Tasered Man Who Caught Fire Can Pursue Claims

(CN) - A Pennsylvania trooper cannot dismiss claims filed by a man who caught fire after being Tasered for driving an unlicensed scooter, a federal judge ruled.

In the early morning hours of Aug. 24, 2008, Pennsylvania Trooper Justin LeMaire noticed Allen Brown riding a motor scooter with no plates, helmet or protective eyewear on the Schuylkill Expressway.

Trooper Peter Burghart responded to LeMaire's call for backup and joined the last few minutes of the relatively low-speed chase.

Brown eventually drove into a cable blocking the entrance of an apartment complex, falling off his scooter, which skidded ahead and began leaking gas that soon coated Brown.

Ignoring commands to stay down, Brown allegedly tried to get back on his scooter. A struggle between Brown and Burghart ensued, during which LeMaire repeatedly Tasered Brown for five-second intervals, but Brown still did not submit to handcuffs. Brown allegedly blacked out at this point and remembers nothing else until he awoke in the hospital.

Burghart broke away from Brown and eventually Tasered him until he fell to the ground. Burghart testified that he told Brown to stay on the ground and place his hands behind his back, but says Brown stood up.

Trooper Peter Burghart then deployed his Taser twice, and flames engulfed the suspect within seconds.

Burghart previously told the court that he instructed Brown to stop, drop and roll while LeMaire ran to get a fire extinguisher. Once the flames were put out, however, Brown was gearing up for a fight, saying, "You guys set me on fire, you tried to kill me. I'm going to kick your ass," according to Burghart's deposition testimony. Burghart said he had to use his Taser again and backup then helped put Brown in handcuffs.

Brown eventually pleaded guilty to driving under the influence and fleeing and attempting to elude an officer. He then sued Burghart and LeMaire in July 2010, claiming that he suffered third-degree burns over about a third of his body.

There is no evidence that LeMaire in any way attempted to prevent or restrain Burghart from using his Taser. In fact, neither Burghart nor LeMaire had ever used their Tasers in the field before encountering Brown. They had just received training on the device a few months earlier.

Although both officers testified that prior to the accident, they were aware that a Taser could ignite gasoline and that gas spills are possible at the scene of a motor vehicle accident, neither thought of this at the scene of Brown's arrest.

Brown filed an amended complaint after U.S. District Judge Gene Pratter complained in a May 2012 opinion about the unfocused arguments as to what LeMaire did or failed to do.

The amended complaint accuses LeMaire of failing to prevent Burghart from using excessive force.

Pratter denied LeMaire summary judgment for the second time on April 3, quoting the same reasons he gave in previously denying relief to Burghart.

"Burghart is not entitled to qualified immunity because 'an officer familiar with legal precedent regarding the amount of force appropriate in the case of (1) an unarmed, but resisting suspect (2) who was not attempting to harm officers and, (3) aside from resisting arrest, had only committed traffic violations surely would not conclude that conduct risking lighting that suspect on fire was an appropriate amount of force.'

"Trooper LeMaire had the same opportunities to assess the situation as Trooper Burghart," Pratter wrote.

The judge tossed aside claims that Brown must show "unequivocally" that LeMaire failed to intervene despite is knowledge of the spilled gasoline.

"Here, Trooper LeMaire arguably had two windows of opportunity to prevent his companion from using his taser under the dangerous circumstances facing the officers and Mr. Brown - the four minutes between his last taser use and Trooper Burghart's first, and the eight seconds between Trooper Burghart's first and second taser uses," Pratter wrote. "There is no evidence that he did so or attempted to do so. Whether or not these two windows of time were enough to give Trooper LeMaire a reasonable opportunity to intervene is a question for the factfinder. Thus, the court will not grant summary judgment in favor of Trooper LeMaire."

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