Pollos Armados -- Part I, Sophistries as Fact.

Last October a 13 year old boy was shot point blank while carrying a toy AK47 rifle on a Santa Rosa, California Street. The usual community outrage was met by the usual official evasions and assurances. This week, the District Attorney’s Office released its report of the incident which not surprisingly exonerated the deputy sheriff who killed the boy.

The investigative report — 52 pages of analysis and 40 pages of appendices — is the usual hash of bureaucratese, technical jargon and cop-speak all wrapped in the soft taco of legal burble.

The Sonoma County District Attorney's Report to the Public concludes that the “evidence establishes that while in the lawful performance of his duties, Deputy Gelhaus was faced with a highly unpredictable and rapidly evolving situation” in which he reasonably believed “that he was faced with a ‘do or die’ situation” warranting “the implementation of lethal force.” (RTP p. 51) Since his actions were “reasonable” a prosecution for murder could not overcome a defense of self-defense and therefore “no criminal charges will be filed against him at this time.” (Id. p. 52)

The ensuing two-part feature will analyze the factual and legal components of this crock of shit. What the evidence actually shows (in so far as it has been laid out in the Report) is that Deputy Gelhaus shot Andy Lopez all but point blank and that if any “do or die” dilemma existed it was created by his own precipitous proactive behavior.

The Andy Lopez case illustrates several issues which ought to be of public concern. It shows how policing in this country has degenerated into a form of militarized urban warfare, the “full spectrum” features of which are indistinguishable from those employed in Baghdad or Kabul.

The case also shows how prosecutors and the judiciary have prostituted themselves to the police, concocting cover-ups iced with smarmy legal pieties. The political result is a criminal justice apparat which is a law unto itself, which is to say, no law at all. What we have witnessed in the Andy Lopez case is State Thuggery in action.

Before parsing the District Attorney’s factual recitals, and with the foregoing in mind, it will serve to ask why the D.A.’s Office is conducting this investigation at all?

NEMO IUDEX IN CAUSAM SUA

The phrase means, “no one shall judge his own case.” It is a legal maxim as old as it is fundamental. It is impossible to prove why no one should judge his own case except to say that if everyone did then the very concept of “law” itself would cease to exist because law itself would be reduced to individual will and desire, which is no law at all.

And yet, with grotesque indifference to this maxim, the District Attorney’s report begins by informing the world that “the Santa Rosa Police Department assumed overall responsibility for supervising, coordinating and conducting the criminal investigation.”

This “assurance” is followed up with a long roll-call of all the law enforcement officials who participated in the “complete and comprehensive investigation” -— a chief deputy district attorney with 23 years of experience; a DA investigator with over 33 years of experience; members of the Santa Rosa Department violent crime investigation unit and forensic experts from the California Department of Justice, etc., etc.

It is true that Deputy Gelhaus may have committed a crime. It is true that the District Attorney’s Office is charged with investigating criminality. It does not follow that because the District Attorney is the chief law enforcement officer of the county it should be entrusted with investigating one of its own. Duh.

In a society which retained a modicum of ordered principle such a conflict of interest would discredit the report without more. The report would be considered a massive, verbose nullity from its inception.

But such is the decayed and enervated state of public life in Late America that the public dumbly acquiesces in the assurances of their masters whose self-exonerating findings the press broadcasts as proven fact. It would be pathetic were it not so contemptible.

THE MUSIC BOX

Like any good opera, the report begins with an overture of sorts which signals what is about to take place: a shifting and shuffling whitewash.

“The sole purpose of this criminal investigation and review is to establish the presence or absence of any criminal liability on the part of any person, including the involved law enforcement employee(s).” (RTP, p. 4)

The statement is a transparent lie. A law enforcement officer shot a teenager who was walking down the street with a toy rifle. No one else was involved in the incident. The sole purpose of the investigation was to investigate the conduct of Deputy Gelhaus.

The reason for pretending that it was an inquiry into the liability of “any person” was to paint the matter as one entailing a general criminal investigation by experts entrusted with the responsibility — nay, the duty! — of conducting such investigations.

In so saying, the report actually makes explicit the false logic of its premise; namely that law enforcement can be trusted to investigate itself because, after all, we are just doing what we are trained to do.

The report continues with a disclaimer of sorts which falls into the vaudeville of “Far be it from us....”

“As the chief law enforcement official,” the District Attorney is duty bound not to file charges unless the evidence is of “such convincing force that it would warrant conviction.” (p. 4)

The assertion sounds good but  is actually a risible canard.

What constitutes “convincing force” —— how strong a case must the D.A. have? The report does a pretty shuffle. It first tells us that under Rules of Professional Conduct, Rule 5-100, a prosecutor should not file a case if “the charges are not supported by probable cause.” It follows this up with “Simply put, the standard for charging a crime is high because the proof required at trial is quite high; i.e. proof beyond a reasonable doubt, which is the highest burden of proof under the law.” (RTP, p. 4)

First the comedy.  There is not a criminal case in which the prosecution does not begin by telling the jury that proof beyond a reasonable is not such an onerous burden as one might think; it’s all basically “common sense.” It is the defense attorney who starts the heaving, groaning and moaning about what a “high and heavy” burden the standard is.

