Case 5:18-cv-00032-GNS Document 1 Filed 02/26/18 Page 1 of 13 PageID #: 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
Civil Action No. 5:18-cv-32-GNS
[Filed Electronically]

BOB ANDERSON, Administrator of the

Estate of Charles Christopher McClure,
Deceased, and Next Friend of S.M.,
B.M., and C.M., Minor Daughters of
Mr. McClure,

PLAINTIFF

v.

CITY OF FULTON, KENTUCKY

Serve: Cubb Stokes, City Manager
City Hall
101 Nelson Tripp Place
Fulton, KY 42041

-and-

TERRY POWELL, individually

Serve: City of Fulton Police Department
340 Browder St.
Fulton, KY 42041

-and-

JAMES R. BUCKINGHAM, II, individually

Serve: City of Fulton Police Department
340 Browder St.
Fulton, KY 42041

-and-

GARY FULCHER, individually

Serve: City of Fulton Police Department
340 Browder St.
Fulton, KY 42041

-and-
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JOHN TILLEY, individually

Serve: Office of the Secretary
Justice & Public Safety Cabinet
125 Holmes Street
Frankfort, KY 40601-2108

-and-

RICHARD W. SANDERS, individually

Serve: Office of the Commissioner
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601

-and-

WILLIAM ALEXANDER PAYNE, individually

Serve: Office of the Deputy Commissioner
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601

-and-

LONNIE BELL, individually

Serve: Kentucky State Police Post 1
8366 State Route 45 North
Hickory, Kentucky 42051

-and-

MICHAEL B. STACY, individually

Serve: Office of Commonwealth Attorney
133 North Fourth Street
Wickliffe, KY 42087

DEFENDANTS.

COMPLAINT
I. Jurisdiction and Venue

1. Plaintiff Bob Anderson, Administrator of the Estate of Charles Christopher

McClure, Deceased, and Next Friend of S.M., B.M., and C.M., Minor Daughters of Mr. McClure,

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seeks damages from Defendants under the Civil Rights Act of 1871, 42 U.S.C. §1983, for their

gross and unconscionable violations of the rights, privileges and immunities guaranteed Mr.

McClure, an American citizen, by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the

Constitution of the United States. Accordingly, this Court has jurisdiction of this case pursuant to

the provisions of 38 U.S.C. §§1331 and 1343. Plaintiff also brings state law claims for negligence,

gross negligence, battery, wrongful death, loss of consortium (for Mr. McClure’s three minor

daughters), and hindrance of prosecution, perjury and abuse of public office, pursuant to the

supplemental jurisdiction of this Court granted by 28 U.S.C. §1367. Because Fulton County,

Kentucky is the location of all acts pertinent to this suit, venue is proper in this Court pursuant to

28 U.S.C. §1391 and LR 3.1(a)(3)(B).

II. Parties

2. Plaintiff was appointed Administrator of Mr. McClure’s estate by order of the

Fulton District Probate Court on March 21, 2017. He also appears as Next Friend of Mr.

McClure’s minor daughters, S.M., B.M., and C.M.

3. Defendant City of Fulton, Kentucky (“the City”) at all times mentioned herein

employed, was responsible for the establishment and enforcement of policies either formally or by

custom for, and was responsible for the employment, training, supervision and conduct of,

individual Defendants Powell, Buckingham, and Fulcher.

4. Defendant Powell was at all times mentioned herein the Chief of the City of Fulton

Police Department (“the Fulton Police”), and employed, was responsible for the establishment and

enforcement of policies either formally or by custom for, and was responsible for the employment,

training, supervision and conduct of, individual Defendants Buckingham and Fulcher, and

personally engaged in the misconduct described below.

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5. Defendant Buckingham was at all times mentioned herein a Lieutenant of the

Fulton Police, fired the shot that killed Mr. McClure, and personally engaged in the misconduct

described below.

6. Defendant Fulcher was at all times mentioned herein an officer of the Fulton Police,

and personally engaged in the misconduct described below.

