Jon Campisi Apr. 5, 2013, 8:54am

The federal judge handling the case of a man who claims Pennsylvania State troopers set

him aflame when they deployed a Taser gun toward the plaintiff, who had gasoline on his clothing at the time, has for the second time refused to grant summary judgment to the officers named as defendants in the litigation.

In an April 3 memorandum and order, U.S. District Judge Gene E.K. Pratter denied a defense motion for summary judgment in the case of Allen Brown v. Trooper Burghart et al.

As previously reported by the Pennsylvania Record, Brown filed suit against the law enforcement officers in July 2010 claiming he suffered third-degree burns over nearly a third of his body after he was stunned by a Taser device during an August 2008 encounter with the troopers.

Trooper Justin LeMaire stopped Brown at about 5 a.m. on Aug. 24 2008 after the officer discovered the plaintiff was operating an unregistered motor scooter with no license plate along busy Interstate 76, also known as the Schuylkill Expressway, in Philadelphia.

Brown asserted in his lawsuit that he was attempting to gain access to a local off-road bike path, but had to first travel on a brief stretch of the highway in order to get to the trail.

It was at this time that LeMaire spotted Brown and attempted to pull him over, but the plaintiff ended up leading the trooper on a low-speed chase down the interstate.

Brown, who had no car and no driver’s license, was attempting to get to his mother’s home in Norristown, Pa. from his home in Philadelphia at the time of the incident.

LeMaire called for backup during the chase, with Trooper Peter Burghart soon coming to his aid.

Toward the end of the chase, Brown’s scooter overturned, causing gasoline to spill from the vehicle and onto the plaintiff, the record shows.

After some struggling, LeMaire deployed his Taser, and Burghart soon followed up with his own Taser jolt, with Burghart’s shot igniting the gas that had spilled onto the plaintiff’s clothing and causing Brown to catch fire.

In denying an earlier defense motion for summary judgment, Pratter had noted that the two troopers had acknowledged that Tasers could, in fact, ignite flammable material.

Pratter ended up ruling in the previous motion, which was filed in June of last year, that LeMaire’s status in the case lacked clarity, and she denied the trooper’s motion for summary judgment without prejudice, allowing the parties the ability to properly outline the specific facts and law concerning LeMaire’s potential liability.

This month, Pratter wrote that just as the court had previously found that fact issues existed precluding the granting of summary to Burghart, it similarly found that genuine issues of material fact preclude granting LeMaire his requested relief.

Pratter, citing her previous ruling, wrote that Burghart is not entitled to qualified immunity because an officer familiar with legal precedent regarding the amount of force appropriate in the case of 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.”

“Trooper LeMaire had the same opportunities to assess the situation as Trooper Burghart, so despite his attempts to reargue whether the use of a taser under these circumstances violated Mr. Brown’s rights and whether the law was or was not clearly established for purposes of qualified immunity, the only real issue remaining here is whether there are material factual disputes as to whether Trooper LeMaire had an opportunity to intervene,” Pratter wrote.

The judge stated that LeMaire argues, without citing any case law, that Brown must show “unequivocally” that LeMaire knew gasoline had spilled on the plaintiff in order for the trooper to be held responsible for failing to intervene.

Pratter, however, wrote that the standard is not whether LeMaire “subjectively” knew about the gasoline, but what an “objectively reasonable officer would have done under the same circumstances.”

“Those circumstances included an overturned motor scooter, the knowledge that vehicle accidents may result in gasoline spills, and the knowledge that using a taser in the presence of flammable material causes a fire risk,” the judicial memorandum states.

The judge wrote that LeMaire arguably had two windows of opportunity to prevent his fellow officer from using his Taser under the circumstances, and there is no evidence he did 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,” Pratter wrote. “Thus, the Court will not grant summary judgment in favor of Trooper LeMaire.”

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