August 29, 2013 in City

James Rogers’ family questions death investigation

Officer shot, killed Spokane man during 2011 standoff
By The Spokesman-Review
 

This is the scene at Seventh Avenue and Hatch Street where Spokane police were in a standoff with James E. Rogers on Sept. 26, 2011. Officer Dan Lesser shot Rogers from the armored personnel carrier at left. His bullets were fired through the upper-rear window of the rolled van and struck Rogers, who was seated on the passenger window with his back against the roof of the van.
(Full-size photo)

The shots that ended a standoff two years ago on the lower South Hill continue to create a wide chasm between how a grieving family and law enforcement investigators view the same evidence.

Conflicting witness testimony and the trajectory of the bullets that killed James E. Rogers on Sept. 26, 2011, have convinced the family that Spokane police and Spokane County Sheriff’s investigators failed to fully investigate the fatal shooting, which occurred after a nearly two-hour standoff with police near the intersection of Seventh Avenue and Hatch Street.

“Every time I see police cars, I instantly start shaking,” said Rogers’ sister, Angela Crigger. “I go into a panic attack. I think it’s partly because I feel like nothing is happening. If it was anybody but a cop who shot him, they would investigate.”

But sheriff’s Detective Mike Ricketts disagrees with the family’s assessment.

Ricketts, and several others, conducted what’s described as an extensive investigation, which found that multiple officers reported seeing Rogers point a shotgun toward them just before Officer Dan Lesser fired six shots from his AR-15 assault rifle. It wasn’t until last November that Ricketts informed the family that Lesser had been cleared of any criminal wrongdoing.

“These poor officers are put under fire every time they have to do something like that,” Ricketts said. “If there was some evil intent or malice, I believe I would have uncovered it. I believe they did an outstanding job and were very professional and contained a very bad situation.”

The family now is contemplating its legal options.

Rogers was a 45-year-old father of seven who, according to several witnesses, was well-liked in his job as a care provider at SL Start, an assisted-living facility at 811 S. Hatch St. The former military police officer, however, had previous problems with alcoholism, mental illness and depression, Crigger said.

“He would drink, get depressed and write suicide notes,” Crigger said. “Then he would sober up and face whatever he had to deal with.”

But the Friday prior to the standoff, Rogers apparently had been arrested for felony DUI, which would have cost him his job.

Three days after that arrest, Rogers went to the parking lot of SL Start and tried unsuccessfully to convince a co-worker to come outside. At one point he fired the shotgun he had taken from his father’s house. Spokane police were already responding to reports of an armed suicidal man at SL Start. They tried to block Rogers inside the parking lot there, but Rogers drove across a lawn to avoid a patrol car and sped away.

He drove northbound on Hatch but tipped the van onto its passenger side while trying to turn onto Seventh Avenue. Police sent snipers, armored personnel carriers and extra officers to the scene, where Rogers holed up inside the toppled van.

The standoff

Officers John and Kellee Gately, who are married, got into one of the armored vehicles, which had the best views of Rogers through the windshield of the van.

Kellee Gately watched Rogers through binoculars and relayed any reactions or movements to John Gately, who was trying to talk to Rogers through a public address system, according to court records.

Rogers initially did not respond to any requests and at one point fell from the driver’s side seat onto the passenger window of the toppled van.

As officers began to surround the vehicle, Detective Randy Lesser called his brother, Officer Dan Lesser, to respond with SWAT. Dan Lesser climbed onto the turret of an armored personnel carrier parked directly behind the tipped-over van. Photos and interviews indicate that the van’s interior seating obstructed most of the view, but did allow Lesser to see a portion of the front of the van where Rogers was sitting.

As the standoff continued, the sun set; illumination at the scene was provided by headlights and spotlights from police cars and armored personnel carriers.

John Gately explained to Rogers that officers were sending up a robot to get a closer view of him. He also instructed Rogers to move the shotgun as far away as possible.