7. Defendant Tilley was at all times mentioned herein Secretary of Kentucky’s Justice

and Public Safety Cabinet, and employed, was responsible for the establishment of policies either

formally or by custom for, and was responsible for the employment, training, supervision and

conduct of, Defendants Sanders, Payne, and Bell.

8. Defendant Sanders was at all times mentioned herein Commissioner of the

Kentucky State Police (“the KSP”), and employed, was responsible for the establishment of

policies either formally or by custom for, and was responsible for the employment, training,

supervision and conduct of, Defendants Payne and Bell.

9. Defendant Payne was at all times mentioned herein Deputy Commissioner of the

KSP, and employed, was responsible for the establishment of policies either formally or by custom

for, and was responsible for the employment, training, supervision and conduct of, Defendant Bell.

10. Defendant Bell was at all times mentioned herein an investigator with the Kentucky

State Police (“KSP”), and personally engaged in the misconduct described below.

11. Defendant Stacy was at all times mentioned herein the Commonwealth Attorney

for Fulton County, and personally engaged in the misconduct described below.

III. Facts

12. On January 16, 2017, Charles Christopher McClure, a 43-year old father of three

minor daughters, experienced a mental health crisis occasioned by a series of adverse events in his

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personal life exacerbated by substance abuse. He took a 3’6” long square metal tube, to which he

had affixed a black folding knife, and began menacing and striking trucks and automobiles in

Fulton, Kentucky.

13. Defendant Fulton Police Chief Terry Powell was the first law enforcement officer

to encounter Mr. McClure. Defendant Powell spoke with Mr. McClure on several occasions, at

one or more points rolling down the driver’s side window of his Fulton Police SUV to do so.

Despite the fact that Mr. McClure broke windows in Defendant Powell’s SUV with the metal bar

he was carrying, it was apparent to Defendant Powell that Mr. McClure was only damaging

property and posed no risk of harm to himself or others, and Defendant Powell never deployed any

non-lethal -- much less lethal – force.

14. Defendant James R. “Buck” Buckingham, a lieutenant in the Fulton Police, was the

first law enforcement officer to arrive at the scene as “backup” to Defendant Powell. He knew

that Mr. McClure had been experiencing mental health issues that had become particularly acute

in the preceding week. But in contrast to Defendant Powell’s benign approach to Mr. McClure,

Defendant Buckingham approached the scene in his Fulton Police cruiser with his left hand outside

his driver’s side window holding his handgun, a Glock Model 22 .40 caliber pistol. Eventually,

he parked his cruiser, got out of his car and, immediately and without any warning, shot Mr.

McClure while Mr. McClure was knocking out the back window of another Fulton Police SUV.

The knife Mr. McClure had attached to the bar had fallen off the bar prior to Defendant

Buckingham shooting Mr. McClure. The bullet discharged by Defendant Buckingham’s weapon

entered Mr. McClure’s left side above the hip and traveled through his small bowel in a direction

left to right and slightly front to back. Mr. McClure was felled by this shot and released the metal

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bar. Both the metal bar, which fell to the ground, and the knife, which had previously fallen off

the metal bar before Mr. McClure was shot, were well outside of his reach.

15. Defendant Buckingham abandoned all cover and walked around the back of the

SUV Mr. McClure had just struck, where he found Mr. McClure, on the ground, wounded, clearly

unarmed, his hands empty, and begging “Stop! Stop!” As Mr. McClure began to struggle to get

to his feet, Defendant Buckingham shouted, “Get down! Get down!” Defendant Powell, on the

other side of Mr. McClure from Defendant Buckingham and in the direct line of fire, exited his

vehicle with his hands empty and began to approach Mr. McClure. Before Mr. McClure could

stand up, Defendant Buckingham, who was less than an arm’s length away from Mr. McClure,

and who (among other things) could have easily shoved Mr. McClure to the ground, instead shot

him a second time, this time from point-blank range in the left side of his chest. This bullet

travelled in a direction left to right and slightly back to front, and ripped through Mr. McClure’s

vital organs, including his spleen, left lung, diaphragm, stomach and liver, before coming to rest

in his right side. In the conversation that followed, Defendant Buckingham can be overheard

saying, “We knocked the wind out of this one. Yeah.”

