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CHUNG CLARK v. BUCHKO

August 1, 1996

PRISCILLA CHUNG CLARK, etc., et al., Plaintiffs,
v.
DONALD BUCHKO, et al., Defendants.


FISHER, District Judge

On February 21, 1992, a team of agents of the Federal Bureau of Investigation (FBI), assisted by officers of the Hamilton Township, New Jersey, Police Department (HTPD), went to the residence of Kenneth Clark, a local attorney, to execute an arrest warrant for Clark and a search warrant for the premises. *fn1" During the execution of those warrants, Clark was fatally shot in the back by the accidental discharge of a shotgun carried by HTPD Detective Donald Buchko. As a result of that shooting, this civil rights action was filed. Before the court are the motions for summary judgment of defendants Donald Buchko, Richard Taylor, John K. Rafferty and Hamilton Township.

 I. Factual Background

 On January 28, 1992, an armed robbery occurred at the branch bank of the Greater Bethlehem Savings and Loan Association, located at 358 South Walnut Street, Bath, Pennsylvania. Report of the Office of the County Prosecutor, Mercer County, dated May 14, 1992, attached as Def. Taylor's Ex. M. On February 15, 1992, the Philadelphia Division of the FBI advised the Newark, New Jersey, Division of the FBI that it suspected that one Kenneth J. Clark had committed the robbery and was residing in New Jersey. Special Agent James Maxwell was assigned to identify Clark and conduct further investigation. Declaration of James M. Maxwell. P 2 (Maxwell Declaration). *fn2" The subsequent investigation revealed that Clark was residing at 58 Soloff Drive, Hamilton Township, New Jersey. Id.

 In the course of the investigation, Maxwell learned that a cooperating witness had approached the narcotics unit of the HTPD and indicated that Clark had asked the cooperating witness to be the driver for a future bank robbery. Id. at P3. The FBI and a member of the HTPD narcotics unit met with the cooperating witness. The cooperating witness agreed to meet with Clark on February 21, 1992, try to engage Clark in conversation about the planned bank robbery, and record the conversation with Clark. As a matter of courtesy, and because the cooperating witness had been developed by the HTPD, the FBI asked the HTPD to participate in the execution of the arrest and search warrants; however, HTPD officers were not deputized as federal law enforcement officers. Id. at P4.

 On February 19, 1992, an arrest warrant charging Kenneth Clark with bank robbery was issued by the Honorable Arnold C. Rapoport, United States Magistrate Judge, Eastern District of Pennsylvania. Report of the Office of the County Prosecutor, Mercer County, dated May 14, 1992, attached as Def. Taylor's Ex. M. On February 20, 1992, a search warrant was issued by the Honorable John J. Hughes, United States Magistrate Judge, District of New Jersey, for the residence of Clark. Id.

 The arrest plan called for one team of officers to secure a perimeter around the premises. Another team was assigned to enter the front driveway and secure any vehicles. A third team was to proceed to a trailer located at the rear of the residence and secure any individuals in the trailer. A fourth team was to proceed to a rear door of the residence leading to the kitchen and attempt to "'call out' Kenneth Clark. " Id. If Clark did not comply, tear gas would be employed. Maxwell Declaration at P5; Buchko Dep. at 60. If the tear gas did not drive Clark out, an entry would be made. Id.

 At approximately 11:10 A. M., Clark returned to the residence and the cooperating witness proceeded to the residence. Maxwell Declaration at P7. The cooperating witness remained in the premises for approximately 25 to 30 minutes before leaving and being picked up an by FBI surveillance vehicle. Id. All agents and officers were then informed that the cooperating witness had reported that Clark was inside the house, that a hidden weapon was probably located in the living room couch, and that Clark had stated he would not be taken alive if confronted by law enforcement. Id. Supervising agents at the scene were informed of these developments and authorized Maxwell to proceed. Id. at P8.

 Eight men, including Maxwell, were deployed in two teams to secure the trailer and to approach the rear of the house. Id. at P9. As the men were approaching the house and the trailer, the surveillance team informed them, via radio, that an unidentified male had arrived and that he had been observed both in the driveway and to the rear of the building. Id.