“You have lots of family who are concerned about you,” Gately told him. “You need to put the shotgun down. James, this is not a solution, bud. We understand you have seven kids. They will need their dad in the future. They will need to talk to you …” Gately was interrupted by six shots fired by Dan Lesser, who said over his police radio that he saw Rogers point the shotgun at him.

Rogers was declared dead at the scene. He had a blood-alcohol content of 0.26 percent, or more than three times the legal limit of 0.08 percent.

Differing accounts

Kellee Gately, who had watched Rogers through binoculars, told investigators the following day that he mostly sat with his buttocks on the passenger window “and his feet are up, so he’s really in a precarious situation … like he’s wedged and he can’t get himself turned any other position.”

“I saw the gun clearly like three individual times. He’s trying to move it forward and I even said out loud, ‘What’s he doing, what’s he trying to do? Is he trying to put it under his chin or is he trying to get it out the window?’ and that’s when shots were fired right after that,” she said.

Later in the interview, SPD detective Jerry Hensley asked Gately: “Do you remember what direction the shotgun was pointed when the shots were fired?”

“Um, north, northwest,” she said.

Dan Lesser was positioned to the east watching Rogers through the van’s rear windows.

Hensley asked again whether Rogers was pointing the shotgun toward the van’s windshield.

“Correct, north toward the roof of the van,” she replied, “almost like he’s trying to push it around … like he doesn’t have enough room to push it out towards the windshield.”

However, an interview the next day with John Gately and several other officers gave investigators an opposite version of Rogers’ actions.

On Sept. 28, John Gately said he saw Rogers manipulating the gun while he mentioned his seven kids.

“As I made that comment, the barrel of the gun made a quick, sudden movement towards the back of the van,” John Gately said. “And that’s when the officer shot.”

All of the officers who described Rogers’ movements said they saw his left hand on the front of the gun and his right hand near the trigger. But Crigger said that would have been opposite of how her brother, who was left-handed, would aim the gun.

Ricketts and Spokane police Detective Mark Burbridge scheduled an interview for Sept. 29 with Officer Dan Lesser at the law office of Rob Cossey. When they arrived, Lesser gave the detectives a prepared statement instead of granting an interview.

“At the point he pointed his shotgun at me I was not only in fear of my own life, the other officers’ lives … but also the innocent civilians in the area,” Dan Lesser wrote. “I knew I had to react immediately to the threat the suspect posed to me and to others by pointing the shotgun at me.”

Ricketts, in an interview, said he remembers asking some clarifying questions, but they weren’t noted in his report.

Burbridge indicated that he and Ricketts asked “such items as concerns Officer Lesser had about containing the suspect and which radio he was operating on during the event.”

Cossey said he can’t remember whether the detectives asked his client about the differing version that Kellee Gately gave two days prior.

“I barely remember representing him,” Cossey said. “Burbridge and Ricketts are in and out of here all the time. There are so many cop shootings … they are running together.”

The autopsy showed that Rogers was shot twice in the left side of his face, once in the left side of his neck, once in his left shoulder and once on his left hand.

Ricketts said in records, and in an interview, that the shots were consistent with Rogers aiming the gun toward the rear of the van.

But attorney James Sweetser, who was retained by the Rogers family after the shooting, disagreed. He said the autopsy showed bullets entering Rogers’ left side and exiting to the right.

The former Spokane County prosecutor suggested that officers use measurements taken from the crime scene to recreate the entire encounter using shots from a similar gun fired through a dummy.

“If you can’t get the holes going through the right way, you’ve got (the investigation) wrong,” Sweetser said. Kellee Gately said the gun was “pointed in the other direction. The family is put in a position where they may have to spend their life savings to get a full investigation into what happened to their loved one.”

Sweetser asked Deputy Spokane County Prosecutor Jack Driscoll to refer the matter to the local office of the FBI. Driscoll, who cleared Lesser of criminal charges in the shooting, said he left that decision up to Ricketts.

Said Ricketts, “I didn’t think there was anything to be gained from it. Sweetser is a private attorney looking for lawsuits. If the FBI comes in and wants to look at it, they can pull it at any time and look at it.”

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