The fact that our intrepid “chief law enforcement official” should begin the report by sounding like a defense attorney is not only ironic, it tells you what is really going on. We are going to be treated to an investigative defense.

Now the cheat. The statement is a canard because having proof beyond a reasonable doubt is not the standard for filing charges. The cited rule of professional conduct explicitly states that the standard is “probable cause” That is the standard used for an arrest on the street. It requires only a reasonable probability that a crime might probably have been committed. That is oceans away from near-certain proof “to a moral certainty” that a crime was committed.

The standard for filing charges is in fact low. It is even less than the civil standard of “more likely than not.”

And it remains low. Once charges are filed a preliminary hearing is held at which a judge-magistrate determines if there is probable cause to proceed to trial. This procedure double-checks the prosecutor’s decision to bring charges but at no time does the court reach the issue of whether the charges would “warrant conviction.”

The reason such a standard is not required is that the concept of proof beyond a reasonable doubt is inseverable from a trial by jury. The burden is not just a certain level proof  but proof which is also strong enough to convince twelve jurors.  Quala and quanta go together.

No single person can assess whether a proof is strong enough to convince twelve persons and the law does not require a prosecutor to make such an ultimately futile assessment. The cases are legion where charges are filed knowing in advance that a potential defense exists and that such a defense could raise a reasonable doubt in the jury's mind, all of which would leave the prosecutor's short of “beyond.”

A prosecutor has discretion not to file charges for whatever reasons of policy or mercy he might deem fit. It is common sense that he should be persuaded by the convincing force of his evidence and that, if he is, to expect that others might be as well. But it is untrue to say that he requires anything more than probable cause to file a case.

Precisely one of the recognized functions of the jury is to be the ultimate decision maker in controversial or dubious cases.

In lieu of adhering to the correct standard, the report makes hay with the phrase “criminal liability” in order to pull the wool over the public’s eyes. “Criminal liability” means subject to indeterminate penal consequences. It does not mean “criminal guilt” or conviction. In shuffling the actual criterion for filing charges, the report once again betrays what it is really about: it is a defense style argument as to why Deputy Gelhaus is not guilty of unlawful homicide.

Not surprisingly, the overture concluded with a coda of distractions and ad homs — reciting Gelhaus’ allegedly heroic military and police record, noting that Andy’s autopsy showed he had smoked marijuana and finding a way to work in the supposedly relevant fact that a John Doe 3 “felt guilty” for the whole thing because he had loaned the toy rifle to Andy.

“DO OR DIE”

The atonal garbage concluded, the report then set out the thesis of its defense: that  faced with a do or die dilemma Gelhaus had no choice but to blow Andy away.

“It was determined that Deputies Gelhaus and Schemmel were conducting some proactive police work that day.

“Gelhaus could see the field... and saw Andy walking northbound about 25 years ahead... carrying what appeared to be an AK47 at his side...”

“Gelhaus yelled [to Schemmel]... 'Do you see that?' and radioed in the observation as a 'Code 20'” [requesting the assistance of two more patrol units].

Here the report adds that as a former soldier, Gelhaus was cognizant of an AK47's destructive potential.

“As Deputy Gelhaus radioed for assistance, Schemmel drove the patrol car into the oncoming lane and parked at an angle to the curb. .... He activated the light bar and blipped the siren.

“As the car pulled up, Gelhaus released his seatbelt, opened his door and drew his pistol... [at a distance of 20 yards from Lopez] “whose back was still turned to the car.

“Schemmel put the car in park and took up a position similar to ... Gelhaus on the driver side... Gelhaus was heard to call out either once or twice, depending on the observer, to drop the gun.

“Both deputies reported that rather than obeying the command, the subject turned to his right toward the deputies with the weapon in his hand and the barrel, which had been pointed down, began to ascend. As the subject turned toward the deputies, both deputies reported being in fear for their lives or that of ...surrounding citizens....

“Deputy Schemmel was coming into position to fire when he heard Deputy Gelhaus fire and saw the subject take a step backward. The subject either fell to his knees or to the ground and the weapon lay either under or near him... He appeared to be seated facing the deputies [who] remained in position until backup support arrived. ...Schemmel can be heard in the background telling the subject not to move... (RTP, pp. 12-13)

At the end of 50 pages of investigative defense, this gets wrapped up as:

“Lopez had an AK-47 in his hand, had refused to comply with commands to drop it and was turning towards Deputy Gelhaus and his partner, thereby causing the barrel of the rifle to turn towards them... Given his training and experience he believed, honestly and reasonably, that he was faced with a ‘do or die’ dilemma...” (RTP, p. 51)

The italicized words are the keys to the defense and the entire review will be aimed at stretching the facts just enough to enable the D.A. to accuse Andy of disobeying a lawful order and pointing a rifle at the deputies.

Of course the D.A. will never actually say that point blank because it cannot. But it will use artful ambiguities to say it close enough to leave the impression that that is what it was all about.... and do or die.