16. Although Mr. McClure had been shot twice, was obviously bleeding, and was

begging for help and to see his children before he died, the individual Defendants at the scene

rendered no aid to Mr. McClure. It was not until over five minutes after Mr. McClure had been

shot that Defendant Fulcher had this conversation with Fulton Police dispatch:

Defendant Fulcher: “3808, county.”

Dispatch: “3808.”

Defendant Fulcher: “Have you dispatched EMS?”

Dispatch: “We had not. You advise you need them?”

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Defendant Fulcher: “Copy. Copy.”

Arrival of medical assistance for Mr. McClure was delayed even further by the failure of the

individual Defendants at the scene to provide a proper address for their location.

17. Some nine minutes after Mr. McClure was first shot, Defendant Buckingham asked

whether he should turn off his bodycam. He was advised to leave it running, whereupon the

following exchange occurs:

Defendant Powell: "That was a close call, brother."

Defendant Buckingham: "I didn't have no choice, man. He was coming right at ....
He was coming.

Defendant Powell: "Yeah."

Defendant Buckingham: "He was coming right at me. I thought the first one missed
him and on the second one he was coming right on me."

Defendant Powell: "I am glad he didn't kill somebody down here."

This exchange was manufactured for the purpose of excusing Mr. McClure’s shooting, and

purposely ignores that before Mr. McClure was shot a second time, he was unarmed, wounded,

begging for help, and posed no risk of harm to anyone. Defendant Powell subsequently told

investigators that he would have done the same thing Defendant Buckingham did, thus ratifying

Defendant Buckingham’s egregious misconduct.

18. Due to the indifference and/or incompetence of the individual Defendants at the

scene, an ambulance did not arrive until 14 minutes after Mr. McClure had been shot. Thirty

minutes after the shooting, however, Mr. McClure was still sufficiently alive that a call to the

coroner was cancelled and Mr. McClure was transported to the local hospital, where it was too late

for the emergency staff to save his life. Prompt medical attention after the shooting may have

saved Mr. McClure’s life.

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19. All material events at the scene were captured on Defendant Buckingham’s

bodycam. Investigation of the shooting was assigned to Defendant Lonnie Bell. Defendant Bell

is a member of the Critical Incident Response Team (“CIRT”) formed by KSP solely for the

purpose of investigating police shootings. According to Defendant Tilley, the purpose of the CIRT

is to promote transparency and accountability when responding to police-related shootings.

According to Defendant Sanders, the CIRT is composed of “six of the best investigators KSP has

to offer”, which presumably includes Defendant Bell. Defendant Payne said that the KSP “want[s]

... people to have the confidence in us that we have our best people doing those investigations." In

addition, the CIRT is supposed to be assisted by a range of specialists, including crime scene

technicians from the agency's forensic laboratories and personnel who collect and examine digital

evidence.

20. Defendant Bell not only interviewed Defendants Powell, Buckingham, and Fulcher

(who allegedly had witnessed the shooting), but reviewed the footage from Defendant Powell’s

dashcam and Defendant Buckingham’s bodycam. Despite the fact that the camera footage clearly

refuted Defendants Powell, Buckingham, and Fulcher’s inaccurate and self-serving statements to

Defendant Bell that attempted to justify Mr. McClure’s fatal shooting, Defendant Bell nonetheless

concluded that Mr. “McClure damaged vehicles with a steel post. He continued to swing the post

at a police ... officer in a threatening manner, which resulted in Mr. McClure being shot and killed

by a police officer.” This conclusion is plainly disproven by Defendant Buckingham’s bodycam.