 Maxwell, FBI agents Austin and Jobes, and HTPD Detective Buchko approached the rear door of the house which they had been informed led to the kitchen. Id. at P10. It was believed that the kitchen had two interior doors, one leading to the living room and the other to the interior hallway. Id. At the time, although the men had reason to believe that Clark was in the residence, they did not know where in the residence he was located or whether the unidentified male was also located inside. Id. In discussions, Maxwell had directed that he would enter first and effect the arrest of Clark. Austin would go to the doorway between the kitchen and the living room, where it was suspected a weapon was located, and Jobes would go to the doorway between the kitchen and the hallway. Buchko was to provide cover for the other three officers and assist as necessary. Maxwell Dep. at 53. Maxwell, Austin and Jobes were armed with MP5's, a nine-millimeter submachine gun, on a sling. Buchko Br. at 6, 16. Buchko, believing he was to provide coverage for the other officers, selected a Remington 1100 automatic shotgun loaded with 00 buckshot. Buchko Br. at 6. *fn3"

 Maxwell opened the rear storm door and the rear inside door, which was unlocked. Maxwell Declaration at P12. At that point, Maxwell saw two men seated at the kitchen table and recognized Clark as the man sitting across the table and furthest from where he was standing. As he observed both men, they observed him. Id. at P13. Maxwell yelled "FBI, FBI, you're under arrest, let me see your hands" and entered the kitchen to take the men into custody. Id. As he entered the kitchen, Maxwell approached the unknown man seated closest to him and ordered him to the ground. Id. at P14. Austin proceeded to the doorway between the kitchen and the living room, Buchko entered the kitchen and Jobes proceeded to the doorway between the kitchen and the hallway. Id. at P14, 15. Prior to entering the house, Buchko disengaged the safety of his shotgun. Buchko Dep. at 82.

 As they entered the kitchen, all the men were yelling "Hands up, hands up," and Clark, seated at the table, initially complied, but then began to lower his hands and move around in the chair. Buchko Dep. at 81, 84. Buchko approached Clark with the muzzle of his gun pointed directly at Clark and instructed Clark to "put your hands on your head, put your hands on your head." Id. at 83-84. As he moved closer, Clark complied. Id. Buchko then proceeded to get behind Clark and attempt to secure his hands by grabbing them. Id. at 85, 86. In order to grab hold of Clark, Buchko adjusted his grip on the gun so that he was holding the gun stock. Id. at 87. No attempt was made to handcuff Clark. Id. Buchko then directed Clark to the floor yelling "Get down, get down, get down." Id. at 88. Clark began to comply, and in order for him to get down on the floor, Buchko released his hold on Clark's hands. Id. at 89. Buchko then took a step back and adjusted his hold on the shotgun with the intent to provide cover to one of the other officer's while Clark would be handcuffed. Id. at 89-91. As Clark went down to the floor, he went down to a prone position with his palms flat on the floor. Id. at 91-94. He then "sprang up," however, into a "push-up" type position, backing up into Buchko's gun. Id. at 97. Buchko's shotgun discharged, killing Clark.

 On February 23, 1992, Buchko provided a formal statement regarding his involvement in the shooting. The statement, quoted in the May 14, 1992, report of the Mercer County Prosecutor's Office, provides:

 
Q: What happened next?
 
A: At this time I had both of my hands back on my shotgun and I took a step back so that I could get a better position on the suspect. Clark was still moving around a lot on the floor. His hands were moving, his head was moving back and forth. His whole body was moving around. Because I had the shotgun, I could not move in to handcuff Clark without having to put the weapon down. I stood my position and kept telling him to not move and stay down anticipating that someone was going to cuff him. At this time Clark began to push up off the floor. I kept telling him to get down, get down! He continued to get up off the floor in a very, very quick motion. At that point, [suddenly] he was back up on his knees. I lost sight of his hands and his left hand went towards the center of his body. I couldn't see his right hand. As he was coming up to his knees, I took my left hand from my shotgun to stop him from coming back. The shotgun barrel was longer than my arm. He backed up and I felt his back hit the muzzle and that's when the gun discharged. I don't remember pulling the trigger.
 
. . .
 
Q: Did you intend to pull the trigger prior to the discharge of the weapon?
 
A: No.

 Report of the Office of the County Prosecutor, Mercer County, dated May 14, 1992, attached ...


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