Gail Gerlach has been charged with first degree manslaughter for the killing of Brandon Kaluza-Graham on March 25, Spokane County Prosecutor Steve Tucker said Wednesday morning.
The charge includes a deadly weapons enhancement which means if convicted Gerlach could be facing between 8 to 10 years in prison.
Tucker said he met with Spokane Police detectives who investigated the case, along with deputy prosecutors Jack Driscoll and Derek Martin, Tuesday before reaching a charging decision.
"We went around the table, basically, and asked each person what the charge should probably be before we talked about it," he said. "When we left after an hour and a half, I think everybody was on the same page, that first degree manslaughter would be the best charge to fit this."
Tucker said that because of the case, and the amount of media attention it has had since the March 25 shooting, the roundtable offered him differing opinions on what the charge would be. He added he's also gotten some feedback from the community on the case.
"I've gotten some letters that aren't particularly helpful, but they are very opinionated," he said.
Gerlach has admitted he shot and killed Kaluza-Graham as he was stealing Gerlach's SUV from his home on March 25. Gerlach said he opened fire with a single shot because he thought Kaluza-Graham was reaching for a gun while pulling out of Gerlach's driveway in the stolen SUV.
Sharon Gerlach, Gail's wife, told investigators that her husband had just started carrying his pistol, which he had a permit to carry, in the two weeks prior to the shooting. She added she didn't know why he started carrying his gun.
According to the report into the shooting investigation, an officer who responded to the scene said Gerlach was concerned if he acted appropriately:
"While we were waiting, Gail was talking about how scared he was and that he did not know if he did the right thing or if he should have just walked back into the house. He said several times, he hoped the person was not hurt."
During their discussion Tuesday, detectives and prosecutors went through the facts of the case and the law before reaching a decision on the charge that best fit the case.
"Together, the six of us went through the law, the law of using force and the law of self defense and the evidence, and the facts that police had come up with and how they think it all happened, and the 911 call; we all listened to that together and came to the decision that this was the best charge for it," Tucker said.
While Gerlach claimed self defense in shooting Kaluza-Graham, detectives said the bullet went through the back windshield of the Chevy Suburban, passed through the headrest of the driver's side seat and hit Kaluza-Graham in the head.
Detectives were concerned because Kaluza-Graham was driving away from Gerlach and did not pose a threat to him when Gerlach opened fire on him. The rear window of Gerlach's Chevy Suburban was heavily tinted and "all of the items in the back area of the vehicle would have obscured the vision into the vehicle," according to the shooting report.
"I was only able to see small portions of the front seat and believe it wood not have been possible to see anybody's actions if he turned around and shifted their arm over the top of the seat. If anything would have been visible of the driver, it would have been the top of his head sticking up over the top of the head rest," Spokane Police Detective Neal Gallion said in the report.
The bullet fired by Gerlach went through the rear window, through a child seat, the driver's side head rest and hit Kaluza-Graham in the back of the head. The autopsy report confirmed that Kaluza-Graham died almost instantly.
"The evidence, we believe, will indicate there was a certain degree of recklessness in this death and when that happens, that's first degree manslaughter. If it's negligent, that's second degree manslaughter and if there's intent involved, it rises right to second degree murder," Tucker explained.
The prosecutor said that Gerlach had a right to defend his property, but that his use of deadly force was called into question.
"You can defend your property. You have the right to defend your property. But, you can only use force when it's necessary and it has to be reasonable," he said.
"When it rises to deadly force, when there's a gun involved, you have to feel you're in imminent danger of being substantially injured or someone else is in danger of being injured. The danger has to be imminent; it has to be now. Then deadly force is allowed. Until then, deadly force is not allowed. Necessary force doesn't rise to that when someone is stealing property unless there's an imminent threat to yourself or someone else," Tucker added. "Every case I've looked at has some different variable. If they're inside the house and they're stealing stuff? You might feel like you're in imminent danger a lot sooner, than when they're out stealing something in the yard. It's all different, and it's a split second decision you have to make but the danger has to be there before you use deadly force."
The discussion of the use of force in the case has permeated social media since the March 25 shooting, but Tucker said he's not paying attention to online posts being written because bloggers and commenters don't know all of the facts of the case.
"The bloggers and some of those things drive some of my deputy prosecutors crazy," he said. "I stopped reading those about three years ago because some people don't know the facts, they don't know the evidence, they haven't seen it, but they have an opinion."
An arraignment date has been set for June 12 at 3:30 p.m. During the arraignment he will be taken into custody and go through the booking process at the Spokane County Jail. Tucker said Gerlach isn't a flight risk and doesn't pose a threat to the community so he would likely be released after he is booked and would remain free until his trial begins.
"[I] wish I could live it all over again," Gerlach told Detective Ben Estes after the shooting. When Estes asked why, Gerlach replied, "20/20 is hindsight."