Ironically, the District Attorney forgot  the first line of Kipling’s famous couplet:

Theirs not to reason why,

Theirs but to do and die:

Indeed, it is not for soldiers to reason why. But cops are not soldiers. In a civilized society police do not charge into civilians or into their homes like light brigades.

Cops are supposed to reason why.

That is why concepts like “reasonable suspicion” and “probable cause” exist. Cops are supposed to act upon on a reasoned basis. This aspect of the matter will be discussed in Part II.

But, in quoting Kipling’s poem, the District Attorney inadvertently disclosed what is really at issue in this case: the militarization of civil police forces has resulted in their treating their fellow citizens as enemies and charging for the kill like rampaging cavalry.

TOSSING  THE TESTIMONY

The crux of the case rests on two important pieces of objective forensic evidence: the “CAD” log of radio reports and the autopsy of Andy Lopez. A third element of objective evidence would be the direction Gelhaus was traveling immediately before the incident, although the investigative defense left this important fact buried in the hay-stack of eye witness accounts.

Not unusually, those accounts were not completely congruent but they all coincided on the principal details.

Andy Lopez was walking north on Moorland Ave, north of West Robles. Gelhaus and Schemmel were driving north on Moorland south of West Robles. When Gelhaus came to the stop sign at the corner of Robles he spotted Andy walking north and carrying some kind of rifle in his right hand.

 Scene Photograph from the Report

The above is a police photograph of the scene a minutes after the shooting. The white speck lying across the sidewalk between the White and Gelhaus vehicles is Andy’s body.

This is what Gelhaus would have seen at the stop sign.

Intersection of West Robles looking north on Moreland
(not included in the D.A.'s report)

All of the witnesses who saw the events were agreed that Gelhaus’ patrol car drove passed the intersection and came to a stop with the vehicle nosed into the left (west) sidewalk several yards into Moorland.

All of the witnesses agreed that immediately after the car came to a stop they heard gun shots after which Andy fell to the ground.

The witnesses differed as to how many gun shots they heard and as to whether they heard the deputies say or shout anything before shooting. But there was unanimity that the sequence of events — stop, (shout), shoot — was seamless.

John Doe 5 was driving southbound on Moorland and was one block north of Robles (at Newmark Street) when he saw the patrol car cross Robles and “quickly” pull to a stop at an angle. As soon as the Sheriffs vehicle came to a stop, the driver’s door opened quickly. Approximately three seconds later he heard four rapid gun shots followed by three more which were a little more measured. In Doe 5’s mind “the progression of events... was seamless. Car pulling up, the door opening, just enough time for somebody to assume a position … and the gun shots.” (RTP, p. 20)

John Doe 4 was driving northbound on Moorland Ave toward West Robles. In his rear view mirror, he noticed a van behind him and a sheriff’s unit behind the van. Doe 4 passed Andy and looking into his rear view mirror he saw Gelhaus “drive real quick to the side,” “open the door and shoot him right away.” He estimated that five seconds elapsed between the opening of the door and the first shots. (RTP, 19)

Five other witness heard the patrol vehicle make a “chirp” or “bleep” as it pulled to the curb after which the deputies got out of the car and yelled at Andy to drop the gun before firing.

Jane Doe 1 was in a car immediately behind Gelhaus’ vehicle. She saw the vehicle pull over and heard the deputies yell “drop the gun” before firing. She said, “They did not give him an opportunity to do anything.” (John Doe 6 who was in Doe 1’s car, saw and heard the same thing, except he added that one deputy yelled a second time “as the [other] deputy began shooting.”) (RTP 21, 22-23)

Jane Doe 3 was also in Doe 1’s car. She the patrol unit stop, both doors open and “heard one of the deputies speak in a loud voice. … She then heard four shots fired very quickly...[and then] heard one of the deputies yell loudly again.” She believed the drive side deputy issued more commands through the microphone. (RTP 23.)

John Doe 3: heard the siren “bleep,” saw the deputies take positions behind the vehicle doors and yell “put your gun down” after which “Andy turn[ed] around to face them.” He heard the deputies yell a second time followed by five shots. (RTP p. 16.)

John Does 13 & 14, were in their homes when they heard a quick “blurp” followed by shouting and then three to four or six to seven gunshots. (RTP, p. 27-28.)

John Doe 12, was inside his house when he heard the short “bleep” and “[a]pproximately five seconds later... seven quick shots.” (RTP p. 27)

Four more witnesses heard police shouts after the shots were fired. (John Doe 11: three or four shots then more shots then police yelling; Jane Doe 5: Five or six shots followed by deputies yelling “Stay down” and “Stop moving;” (p. 26) John Doe 10 heard four or five gunshots in succession and a minute later saw Andy lying on the ground and heard the police say “Put you hands on your head.” (RTP, p. 26)

The last of these four was John Doe 9 who was driving north on Moorland approaching West Robles. When he came to a stop at the stop sign he saw two deputies ducking behind their car and someone lying on the ground. He heard one of the deputies yell “Don’t reach for the rifle.” Doe 9 turned right on Robles, did a U-Turn and drove west, crossing Moorland where he took the following picture. The video from which this still was taken shows Andy face up, legs pointed toward the deputies and his arms extended outward. (RTP, pp. 24-25)

 Deputies Still Crouching after Andy Shot

Still other witnesses saw Andy walking north bound, and heard “chirps” or gun shots but neither added nor subtracted to the above-summarized narratives.

