By Ken Wallentine
Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017)
In the middle of the day, two deputies were patrolling an area known for gang activity and violent crime. They saw Andy Lopez carrying what appeared to be an AK-47 rifle, holding it by the grip, with the muzzle pointed to the ground. Lopez appeared to be in his mid- to late teens (he was, in fact, 13 years old). The deputies called for urgent backup.
One of the deputies turned on the overhead lights and chirped the siren. They then stopped the patrol car about 40 feet behind Lopez and shouted for him to drop the gun. Lopez paused for a few seconds and began to turn toward the deputies, rotating the gun with him and beginning to raise the barrel.
A deputy shot Lopez several times in the chest. When deputies approached Lopez, they discovered that the gun was a plastic toy gun, but lacked the standard orange tip. Lopez died at the scene and his estate sued the deputy who shot Lopez.
The deputy asked the court to apply qualified immunity and to dismiss the suit. To determine whether to grant qualified immunity, the court asks whether the deputy violated a constitutional right and whether that right was clearly established at the time of the deputy’s act. As the courts have noted, “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law’” (Ashcroft v. al-Kidd, 563 U.S. 731 (2011) citing Malley v. Briggs, 475 U.S. 335 (1986)).
The appellate court held that qualified immunity should not be granted. The court questioned whether Lopez acted in a threatening fashion as he turned and noted that Lopez was only told to “drop the gun”—not told to “drop it or we’ll shoot.” Further, the court speculated that Lopez only turned to see who was shouting at him.
One judge dissented. In his dissent, Judge Wallace criticized the majority’s failure to understand the danger perceived by the deputy. Judge Wallace wrote: “[t]he record is replete with evidence that [the deputy] did not realize and could not have discerned that [Lopez] was carrying a fake gun instead of an authentic AK-47. First, it is undisputed that the gun was missing the bright orange tip required by federal law. 15 U.S.C. § 5001(b)(1). This tip immediately would have identified the gun as a fake; conversely, its absence would suggest to an observer that the gun was real.”
Though we commend Judge Wallace’s understanding of the danger presented by a suspect who doesn’t drop the gun and instead turns toward deputies, he is mistaken that an orange plastic tip would conclusively establish the gun as a fake that presents no danger. In 2014, police in San Leandro, Calif., found two real AK-47 rifles in a drug dealer’s home, both fitted with orange plastic tips. One can only guess why a drug dealer would want to add orange tips to real assault rifles.
The clarity of 20/20 hindsight in this case shows the deputy shot a person with a fake AK-47. In Graham v. Connor (490 U.S. 386 (1989)), the U.S. Supreme Court cautioned that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene,” rather than with retrospection. Though the majority in this case cited other reasons for denying qualified immunity, assessing the lethality of a gun based on seeing a small piece of orange plastic is just the sort of 20/20 hindsight rejected by the Supreme Court.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.