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This story is by Mark Davis, staff writer at the Valley News, where it was first published Friday, April 19, 2013.

Hartford — A federal judge has dismissed a Wilder man’s claims that he was subjected to excessive force by Hartford police officers because he was black, saying there was insufficient evidence to support his contention that officers were motivated by racial bias.

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While much of Wayne Burwell’s lawsuit against Hartford police remains active, Judge Christina Reiss recently threw out his most incendiary allegations — that he had been discriminated against because of his “race and color.”

The judge said that Burwell, who was arrested inside his Wilder home after police responded to an erroneous report of a burglary, did not provide enough evidence that moved his claims “across the line from conceivable to plausible” — the claim was based on the assertion that police officers knew Burwell was black before deciding to handcuff him.

“Although a close question, no court has apparently held that mere knowledge of a person’s race, coupled with an arguable excessive response, will suffice,” Reiss wrote in an 11-page ruling issued this month in U.S. District Court in Rutland.

Burwell argued that the officers demonstrated “a clear intent to discriminate on the basis of race,” when they still proceeded to forcefully take him into custody “in a manner that defies a racially-neutral explanation,” even after officers were informed Burwell could be having a medical episode.

The town argued that Burwell’s assertion was mere speculation, supported by no hard evidence.

In an interview, Burwell’s attorney, Robin Curtiss, of Orford, said the ruling could be a temporary setback. The judge allowed Burwell to re-file the race-based claims if his lawyers find more evidence to support it.

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“We think, and have thought all along, that it’s pretty apparent that what happened had something to do with him being African-American,” Curtiss said. “If we can establish during discovery that race had anything to do with this, then we can bring it right back into the case.”

Burwell, a fitness trainer who owns a gym in Lebanon, declined to comment yesterday.

James Carroll, the attorney representing police officers Fredrick Peyton, Kristinnah Adams and Scott Moody, did not respond to a request for comment yesterday.

Hartford Police Deputy Chief Brad Vail declined to comment yesterday.

Burwell is seeking unspecified punitive and compensatory damages for several claims of wrongdoing allegedly committed by officers in May 2010, when a housekeeper who did not recognize Burwell found him naked and unresponsive and called 911 to report a possible burglary.

During the initial 911 call, housekeeper told the dispatcher, and dispatch then told the officers, that the housekeeper “had seen an African-American male in the home,” Reiss said.

The officers entered Burwell’s home with their guns drawn, and found Burwell, naked and unresponsive, sitting on the toilet. They did not know at the time that Burwell was essentially in a diabetic-coma — he had a medical condition that sometimes causes his blood sugar levels to plummet — and was only semi-conscious.

“Show your f—ing hands up or I’ll shoot you motherf—–,” Peyton told Burwell upon first entering the bathroom, according to a police audio recording of the encounter. “Put your hands up now,” the officer shouted. “Show me your f—ing hands.”

When Burwell failed to respond, officers showered him with pepper spray and beat him with a baton several times. He was transported to Dartmouth-Hitchcock Medical Center and suffered a cut on his wrist from handcuffs that required stitches to close.

Vermont Attorney General Bill Sorrell cleared the officers of criminal wrongdoing 2010. In July 2012, Burwell filed the lawsuit.

In October, the police asked Reiss to dismiss the racial bias claims.

Mark Davis can be reached at [email protected] or 603-727-3304.