Gunman could have been arrested rather than ticketed before killing neighbor in Bigelow Gulch incident

Hours before he shot and killed a 29-year-old father of two, 61-year-old Dave Cholewinski pointed the same weapon at a group of people during a heated argument.

A Spokane County sheriff’s deputy with more than 20 years of experience did eventually cite the homeowner near Orchard Prairie with a misdemeanor for displaying the handgun, but critics say evidence existed to charge Cholewinski with felony assault – a decision that likely would have netted him at least a night in jail, and taken his firearm away.

“There’s no question,” said local private defense lawyer David Partovi. “Pointing a gun at somebody is a second-degree assault for sure. It’s a deadly weapon.”

Sheriff Ozzie Knezovich, meanwhile, said the deputy simply made a judgment call that “didn’t work out.”

Had Deputy Jim Reed arrested Cholewinski for a misdemeanor, Knezovich added that it may not have mattered mostly because of an overcrowded jail, which he contends the 61-year-old would have been let out of within hours of the incident.

“There’s no type of protocol in these situations,” Knezovich said. “Our decisions tend to be final and life changing.”

The details of the murder-suicide investigation that left Cholewinski and his victim, 29-year-old Benjamin Grosser, dead on May 30 were revealed Tuesday in a search warrant filed in Spokane Superior Court by Spokane County sheriff’s Detective Michael Drapeau.

According to the warrant, Reed cited Cholewinski with unlawful display of a firearm minutes after he allegedly pointed a .38-caliber handgun at three employees of Grosser’s landscaping company, Jammin Enterprises LLC.

The workers called 911, saying Cholewinski followed them to Grosser’s home at 7611 E. Bigelow Gulch Road at around 4 p.m., where he brandished the weapon and trained it on them from the driver’s seat of his pickup, Drapeau wrote.

Cholewinski, however, denied pointing the weapon, and told Reed that he confronted the three because he was “tired of dealing with them,” say records. After they reportedly cut him off on Bigelow Gulch Road as two lanes turned into one – hundreds of yards away from his home at 7589 E. Bigelow Gulch Road – he said he simply took the gun case out of his center console and put it on a seat.

“Deputy Reed asked Cholewinski why he took the pistol out and Cholewinski said it is ‘what he does,’ ” Drapeau wrote, noting that the 61-year-old was intoxicated and taking drinks out of an alcoholic beverage, but “not to the point of being unable to drive.”

Reed further reported Cholewinski referred to Grosser’s workers as “Mexicans” and “likely illegals.”

Partovi, reached by phone Friday, said the case was similar to two second-degree assault cases he’s currently defending – one of which was investigated by sheriff’s deputies.

In that case, a man was arrested and charged with felony assault for allegedly racking a shotgun and pointing it at his wife. The woman told officers her husband threatened her, before pressing the gun up against her back. He did not fire.

Private defense attorney Joseph Kuhlman explained that assault, as defined by the Washington Legislature, doesn’t have to be physical in nature.

“An assault is the creation of that fear, that apprehension of being injured,” said Kuhlman, who before opening his private practice in 2017 was a deputy prosecutor at the Spokane County Prosecutor’s Office.

In a separate case investigated by the Spokane Police Department, a 58-year-old man was taken into jail under accusations of assault after police say he pointed a handgun at his wife after “taking a bunch of pills,” arrest records say. The man spent at least one night in jail and was ordered to surrender his firearms pending trial.

Knezovich, who’s been critical of a court system that lets “criminals run free on our streets,” according to an email he sent on May 3 to several county leaders, said Friday he didn’t want to speculate on whether his deputy made the right call in not arresting Cholewinski.

“Sadly, when you make a judgment call, things don’t work out the way you thought they might,” he said. “It is one of the most tragic consequences of my line of work – sometimes we make decisions that don’t pan out the way its intended.”

About two hours after Cholewinski was cited on May 30, witnesses again called 911 reporting that two people had been shot.

Grosser’s wife told detectives she was home with her two children, 3-year-old daughter and 6-month-old son, when her husband arrived at about 6 p.m. Moments later, she said Grosser yelled through an open window to “put the kids somewhere safe.” Records say after putting them in bed, she walked back to the kitchen, where she saw Cholewinski “standing by the garage, behind the house, shooting a handgun towards the back door.”

Cholewinski then approached the house and entered the back yard through a gate as he continued to fire from his handgun. After leaving, the woman told detectives she found her husband lying just outside the back door, unresponsive and bleeding from multiple gunshot wounds. He was transported to Providence Sacred Heart Medical Center, where he died the following day.

Cholewinski’s wife, meanwhile, reported that after her husband returned home from being issued the citation, he became “enraged because he feared this would cause him to lose his firearms,” according to court records.

As Grosser returned home, she said he stood on his back deck and shot toward his neighbor’s home. Soon after, he left and “walked out of sight,” the woman reported.

When he returned, he walked into the bedroom and came out with a different handgun – a .357 Taurus magnum, according to a search warrant receipt. But before shooting himself, he told his wife, “I got him.”

“You didn’t shoot anybody, did you?’ ” she asked, according to court records.

“I did,” he said.