February 12, 2013 in City

Creach civil case can move to trial

Deputy’s immunity request rejected
By The Spokesman-Review
 

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A civil suit against a sheriff’s deputy in the 2010 shooting death of a Spokane Valley pastor has enough evidence to warrant a jury trial, a federal judge has ruled.

Family members of the late W. Scott Creach are suing Spokane County and sheriff’s Deputy Brian Hirzel for violation of Creach’s civil rights and wrongful death in the Aug. 25, 2010, shooting in the parking lot of the Creach family business.

Creach, 74, was owner of the Plant Farm, 14208 E. Fourth Ave., and lived in a home next to the nursery parking lot. He had armed himself with a handgun and went outside at night to check on a vehicle in the lot, which was an unmarked patrol car occupied by Hirzel.

His wife, Imogene, was awakened and heard the single gunshot that killed Creach. Hirzel was later cleared by Spokane County prosecutors of any criminal wrongdoing in the confrontation.

But U.S. District Court Judge Rosanna M. Peterson last week rejected a motion for summary judgment by Hirzel and his lawyers. They were seeking to overturn the lawsuit because the deputy is covered by a doctrine of qualified immunity, which provides general protection to officers performing their duties.

Peterson said the Creach family’s lawyers presented enough evidence to undercut the qualified immunity claim.

In her ruling, Peterson said “there exist genuine issues of material fact casting doubt on key components of Deputy Hirzel’s version of the events.”

The judge said those facts should be decided by a jury.

Under the law, qualified immunity is lost if there is evidence showing a violation of a constitutional right, in this case Creach’s right to life.

The civil suit seeks $14.7 million in damages.

Alan Creach, the victim’s son, said on Monday that the family is pleased the case is moving toward trial late this spring or summer. He said he is disinclined to settle out of court because he wants a trial to air “major issues” involving safety of the public.

He said he believes that the judge “did a pretty good job of getting a grasp of the arguments we and the family have.”

Creach said, “What happened was unreasonable.”

Jim Emacio, the county’s chief civil deputy prosecuting attorney, declined to comment about the judge’s rejection of summary judgment.

Hirzel told detectives in 2010 that Creach approached his vehicle and then refused commands to back off and put down the gun. He said he struck Creach with his baton to gain compliance. The deputy told detectives he struck Creach near the knee with the baton in his left hand while holding his service weapon in his right hand.

According to the court document, Hirzel contended that Creach stood up and was about to shoot him when Hirzel fired his weapon.

A forensics expert for the Creaches undertook a review of the autopsy and concluded that Creach must have been on his knees when he was shot based on the downward angle of the bullet’s trajectory in his body, which contradicts Hirzel’s statement that Creach was standing face-to-face with him when he fired.

Hirzel told investigators that Creach was pulling the gun from his rear waistband when Hirzel shot him.

But Creach’s gun showed no blood splatters, which indicates that Creach’s weapon was in his back waistband when the shot was fired, the plaintiffs’ lawyers said.

Hirzel later said that Creach’s effort to grab the gun caused him to turn at an angle consistent with the bullet path.

In her ruling, the judge said, “Deputy Hirzel’s argument is inconsistent with statements he gave to detectives investigating the shooting. Deputy Hirzel repeatedly told detectives over the course of several interviews that Mr. Creach stood all the way back up after the baton strike and that the deputy and decedent were standing face to face at the time of the shooting.”

The Creaches’ lawyers also argued that the victim was on his own property checking for the possibility that the unmarked law enforcement vehicle was that of a prowler.

Hirzel reported in the investigation that he ordered Creach to drop the gun and step away at least five times. Neighbors who heard the gunshot said they did not hear any commands prior to the gunfire. Imogene Creach said she heard just one exclamation.

“Deputy Hirzel’s attempt to explain the seemingly contradictory forensic evidence only serves to illustrate that there are genuine issues of fact surrounding the shooting that a jury must determine,” the judge said.

The Creach family lawyers said there is one theory that the fatal gunshot was discharged accidentally because Hirzel was holding his weapon in his right hand when he hit Creach with the baton in his left hand, the court ruling said.

In addition to the civil rights violation and wrongful death claim, the Creaches also are asserting a claim against Spokane County for excessive force.


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