One of the more tragic cases of mistaken assumptions occurred last month in Sonoma County when a sheriff’s deputy shot and killed a 13-year-old boy whose replica gun the deputy thought was a genuine assault rifle. And now, in a development that’s not surprising to Bay Area wrongful death attorney Gregory J. Brod, the family of the teenager has filed a lawsuit against the Sonoma County Sheriff’s Office.
Attorney: Deputy Thought Toy Gun Was Real
According to the San Francisco Chronicle, the family of Andy Lopez Cruz filed a lawsuit Monday in U.S. District Court in San Francisco, claiming that Sonoma County Deputy Sheriff Erick Gelhaus should have recognized that Andy’s replica AK-47 was a toy and not the real thing when on October 22 he fired eight rounds at the teenager after ordering him to drop his gun. Gelhaus has said through his attorney that he thought the rifle was real and that his life and the life of partner were threatened. The deputy realized that the gun was an air gun that only shot plastic pellets after Andy had been mortally wounded, according to the Sheriff’s Office.
The lawsuit names both Gelhaus and Sonoma County as defendants and seeks unspecified damages. On the face of it, the case has the markers of a wrongful death lawsuit, but the attorney for the boy’s family raised another issue when he stated that the deputy made inappropriate assumptions due to the fact that he was patrolling a largely Latino neighborhood near Santa Rosa, noting, too, that the Lopez Cruz family is Mexican-American. Indeed, the FBI has launched an independent investigation to find out whether the 13-year-old’s civil rights were violated. The Santa Rosa and Petaluma police departments and the Sonoma County district attorney are all conducting their own probes into the tragedy.
State Statutes Govern Wrongful Death Cases
Insofar as wrongful death as a cause of action is concerned, the jurisdiction in which the alleged tort occurred determines which statute will apply, with every state having its own wrongful death statute. California’s wrongful death statute, beginning with the Code of Civil Procedure Sec. 377.60, spells out who would have standing to bring a lawsuit for “the death of a person caused by the wrongful act or neglect of another…”
Typically, the factual pattern of a wrongful death action follows from the tortfeasor committing the tort against the victim, which results in the death of the victim as a result of the tortfeasor’s actions. As a result, the victim’s survivors sue the tortfeasor for wrongfully causing the victim’s death. The deceased party’s claim passes on to his or her family, with a state’s survivor statute permitting the victim’s relatives to seek damages based on the wrongful death cause of action.
The lawsuit filed Monday is the first step of what could very well be a trying and stressful experience for the survivors of Andy Lopez Cruz, but it is most likely a necessary action if they are going to obtain compensation for their loss. If you or your loved one has been injured or killed due to negligence or a wrongful act, please contact the experienced personal injury attorneys at the Brod Law Firm for a free consultation.
-James Ambroff-Tahan contributed to this article.