Inside the final minutes before Andy Lopez's toy-gun death Pot found in teen's system; deputy's bullets hit neighbor's home

An image from a cell phone video taken by a witness, and released by the Sonoma County District AttorneyÕs Office, shows Sonoma County SheriffÕs Deputies Michael Schemmel (left) and Erick Gelhaus (right) crouching behind the doors of their patrol vehicle after Gelhaus fatally shot 13-year-old Andy Lopez on Oct. 22, 2013. Gelhaus said he mistook the boy's replica AK-47 pellet gun for a real rifle. less An image from a cell phone video taken by a witness, and released by the Sonoma County District AttorneyÕs Office, shows Sonoma County SheriffÕs Deputies Michael Schemmel (left) and Erick Gelhaus (right) ... more Photo: Courtesy Sonoma County District Photo: Courtesy Sonoma County District Image 1 of / 13 Caption Close Inside the final minutes before Andy Lopez's toy-gun death 1 / 13 Back to Gallery

Moments before 13-year-old Andy Lopez was fatally shot by a Sonoma County sheriff's deputy who mistook his replica AK-47 pellet gun for a real rifle, a man in a truck drove by the boy and felt a surge of worry.

"Hey. Throw that thing away," the truck driver recalled yelling out his window. "Police behind!"

Andy didn't listen as he walked toward a field near his home on the edge of Santa Rosa. And the driver kept going.

The witness later told authorities he thought the gun was a plastic toy - but he wasn't certain. He also recalled the sound of shots ringing out.

The account is included in a report released Monday by Sonoma County District Attorney Jill Ravitch, which concluded that Deputy Erick Gelhaus should not face criminal charges because he fired at Andy while acting in what he believed was self-defense.

The 52-page report revisits the debate over whether fatal force was warranted in a shooting that touched off months of protest from the enraged Latino neighborhood where Andy lived and raised questions about police use of force and the danger of toy guns.

The report, which offers a host of new details on the incident, revealed that some of the deputy's bullets ended up in a neighbor's kitchen, garage and yard, and it suggests the boy took actions that contributed to the deadly confrontation.

Out with 'big black gun'

It started about 3 p.m. Oct. 22, when Andy left his house on Moorland Avenue with what his family called the "big black gun," according to the report. He had recently renewed an interest in guns, his mother said, borrowing the replica AK-47 from a friend at school.

Andy's friend had reluctantly given him the toy rifle, according to the report. The orange tip of the gun - a requirement under federal law to distinguish it as a replica - had broken off, his friend said, and he was afraid the toy could be mistaken as real.

A day after the shooting, the friend went to the office at Cook Middle School "crying hysterically" because he felt responsible for Andy's death.

Gelhaus, meanwhile, began his shift that day at 7 a.m. The 24-year department veteran was assigned to work with trainee Michael Schemmel, who had been hired a month earlier but had worked for 11 years with the Marin County Sheriff's Office, the report said.

The two decided to spend the afternoon in the Moorland neighborhood, an area that the district attorney's office called one of the most active crime areas in the county - a good location for gaining police experience.

Gelhaus, 49, wanted to "give his trainee an opportunity to be more proactive," according to the report.

Traces of pot found

The report notes that Andy had likely smoked marijuana that afternoon. Trace amounts of the drug were found in his blood during an autopsy, and investigators say a marijuana cigarette and Visine eye drops were in his possession.

The district attorney's office suggested the drug may have clouded Andy's mind that day, citing testimony from a marijuana expert. Dr. Reese Jones said cognitive abilities are particularly limited when it comes to reacting to "sudden, unanticipated" events, such as an encounter with police.

Both Gelhaus and Schemmel were in uniform as they drove through the Moorland neighborhood in a marked car. Both deputies wore bullet-resistant clothing.

According to the report, as their patrol car passed a field blocks from Andy's home, Gelhaus said something like, "Did you see that?" He was referring to a person about 25 yards in front of their vehicle carrying what appeared to be an AK-47.

Gelhaus was familiar with assault weapons like AK-47s. He served more than 20 years in the U.S. Army as an infantryman, rose to the rank of sergeant and worked as a military firearms instructor, the report said. He continued to work as a firearms trainer after his honorable discharge.

But at least one person has raised questions about the law enforcement veteran's use of firearms.

Previous incident

Two months before Andy's death, a Santa Rosa resident reported that Gelhaus drew his gun on him after pulling him over for failing to signal a lane change. The traffic stop troubled the driver so much that he recalled asking Gelhaus at one point: "Sir, is there something wrong with you?"

"I felt like I was watching somebody I needed to help," Jeff Westbrook, 57, later told The Chronicle.

When Gelhaus spotted Andy at 3:14 p.m., he radioed for backup, according to the report. Schemmel, who was driving, stopped the car near the edge of the field, blipped the siren and turned on the police lights.

Gelhaus jumped from the vehicle, positioning himself behind his open door and drawing his gun.

He yelled for the boy to drop his weapon - either once or twice, according to conflicting witness accounts. Schemmel also took position behind a car door and drew his gun. The pair was about 20 yards from Andy.

Andy was 5-foot-2 and 135 pounds.

Critics of the shooting said this is when Gelhaus overreacted. They said the field where Andy walked with his pellet gun is an area where children commonly play, and that others could have been wounded by stray bullets like the one that lodged in a neighbor's kitchen hutch.

But Gelhaus told investigators he had no choice but to fire after Andy began to turn to his right with the gun, which he said began to rise up.

Schemmel said he, too, feared for his life, but that he wasn't in position to discharge his firearm as quickly as Gelhaus, according to the report.

Nineteen seconds after Gelhaus radioed for assistance, his partner followed up with a call that shots had been fired. Gelhaus had unloaded eight rounds, seven of which struck Andy and three of which remained lodged in his body, the report said.

"I challenged the man," Gelhaus said in an interview with investigators. He said he yelled, "Drop the rifle."

He said the muzzle of Andy's gun was "coming up in my direction as he turned and I began to shoot, because I thought he was going to shoot me. I continued to shoot until he went down."

Shooting's aftermath

Gelhaus and Schemmel remained behind their car doors in an "at the ready" position until backup arrived, still believing Andy had a real rifle, according to the report. Nearly 50 more law enforcement officers were soon on the scene.

Andy was pronounced dead there at 3:27 p.m.

Witnesses who spoke to investigators in the aftermath of the shooting were split on whether the gun looked like a toy or the real thing.

One said he assumed Andy was carrying a BB gun, explaining, "Who would be walking with an AK-47 in broad daylight?"

Another witness, who once worked in the gun business, said he saw Andy walking past his driveway and at first thought he was "packing a gun." But the more he looked at it, "the more I thought it was a toy."

The man also told detectives, "If you were confronted by this individual and you had a few seconds to make a choice, you'd call it a weapon. Now, what kind of weapon?"