Tasered Man Who Caught Fire Can Sue Cops

PHILADELPHIA (CN) - Pennsylvania state troopers may be liable to a man who crashed his scooter while trying to flee, became coated in the vehicle's gas, and then caught fire after getting Tasered six times, a federal judge ruled.

Allen Brown, who had been driving under the influence, led troopers on a low-speed chase as he drove a motor scooter with no plates, helmet or protective eyewear on the Schuylkill Expressway at around 5 a.m. on Aug. 24, 2008.

When Brown eventually crashed, the scooter skidded ahead, fell over and began leaking gas that soon coated Brown.

The troopers say Brown tried to get back on the scooter then resisted when they took him down. Though Trooper Justin LeMaire deployed his Taser on Brown at least four times, Brown still would not let the troopers put him in handcuffs.

Trooper Peter Burghart then deployed his Taser twice, causing flames to immediately engulf the suspect.

Burghart says he instructed Brown to stop, drop and roll while LeMaire ran to get a fire extinguisher. But once the flames were put out, 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. He says 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.

The complaint says repeated use of "electronic immobilization devices," "in the presence of gasoline on and around plaintiff," constituted excessive force.

Burghart and LeMaire moved for summary judgment and qualified immunity.

"It is undisputed by Brown that once the defendants had Brown off of the motor scooter and in a position to place Brown under arrest, he continued to resist their efforts," their motion states. "Brown admits the (sic) resisted. Clearly, at this point in the encounter the defendants were allowed to use to amount of force necessary to place him under arrest."

They said a reasonable police officer in their position that morning would not have believed that their use of the Taser was illegal.

But U.S. District Judge Gene Pratter rejected the motion on May 25, without prejudice as to LeMaire so the parties can further look into his potential liability.

"It is unclear as to what, exactly, Mr. Brown contends that Trooper LeMaire did wrong," Pratter wrote.

The claims against Burghart, whose Taser-shot ignited Brown, are more clear, according to the 20-page opinion.

"Case law on taser use is still developing, as it is a relatively new weapon," Pratter said.

But "the record shows that Trooper Burghart had received training that a taser, when used in the presence of flammable material including gasoline or gasoline vapors, creates a risk of fire," he added. "Indeed, Trooper Burghart was even trained that the risk was serious enough that he should ask other police officers whether their pepper spray contains alcohol before deploying a taser in the presence of such spray and that he should not use tasers in flammable situations such as in a meth lab," the decision states. "Given this express training, the presence of an overturned vehicle obviously leaking gasoline at the scene of Mr. Brown's arrest, and Mr. Brown's proximity to that vehicle when Trooper Burghart deployed his taser, 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."

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