The testimony of the witnesses was actually consistent. The fact that Doe 5 and Doe 4 did not hear any commands is explainable by the fact that they were in their cars and at some distance from the actual location of the shooting.

The reason the second group of witnesses only heard the post-shooting commands was that these were broadcast over a microphone.

Those witnesses who heard all the shouts described two different commands: the first, uttered by loud voice and consisting of an order to “drop the gun” or “put your gun down” followed by shots; the second a command issued over the loudspeaker telling Andy to “Stay down,” “Stop Moving, “Put your hands on your head” and “Don’t reach for the gun.”

This is a significant piece of testimony which the investigative report smudges over.

A person cannot “stay” down unless he has been brought down and cannot “not reach” for a gun unless the gun has been dropped from one’s grip. Thus, the “second” set of commands was issued after Andy had been shot.

Preferring to leave matters vague, the report never bothers to chronologize the verbal content of the commands because it wants to be able to conclude on some semantical basis that Andy ignored “two commands” to put the gun down before being shot.

But the eye witness testimony describes an event in which any pre-shooting “two” commands to drop the gun were as sides of one coin. According to these witnesses, the deputies come to a stop, yell at Andy to drop his gun and “seamlessly” thereafter gun him down after which they yell at him to stop twitching in his death throws and not to reach for the rifle.

This was not a very helpful scenario for the desired “investigation.” It was an outrage. Gelhaus’s behavior was one stop short of a drive by shooting.

The District Attorney desperately had to drive some sliver of “perceived danger” and “reasonable fear” into the situation.

Accordingly, the report summarized the witness’ statements in a random order which obscured their consistency. It was made to sound as if they saw things “differently” and, thus, provided no reliable account of what actually happened. 

"[T]he range of statements of all persons interview varied ... some heard yelling before and after the shots; some heard yelling only before... some did not hear voices; some hear a siren while others did not some heard a succession of shots fired while others heard a few, then a pause and then a few more.   These inconsistencies were considered but did not have an impact on the ultimate conclusion."  (RTP, p. 26.)

The report then proceeded to describe at some length how Gelhaus was in a “distinctively marked” patrol vehicle and was wearing a “uniformed” shirt with the all thus usual patches, badges and jingle-jangle stuff.

The purpose of this prose is to convey the notion that Gelhaus was an on duty officer of the law, whose commands we should but obey. But what the narrative does its true best to ignore is that Gelhaus was behind Andy who could not have seen that Gelhaus was an Officer of the Law except by turning around – the very act which the D.A. will argue justified his being blown away.

STRETCHING  TIME

In order to make that argument, the investigative defence had to stretch time. It did so by exploiting a confusion in the CAD logs. (See RTP pp. 9-10)

CAD logs are the recorded voices and written notes of communications between police in the field and central dispatchers. As such, CAD logs embody two parallel sequences: the time something is called in and the time something is noted by the dispatcher. The time stamps of the two processes may be off by a several seconds, but they otherwise should line up more or less sequentially.

Needless to say the investigative defense summarizes the CAD logs in a way that will most easily confuse things. Unscrambled this is what they show.

Patrol Unit Sequence

__:__:__   -   [ nothing listed for anything previous]

15:13:58 -   “called in” a Code 20 request for two units

                     blurp of siren is heard

15:14:17 -    Schemmel reports “shots fired”

On this basis, the report concludes that 19 seconds elapsed from time of the request for two units until the first shots.

Dispatcher Sequence

15:14:15 -  “an event created by a suspicious person on

                    Moorland and West Robles”

15:14:19 -   dispatcher logs “call for Code 20 two units”

                    blurp of siren is heard.

15:14:25 -   dispatcher logs “shots fired”

Under this sequence the elapsed time from the request to the shots is six seconds.

The District Attorney's report doesn't even bother to reconcile the glaring asynchronicities between the two time lines. It effectively ignores the Dispatcher Sequence and concludes that 19 seconds elapsed between an S.O.S. for help and the first shots.  

The District Attorney prefers to leave it a full 19 seconds even if this contradicts the testimony of virtually all the witnesses. After all, after all one can't argue with recorded time-stamps.

The long and short of it is that the D.A.'s creative chronologies mismatched the accepted beginning of Gelhaus' transmission (15:13:58) with the end of what he said during the transmission.   The correct Patrol Unit Sequence is:

15:13:58 -  Gelhaus clicks button & begins speaking

15:*?:*?  -  ends by “calling for” a Code 20 request

                    blurp of siren is heard

15:14:17  -  Schemmel reports “shots fired”

The operatics began by noting that the fact Gelhaus put out a call for two extra units indicated he was acting under the duress of a perceived danger. Perhaps so, but the focus is a red-herring.

