While one of his fellow officers stands trial in a San Antonio criminal court for the alleged beating of Derrick Newman, Beaumont Police Officer Charles Duchamp is asking a local judge to dismiss him from Newman's civil suit.

As the Southeast Texas Record previously reported in November 2008, Newman filed a civil suit against five Beaumont police officers, alleging two of the officers beat and shot him with a Taser gun during a routine traffic stop.

On Monday, Sept. 20, a second criminal trial of Officer David Burke, who can be seen on the arrest video striking Newman 13 times with his baton, began in a San Antonio courtroom.

The first trial, held in Beaumont, ended in a mistrial earlier this year, prompting Criminal District Court Judge Layne Walker to order a change of venue.

Newman's civil case against the officers remains local.

On Aug. 31, Officer Duchamp filed a motion for summary judgment, arguing there is no evidence to support Newman's claims and that governmental immunity shields him from liability.

A hearing on the matter was slated to be held Sept. 27 in Judge Donald Floyd's 172nd District Court, but was cancelled and put on hold due to a possible continuance in the case.

Newman was a passenger in a 2001 black Nissan Sentra on Aug. 24, 2007, when two police officers - Jason J. Torres and John David Brown -- stopped the vehicle when the driver allegedly failed to stop at a red light.

Officers asked the three men in the car for their identification. Passenger Mario Cole was asked to step out due to an outstanding warrant for his arrest.

Newman and driver Willie Lee Cole were told to stay in the vehicle but exited against police instruction. The action led Torres and Brown to call for back-up, court papers say.

According to the motion, officers Duchamp and his trainee, Cody Guedry, were the first to arrive. Burke arrived shortly after.

Duchamp was performing a weapons search on Cole when a struggle erupted between Guedry and Newman. Burke, believing Newman was reaching for a weapon, attempted to subdue him with his baton.

After 9 seconds of struggle, Guedry Tasered Newman, who fell to the ground and continued to resist arrest. After a second jolt, Newman yelled "I quit" and allowed officers to place him in handcuffs, the motion states.

In his motion, Duchamp claims he could not assist the officers or intervene since department policy demanded he stay with Cole.

"Duchamp has established that ... his actions were proper and that he should remain with the person he was dealing with rather than intervene," the motion states.

"Plaintiff cannot provide any evidence to support the element of duty. A failure to protect a citizen from excessive force from other police officers can only arise if the officer observed the use of force ... and had the opportunity to prevent it."

Newman claims he is entitled to exemplary damages because Duchamp failed to protect him from unreasonable, unnecessary and excessive force.

He is represented by Langston Scott Adams of Port Arthur and by Terrence Holmes of Beaumont.

Duchamp is represented by Beaumont attorneys Craig Schexnaider and William Conley.

Case No. E182-725

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