From [HERE] The Ninth Circuit indicated Wednesday that though it may grant qualified immunity to four white San Diego Border Patrol agents who Tasered and "accidentally" killed a Latino motorist when his car caught fire, it could hold the federal government accountable for his death.

Two of the three judges on the panel asked whether tort claims against the United States brought by the parents of Alex Martin, the 24-year-old man who was killed, would remain intact if qualified immunity were granted to the agents.

“It appears to me that there is at least a triable question of fact as to whether the amount of force used was excessive,” Ninth Circuit Judge Susan Graber said. “If qualified immunity is nonetheless available because of a lack of clearly established law, what survives of the tort claims? Would that leave the assault and battery claim in place?”

The family’s attorney Gene Iredale said Martin had been driving for 22 hours on his way back from Texas when he got lost in Pine Valley, California, in March 2012. Border Patrol agents tried to pull him over for driving the wrong way on Interstate 8. However, the pursuing agents were all in plain clothes and unmarked cars, so Martin did not stop. For about three minutes, Martin led the agents on a high-speed pursuit that ended when he drove over spike strips that deflated his tires.

Martin, who had pulled over on the side of the road, had no way of knowing the men approaching him were law enforcement, Iredale claims.

“These agents approached in unmarked cars, in plain clothes and never identified themselves by the display of badges or even the simple statement ‘Border Patrol,’” the attorney said.

Martin’s family claims the agents pointed guns at him and failed to identify themselves as officers.

Martin, believing they were thieves, sped away, eventually blasting through the Highway 80 Border Patrol checkpoint, where he swerved off the road to evade spike strips another agent had placed on the road to stop him, and drove off a second time.

The chase is described in the family’s brief to the Ninth Circuit, and in the government’s answering brief.

When the agents finally forced him to stop, the cops claimed Martin reached for something near the center console of his car. Believing Martin was reaching for a weapon, one of the agents broke a window and Tasered him. No gun was found. 

The Taser touched off gasoline that had spilled from a canister inside the car and the car exploded, burning Martin to death.

In the video, a plainclothes agent is seen using a flashlight to break the passenger side window. He then raises up his Taser and shoots inside. Immediately, an explosion rocks the car, throwing the agent against the hillside behind him.

Martin burned to death. The video shows that instead of trying to save him, all of the agents pulled their vehicles away from the scene.

“All three of those cars had large fire extinguishers in them and standard equipment,” Iredale said. “Not one of these agents ever even tried to spray any of the fire extinguisher solution on that car.” [MORE]

Martin’s parents said their son was so badly burned his skin was charred black and the underlying tissue and bone exposed.

The Martins sued in June 2013, alleging excessive force, assault and battery, wrongful death and Bivens civil rights claims against the agents, and negligence, wrongful death, assault and battery and excessive force against the United States under the Federal Tort Claims Act.