PENNSYLVANIA RECORD

A Philadelphia man who was inadvertently set aflame after two Pennsylvania state

troopers Tasered him while he was allegedly resisting arrest, an act that caused gasoline on the plaintiff to ignite, can move forward with his claims against the law enforcement officers after a federal judge in Philadelphia last month refused to grant summary judgment to the defendants.

In the case of Allen Brown v. Trooper Burghart et al., the plaintiff claims that he suffered burns and had to be hospitalized back in late August 2008 after an encounter with Troopers Justin LeMaire and Peter Burghart.

According to background information on the case, Brown had left his Philadelphia home at about 5 a.m. on Aug. 24 of that year heading toward his mother’s home in Norristown, Pa.

Because he had no car and wasn’t licensed to drive, Brown decided to take an unregistered motor scooter with no license plate on the journey.

Brown’s plan was to take a local off-road bike trail, but in order to get to the trail he had to first travel on Interstate 76, a stretch of which in Philadelphia is commonly referred to as the Schuylkill Expressway.

It was during this point on the highway that LeMaire spotted Brown and attempted to pull the man over.

Brown, however, ended up leading the officer on a low-speed chase throughout the surrounding area.

Unable to get Brown to stop, LeMaire called for backup, with Trooper Burghart joining the encounter in the last few minutes of the chase, the record shows.

Toward the end of the chase, Brown’s scooter overturned and gasoline began to spill from the vehicle.

After some struggling, LeMaire deployed his Taser, a law enforcement defensive tool that is designed to be less lethal than firearms.

Brown eventually caught fire when a second Taser shot, this one deployed by Burghart, created a charge and ignited the gas that had spilled on Brown when the scooter overturned.

Following the encounter, Brown was taken to the hospital for treatment of burns and other injuries.

The suspect was later charged with traffic violations, resisting arrest and receiving stolen property.

The latter charge was eventually dismissed.

Brown filed suit against the two troopers in July 2010 claiming he suffered third-degree burns over close to a third of his body.

The troopers subsequently filed motions for summary judgment, claiming they were entitled to qualified immunity.

They also argued that it was reasonable to believe they viewed their use of a Taser in a situation such as this as in line with department protocols and procedures.

U.S. District Judge Gene E.K. Pratter, however, noted in her memorandum that the two troopers had acknowledged during their training that Tasers could, in fact, ignite flammable material.

The Brown encounter was the first time the two troopers had ever deployed their Tasers in the line of duty.

In her memorandum, Pratter noted that the troopers’ motions for summary judgment contained arguments that the officers did not use an unreasonable amount of force during Brown’s arrest, and therefore they didn’t violate his Fourth Amendment rights.

They further argued that as law enforcement officers, they are entitled to qualified immunity from suit.

After oral arguments in March, Pratter said in her memorandum that she concluded LeMaire’s status in the case lacks clarity at this point, and therefore the judge decided to deny his motion for summary judgment without prejudice, so the parties can “properly and specifically outline the facts and law concerning Trooper LeMaire’s potential liability in this case.”

During oral arguments, the plaintiff’s attorney admitted that the complaint does not include a claim against LeMaire for failure to intervene and that he would need to amend the complaint to assert such a claim.

While LeMaire initially Tasered Brown, it was a second Taser charge from Burghart that caused the plaintiff to be set on fire, the record shows.

Pratter also denied the summary judgment motion by Burghart while at the same time ruling that he is not entitled to qualified immunity in the case.

The judge wrote that Burghart had received training that a Taser, when used in the presence of flammable material, could create a risk of fire.

Pratter wrote that given this training, an official familiar with legal precedent regarding the amount of force appropriate in a case involving an unarmed but resisting suspect who was not attempting to harm officers and, 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.”

Pratter’s ruling was filed late last month at the U.S. District Court for the Eastern District of Pennsylvania.