Lawsuit dropped in death of carjacker
By Gene Warner

An almost five-year-old legal case involving the shooting of a carjacker has ended, lifting the legal cloud that hung over the Hamburg police lieutenant who fired the fatal shot.

The attorneys for the estate of Terry Mason, who was killed Sept. 9, 2002, agreed to discontinue the civil lawsuit “with prejudice,” a legal term meaning that the case against Lt. James Koch and the Town of Hamburg has ended, law enforcement officials explained.

Jury selection had been scheduled to begin today, but the parties agreed last week to end the case, without costs to either side.

“I finally feel exonerated,” Koch said Wednesday. “This is over with. This is done.”

Three months after the fatal shooting, an Erie County grand jury ruled that Koch had been legally justified in using deadly force to subdue Mason as the two fought in a speeding stolen car.

“My actions passed the test of the judicial system, both criminally and civilly,” Koch, 46, said Wednesday. “My actions were justified across the board.”

The case has been unusual from the start.

Mason, 34, who had been arrested 44 times and convicted at least 23 times, had been accused of stealing several jackets from a McKinley Mall store, biting a security officer and then getting into a vehicle occupied by a 14-year-old boy, police said.

Koch dived into the vehicle, wedging his upper body between Mason and the back of the driver’s seat, with his legs still outside the car.

After the teen escaped and Koch got his whole body into the vehicle, Mason sped away, still struggling with the lieutenant.

Koch managed to get his upper body into the back seat. He said he watched the speeding vehicle swerve along Lake Shore Road and, before firing the fatal shot, repeatedly warned Mason that he would shoot him.

Attorneys for Mason’s estate sued Koch and the Town of Hamburg, alleging negligence, wrongful death and denial of Mason’s civil rights.

In December 2005, State Supreme Court Justice Kevin M. Dillon dismissed the lawsuit, claiming that the shooting was “reasonable under the circumstances.”

The estate’s attorneys appealed that ruling, claiming the arrest was negligent and that Koch used excessive force in firing the gunshot.

A person familiar with the appeal said that the Appellate Division upheld the dismissal of the negligent-arrest claim but ruled that excessive use of force was a question of fact that could go to trial.

But attorneys for the estate agreed last week to drop their case.

Allan M. Lewis, an attorney representing Koch and the Town of Hamburg, said town officials believed Koch’s actions were proper and were prepared to defend themselves and the lieutenant.

“I think my client’s actions were totally defensible,” Lewis said. “I think he was in a situation where he had to make a split-second decision. I think his actions were correct, and I think they were reasonable actions under the law.”

gwarner@buffnews.com
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