Boy's shooting renews calls for tighter rules on toy guns

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SAN FRANCISCO — Andy Lopez was walking to a friend's home on the outskirts of Santa Rosa, Calif., when a sheriff's deputy shot and killed him, mistaking the eighth-grader's plastic BB gun for an assault weapon.

The afternoon killing of the bright, popular 13-year-old has spurred almost daily protests and nightly candlelight vigils in Santa Rosa, a community known as a gateway to the wine country, with stately Victorians on quiet, tree-shaded streets and edgier enclaves pockmarked with gang graffiti.

As the FBI and Santa Rosa police investigate the Oct. 22 killing, some community leaders are talking to lawmakers about finding ways to deter such shootings, which occur with disturbing frequency across the country when police mistake plastic guns for lethal weapons.

"There are so many kids running around with these things that it is almost inevitable there will be additional shootings in the future," said Dan Reeves, chief of staff to state Sen. Kevin de Leon, D-Los Angeles.

De Leon carried a bill in 2011 at the behest of Los Angeles Police Chief Charlie Beck to require BB guns be painted bright colors. It followed an LAPD officer's shooting of a teenager who had an airsoft pistol, a replica of a Beretta handgun.

The 13-year-old Los Angeles boy, who was shot while playing with friends in a park, was left a paraplegic. A jury last year ordered the city to pay him $24 million in damages.

In lobbying for a change in the law, Beck showed Reeves two guns - one a real Beretta, the other designed for children to look like the real thing. Beck laid them on the table and challenged Reeves to pick the real one.

A similar scene played out in Santa Rosa several days ago, when authorities demonstrated the likeness between the plastic gun Andy carried and a real AK-47.

In both cases, the replicas looked eerily like the real weapons.

Andy's gun belonged to a friend, and he was on his way to return it, his parents have said. He was wearing shorts and a navy blue sweat shirt. Two Sonoma County sheriff's deputies spotted him from behind. The deputies put on the patrol car's red light and chirped its siren.

Deputy Erick Gelhaus, a 24-year veteran of the office, was in the passenger seat. He jumped out of the car and twice ordered the boy to drop the gun, according to a witness. The boy began to turn around, still clutching the plastic gun, and Gelhaus fired eight rounds.

After the shooting, Gelhaus handcuffed Andy and began CPR. He did not immediately realize Andy was a boy and kept referring to him as "the man," Santa Rosa Police Lt. Paul Henry said.

Gelhaus had never before intentionally shot someone while on sheriff's duty - he once accidentally discharged a firearm - nor had he ever used force that led to a death, said Terry Leoni, his lawyer.

"He is very emotional about this incident," Leoni said. He and the other deputy at the scene believed the gun was an AK-47, which can fire at least 100 rounds a minute, she said.

A federal wrongful-death lawsuit filed Monday by Andy's parents said Gelhaus had twice pointed guns at people in the past without provocation and once shot himself in the leg. Calling the boy's killing "a senseless and unwarranted act of police abuse," the suit said Gelhaus failed to identify himself as a police officer before shooting and issued only one command to drop the gun. Henry said Gelhaus could not remember whether he identified himself.

Gelhaus told investigators that Andy was raising the gun as he turned to face the deputies. Leoni said the deputies estimated the boy was at least 5-foot-5 and 140 pounds. Andy's parents said he was 5-foot-3.

Gelhaus is a field training officer and Iraq veteran who provided firearms instruction for the county and for private clients. His previous assignments for the sheriff's office included gang violence suppression and narcotics enforcement.

Andy, who wanted to be a Marine or a boxer, died at the scene, about a block from his home. He was one of four children of Mexican immigrants who lived in a mobile home. His heavily Latino working-class neighborhood had experienced gang shootings.

The 2011 De Leon bill would have required the kind of gun Andy carried to be painted in a bright color. It never made it out of an Assembly committee.

De Leon eventually won passage of a measure that exempted Los Angeles County from a state law that prohibits local governments from regulating guns. A proposed Los Angeles city ordinance that would permit the sale of BB guns and other imitation firearms only if they are brightly colored is now being drafted by the city attorney's office and may be introduced later this year.

Since Andy's death, De Leon's office has been in contact with leaders in Santa Rosa and surrounding communities to explore another attempt at statewide regulation.

The gun industry has opposed further regulation, and even some members of law enforcement have criticized efforts to require BB guns to be neon colored. They argue that the plastic replicas could be misconstrued as harmless even though BBs and pellets can inflict serious injury.

Before introducing another measure, De Leon's office is trying to put together a coalition, including police chiefs, to overcome industry opposition and legislative reluctance. Gov. Jerry Brown, a gun owner, tends to be skeptical of gun regulations.

Carrying a pellet or BB gun that looks like a real weapon in public is punishable as an infraction in California, and the guns may not be purchased legally by anyone younger than 18. Federal law requires some pellet guns to have orange tips, but they can be removed. The one Andy carried had no tip, and the LAPD officer who shot the boy said he didn't see the orange plug.

Though no one knows how often officers mistake plastic replicas for lethal weapons, rarely a year goes by without a report of an incident. A 1990 Department of Justice study found at least five instances a month in the prior five years of officers using force in the mistaken belief that an imitation gun was real. Now all toy guns that do not shoot projectiles must be produced in bright colors.