A "danger" is a possibility of or a potential for harm. Depending on how neurotic one wants to get, a man with a rifle presents some degree of danger. (Danger is always a question of degree, a simple fact which seems to have dropped from our legal and political speech.)

No one can fault Gelhaus for being extra cautious. But the issue in this case is not when Gelhaus called for more units but when he told Andy to drop the gun and how long later he fired after telling him to do so.

The first thing to note is that, according to the witnesses, the shooting occurred after the patrol car's “bleep.”   Thus the starting point is not the request for a “Code 20” but the time-mark for the bleep.

The second thing to notice is that Schlemmel's report that shots were fired was not necessarily contemporaneous with their “actual” firing. The D.A.'s report is very keen to twice remind us that 15:13:58 is the time Gelhaus “actually” initiated the call, but it is equally keen to assume that the time of Schlemmel's report was “actually” the same as the time the shots were fired.

Doe 5's testimony bears in at this point. He heard seven shots, which was close to the actual eight known to have been fired. According to him, there were four rapid shots, followed by a pause and then three more. That interval, whatever it was, has to be subtracted from the time-stamp of Schlemmel's report.

Thus the relevant time-frame is not from the beginning of Gelhaus' call-in to the end of Schlemmel's report, but for some period of time between those two end-marks; some time less than 19 seconds.

One would think that given the importance of the CAD logs, a complete transcript of the critical portions would have been included in the 50 pages of appendices. But no.  Instead the report pads the appendix with the curricula vitae of the prosecution experts.

Although the report does its best not publish relevant information it does disclose one significant fact. The report informs us that the “bleep” is heard as Gelhaus “finishes his words.” So the question becomes how many words did Gelhaus utter.

The report tells us that he put out a call for a Code 20 and then digresses into discussing the stress this indicates Gelhaus was under.   But is that all he said? “Code 20! Code 20!”

Uh huh. In true Keystone fashion, cops are zooming all over Santa Rosa and crashing into one another looking for a “Code 20.”

Most likely Gelhaus would have identified himself, his location and probably some generic description of the situation faced. He probably said something like,

“Unit 259, unidentified male with firearm at Moorland and Robles. Code 20.”

And in fact, the dispatcher's log begins with “an event created by a suspicious person on Moorland and West Robles” which the D.A. refers to two pages later saying Gelhaus “radioed in the observation.” (RTP p. 12)  In other words he didn't just bellow a "Code 20" -- he narrated what  he saw and then requested backup.

According to the Dispatcher Sequence, the time the call was first received (14:15) to the end of the Code 20 request (14:19) was four seconds. On this basis, taking into account the start time and the words spoken,  the entire dispatcher sequence is four seconds longer, for a total of 10 seconds.

But the same conclusion cannot be reached for the Patrol Unit Sequence because the D.A.'s report very explicitly states that Gelhaus's call “began” and was “initiated” at 15:13:58. In other words, the line-up between the two sequences should be 15:13:58 and 15:14:15.

(In tandem, the entry for 15:13:58 should read “called in” a report of a suspicious person at location and a Code 20 request for two unit.)

Using the Dispatcher Sequence, it can be assumed that whatever Gelhaus said, it took him four seconds to say it and thus that on the Patrol Unit timeline he finished speaking at 15:14:02 which is the actual time the “bleep” is heard.

Thus, the re-calculated time frame is reduced to 15:14:02 -to- [seven shots before ] 15:14:17 ( Schemmel's report of “shots fired”)

How long did it take for the shots to be fired?  According to the prosecution's own expert witness (p. 46), each round would take ¼ of a second to fire, with a resulting one second for five and 1 ¾ seconds for eight. Given that Doe 5 witness heard a pause between the fourth and fifth shot, it can be inferred that the firing took somewhere in the vicinity of 2.0 to 2.5 seconds.

On that assumption, the resultant interval is 15:14:02 to 15:14:15 or 12 seconds, a result which is closer to the adjusted Dispatcher Sequence interval of 10 seconds.

However. from either the 10 or 12 seconds, it is necessary to further deduct the time it took to bring the car to a stop, and to assume position behind the opened doors. This interval cannot be deduced from the CAD log, although it could have been reconstructed from a geographical location for the first sighting coupled with a re-enactment of getting out of the car and assuming position.

Gelhaus doing Weekend Something or Other

Instead of doing precisely that,  the investigative defense pads itself with a page and a half of CAD log sequences as to when back ups arrive, when EMT's were called for, when Andy was evacuated and blah, blah, blah.   But the case does not turn on those facts.

Whatever the exact figure, the critical “interval” between shouting at Andy and shooting him was not 19 seconds but something under 10 or 12 seconds, a CAD time-line which is far more consistent with the witness' testimony that the events were a “seamless” three to five seconds from either the “bleep” or the door opening to the first shots.

(According to Does 4 and 5 there was a three or five second interval between the doors opening and the first shots. According to Doe 12, five seconds from “bleep” to first shots.)

The D.A.'s report doesn’t discuss these critical details or provide a time-line transcript because it is only interested in creating a spurious “time wedge” in order to distance Gelhaus from doing what he actually did: shoot first, investigate later.

