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Originally published Wednesday, June 20, 2012 at 7:45 PM

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Corrected version

Prosecutor: no criminal charges in shooting by sheriff's detective, corrections officer

The incident occurred in a dark room, leaving a man with multiple wounds that he survived

Seattle Times staff reporter

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King County prosecutors have declined to bring criminal charges against a sheriff's detective and a state corrections officer who invoked their Fifth Amendment right against self-incrimination in the shooting of a man who was severely wounded after possibly reaching for a flashlight.

The wounded man, Dustin Theoharis, 29, who survived multiple gunshots, also has declined to provide a statement about what happened during a confrontation that lasted about 10 seconds in a dark room inside an Auburn-area house Feb. 11.

Without statements from all three "it is difficult to conclude" if the shooting was necessary, prosecutors wrote in a decline statement disclosed to The Seattle Times on Wednesday under a public-records request.

But a limited amount of evidence — including an initial remark from the detective that he believed the man was reaching for a gun — "suggests the use of force may have been necessary," according to the statement, completed Tuesday.

The incident did not attract widespread attention because Theoharis survived, but it prompted a major investigation by the King County Sheriff's Office that produced more than 1,000 pages.

Ian Goodhew, deputy chief of staff for Prosecutor Dan Satterberg, said Wednesday it wasn't unusual that the detective and corrections officer invoked their Fifth Amendment right, as is often done by anyone who is under investigation.

"As to their not giving a statement, we frankly expected it," Goodhew said.

Many questions remain, however, about the incident, including whether the detective, Aaron Thompson, and the officer, Kristopher Rongen, followed proper procedures.

The sheriff's office plans to launch its own review, and the state Department of Corrections (DOC) has begun looking into the shooting.

Rongen is believed to have fired nine shots and Thompson eight to 10 shots — numbers that seem excessive, prosecutors said, but might be due to limited visibility and reactions to each other's shots, as well as a general police directive to fire until a threat is neutralized.

Rongen, assisted by Thompson, went to the house on a Saturday afternoon to serve a DOC felony-arrest warrant on a man — someone other than Theoharis — who had failed to report to community supervision. Two other sheriff's detectives joined them.

An informant who was with them reported that the man, Nicholas Harrison, was in the home, along with his father, Harrison's brother and a 5-year-old boy, according to the prosecutors' statement.

The informant did not mention that Theoharis was in the home.

Harrison, 27, was taken into custody without incident.

Thompson and Rongen, acting on prior information, then investigated whether another person in the house, described as a roommate, had a gun, which would be a violation of Harrison's probation.

Rongen and Thompson headed downstairs in the split-level home, while everyone else remained on the main floor, according to the prosecutors' statement.

About 10 seconds later, everyone heard a rapid succession of gunshots.

One of the other detectives, Benjamin Wheeler, quickly went downstairs through a dark, cluttered room and then into a "completely dark bedroom," the statement said.

"The only available light was from a flashlight attached to the firearm of Detective Thompson," according to the statement.

Thompson and Rongen were standing and pointing their guns at Theoharis, who was lying on the floor in a pool of blood next to a bed, and both lawmen appeared to be in a state of shock, the statement said.

According to prosecutors, Wheeler asked what had happened, and Thompson replied, "He told us he had four guns, and then he started reaching for one."

Theoharis was taken to Harborview Medical Center in Seattle with wounds to his arms, legs, torso and jaw, with multiple fractures that required a series of surgeries, according to the statement.

In the blood next to the bed where Theoharis had been shot was a black metal flashlight, 5 inches long and 1 inch wide, the statement said.

Also next to the bed, within reaching distance, was an end table filled with aluminum cans and a variety of objects, including two black remote controls, the statement said. The gunshots were directed to that side of the bed, a forensic examination showed.

"It is unclear if the officers saw these objects prior to the shooting," the statement added, noting that it wasn't until officers removed blankets covering the windows that there was sufficient light to start administering aid to Theoharis.

A search of the room also led to the discovery of heroin, needles, spoons and a scale with heroin residue, and one witness described Theoharis as groggy an hour before the shooting, according to the statement.

A loaded rifle said to belong to Theoharis was found in a locked gun safe just outside his room, according to prosecutors.

In their review, prosecutors said, they found no evidence Rongen and Thompson had acted with malice or a lack of good faith, as required by law.

They took note of Thompson's remark to Wheeler that Theoharis was reaching for a gun, saying Thompson "articulated a perceived risk to both himself and DOC Officer Rongen."

With the review completed, a sheriff's use-of-force review board will examine whether policies and procedures were violated or if training issues exist, said sheriff's spokeswoman Sgt. Cindi West.

DOC spokesman Chad Lewis said the agency is conducting an incident review and a use-of-force report, with both nearly complete.

Thompson and Rongen have provided compelled statements to their employers that are not admissible in the criminal case and weren't provided to prosecutors, according to the prosecutors' decline statement.

Theoharis' attorney could not be reached for comment Wednesday.

Goodhew, of the prosecutor's office, said the attorney has indicated Theoharis plans to pursue civil remedies.

If new information arises from a civil action, Goodhew said, prosecutors will have access to it.

In their statement, prosecutors said that as with all cases they review, they will review any new evidence.

Steve Miletich: 206-464-3302 or smiletich@seattletimes.com

Information in this article, originally published June 20, 2012, was corrected June 21, 2012. A previous version of this story said the shooting happened on a Sunday afternoon. The shooting happened Saturday, Feb. 11, 2012.

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