Estate of Lopez Ex Rel. Lopez v. Gelhaus, 2017 U.S. App. LEXIS 18439

On Oct. 22, 2013 Deputies Gelhaus and Schemmel encountered 13-year-old Andy Lopez walking in a residential area holding a realistic-looking replica AK‑47.
Deputies parked behind Andy; Gelhaus ordered “Drop the gun!” once; Andy turned clockwise and the rifle swung with his motion. Gelhaus fired eight shots, killing Andy. The toy lacked an orange tip and resembled a real AK‑47 at the distances involved.
Material disputes: whether Andy glanced back before the car’s siren chirp; whether Gelhaus yelled more than once; which hand held the rifle; and critically, how far/fast the barrel rose during Andy’s turn.
The district court denied summary judgment on qualified immunity, finding a jury could conclude the barrel only began to rise and may not have posed an imminent threat.
On interlocutory appeal the Ninth Circuit (majority) affirmed the denial, concluding (1) a reasonable jury could find a Fourth Amendment excessive‑force violation under the facts viewed in plaintiffs’ favor, and (2) controlling precedent made that right clearly established; it remanded for trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gelhaus’s use of deadly force violated the Fourth Amendment (objective reasonableness)	Lopez: viewing disputed facts in plaintiff’s favor, Andy turned non‑aggressively while holding the rifle pointed down; barrel may have risen only slightly and did not pose an imminent threat — deadly force was unreasonable.	Gelhaus: the rifle was beginning to rise toward deputies as Andy turned, creating an imminent threat that justified immediate deadly force.	Majority: disputed factual issues (especially barrel movement/intent) permit a reasonable jury to find a Fourth Amendment violation; summary judgment inappropriate.
Whether the right was clearly established (qualified immunity step two)	Lopez: cases like George, Harris, and Curnow put officers on notice that shooting an armed person who did not point or otherwise threaten officers is unconstitutional.	Gelhaus: no precedent put an officer on notice that shooting was unlawful given the gun’s upward motion; reasonable mistake of fact/law warrants immunity.	Majority: on the assumed facts favoring plaintiffs, precedent (notably George) clearly established the unlawfulness of deadly force here; but because facts are disputed, qualified immunity cannot be resolved at summary judgment.

Pearson v. Callahan, 555 U.S. 223 (qualified immunity two‑step framework)
Graham v. Connor, 490 U.S. 386 (objective‑reasonableness standard for excessive force)
George v. Morris, 736 F.3d 829 (use of deadly force where gun held with barrel down; fact issues can preclude immunity)
Harris v. Roderick, 126 F.3d 1189 (deadly force unreasonable where suspect armed but did not pose immediate threat)
Curnow v. Ridgecrest Police, 952 F.2d 321 (deadly force unreasonable where victim did not point weapon at officers)
White v. Pauly, 137 S. Ct. 548 (clearly‑established inquiry requires close factual similarity)
Mullenix v. Luna, 136 S. Ct. 305 (Fourth Amendment context—specificity of clearly established law)
Deorle v. Rutherford, 272 F.3d 1272 (warnings and availability of less‑intrusive force relevant to reasonableness)