KEYSTONE CORONERS

Creating a “time-space” was only the necessary first step in the investigative defense. In order for Andy to present a “threat” to the officers during that time-space, he had, at least, to be facing them.

Andy was struck by seven of the eight rounds fired. The shot which killed him hit him in the chest. This forensic fact provided a basis for arguing that that Gelhaus had fired when Lopez turned around and it appeared that he was raising his rifle.

Alas, the District Attorney’s own pathologist (Dr. Josselson) concluded that Andy was first shot in the right arm from behind. (RTP p. 30-31, 37) This gave rise to a certain degree of what might called investigative angst.

As it turned out, however, Andy’s family had arranged for a private autopsy and their pathologist was of the opinion that the arm wound was created by a shot from the front. (RTP 30-31)

When the D.A.'s Office found about this report they demanded a copy and then hired a bloodstain expert from the Santa Clara D.A.’s Office to confirm these results. (RTP 31)

Alas, the blood stain expert concluded that the private pathologist was wrong and that the bullet had entered from behind. Angst again. (Ibid)

So the D.A. turned to an outfit called Precision Simulations, “to assist us in rendering opinions about bullet wound #7...” After much 3-D modeling and trajectory analyses, Precision Simulations concluded that it was most likely that the arm wound was sustained while Lopez “was directly facing Dep. Gelhaus.” (RTP, 37.)

One problem with this conclusion was that it was contradicted by the commonly accepted forensic fact that exit wounds are larger than the entry ones. In Andy’s case the front side wound was larger indicating that he had been shot from behind.

And so the D.A. “undertook extensive research regarding bullet wounds” consulting numerous on-line “medical treatises” and (no doubt thanks to Google) found “compelling research” indicating that “the majority of gunshot wound misinterpretations result from the ... assumption that the exit would is always larger than the entrance wound.” (RTP p.33)

However, this authority  went on to explain that there are five variables which determine whether the general rule holds true or not in any particular case. The general rule holds true “when the exiting projectile has substantial velocity...” Conversely, “if the velocity of the exiting projectile is low, the wound it leaves behind may be equal to or smaller than its corresponding entrance wound.”

Strangely enough, velocity estimations were not conducted in connection with the wound. After all, what was important was finding some verbiage which appeared to explain away the fact that wound on Andy’s front arm was larger than the one on the backside.

After being confronted with all these sources and investigations the D.A.’s pathologist (Dr. Josselson) revised his initial findings and concluded that the arm wound had been sustained when Andy was facing Gelhaus. (RTP p. 33)

As for the two gun shot wounds in Andy’s buttocks, the D.A. concluded that these were sustained as Andy was spinning around from the impact of the first shots.

At long last, the investigative report had its autopsy ducks lined up. As reviewed and revised, they “confirmed” that Andy had been facing Gelhaus when he was blown away.

WRINGING  CONDUCT  FROM  SYNTAX

But even so adjusted the time-space configuration by itself, still did not close the case. While Andy might be facing Gelhaus, he still had to do something which justified his being snuffed out.

The conclusion the District Attorney wanted to reach (and ultimately did assert) was that, in the slo-mo of 19 seconds, Andy, while facing the officers, had ignored Gelhaus’s twice given command to drop the rifle while instead seeming to raise the rifle’s barrel in the officer’s direction. Andy should have known he was being addressed by cops and the deputies were justified in fearing for their lives and the lives of others wherever they might be.

However, not even Gelhaus or Schemmel pointed to anything very specific,  such as being aimed at with a rifle. So in the absence of hard facts the D.A. fell back on malleable grammar.

It is here that prepositions and tenses become critical. The D.A.’s own recapitulation states that Schemmel “was coming into position to fire when he heard Deputy Gelhaus fire ...” In other words, the first shots occurred before Schemmel was fully in position and as he was getting out of the car to crouch behind the door.

This scenario is actually consistent with the testimony of John Does 4, 5 and 12 who (as noted) timed the first shots as five seconds after the “bleep” or three to five seconds after the door opening.

Consistent with this rapid sequence the report also states that Lopez was shot “as he turned to his right.” In English, the word “as” when used adverbially means “While; during or at the same time that” (Webster's Revised Unabridged Dictionary, p. 87.)

In short, by the report’s own account this was not a situation where Andy fully turned, faced the deputies and then appeared to be raising his weapon (the image the D.A. would like to suggest). Ignoring the possibility that he might in fact have been shot from behind, he was at least shot while turning around.

Nevertheless, the report sufficiently obfuscates the facts so as to conclude:

“From this data we were able to conclude that at the time Deputy Gelhaus fired his weapon at Andy Lopez, Andy had turned towards the Deputies and was facing the deputies when the first shot was fired.” (RTP p. 39)

But “as he turned” and “had turned” are not the same. At least to anyone who understands English.

Once the miracle of fuzzy grammar had metamorphosed a turning into a completed deed, it only remained to metamorphose the aim of the rifle.

