San Jose officer cleared in tear gas death of suspect
SAN JOSE » A San Jose police officer acted lawfully in late 2018 when he mistakenly used too much tear gas on a barricaded domestic violence suspect who ended up dying as a result, according to the Santa Clara County District Attorney’s Office.
Prosecutors determined that the miscalculation by Officer Eric Bucholz was not criminal “because the officer performed a lawful act in a lawful way, acted with ordinary caution and did not act with unlawful intent,” according to a 64-page report released this week.
The report outlines the events that led to 51-year- old Mark Spencer’s death. Officers were dispatched to a residence at 6778 Elwood Road about 9:15 p.m. Nov. 14, 2018, after Spencer’s girlfriend dialed 911 to report that he was “being violent and abusive.” This news organization is not naming the woman because she is a victim of domestic violence.
At the time, Spencer had two arrest warrants, including one for allegedly assaulting the victim with a sawed-off shotgun the previous month.
The victim said Spencer was angry that she reported the assault to police and told her, “(expletives) like you are killed for calling the cops. They’re going to put me in prison for a long time because of you. Since I’m going to go to prison, I’m going to make it worth it.”
In addition, Spencer also had threatened the victim’s son and attached a chain to the wheel of her car to keep her from leaving the house, according to the report. The victim, however, managed to sneak out and make her way to the officers later that night. She did not know for certain if Spencer had any firearms but said he could probably get one.
Officers surrounded the home. The report said Spencer walked outside about 3:15 a.m., ran around the side and reentered the home. From that point, officers shattered windows with less lethal rounds and repeatedly issued orders over a public address system for Spencer to surrender.
As the morning wore on and Spencer remained inside the residence, officers decided CS, or tear gas, was their best option to force him out, according to the report. Bucholz, along with Officer Aaron Little, began calculating how much to use while other officers tossed flash-bang grenades into the home. The devices emit a bright light and an intensely loud noise.
The report said Spencer’s roommate,
identified as Reynaldo Philip Garcia, walked outside about 7:30 a.m. and told officers he had helped Spencer into a hatch in a first- f loor bedroom that led to a crawl space underneath the home. Garcia said he didn’t know the dimensions of the crawl space, but Spencer appeared able to stand up inside it.
About 9 a. m., officers fired tear gas into the residence, according to the report. When Spencer did not emerge, they slowly searched the interior with a dog and found the hatch about 11 a.m. Bucholz then drew up a second plan to use tear gas in the crawl space.
“Based upon the information fromMr. Garcia, his observations of the layout of the house and his prior experience extracting suspects from crawl spaces, Officer Bucholz estimated that the crawl space could extend the width of the residence,” Beardsley wrote.
“After the incident, however,” he continued, “it was discovered that the crawl space was smaller than Officer Bucholz had estimated.”
The report said Spencer did not respond to orders to surrender and Bucholz dropped the tear gas into the hatch. The plan called for the tear gas to permeate the crawl space for 29 minutes before being aired out, but Spencer started yelling and officers opened the hatch after about 3½ minutes. Officers also broke the bedroom windows to help with ventilation.
Officers continued to order Spencer to surrender, but he remained out of sight. Other officers went to an adjacent garage, which is lower than the bedroom, and used tools to cut into the crawl space, according to the report. After about 12 minutes of work, officers pulled Spencer out, gave him CPR and turned him over to the San Jose Fire Department.
Spencer was rushed to Good Samaritan Hospital in San Jose, where he was pronounced dead about 12:35 p.m.
Dr. Michelle Jorden, chief medical examiner of the Santa Clara County Medical Examiner- Coroner’s Office, determined the cause of death to be tear gas exposure within a confined space complicating recent methamphetamine intoxication and an enlarged heart. She declared the manner of death as an accident.
In the report, Beardsley said his office ultimately determined the evidence did not show beyond a reasonable doubt that Bucholz’s actions were “objectively unreasonable.”
“In other words, Officer Bucholz did not simply toss CS gas recklessly into the crawl space,” Beardsley wrote. “Instead, he prepared the amount of chemical agent that he thought was reasonable under the circumstances, and then deployed that chemical agent as quickly as he could into a dark crawl space where a potentially armed suspect was hiding.”