.
“The decision to close the file without bringing charges was based upon the conclusion that there is insufficient evidence to prove that the deputy willfully used excessive force resulting in Andy’s death,” Justice Department spokesman Abraham Simmons said in a statement.
The decision comes one year after Sonoma County District Attorney Jill Ravitch concluded that Deputy Erick Gelhaus acted within the law when he shot Lopez as the teen walked down a southwest Santa Rosa sidewalk carrying an airsoft BB gun designed to look like an AK-47 rifle. An internal investigation by the Sonoma County Sheriff’s Office reached the same conclusion.
“Sheriff Steve Freitas and the members of the Sonoma County Sheriff’s Office are pleased that all the investigations into the matter have been completed,” the Sheriff’s Office said in a statement Wednesday evening.
“The Sheriff reaffirms his support and confidence in Deputy Gelhaus and the work done by the men and women of the Sheriff’s Office to provide public safety services to the citizens of Sonoma County.”
Freitas declined to elaborate. “My statement speaks for itself,” he said in a brief interview.
U.S. Attorney Melinda Haag, joined by officials from the FBI and the Justice Department’s Civil Rights Division, met with representatives of the Lopez family on Wednesday to inform them of the decision, Simmons said.
Under federal civil rights law, prosecutors would have been required to establish, beyond a reasonable doubt, that Gelhaus “willfully” deprived Lopez of a constitutional right, Simmons said.
“This is the highest standard of intent imposed by the law. Neither accident, mistake, fear, negligence, nor bad judgment is sufficient to establish a willful federal criminal civil rights violation,” Simmons said.
Federal investigators have rarely reviewed officer-involved shootings in Sonoma County. The last occurred in the 1997 death of Kuan Chung Kao, a Taiwanese national killed by a Rohnert Park officer. The shooting enraged Chinese cultural groups, but the FBI investigation and separate state and local inquiries found insufficient evidence to file criminal charges.
A team of experienced federal prosecutors and FBI agents reviewed the Lopez case and determined there was insufficient evidence to prove Gelhaus violated the law, Simmons said.
The District Attorney’s Office concluded last summer, after a five-month investigation, that Gelhaus’ actions were reasonable because he feared for his life.
Gelhaus, a 24-year Sonoma County deputy and Iraq War veteran, was on patrol with a deputy in training, Michael Schemmel, when they spotted Lopez walking down the sidewalk along Moorland Avenue on the afternoon of Oct. 22, 2013. The teen carried a plastic rifle that was missing an orange tip, a feature designed to indicate it was a replica gun.
Gelhaus told investigators he thought Lopez was carrying a real assault rifle and ordered him to drop it, according to Ravitch’s report. Lopez turned toward the deputies’ patrol car, raising the barrel of the airsoft gun as he did so. Gelhaus fired eight rounds, striking Lopez seven times.
Ravitch said she sought the federal review of the shooting to ensure transparency.
“We will always carry the unfortunate death of a child in our community with us, and I continue to extend my condolences to his parents over the loss of their son. That said, the decision of the Department of Justice, made independently, reaffirms this office’s commitment to seeking justice in a fair and impartial manner,” Ravitch said in a statement.
The Sheriff’s Office, the Sonoma County District Attorney and the Santa Rosa Police Department all cooperated with the federal investigation, according to a statement issued by the Sheriff’s Office.
Freitas said he received a letter Wednesday notifying him of the findings. His office did not make that letter available Wednesday. Freitas also declined to provide a copy of the report and stated that, because it was an FBI investigation, it wasn’t his to release.
The shooting launched an outcry by residents who called Lopez’s death unmerited and the sign of a rift between law enforcement and the community, particularly in the Roseland area of Santa Rosa. It prompted an extensive inquiry into police-community relations across the county.
This spring, a panel appointed by the Sonoma County Board of Supervisors after the shooting issued 21 recommendations to improve those relations. They included establishing an independent office that would provide citizen oversight of law enforcement, improving diversity in the Sheriff’s Office, and creating a policy for the use of body cameras on deputies.
California lawmakers imposed the strictest regulations on BB guns and toy or replica weapons in the country, requiring them to be brightly colored or have prominent fluorescent strips to make them easy to distinguish from an actual assault rifle.
Lopez’s family has filed a wrongful death lawsuit against Gelhaus and the county. Arnoldo Casillas, the attorney representing the family, could not be reached for comment Wednesday evening.
Copyright 2015 The Press Democrat