Shooting victim's lawsuit against Fairfax dismissed for lateness but can be refiled

Washington Post Staff Writer
Friday, October 29, 2010; 9:02 PM

The lawsuit by a man who sued Fairfax County after he was shot five times outside a police station and tried to alert the staff inside to the imminent danger has been dismissed by a federal judge because it was filed too late.

But U.S. District Judge James C. Cacheris said he was "deeply unsatisfied" by his ruling earlier this month, "as the conduct alleged here is shocking to say the least." Cacheris then dismissed one count without prejudice, meaning it can be refiled.

The attorney for Najib Gerdak of Springfield said she would refile the remaining claim and appeal the dismissal of the other claims, made against Fairfax County and the unidentified civilian employee known only as "Jane Doe."

Gerdak, now 29, was being followed by another motorist at 3 a.m. and drove to the Franconia District Station on Feb. 2, 2008. When he pulled in, the other motorist realized he was following the wrong person.

As Gerdak and the other man chatted, a taxicab pulled into the station parking lot, followed by a sport-utility vehicle. Those two vehicles repeatedly circled the lot, with the cab driver screaming for help. Gerdak went inside to notify the police.

Gerdak claims that when he went inside, a woman who he thought was a police officer had her feet up on the desk and appeared to be dozing. Gerdak said he advised the woman of the danger, and that the woman told him to go back outside and tell the cabdriver to notify his dispatcher.

Fairfax police privately dispute those allegations, but have never publicly provided their side of the story.

Gerdak went back outside, where he was repeatedly shot by the SUV driver, Jeffrey S. Koger. Gerdak survived, but he suffered severe internal injuries and permanent damage to his right shoulder, hand and leg.

Gerdak's first attorneys, Chris Schewe and Harvey Volzer, sued only Koger in March 2009. Koger, himself wounded in a subsequent shootout with police, is now serving a 71-year prison sentence.

But Schewe and Volzer thought Gerdak had no case against Fairfax County. Shortly before the two-year statute of limitations was to expire, in January 2010, Volzer sent Gerdak a letter citing federal case law that "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause" of the Constitution.

Gerdak fired Schewe and Volzer and hired Katherine Martell, who filed suit against Fairfax and Jane Doe in April. In addition to alleging gross negligence and liability, Martell added a recently developing legal theory, adopted by some federal courts, of state-created danger. The theory is that the government not only failed to act, but created or increased the danger.

Martell argued that the statute of limitations should be extended because Gerdak wasn't competent to assist with the lawsuit for at least four months after the shooting. But Fairfax attorneys, who declined to provide any discovery information to Martell, said that Jane Doe had never been properly identified and that it was too late. A Fairfax judge ruled that the county was immune from lawsuits for negligence and liability.

The suit then was moved from Fairfax circuit court to federal court, where Cacheris reluctantly agreed with the county's statute of limitations argument on Doe. But in an Oct. 7 order, he added, "The Court cannot help but question whether more zealous representation might have achieved a different result in this case," an apparent criticism of Gerdak's first attorneys.

"It seems reasonable to the Court that a person, instructed by someone who looks like a police officer to do something, will do as told." The judge said the allegations "may well support a state-created danger theory."

Martell said she would return to Fairfax court with the state-created danger theory and try to show that the statute of limitations should have been extended because of Gerdak's injuries.

Fairfax's lattorneys, who argued in one brief that "liability does not arise when the state stands by and does nothing in the face of danger," declined to comment.

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