January 15, 2011 in City

Creach case hinges on self-defense claim

Tucker to release charging decision next week
By The Spokesman-Review
 
Jesse Tinsley photo

Alan Creach, left, and his brother Ernie Creach stand in their greenhouse Friday in Spokane Valley. They operate their father’s businesses, Creach Greenhouses and The Plant Farm.
(Full-size photo)

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Background and the latest updates

In principle, it seems clear that a 74-year-old pastor on his own property should not die as a result of an encounter with law enforcement, as Wayne Scott Creach did in August.

Since then, Spokane County Sheriff Ozzie Knezovich called the incident a “very unfortunate death,” and Creach’s family and the wider community have been asking for answers.

But two former prosecutors said the decision whether criminal charges are filed against sheriff’s Deputy Brian Hirzel will rest on one legal concept: self-defense.

Spokane County Prosecutor Steve Tucker is expected to announce his charging decision early next week. He said Friday, via e-mail, that he will review the report over the weekend but he is still waiting on the results of a meeting earlier in the week among Spokane police detectives, who are heading up the investigation.

Tucker’s predecessor, former Spokane County Prosecutor James Sweetser, said the crux of Tucker’s decision is whether Hirzel perceived a threat of great bodily harm or death from Creach before shooting the pastor in the chest on Aug. 25.

“It’s a complete tragedy and it’s a tragedy for the community and the congregation and the family. It shouldn’t have happened,” Sweetser said. “But the issue … is whether or not the officer could have reasonably believed that he was in danger and had a belief that he needed to use deadly force at the time.”

Hirzel shot Creach late on Aug. 25 in the parking lot of Creach’s greenhouse business in Spokane Valley. Hirzel was in an unmarked car and did not alert the business owner before parking there to watch for activity in the neighborhood after an earlier call from a resident.

Alan Creach, son of the slain pastor, said Tucker has already indicated to the family that he doesn’t expect to file charges against Hirzel.

But Alan Creach and his brother, Ernie, believe investigators have not taken the time to challenge Hirzel’s official statement describing his actions against the few seconds in which they had to have occurred.

Hirzel told investigators that he parked at The Plant Farm, 14208 E. Fourth Ave., and was writing a collision report at 11:07 p.m. when he saw the shirtless Creach approaching with a flashlight in his left hand and a gun pointed downward in his right hand.

Hirzel said he repeatedly told Creach to drop the gun, but investigators could find no neighbors who heard any of that exchange. Only Creach’s wife, Imogene, reported hearing anything and she described what sounded like her husband yelling out in fear before the shot was fired.

Hirzel said Creach initially responded that he didn’t have to drop his gun, and mentioned that he had had problems with theft in the past. But Creach eventually put the gun in the back waistband of his pants.

Hirzel then ordered Creach onto the ground, but the older man refused. Hirzel couldn’t remember exactly when he called for backup, but said he struck Creach on the outside of the left knee. It’s then, Hirzel said, Creach reached for his gun.

“When, when I saw his hand go behind his back and come out with a gun, or the grip of the gun that I saw, there wasn’t a doubt in my mind that he was going to shoot me,” Hirzel, 42, told investigators, according to transcripts. “I, I don’t know why, but that’s what I was thinking.”

But Alan Creach said he has seen no documented effort by investigators to determine whether all of that activity – including Hirzel telling Creach to drop the gun about six times – could have occurred in a span of a few seconds between radio calls. Autopsy results also could not conclusively show that Creach was struck by a baton on his leg, and the pastor’s family questions the severe downward angle of the fatal shot.

“Based on what we know, from the time that Scott Creach left his bedroom it’s physically impossible for all of these things to occur,” Alan Creach said.

The timeline concern raised by the Creach family was one of the topics investigators were exploring on Tuesday, Tucker said.

The larger question, however, is “ ‘How can you justify killing a senior citizen who comes out to investigate what he perceives to be a theft in progress?’ ” Alan Creach said. “What we have tried to articulate from the beginning is that they have to deal with the community from a perspective of integrity, even if it looks bad for the department.”

Chris Bugbee, who worked as a deputy prosecutor under Tucker, said the lack of eyewitnesses is problematic in this case.

“When a prosecutor looks at a case, very rarely do you know exactly what the facts are,” he said. “That’s of particular problem in this case because Mr. Creach is not here. But the first thing you have to look at is self-defense laws. (Hirzel) has a right to protect himself.”

If he decides to bring charges, Tucker has a range of homicide charges to choose from, including first- and second-degree murder, Bugbee said. Both require that a person intended to kill another person, but prosecutors must show that the killer planned the killing – even if for just a moment in time – to file a charge of first-degree murder.

If Tucker doesn’t believe that he can prove to a jury beyond a reasonable doubt that Hirzel committed either of those two crimes, he could move to justifiable homicide, such as killing someone in self-defense.

Manslaughter and excusable homicide charges would not apply, Bugbee said, because manslaughter is charged when a person unintentionally kills another. An example of excusable homicide would be that the killer was not mentally able to determine right from wrong at the time of the killing, he said.

“If an officer gives you a command, you are technically bound to comply,” Bugbee said. “A failure to comply wouldn’t necessarily justify an officer to claim self-defense and certainly not necessarily to use deadly force. Failure to comply rarely leads to a homicide, despite what many in our community believe.”

Sweetser generally agreed, saying that prosecutors must be able to show beyond a reasonable doubt that Hirzel did not fear for his life to charge him criminally for Creach’s death. Self-defense is available even if the person is mistaken about the perceived threat, he said.

“We have to prove lack of self-defense beyond a reasonable doubt … based on what it appeared to the person using the force,” he said. “You start by looking for something inconsistent with what the person was saying.”

But with no eyewitnesses and Creach dead, “that makes it challenging. If I was going to guess, there may not be enough for criminal charges,” Sweetser said. “But that doesn’t mean there isn’t enough for a civil case.”

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