Fire-EMS-Safety

November 2018 Fire and EMS Law Newsletter (PDF)

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[CASE SUMMARIES ARE NOT PROVIDING LEGAL ADVICE]

Lawrence T. Bennett, Esq.
lawrence.bennett@uc.edu

  • Larry Bennett is Program Chair, Fire Science & Emergency Management at the University of Cincinnati.  He has been an attorney since 1970, and an Ohio certified firefighter (FF I) and emergency medical technician (EMT-B) since 1980.   
  • These case summaries update the 18 chapters in his textbook, Fire Service Law (Second Edition)
    • Published in Jan. 2017 by Waveland Press - contact Neil Rowe, njrwaveland.com); ISBN 978-1-4786-3397-6; book available at Waveland Press site
  • Textbook is used in the National Fire Academy’s “degrees at a distance” course, Political and Legal Foundations of Fire Protection.
  • Chapter 13 (EMS cases) also updated Bennett's free, online textbook: EMS LAW - LEGAL LESSONS LEARNED
  • For questions and comments, please contact lawrence.bennett@uc.edu or 513-470-2744 (cell).
  • Articles saved in 18 Chapters of Fire Service Law. 
  • Each of the chapter sections listed below include links to the articles for that chapter of Fire Service Law.

RECENT CASES

 

Article 1-45

STRUCTURE FIRE CAUSED BY ELECTRIC - LANDLORD DID NOT GET OCCUPANCY PERMIT - LAWSUIT BY BURNED OUT TENANT AGAINST LANDLORD DISMISSED SINCLE LACK OF PERMIT WAS NOT CAUSE OF FIRE

On May 18, 2010, in Community Preschool & Nursery of East Liberty, LLC v. Tri-State Realty, Inc., U.S. District Court for Western District of Pennsylvania, 717 F. Supp. 2d 482, 2010 U.S. Dist. LEXIS 48782, a Federal judge dismissed the lawsuit by the Preschool tenant that occupied the first floor. While the building owner leased the second floor to another company without first obtaining a Certificate Of Occupancy for the second floor, this breach of duty did not cause the fire. The landlord decided not to rebuild, and the Preschool was forced to move out. Expert fire investigators confirmed it was electrical in origin, and landlord had no prior notice of a problem.

The Court reported the following facts:

“On July 17, 2008, at approximately 8:30 pm, a fire started on the second floor in the ceiling above the space leased and occupied by The Adolescence Preparing 4 Excellence (‘APEX’) of Pittsburgh, and a City of Pittsburgh fire investigation report attached to the Complaint indicates that the origin of the fire was ‘an electrical arc caused by faulty wiring in the ceiling’ of the APEX office. Complaint, (Doc. No. 1) at PP 28 and 29. Plaintiff avers that the second floor was destroyed by fire, that the first floor leased premises ‘was rendered unsuitable for use as a daycare center due to extensive smoke and water damage,’ and that plaintiff was forced to vacate the premises and discontinue the operation of its business at that location. Complaint, (Doc. No. 1) at PP 32 and 33.”

The Court granted summary judgment to the landlord:

“Community Preschool cannot show Tri-State acted wrongfully regarding the alleged breach or caused the fire that burned the building. The act of leasing the second floor without obtaining a Certification of Occupancy did not breach the provision for quiet enjoyment because no impairment on plaintiff's ability to use and enjoy the property resulted. Additionally, plaintiff cannot establish that the fire was caused by an act of defendant. Moreover, the destruction of plaintiff's property and interruption of its business by a fire, which was not caused by Tri-State, triggered Tri-State's right under the fire and casualty provision to elect not to repair the premises and to instead terminate the Lease Agreement.”

NO EVIDENCE OF NEGLIGENCE BY LANDLORD

“All of the experts agreed, therefore, that the cause of the fire was probably an electrical malfunction. Additionally, none of the experts gave an opinion regarding the specific cause of the electrical malfunction. That is, the experts described possibilities of what may have been the problem with the wiring, but none could say for certain what caused the electrical malfunction. There is some uncertainty as to the exact cause in-fact of the electrical fire, but that factual dispute, although genuine, is not material because there is no evidence that Tri-State's alleged breach of duty was the proximate cause of the fire, leaving a gaping hole in the causal chain.”

