Did deputy in toy gun killing ID himself? Deputy unsure that he IDd himself before shooting boy holding toy rifle

Protesters in Santa Rosa demand justice Tuesday in the killing of 13-year-old Andy Lopez Cruz, who was shot while carrying a toy rifle near his home. Protesters in Santa Rosa demand justice Tuesday in the killing of 13-year-old Andy Lopez Cruz, who was shot while carrying a toy rifle near his home. Photo: Leah Millis, The Chronicle Photo: Leah Millis, The Chronicle Image 1 of / 15 Caption Close Did deputy in toy gun killing ID himself? 1 / 15 Back to Gallery

The Sonoma County sheriff's deputy who fatally shot a 13-year-old boy after mistaking his toy AK-47 for a real rifle told investigators afterward that he did not recall whether he identified himself as a law-enforcement officer before opening fire, a police official said Wednesday.

Lt. Paul Henry of the Santa Rosa Police Department, which is leading the probe into the Oct. 22 killing of eighth-grader Andy Lopez Cruz, released more information as protesters continued to take to the streets calling for charges to be filed against Deputy Erick Gelhaus.

Also Wednesday, an attorney for Gelhaus spoke for the first time, saying the deputy "feels for the loss of life" but had responded properly to a threat. Gelhaus "absolutely believed it was a real AK-47 and absolutely feared for his life" before firing, said attorney Terry Leoni.

When he encountered the boy, Gelhaus was in the passenger seat of a marked patrol car driven by a newly hired deputy he was training. The car pulled behind Andy, police said, as he carried a plastic air rifle in his left hand near his home just outside Santa Rosa. The boy wore shorts and a blue sweatshirt with the hood down.

Henry revealed that a witness told police that he had been driving in front of the sheriff's cruiser, had seen Andy with the replica gun, and had warned the boy to put it away because the deputies were coming. The fake rifle did not have an orange tip - a feature that toy guns must have under federal law.

Henry said just 10 seconds passed between when dispatchers logged a report by the deputies of a suspicious person, later determined to be Andy, and when the deputies reported that shots had been fired.

The encounter unfolded so quickly that Gelhaus had already mortally wounded the boy - firing eight shots at Andy, who suffered seven wounds - before the trainee had a chance to exit the car and get into position, Henry said. The deputy Gelhaus was training has not been identified.

"The deputy driving the patrol car was in the process of exiting his side of the vehicle, taking cover behind the opened driver's door, and drawing his weapon at the time when the other deputy engaged the subject," Henry said.

Previously, police officials had said both deputies were outside the car and taking cover behind opened doors when Gelhaus fired. That had prompted Andy's friends and relatives to question why, if the boy allegedly presented a threat, only one of the two deputies shot at him.

Henry said a witness saw the patrol car's overhead lights come on and heard the siren "chirp" before the shooting. He said a witness also reported hearing one of the deputies yell twice at the boy to "put the gun down."

Andy was facing away from the deputies, and as he turned, the barrel of the replica gun began to rise and turn in his direction, Gelhaus told investigators. He said he fired after fearing for his safety and that of his partner.

Andy died at the scene. He had not been wearing headphones or earbuds, Henry said. Though some Bay Area police departments now use chest or dashboard cameras, there are no audio or video recordings of the fatal confrontation, he said.

Gelhaus, who joined the sheriff's office 24 years ago, is a gun expert - an Iraq War veteran and hunter who serves as a field training officer and weapons instructor. He is on paid leave under standard protocol for such a shooting.

The shooting is under investigation by Santa Rosa and Petaluma police and the Sonoma County district attorney's office, which must decide whether to file charges. The FBI has also opened an inquiry to determine whether any federal civil rights violations occurred.

Leoni, the deputy's attorney, said the ongoing probes prevented her from discussing some of the circumstances leading up to the shooting, including whether Gelhaus had identified himself as a law-enforcement officer before firing.

But she said both Gelhaus and the other deputy, who had 11 years of experience with two other law-enforcement agencies before joining the sheriff's office, "believed that this was a real AK-47, and they believed that Andy Lopez posed a real imminent and lethal threat."

Gelhaus is not a "trigger-happy" deputy, as some of Andy's supporters have suggested, but an officer who takes pride in teaching other deputies how to safely use weapons, Leoni said.

"He is an educator. He is a teacher," she said. "He takes his profession very seriously, but beyond that he takes officer safety very seriously."

Leoni said she believed the deputies would be cleared of wrongdoing but added, "That doesn't lessen the fact that this is a tragedy."