By Tom Jackman
Washington Post Staff Writer
Friday, July 16, 2010; B01
At 3 in the morning, Najib Gerdak tried not once but twice to get help for people he didn't know. He was rewarded by being shot five times in front of a Fairfax County police station and then waiting more than half an hour for an ambulance.
Gerdak, now 28, survived. The man who shot him, Jeffrey S. Koger, pleaded guilty and was sentenced to 71 years behind bars. But Gerdak's attempt to recover any money for his pain and injuries, either from Koger or Fairfax County authorities, may come up empty unless his attorney can convince a Fairfax judge Friday that the police and fire departments should be held partly responsible for what happened that night in 2008.
Gerdak alleges that the police failed to help him and that paramedics took much too long to arrive. The county contends that government employees have immunity from most legal actions and that Gerdak waited beyond the two-year statute of limitations to sue the county.
Koger, 41, a convicted embezzler, is imprisoned and under federal court order to pay $2 million in restitution and back taxes. He has few assets.
Gerdak was one of several victims of Koger's bizarre shooting rampage Feb. 2, 2008, which began when Koger shot a cabdriver in Alexandria, continued with the shooting of Gerdak and another man in front of the Franconia district police station, and ended when Koger was wounded in the stomach during a shootout with police.
Gerdak was at the Franconia station because he was trying to help a drunk driver, whom he didn't know. Koger pulled into the station's front parking lot in his sport-utility vehicle, chasing another cabdriver. Gerdak said he went into the station to let police know about the chaos out front.
Gerdak alleges that the employee working the front desk, who was not a police officer, had her feet up and was asleep. "She fell asleep watching TV," Gerdak said. He said he knocked on the window until she woke up and told her, "There's two crazy people chasing each other out front, a cab and an SUV."
Gerdak's attorney, Katherine Martell, has noted that a lookout had been broadcast after the earlier shooting of the cabdriver in Alexandria, in which the suspect fled in an SUV. And now another cab was being chased by an SUV.
"She tells me," Gerdak said, " 'You need to go back outside and tell the cabdriver to call his own dispatcher.' "
Fairfax police will not discuss the case because it is in litigation. Sources familiar with the case dispute Gerdak's account, but they would not speak on the record.
Gerdak said he walked back to the parking lot and was standing next to the drunk driver when the SUV pulled in again with Koger behind the wheel. "I feel safe -- I'm in front of a police station," Gerdak said. "What could happen?"
Koger fired a hail of shots, wounding Gerdak four times and the drunk driver once. A sixth shot struck the cross around Gerdak's neck, in front of his heart, and ricocheted.
Bullets ripped through Gerdak's shoulder, his side (stopping next to his spine), his back and his upper leg. He has permanent nerve damage and continuing pain in all of those areas, which he is told will probably worsen as he grows older.
None of that was on his mind as he lay in the Franconia station parking lot. Koger walked over, menaced him some more and left. Gerdak pulled out his iPhone and dialed 911.
And waited. And waited. Minutes may seem like hours to people waiting for help, but Gerdak said the 911 calls show that at least 30 minutes passed. Gerdak said officers sat with him, pleading with dispatchers for help and fearful that they would watch two men die in front of a police station.
Meanwhile, Koger had stepped out of his SUV more than a mile away and was in a shootout with Metro Transit Police and a Virginia State Police trooper.
Kroger eventually pleaded guilty to multiple counts of attempted capital murder of a police officer and aggravated malicious wounding, as well as to embezzlement from homeowner associations that were clients of his father's company. He admitted stealing $3 million.
Gerdak hired lawyers Chris Schewe and Harvey Volzer, who filed suit against Koger in March 2009, but not against Fairfax County. Gerdak said the lawyers decided that he did not have a case against Fairfax, because the doctrine of "sovereign immunity" shields government officials from being sued for simply doing their job. An "act of omission," such as failing to summon help, was deemed not enough to reach the gross-negligence standard needed to overcome the immunity shield.
Gerdak fired Schewe and Volzer, who said he could not discuss the case. But by then, it was February 2010, and the deadline for filing the case had passed. Martell sued Fairfax in May, and Fairfax has moved to have the suit dismissed for being filed beyond the statute of limitations. Fairfax Senior Assistant County Attorney Karen L. Gibbons said she could not discuss a pending case.
On Friday, Martell intends to argue that Gerdak was incapacitated after the shooting and that the two-year clock should not have started ticking until Gerdak was at least out of the hospital and able to make decisions about a lawsuit, which was late May 2008.
If a judge grants that relief, Martell still must convince a judge next week that Fairfax isn't entitled to immunity, either because of gross negligence or because the shooting happened on police premises, a concept that a Circuit Court judge recently endorsed in the civil suit emerging from the 2007 Virginia Tech shootings.