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Erick Gelhaus v. Estate of Andy Lopez, By and Through Successors in Interest, Rodrigo Lopez and Sujay Cruz, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 16-15175 · judgment September 22, 2017

Certiorari denied · June 25, 2018
Pre-decision estimate: 3% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Questions presented

Andy Lopez was shot by Sonoma County Deputy Sheriff Erick Gelhaus while carrying a replica AK-47 assault rifle that had been altered to look like the real thing. Gelhaus had been on patrol in the afternoon of October 22, 2013, and had spotted Lopez, who appeared to be in his mid to late teens, walking on the sidewalk carrying what appeared to be an AK-47. Gelhaus approached Lopez from behind, called for him to drop his weapon, but instead, Lopez turned to face the officer, raising the barrel of the rifle, prompting Gelhaus to fatally shoot him. The questions presented by this petition are:

  1. Did the Ninth Circuit improperly depart from this Court’s decision in White v. Pauly, ___ U.S. ___, 137 S. Ct. 548 (2017) (per curiam) and numerous other cases by denying qualified immunity notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting Deputy Gelhaus?

  2. Did the Ninth Circuit improperly depart from this Court’s decisions in Graham v. Connor, 490 U.S. 386 (1989) and Plumhoff v. Rickard, ___ U.S. ___, 134 S. Ct. 2012 (2014) in denying qualified immunity based upon the absence of a constitutional violation given that the undisputed facts established that Deputy Gelhaus acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle?

Counsel of record

For petitioner
Timothy Towery Coates
Greines, Martin, Stein & Richland LLP

For respondent
Gerald Philip Peters
Law Office of Gerald Philip Peters

Case

Conference history
Distributed for 4 conferences

Proceedings

  1. Jun 25 2018
    Motion for leave to file amici brief filed by Peace Officers' Research Association of California, et al. GRANTED.
  2. Jun 25 2018
    Motion for leave to file amici brief filed by California State Sheriffs' Association, et al. GRANTED.
  3. Jun 25 2018
    Motion for leave to file amici brief filed by Force Litigation Consulting LLC, et al. GRANTED.
  4. Jun 25 2018
    Motion for leave to file amici brief filed by International Municipal Lawyers Association, et al. GRANTED.
  5. Jun 25 2018
    Petition DENIED.
  6. Jun 18 2018
    DISTRIBUTED for Conference of 6/21/2018.
  7. Jun 11 2018
    DISTRIBUTED for Conference of 6/14/2018.
  8. Jun 04 2018
    DISTRIBUTED for Conference of 6/7/2018.
  9. May 15 2018
    DISTRIBUTED for Conference of 5/31/2018.
  10. May 11 2018
    Reply of petitioner Erick Gelhaus filed. (Distributed)
  11. Apr 26 2018
    Motion for leave to file amici brief filed by International Municipal Lawyers Association, et al.
  12. Apr 26 2018
    Brief of respondents Estate of Andy Lopez, by and through successors in interest, Rodrigo Lopez and Sujay Cruz in opposition filed.
  13. Apr 26 2018
    Motion for leave to file amici brief filed by Peace Officers' Research Association of California, et al.
  14. Apr 26 2018
    Motion for leave to file amici brief filed by Force Litigation Consulting LLC, et al.
  15. Apr 26 2018
    Motion for leave to file amici brief filed by California State Sheriffs' Association, et al.
  16. Mar 22 2018
    Petition for a writ of certiorari filed. (Response due April 26, 2018)