SPOKANE VALLEY, Wash. -

A wrongful death lawsuit against the Spokane County Sheriff's Office has withstood its first test in court.

Survivors of Scott Creach are suing Deputy Brian Hirzel and Sheriff Ozzie Knezovich in connection with an officer involved shooting at the Creach's nursery in Spokane Valley on Aug. 25, 2010.

The Creach family contends that Hirzel violated Creach's Fourth Amendment rights.

The deputy's attorney's asked that the suit be dismissed because in his official capacity as a police officer, Hirzel should enjoy qualified immunity.

A federal judge, however, ruled there are too many facts in dispute about Hirzel's and Creach's actions that night and that a jury should hear the case.