No charges for police officers who killed man in crawlspace with tear gas

San Jose police officers who inadvertently killed a man by tear gassing him while he was hiding in a confined space during a standoff in 2018 will not face criminal charges, the Santa Clara County District Attorney's Office announced on Wednesday.

Mark Spencer, 51, had locked himself in a crawlspace under a bedroom in his girlfriend's home. After 14 hours trying to get him out, police gassed him inside, but overestimated the size of the space and the amount of gas they could safely use.

But the error did not amount to criminal negligence, prosecutors said.

Spencer had allegedly threatened to kill his girlfriend before she called San Jose police on the night of Nov. 14, 2018. She later called back and said that Spencer had put a chain through her tire to prevent her from leaving, but she snuck out to meet police.

She told officers that Spencer was unlikely to cooperate with police as he was unpredictable and had an arrest warrant. The argument had started because he was angry she had called police the previous month after he pointed a sawed-off shotgun at her chest, according to prosecutors.

Police surrounded her home in the in the 6700 block of Elwood Road and broadcasted announcements demanding that Spencer come outside. The standoff lasted for 14 hours while police used flashbang grenades to try and drive him out of the home and broke out the home's front windows.

Shortly after 7:30 a.m., when police deployed another round of flashbangs, a roommate came outside and told officers that he had helped Spencer get into a crawlspace accessible through a hatch in the bedroom. About two hours later, police saturated the house with tear gas, but Spencer didn't come out.

Police entered the home at about 11 a.m. and found the crawlspace. They ordered Spencer to surrender, but when he didn't, they deployed tear gas into the crawlspace.

Officer Eric Bucholz, a sniper and chemical agents officer with the department's SWAT team, determined what he expected to be a non-lethal amount of tear gas and did not deploy the full amount. 

His calculations called for ventilating the space after 29 minutes but when the officers heard Spencer yelling inside, they opened the hatch after three and a half minutes.

The officers ordered Spencer out again, but when he didn't come out they went into an attached garage that shared a wall with the bedroom and cut a hole in the wall using crowbars, sledgehammers and chainsaws. It took 12 minutes to cut the hole and when they pulled Spencer out, he was unresponsive. He was taken to a hospital and pronounced dead.

His cause of death was not immediately clear, but San Jose police investigated it as an officer-involved death. Police Chief Eddie Garcia held a news conference to discuss the incident days later.

"In this case, the suspect refused to come out," Garcia said. "That was ultimately the cause of his demise."

An autopsy determined that he died from tear gas exposure in a confined space. Methamphetamine intoxication and an enlarged heart also contributed to his death.

A 64-page report prepared by Deputy District Attorney Jonathan Beardsley determined that Bucholz did not act with criminal negligence in calculating how much gas to use.

"Even if Officer Bucholz's calculation of the square footage was a mistake, it was a reasonable mistake based upon his efforts to incorporate changing information during a dangerous and rapidly evolving situation," Beardsley said.

Prosecutors determined that police did not act with disregard to Spencer's life.