The D.A.’s report was perfectly aware that Andy’s “natural turning moment” would tend to lift the rifle’s barrel. (RTP, p. 48) But it buried that natural fact under the grammatically creative reconstruction that “the barrel of the weapon [was] coming up and beginning to point towards the officers ...”

Yes indeed! Every raising begins with a first degree. But no one saw, no one said and the investigative defense cannot truly assert that the barrel was raised against the officer or that it was even parallel to the ground.

After nine pages of essentially irrelevant further legal analysis, the report finally emerges with its final version of the events:

“When Andy initially glanced back, he seemingly should have seen the marked vehicle with emergency lights on and perhaps heard the blip of the siren. One would expect that he’d heard the admonitions as well and would comply with the command to drop the weapon. (RTP p. 48)

• • •

“We can speculate as to why Andy didn’t comply... but that doesn’t change the circumstances … [¶] .. . a deputy... cannot assume turning a weapon towards them is just innocent body mechanics. (RTP p. 48)

• • •

“It appears from the evidence that Deputy Gelahus didn’t get a good enough view of Andy to determine he was a teenager. (RTP p. 50)

• • • 

“Andy Lopez had an AK-47 in his hand, had refused to comply with commands to drop it and was turning towards Deputy Gelhaus and his partner, thereby causing the barrel of the rifle to turn towards them... (RTP p. 50)

“Given his training and experience he believed, honestly and reasonably, that he was faced with a ‘do or die’ dilemma...” (RTP p. 51)

Where did “initially glanced back” come from? The deputies themselves never stated that Andy “initially glanced back.” What he “initially” did was turn around.

At this point, the investigative defense is simply banking on the reader being too exhausted and confused to realize that it has vouched for a fact that is simply not in the record at all.

If a prosecutor “created” facts that way in closing arguments it would be considered reversible misconduct. There was no evidence that Andy glanced back before turning.

This conjured up act is necessary because the investigative defense is desperate to impute some sort of knowing and willful disobedience on Andy’s part; i.e. upon glancing back he “should have seen” that he was being yelled at by Uniformed Officers of the Law whose commands he was under a bounden duty to obey.

At this point, the report again emphasizes that version of the events that Gelhaus commanded twice. Putting aside the pre- and post- shooting commands, let it be assumed that two commands were given prior to shooting. Big deal. “DropItDropIt” is twice.

Having shifted blame onto Andy, the report then brazenly states that Gelhaus certainly could not assume that the turning was “innocent body mechanics.”

But that is precisely what he ought to have assumed, given the fact that there was no initial “glancing” back and that he had yelled at someone who was not facing him and could not see that he was a sheriff.

In order to cast blame on Andy for disobeying a “lawful order,” the report imputes knowledge of the deputies’ presence on the basis of that fact that as he drove by John Doe 4 “had alerted Andy that he needed to get rid of his gun because the police were coming.” (RTP p. 48)

According to Doe 4, as he drove past Andy he yelled out his window “Cops behind. Throw away that thing.” Andy did not pay attention but kept on walking. Whether he heard, or whether he thought someone was just messing with him is speculation.

But it is speculation which is beside the point. The issue is not whether Andy should have known that he was being ordered to drop the rifle by the police; the issue concerns the reasonableness of Gelhaus’ trigger pulling. On what basis could Gelhaus be expected to know that Doe Four had “alerted” Andy?

The “should have known” standard is used to assess a person’s liability for something. By using it against Andy the D.A. blamed the victim in order to escape the fact that Gelhaus did nothing to identify himself as a police officer.

If Gelhaus was faced with a do or die situation it was one entirely of his own creation. It was one based on never once reasoning why.

PULLING  EMERGENCIES  FROM  A  HAT

The Santa Rosa District Attorney has not published all of relevant transcripts and reports so that it is not possible for anyone to conduct a truly comprehensive review. But what it has made public is downright shabby.  It has omitted and obfuscated facts, it has engaged in subtle character assassination of a dead victim while heroizing the subject of the investigation and it has played on semantics to shuffle issues and twist facts. 

Most shamelessly,  the investigative defense conjured up exculpations from thin air.  But before testing how thin the air is, it bears noting how the entire framework of the investigation has been subtly shifted.

An "exculpation" is not  a fact.  It may require and rely on predicate facts, but an exculpation is inherently a judgement.   It is the kind of judgement -- guilty or ex-culpated -- that juries are empaneled to render.   The ultimate issue in the Andy Lopez matter was whether to bring charges to trial before a jury.   In arguing an exculpation as a reason for not filing charges, the District Attorney simplified shunted the jury aside and negated the very thing juries exist for: to protect the public from official persecution, oppression or malfeasance. 

Even so, its attempted exculpation is literally based on nothing except the fluff of semantics.

The bottom line is that a deputy shot a boy without a moment of investigation beforehand. Thus, the D.A.’s ultimate investigative strategy was to paint the situation as one involving “exigent circumstances” because once “an emergency” exists the police — despite their years of training, professionalism and expertise are allowed to run around like chickens with their heads cut off....  

