By Ronnie Cohen
SAN FRANCISCO (Reuters) - The parents of a 13-year-old California boy killed last month while carrying a plastic replica of an assault rifle filed a civil rights lawsuit on Monday against the sheriff's deputy who shot him, their attorney said.
Deputy Erick Gelhaus, 48, shot Andy Lopez Cruz as the eighth grader was walking near his home in the wine-country town of Santa Rosa carrying an imitation gun he planned to return to a friend, relatives and officials have said.
The shooting, by a veteran deputy and firearms instructor, has sparked almost daily protests in California, and the FBI has launched an independent investigation into the October 22 incident.
On Monday, attorney Arnoldo Casillas filed the federal lawsuit against Gelhaus and Sonoma County in U.S. District Court in San Francisco on behalf of the boy's parents. The suit seeks unspecified damages and alleges the deputy violated the teen's civil rights.
"The shooting of Andy Lopez was absolutely and unequivocally unjustified," Casillas told a news conference, saying he hoped the lawsuit would spur a more thorough investigation. He said he plans to depose Gelhaus and ask him, "What the hell were you thinking? He is 5-foot-4, 140 pounds."
Casillas last year won a $24 million verdict against the Los Angeles Police Department for a 2010 officer-involved shooting that paralyzed another 13-year-old boy as he played with a toy gun.
Gelhaus' lawyer and the Sonoma County sheriff did not immediately return calls or emails seeking comment on the suit.
The San Francisco Chronicle reported that a county spokesman called the lawsuit premature and said it could interfere with police and FBI investigations into the shooting.
The newspaper also reported that Gelhaus' attorney, Terry Leoni, said her client acted properly.
The boy's parents, Sujay Cruz and Rodrigo Lopez, told reporters on Monday they wanted "an honest investigation."
Their son was wearing a hoodie sweatshirt and walking about a block away from his home when Gelhaus and an unidentified officer he was training spotted the boy carrying what appeared to be an assault rifle, police said.
Gelhaus, a 24-year veteran of the force who served 10 years in the military with a stint in Iraq, ordered the boy to drop the gun. When the teen turned toward Gelhaus, who was crouched behind the door of the patrol car, said he saw the barrel of the gun rise.
Gelhaus said he fired eight shots, killing the boy in a situation that authorities said developed in seconds. Casillas said a private autopsy conducted by a former Sonoma County medical examiner showed that the teen could not have raised the gun.
He also said a witness reported he saw the teen walking with the gun moments before the shooting and could tell from his stature and the way he was carrying the gun that Andy was a child carrying a toy.
Only after Gelhaus handcuffed the bleeding teenager did he realize the weapon he feared would kill him was just an imitation, an air gun capable of shooting nothing more than plastic pellets.
(Reporting by Ronnie Cohen; Editing by Cynthia Johnston and Philip Barbara)