21. Defendant Bell then took the conclusions of his “investigation” to Defendant

Commonwealth Attorney Stacy, who presented the case to the Grand Jury. However, the Grand

Jury was not informed of the existence of or shown the footage from Defendant Buckingham’s

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bodycam despite Defendants Bell and Stacy’s knowledge of its existence and what it showed. In

addition, Defendant Bell explicitly or implicitly misrepresented to the Grand Jury the following:

a. That there were attempts made to “subdue” Mr. McClure before he was shot;

b. That Mr. McClure, when he struck the front windshield of Defendant Powell’s SUV
with the pipe he was carrying, was trying to strike Defendant Powell and not just his
windshield;

c. That when Defendant Buckingham exited his vehicle, he walked to the back of his
vehicle, whereupon Mr. McClure broke the back windshield of Defendant Buckingham’s
vehicle and then “raised the pipe in a threatening manner,” whereupon he was shot the first
time by Defendant Buckingham;

d. That after Mr. McClure was shot the first time, he was “kicking” and keeping his
hands “hidden”;

e. That given Defendant Buckingham’s “close proximity” to Mr. McClure, Mr.

McClure’s “weapon” and “what he was electing to do with it”, there were no options
available to Defendant Buckingham other than to shoot Mr. McClure;

f. That had Defendant Buckingham failed to subdue Mr. McClure with a non-lethal
force alternative such as a taser, he would have been left helpless in the face of a lethal
risk;

g. That “the first shot did not stop” Mr. McClure;

h. That the knife was “just inches away” from Mr. McClure when he was shot the
second time; and

i. That if Defendant Buckingham didn’t shoot Mr. McClure, a private citizen at the
scene who was a Viet Nam veteran and had a carry license would probably have done it
himself.

Defendant Stacy made no effort to correct these misrepresentations to the Grand Jury. With

nothing to go on other than Defendant Bell and Stacy’s one-sided misrepresentation of the

evidence in the light most favorable to Defendants Powell, Buckingham, and Fulcher, the Grand

Jury found no activity involved in Mr. McClure’s death that warranted prosecution.

22. Plaintiff believes, and anticipates that he will be able to prove in discovery, that

there exists a custom and practice of covering up unwarranted shootings of unarmed Kentucky

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citizens that pervades the culture of the Fulton Police, the KSP, and the office of the

Commonwealth Attorney of Fulton County. This culture effectively encourages unwarranted

police shootings to the detriment of Kentucky citizens (such as Mr. McClure) and the public

interest, and immunizes the type of “shock-the-conscience” misconduct that underlies this case.

IV. Nature of Defendants' Conduct

23. Defendants, individually and in conspiracy with one another, engaged in the

misconduct described above under color of the law of the Commonwealth of Kentucky, and

knowingly participated or acquiesced in, contributed to, encouraged, implicitly authorized,

approved, or ratified such misconduct. This misconduct described above resulted from the failure

of Defendants to employ qualified persons for positions of authority, and/or to properly and

conscientiously train and supervise the conduct of such persons after their employment, and/or to

promulgate appropriate policies and procedures either formally or by custom to protect the

constitutional rights of citizens like Mr. McClure whom they are sworn to protect, and/or to

implement, follow, and enforce existing policies and procedures that would have prevented Mr.

McClure’s death. Defendants' conduct was intentional and grossly negligent, indicated active

malice toward Mr. McClure and others like him and a total, deliberate and reckless disregard for

and indifference to his life, his constitutional and common law rights, and to the principles of

transparency and accountability in law enforcement, and justifies an award of actual and punitive

damages.

V. Causes of Action

A. Violation of Fourth, Fifth, Eighth and Fourteenth Amendments

Pursuant to 42 U.S.C. §1983 (against all Defendants)

24. Defendants' conduct was objectively unreasonable, intentional, reckless, deliberate,

wanton and/or malicious, and was indicative of their total, deliberate and reckless disregard of and

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indifference to Mr. McClure’s life as well as his rights and the risk of harm to him occasioned by

such conduct.

25. Defendants’ conduct created the very risk for which Mr. McClure paid with his life,

served no state purpose, was reckless and/or malicious, and shocks the conscience.