But there was no exigent circumstance. There were no complaints about a man brandishing a gun. There were no reports about a man with a gun making threats or shooting in the air. There was no report of anyone being kidnapped, robbed or held hostage. If there was no report of any life endangering crime in progress there can be no “emergency.”

It can be assumed that upon crossing West Robles, Gelhaus saw a figure carrying some kind of rifle. Even without considering that the neighborhood was a known gang area, that fact presented a basis for at least some concern. 

But what the D.A. labors mightily to confuse is that a latent potential for some harm is not the same as an imminent danger of such harm.

It is critical to understand the semantic confusion that the governments — including the Federal Government — use to justify their tyrannies. It bears repeating that the words “danger” and “threat” mean a potential harm. When police or agency spokespeople start blabbing about potential threats they are jabber-talking nonsense.

That they do it all the time and that people have been razzle-dazzled into swallowing the oyster doesn’t make it not nonsense. Do we speak English or are we just making sounds that sound like maybe something articulate is being said?

Properly used, the phrase imminent danger refers to that situation where there the probability of harm is clear and immediate — a virtual certainty.

It is true that a firearm can possibly be used to kill someone. But since when do we execute people without trial on the basis of a possibility? A possibility that by its very general and inchoate nature is even less than probable cause.

District Attorney Jill Ravitch - Spooking the Audience

The D.A.’s report makes a show of places the toy and real AK47’s side by side. Look how real! Look how dangerous! “The mere silhouette of such a weapon instills a sense of foreboding in the average person.” (RTP, p. 51)

But Gelhaus did not see the rifle from the side. If he saw it at all he saw if from behind at a distance of over 20 yards (at the intersection).

Nevertheless, let's be generous, let it be assumed that with his kryptonite vision Gelhaus could tell, in fractions of seconds, that the object was an AK47. Could he not also tell that the person carrying it was a small boy? Every other witness placed Andy’s age at 11 to 15.

Let us bend over more and suppose that Gelhaus was reasonably convinced that the person carrying what he reasonably believed was an AK47 was an adult.

SO FUCKING WHAT?

Absent any indication that the person was doing something which constituted an imminent threat to life, absent prior knowledge that the person carrying the rifle was a known crazy-man or known cold blooded killer, absent facts implicating a clear and present danger, what stopped Gelhaus from driving alongside, to get a closer look at the person and the “gun” and, if he felt it necessary, ordering the person to stop and drop from that position. He had a partner to cover him.

The investigative report simply pumps a "threat" out of nothing but a happenstance. 

The fact is Gelhaus took no steps to assess the situation any further. He took no steps to identify himself. He did not even use the microphone to blare out “THIS IS THE POLICE. STOP AND RAISE YOUR HANDS!”

Whether Andy heard “DropIt” or “DropItDroptIt,” he did what was completely natural and that was to turn around. This ought to have been reasonably foreseeable to the ever-so trained, veteran Gelhaus.

To distract from what Gelhaus failed to do, the report (once again) shifts the blame -- this time with a brazen cheek.   Ending 50 pages of a creative and omissive investigative defense, the District Attorney concludes that "Andy's actions of not complying with a law enforcement officer's clear commands to drop the weapon [and] turning toward that officer with an AK-47 in his hand" justified Gelhaus' conduct.

"Clear?"  Where did "clear" come from?

"DropItDropIt" coming from a voice behind one's back is not a "clear" command "clearly" coming from a law enforcement officer.
 

To complete the heap of canards, the report then contrives to metamorphose the non-emergency into a potential public danger.

If the cops reasonably believed that their own lives were in the balance that was a necessary and sufficient basis for their action. But the D.A. is not satisfied with that justification. The report asserts that “both deputies reported being in fear for their lives or that of ...surrounding citizens...”

This is standard rubber stamp burble for those who practice that language known as “Seeming English.” But on what basis were they concerned about the “lives” of surrounding citizens?

As already mentioned, they had received no complaints or reports concerning a man with a rifle. Their explanations did not indicate that they seen others in the vicinity or that they had counted who else was present, or that they saw Andy pointing the weapon at anyone.

This gratuitous burble without any factual basis aims simply to inflate the impression of "potential" (confused with "imminent") danger.  We are to supposed to  feel that the police were only Protecting the Public from a Public Threat!   But despite all the factual shuffling and semantic twisting, the investigative defense still can't quite suppress the heart of the matter. Gelhaus, it says, was faced with a “unpredictable situation.”

Unpredictable: unforeseeable, uncertain, unsure, doubtful, dubious.

On such an "unpredictable" basis, no one is safe from cop-violence; and certainly not from deputies suffering from a Rambo Complex.    Omitted from the investigative whitewash was any discussion of allegations that Gelhaus had engaged in proactive misconduct on at least two prior occasions.

Bumper Sticker Allegedly Used On Gelhaus' Personal Car

But even without considering such factors, the entire matter boils down to: see, shout and shoot. That was completely unreasonable and fatally violent. It amounted to an other instance of an all too familiar phenomenon on American streets: official murder.

In the next part of this analysis, we shall discuss what is called “the law” and how the judiciary have acquiesced in fomenting a culture of state-thuggery.

©Woodchip Gazette, 2014