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Judge dismisses federal suit over ‘live burn’ fatality

The “live burn” training exercise that cost Racheal Wilson her life does not create grounds for a civil rights action in U.S. District Court, a federal judge has ruled.

Although it would have meant failing the program, Wilson could have declined to complete the exercise — and under prior case law, that meant her participation was voluntary, Judge Benson Everett Legg ruled Friday.

“In such a situation, the Court cannot say that the actions of the Fire Department, however reckless they may have been, rise to the level of a constitutional violation,” Legg wrote.

Paul D. Bekman, who argued against the dismissal, called an appeal “more than likely.”

Legg “obviously had a very difficult decision to make,” said Bekman, a partner in Salsbury Clements Bekman Marder & Adkins LLC in Baltimore.

“We felt that no matter who won, it was going to go up” to the 4th U.S. Circuit Court of Appeals, he said.

Wilson was a 29-year-old cadet in training and a single mother of two at the time of the February 2007 training exercise at 145 S. Calverton Road.

She was trapped by flames on the third floor of the rowhouse and had to be pulled from the building, unconscious and unresponsive to CPR. She died a short time later at the University of Maryland’s R Adams Cowley Shock Trauma Center.

Wilson’s family and estate claimed the exercise was so poorly planned and executed that it shocked the conscience. They also argued that Wilson’s participation was not voluntary and that, as a recruit in training, she was not able to evaluate the risks she was facing.

Even if those allegations were true — which Legg assumed for purposes of the ruling, but did not decide — the judge said a due process claim under the federal civil rights law, 42 U.S.C. §1983, was not the appropriate remedy.

“The Court’s ruling today concerns only whether Plaintiffs are entitled to take advantage of §1983, which applies primarily to cases in which the harm was intended and only tangentially to cases in which the defendant acted recklessly but with the intent to injure,” he wrote.

Bekman disagreed.

“This case, because of its very special facts and unfortunate happenstance, fits within 1983,” he said Monday.

The family’s $15 million wrongful death and survival lawsuit was first filed in Baltimore City Circuit Court in February, but it was transferred to federal court at the defendants’ request in May.

Wilson’s family and estate still have rights under the workers’ compensation law, the Fire and Police Employees’ Retirement System, state tort law and the Maryland Declaration of Rights, Legg noted.

However, Legg declined to keep those claims in federal court after dismissing the §1983 action.

The case is Slaughter et al v. Mayor and City Council of Baltimore, et al., No. L-10-1157, U.S. District Court (Baltimore).

Bekman praised his opposing counsel, Deputy City Solicitor David E. Ralph, for doing an “outstanding job.” Ralph could not be reached for comment late Monday.

Legg noted that a line-of-duty death benefit was paid, which Bekman said was based on her salary as a first-year firefighter. Her family also applied for a $300,000 benefit under a separate federal safety program. That claim, which initially was denied by the U.S. Department of Justice, was approved in October.

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