Kurtis Alexander
On a December night in 2010, two police officers were on the lookout for gang activity in the Los Angeles neighborhood of Glassell Park. When they came across three youths with guns, they were ready for trouble.
But when Officer Victor Abarca confronted and shot one of the suspects as he hid behind a van, the officer was surprised at what lay before him: a 13-year-old boy who had been carrying a plastic pellet gun while playing cops and robbers.
Rohayent "Ryan" Gomez was left paralyzed from the chest down.
The tragedy was not without consequence. A jury ordered Los Angeles to pay the teen $24 million, the biggest payout over police conduct in city history. A state legislator sought, unsuccessfully, to ban the sale of all real-looking toy guns.
But the officer was never charged with wrongdoing.
A similar call for punishment is rising now in street protests in Sonoma County, where on Oct. 22 a sheriff's deputy shot and killed 13-year-old Andy Lopez Cruz after mistaking his replica AK-47 pellet gun for a real rifle as the boy walked near his home just outside Santa Rosa.
But the deputy, Erick Gelhaus, has history on his side. Prosecutions of law-enforcement officers after line-of-duty shootings are rare, and convictions are even rarer.
This seems particularly true for cases in which officers mistook a toy gun for a real one.
A Chronicle review of 10 such cases around the country in the past 25 years found that they frequently prompted civil payouts and spurred new laws, but none resulted in criminal charges.
Prosecutors, in each case, concluded that while the officers had not faced a real threat, they thought they had.
'Existing mistrust'
For police misconduct watchdogs, this lack of punishment erodes accountability and public trust.
"The shooting adds to an existing distrust," said Michael Risher, a staff attorney for the Northern California chapter of the American Civil Liberties Union. He said a thorough investigation of the shooting was vital for police-community relations.
For law-enforcement leaders, though, the fact that officers are rarely prosecuted reflects the inherently perilous job that they are asked to perform.
"Obviously, there's frustration from the community and there's anger, but these are tragic mistakes," said David Carter, a criminal justice professor at Michigan State University and a former officer in Kansas City, Mo., who wrote a congressional report on the problem of toy guns.
"A prosecution occurs if there's criminality," he said, "and there's no criminality in these cases."
The law, legal experts note, focuses not on the legitimacy of the threat but on the officer's state of mind.
This should not preclude charges in the Sonoma County killing, said John Burris, an Oakland civil rights attorney who often represents families of people killed by police. He said a case can be made that Gelhaus wildly miscalculated the threat the boy posed.
Gelhaus has told investigators that he shouted at Andy to drop the rifle after he and a colleague pulled behind the boy in a marked car. When Andy turned and the rifle barrel rose up, the deputy said, he feared for his life and fired.
Prosecution's obstacles
Burris expects investigators to examine whether Andy was adequately warned, and whether the deputy was really threatened if he was positioned behind the door of his patrol car.
"The D.A. would have to be persuaded that this, in some way, was a vast overreaction to the facts," Burris said.
Burris represented the family of Oscar Grant, the man killed in Oakland by former BART police Officer Johannes Mehserle in 2009. Mehserle was charged with murder and convicted of involuntary manslaughter. That case turned on video footage - which Sonoma County authorities say doesn't exist in their case.
Burris said Andy's family is more likely to gain traction in civil court, where there is a lower standard for judgment. "It's not a case that will generate sympathy for the police," he said.
Gelhaus' attorney, Terry Leoni, said her client did what he's trained to do.
"No law enforcement officer ever wants to do this," she said. "They never go out wanting to make this decision. But they face deadly threats on a regular basis, and they have to make split-second decisions."
Her colleague Michael Rains, who represented Mehserle, said the law "discourages Monday-morning quarterbacking. As long as the deputy's actions seem reasonable, based on what is perceived at the time, there's no crime."
The Sonoma County district attorney's office must ultimately decide on whether to charge Gelhaus. Federal prosecutors, too, could allege civil rights violations.
Andy's family has hired an attorney who has been through this before. Arnoldo Casillas represented Rohayent, the boy paralyzed in Los Angeles.
Casillas argued in that case that Officer Abarca should have recognized the situation as a child's game.
People with toy guns injured or killed by police
On a number of occasions, police officers around the country have either killed or badly wounded people after mistaking toy guns for real firearms. The Chronicle reviewed 10 such cases after looking for incidents in which the victim did not appear to be carrying the fake gun with criminal intent. The cases featured common themes. They tended to involve teenage boys, though men carrying guns as part of Halloween costumes have also been shot. The officers often acted while responding to a separate, more serious threat, and they were often hampered by darkness. The shootings also tended to involve people of color. The shootings frequently resulted in lawsuits and big civil payouts by cities, and some spurred new laws regulating toy guns. But none of the officers was charged with crimes, after prosecutors repeatedly came to the same conclusion: Though the threat was not genuine, the officers believed it was in the heat of the moment. Here are some of the cases:
Jaime Gonzalez; Brownsville, Texas
What happened: Two officers fatally shot the 15-year-old boy in a hall at his middle school on Jan. 4, 2012. Police said Jaime threatened the officers with what was later determined to be a pellet gun. The boy's family said the officers came in "guns blazing."
Outcome: A grand jury declined to indict the officers. The family's lawsuit is pending.
Javier Gonzales-Guerrero; San Jose
What happened: San Jose officers found Gonzales-Guerrero sleeping in medical scrubs in a hotel stairwell on Oct. 23, 2011. Police said four officers saw the butt of a gun in his waistband and fired a barrage of bullets when he reached for the weapon. As it turned out, Gonzales-Guerrero - who was grievously wounded but survived - had gotten drunk while dressed as a surgeon at a Halloween party. The gold revolver was a fake.
Outcome: Santa Clara County prosecutors found the shooting lawful after concluding the officers responded to a perceived threat. San Jose paid $4.95 million to settle Gonzales-Guerrero's federal lawsuit.
DeAunta Farrow; West Memphis, Ark.
What happened: On June 22, 2007, while staking out an apartment complex, Officer Erik Sammis shot and killed 12-year-old DeAunta as the boy ran through a darkened lot. Police said the boy ignored commands to drop a toy handgun.
Outcome: A special prosecutor declined to file criminal charges, and a federal civil jury ruled in favor of the officers in a $250 million lawsuit filed by DeAunta's family. Two years after the shooting, Arkansas banned toy guns that look like real firearms.
Nicholas Heyward Jr.; New York City
What happened: The 13-year-old boy was playing cops and robbers with a toy gun in a darkened stairwell of a housing project on Sept. 27, 1994, when he was fatally shot by housing authority Officer Brian George, who had been responding to a report of an armed man.Outcome: The Brooklyn district attorney did not prosecute the officer, blaming the incident on the proliferation of toy guns. The boy's family sued, but it's not clear how the case was resolved. New York City responded by requiring toy guns to be brightly colored.
Silivelio "Tony" Grohse; San Francisco
What happened: Two city officers who had been responding to a report of gunfire shot and killed the severely disabled 13-year-old boy outside a Potrero Hill housing project on Feb. 17, 1988, mistaking the toy gun he had just received for Christmas for a real firearm.
Outcome: The San Francisco district attorney's office cleared the officers, concluding they had a "well-founded fear for their lives" after Silivelio pointed the gun at them and let out a "terrifying shriek." The boy's parents sued for $10 million in federal court, but a judge tossed the case. By the end of the year, the Board of Supervisors banned the sale of real-looking toy guns.
