Legal questions surround shooting of car thief

Legal experts generally agree Washington state law prohibits opening fire on someone stealing your car.

But as the investigation into last week’s fatal shooting of an auto thief in north Spokane continues and prosecutors prepare to decide whether the armed homeowner was justified, it’s clear numerous legal issues are at play.

“I think the prosecutor has a very tough call here,” said Andrea George, who oversees federal public defenders in Spokane. “It comes down to what a jury thinks of the situation. I think it’s an incredibly tough case for both sides.”

Gail Gerlach, the 56-year-old Spokane homeowner who stepped outside Monday morning to see a thief stealing his SUV, has not been arrested and remains under investigation. Gerlach openly acknowledged to police that he pursued the driver, later identified as 25-year-old Brendon T. Kaluza-Graham, into the street and shot him. Gerlach said he fired after he saw the driver raise his arm, holding what appeared to be a gun.

The single shot from Gerlach’s 9 mm pistol smashed through the SUV’s tinted rear window, went through the head rest and lodged in the back of the driver’s skull. Kaluza-Graham crashed into a garage and was pronounced dead at the scene. No weapons were found in the vehicle.

A fierce community debate over the shooting has raged ever since.

According to interviews with numerous lawyers and legal experts, the circumstances surrounding the confrontation could require examining a half-dozen or more potentially applicable state statutes. That number could narrow or grow depending on the findings of the investigation.

Spokane County Prosecutor Steve Tucker said in an email that he could not respond to specific questions until that investigation is complete. “Once police reports are received we will consider if (justifiable homicide) applies or any other charges from the facts are warranted,” he wrote.

Chief Deputy Prosecutor Jack Driscoll said, “It’s probably going to be similar to an officer-involved shooting investigation.”

In those scenarios, prosecutors often take weeks and sometimes months to make charging decisions. Driscoll noted that one of the prosecutors went to the scene of the incident to get a better idea of how the case unfolded.

The fact that no weapon was found doesn’t necessarily matter in a potential self-defense claim, said Spokane County Public Defender John Rodgers.

“Typically, what the jury will be instructed is they have to judge the case based on what the guy knew at the time,” Rodgers said. “If the guy reasonably thought there was a gun, that’s what the case is about. It doesn’t matter that there wasn’t a gun.”

A self-defense claim could be complicated, though, by the SUV’s tinted windows.

Former Spokane County Prosecutor James Sweetser questioned how Gerlach could see Kaluza-Graham turn and raise his arm through darkly tinted windows.

“What was the lighting, his vantage point? What did he see? Is it reasonable to conclude that he felt threatened?” he asked.

Because Kaluza-Graham – who had a lengthy criminal record including previous convictions for car theft – was shot in the back of the head, Sweetser also questioned how he could have been turning and raising his hand toward Gerlach, as the shooter later told police.

“You have to look at all the physical evidence” once the investigation is completed, Sweetser said. “If it doesn’t match what the shooter is saying, that’s not in his favor.”

Police spokeswoman Monique Cotton said detectives have gathered all the physical evidence and witness statements, but they are waiting on ballistics tests and medical reports before turning it over to prosecutors. She noted that detectives have informed prosecutors of their initial findings.

“It could be weeks before the investigation is turned over,” she said.

Jeffry Finer, who works as a defense attorney and teaches at Gonzaga University School of Law, said it makes sense that prosecutors take time on a case as sensitive as this one.

“Patience is OK here. Unless there is a high risk of flight or of harm, taking it slow is not going to hurt anybody,” Finer said.

Finer, George, Rodgers and Sweetser all agree that state law allows civilians to use lethal force, but only when they believe they – or someone around them – are in imminent threat of serious bodily harm.

“If there is no threat or deadly threat then you shouldn’t use deadly force,” Sweetser said. “If this is just somebody shooting” to stop a car theft, “you don’t have the right. You can’t compare the value of a car to a human life. That’s not a fair trade.”

However, the attorneys agreed that Gerlach’s belief, even a mistaken one, could justify his actions.

“It is my impression that (the law) does clearly provide a justifiable homicide defense if … the person who commits the homicide feels they are acting in their own lawful defense,” Finer said. “It will come down to whether the prosecutor believes this man was protecting himself or property. I hope a jury gets to decide it.”

Prosecutors will have a range of potential charges if they believe Gerlach fired the shot simply to stop a car theft, Sweetser said.

First-degree murder requires planning and intent to kill. Second-degree murder, Finer said, also requires intent to kill, but it’s done in the heat of the moment and generally without forethought.

Sweetser said Gerlach could face a first-degree manslaughter charge if he was recklessly shooting at a fleeing felon out of anger, not necessarily with the intent to kill.

Police Chief Frank Straub cautioned Spokane residents against taking matters into their own hands because they could face costly civil suits or criminal charges.

“I think the message is: Call the police,” he said. “That’s what we get paid for. We don’t live in the Old West, so it’s not as simple as we’re going to get a posse and we’re going to hang somebody.”