Sheriff’s Deputy Denied Immunity

A sheriff's deputy in Pasadena, California will have to face civil claims from the family of a 13 year old boy who he killed after mistaking the boy's toy gun for an AK 47.

The boy was shot on October 22, 2013 while he was on the sidewalk walking to his friend's house. The toy gun was missing the orange tip that designates it was a replica, but witnesses for the police have said that the officers were far enough away that they wouldn't have been able to distinguish the tip anyway. The officers were 100 yards from the boy.

Sheriff’s Deputy Erick Gelhaus's partner turned their car around when they noticed the boy and turned on the siren. Gelhaus got out of the car, ordered the boy to drop the weapon, and fired eight shots. Seven of the shots hit the boy in the chest, and he died at the scene.

Chief US District Judge Phillis Hamilton advanced the civil claims by the boy's family last year, and the deputy appealed to the Ninth Circuit. A three judge panel determined that a reasonable jury could conclude that Gelhaus deployed excessive force in violation of the Fourth Amendment.

Senior US Circuit Judge J. Clifford Wallace said that the majority opinion improperly discounted evidence that the barrel of the boy's toy gun was starting to rise as he turned around to look at Gelhaus, so the officer believed that they were in "imminent danger."

U.S. Circuit Judge Milan Smith Jr. says that the gun never rose into a position that posed a threat to the officers, and that the boy had not threatened or acted aggressively towards the officers.

Attorney Noah Blechman states that there wasn't time for the officers to determine the intentions of the boy before he turned around and the gun started to come up.
Comments from Allen:
In all civil litigation, there is a chance the person bringing the lawsuit will never get his case in front of a jury.  Defendants often attempt to have the judge throw out the lawsuit on various grounds by bringing a "summary judgment" motion.  That is, the defendant claims the plaintiff cannot win on his alleged facts as a matter of law, or that the plaintiff's legal theory of recovery is appropriate but he cannot show facts needed to prove that theory.

Police officers often have lawsuits brought against them when they injure or kill someone in the process of investigating a crime or making an arrest.  However, because police officers are so vital to keeping the peace and protecting citizens, and because they often face violence in the course of their jobs, there are rules in place to immunize them from lawsuits when they have reason to believe they face various levels of harm.

Under the facts alleged, the lower court denied the deputy's assertion of immunity from prosecution.  He claimed that, taking the facts in a light most favorable to the Plaintiff, that the boy had what looked like an AK-47, and that he refused a command to drop the weapon, the officer was unquestionably able to shoot the boy. The lower court disagreed and refused to dismiss the suit on the basis of immunity from prosecution for the officer.

Undeterred, the officer appealed to a three-judge panel in the 9th Circuit Court of Appeals.  The appellate court agreed with the lower court:  a reasonable jury could find the officer had no reason to believe he was justified in shooting the boy, and that he used unreasonable force.

This does not mean the officer is liable.  The officer can still assert his defenses in a trial when his case is remanded to the lower court for a trial.  The appellate court merely ruled that the facts were not such that the case should be dismissed by the judge; the jury might still find in favor of the officer when the case is tried on the merits.

My take?  A jury is going to have little or no sympathy for a police officer who fired on a kid who was not committing a crime or acting aggressively toward anyone, especially since the officer did not warn the kid that if he did not put down the gun, the officer would shoot.  There is massive liability here.

 Police officers are generally all covered by some statewide or countywide insurance policy.  The insurance companies that insure these losses are generally very stingy, and will not even discuss settlement until after they have obtained a ruling by the court on whether an immunity applies to the defendant police officer.  If they get a favorable rulilng, they walk away without paying the victim or victim's family a dime.  If they lose, they open the checkbook and discuss settlement.

Time to get out the checkbook.


Allen Browning is an attorney in Idaho Falls, Idaho who handles personal injury and criminal defense. He has over 30 years of experience and handled thousands of cases. Allen handles cases from all over Idaho. Call (208) 542-2700 to set up a free consultation if you are facing legal trouble or you have been involved in an accident.

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Allen Browning can help with all personal injury claims including motor vehicle accidents, truck accidents, auto accidents, serious and disabling accidents, and wrongful death claims.

Allen Browning is an Idaho Falls attorney who can also help with drunk driving (DUI), traffic violations, Felony, Misdemeanor, Domestic Violence, Drug Crimes, Theft, Juvenile Crimes, battery and assault charges, Violent Crimes, and Probation/Parole Violations. He is one of the most experienced and successful criminal defense attorneys in Idaho.

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