26. By virtue of the foregoing, Mr. McClure was subjected by Defendants, individually

and in conspiracy with one another, to excessive force and cruel and unusual punishment, and

deprived of his life without due process of law in violation of the Fourth, Fifth, Eighth and

Fourteenth Amendments of the Constitution of the United States and the Civil Rights Act of 1871,

42 U.S.C. §1983.

B. Negligence/Gross Negligence (against the individual Defendants)

27. By virtue of the foregoing, the individual Defendants were negligent and grossly

negligent.

C. Battery (against Defendants Powell and Buckingham)

28. By virtue of the foregoing, Defendants Powell and Buckingham, individually and

in conspiracy with one another, battered Mr. McClure.

D. Wrongful Death (against the individual Defendants)

29. By virtue of the foregoing, Mr. McClure’s estate is entitled to recover from the

individual Defendants for his wrongful death pursuant to KRS 411.130.

E. Loss of Consortium (against the individual Defendants)

30. By virtue of the foregoing, Mr. McClure’s minor daughters, S.M., B.M., and C.M.,

are entitled to recover from the individual Defendants for the loss of their father’s love, support,

society and companionship.

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F. Hindrance of Prosecution
(against Defendants Powell, Buckingham, Fulcher, Stacy and Bell)

31. By virtue of the foregoing, Defendants Powell, Buckingham, Fulcher, Stacy and

Bell, individually and in conspiracy with one another, hindered the prosecution of Defendant

Buckingham in violation of KRS 520.110, et seq., for which Mr. McClure’s estate is entitled to

recover damages pursuant to KRS 446.070.

G. Perjury (against Defendant Bell)

32. As a consequence of the foregoing, Defendant Bell committed perjury in violation

of KRS 523.010, et seq., for which Mr. McClure’s estate is entitled to recover damages pursuant

to KRS 446.070.

H. Abuse of Public Office

(against Defendants Powell, Buckingham, Fulcher, Stacy and Bell)

33. As a consequence of the foregoing, Defendants Powell, Buckingham, Fulcher,

Stacy and Bell, individually and in conspiracy with one another, abused their public offices in

violation of KRS 522.010, et seq., for which Mr. McClure’s estate is entitled to recover damages

pursuant to KRS 446.070.

VI. Damages

34. Mr. McClure’s death was unnecessary and preventable, and his estate is therefore

entitled to recover damages for his funeral and burial costs, for the loss of his power to labor and

earn money, and for the physical and mental pain and suffering he experienced prior to his death.

Mr. McClure’s estate is also entitled to recovery of damages for the individual Defendants’

violation of his due process rights in hindering Defendant Buckingham’s prosecution. Mr.

McClure’s three minor daughters, S.M., B.M., and C.M., are entitled to recover damages to

compensate them for the loss of their father’s love, support, society, and companionship. Finally,

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the violations of Mr. McClure’s constitutional and common law rights were cruel, gross, malicious,

and evinced a total and reckless disregard for his life and those rights and for the rule of law,

entitling Plaintiff to recover punitive damages to deter such conduct in the future.

WHEREFORE, Plaintiff requests a trial by jury, and an award of the actual and punitive

damages requested herein along with pre- and post-judgment interest, attorneys' fees, costs, and

all other relief to which Plaintiff, Mr. McClure’s estate, and/or Mr. McClure’s minor daughters are

entitled under law or in equity.

Respectfully submitted,

/s/ Gregory A. Belzley

Gregory A. Belzley
gbelzley@aol.com
Camille A. Bathurst
camillebathurst@aol.com
BelzleyBathurst Attorneys
P.O. Box 278
Prospect, Kentucky 40059
(502) 292-2452

Larry Forman
Larry Forman Law, PLLC
The Wolf Building
138 South 3rd Street, Ste. 209
Louisville, Kentucky 40202
Cell: (502) 931-6788
Work: (502) 561-1080
Fax: (419) 574-7156
larry@larryformanlaw.com


Counsel for Plaintiff

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