SANTA ROSA (CBS SF) – The U.S. Supreme Court Monday refused to review a lower court decision allowing a trial on allegations that a Sonoma County sheriff’s deputy used excessive force when he fatally shot a 13-year-old boy carrying a toy rifle in 2013.
The high court declined without comment to grant a hearing on an appeal by Sonoma County and Deputy Erick Gelhaus in a lawsuit filed by the parents of Andy Lopez.
The action means the case will now go back to the court of U.S. District Judge Phyllis Hamilton in Oakland for a trial on whether Gelhaus used unconstitutional excessive force when he shot and killed Lopez on Oct. 22, 2013.
The deputy shot Lopez that afternoon as Lopez walked along a street in an unincorporated area of Santa Rosa while carrying a pellet gun that looked like an AK-47 rifle.
Gelhaus said he believed the weapon was an assault rifle and that Lopez was raising it toward him and his partner. The boy’s parents claim he was not lifting the toy gun.
Gelhaus and the county on behalf of Gelhaus argued that the deputy should be protected from being sued by the doctrine of qualified immunity because his action was reasonable.
But Hamilton and the 9th U.S. Circuit Court of Appeals in San Francisco ruled that a jury should decide whether the use of deadly force was reasonable.
The Supreme Court’s denial of a hearing leaves in place the 9th Circuit’s decision last year allowing a trial.
The parents’ attorney Arnoldo Casillas said last month that he would expect the trial to take place within a year.
The lawsuit also includes a wrongful death claim by the parents that was not part of the Supreme Court appeal.
The high court grants hearings in only about 1 percent of the cases appealed to it.
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