EXPERT WITNESSES – ELECTRICAL FIRE

“On the causation issue, the opinions of two fire investigators and two experts were largely consistent with one another. Detective Bryan Marrone, of the City of Pittsburgh Bureau of Fire, investigated the scene on the night of the fire and stated in his deposition that the cause of the fire was an ‘electrical malfunction.’ Plaintiff's Concise Statement of Facts, (Doc. No. 63) at 6-7. When asked what he meant by ‘electrical malfunction,’ Marrone stated, ‘[a]n arc usually, but it could be - - an overheated wire is an electrical malfunction. If you have your coffee maker on and the timer malfunction, its [sic] an electrical malfunction, just for example.’ Id. at 7.

Legal Lessons Learned: Useful case to show building owners; failure to get Occupancy Permit led to needless and costly litigation – even if the landlord ultimately prevailed.

Article 1-44

ARSON: ABANDONED PROPERTY - CONVICTION FOR ARSON REVERSED - INDICTMENT STATED DEFENDANT BURNED PROPERTY OWNED BY A PERSON WHO HAD DIED 8 MONTHS PRIOR

On Dec. 10, 2010, in State Of Illinois v. Frederick Stewart, Appellate Court of Illinois, First District, 2010 Ill. App. LEXIS 1309, the Court (3 to 0) reversed Stewart’s conviction of arson. Following a jury trial, defendant, Frederick Stewart, was found guilty of arson and aggravated arson and the trial court sentenced him to concurrent terms of six and nine years' imprisonment, respectively. He will still have to serve the nine years for aggravated arson.

The State charged defendant with arson "in that he, by means of fire or explosion, knowingly damaged any real property, to wit, 5405 South Shields, Chicago, Cook County, Illinois, the property of Willie Jones without the consent of Willie Jones." Unfortunately Mr. Jones had died eight months before the fire and the property was abandoned.

The Court described the facts:

“Chicago police officer Erin Murphy testified that on June 8, 2007, she was on patrol in a marked police car with her partner, Officer Timothy Tantillo. At approximately 4:20 a.m., Officer Murphy was patrolling the area of 53rd Street and Princeton Avenue in Chicago, Illinois, which is a residential area with a number of abandoned buildings and vacant lots. Officer Murphy was patrolling north on Princeton when she looked through an alley to South Shields and observed a man, whom she identified as defendant, holding a red gas can and standing on the first-floor back porch of a vacant building located at 5405 South Shields. The officer, who was familiar with the area, testified that Shields was one block to the west of Princeton, that an alley ran between the two streets, and that people still lived in the area. Officer Murphy was able to see the building on Shields because there were only vacant lots between her and defendant.

As Officer Murphy drove through the alley toward the building located at 5405 South Shields, she noticed that defendant was wearing latex gloves and that the gas can's spout was sticking out. When Officer Murphy passed defendant, he fled on foot across several vacant lots toward Princeton. Officer Murphy followed in her squad car and saw defendant throw the gas can and the black shirt he was wearing to the ground. Defendant ultimately hopped a fence and ran into the backyard of 5345 Princeton, where he was placed into custody by Officer Tantillo. Defendant was still wearing the latex gloves at the time, and Officer Murphy was present when Detective Bell removed them from him.

Officer Murphy then retrieved the gas can and shirt that defendant had discarded. Officer Murphy saw that the back porch defendant had been standing on was on fire and called the fire department. She described the fire as ‘huge’ and testified that the entire back porch was ‘up in flames’ and that all of the windows on the back of the house were ‘busting out.’ Officer Murphy described the weather at that time as ‘very windy’ and testified that the wind was blowing ‘so strong’ to the north that it had blown the fire across the alley to a house located at 5354 South Princeton, which caught on fire. Officer Murphy also testified that the shirt she recovered smelled of gasoline and that defendant also smelled of gasoline when he was taken into custody. On cross-examination, Officer Murphy testified that she witnessed her partner search defendant when he was placed into custody and that she did not see her partner recover matches, a lighter, or any other item from defendant that could be used to start a fire.

ARSON CONVICTION REVERSED

In this case, the State charged defendant with arson "in that he, by means of fire or explosion, knowingly damaged any real property, to wit, 5405 South Shields, Chicago, Cook County, Illinois, the property of Willie Jones without the consent of Willie Jones." [Emphasis added.]

The relevant statute provides that "[a] person commits arson when, by means of fire or explosive, he knowingly: (a) [d]amages any real property, or any personal property having a value of $150 or more, of another without his consent." 720 ILCS 5/20-1 (West 2006).

“We conclude that the State failed to prove this element of the offense beyond a reasonable doubt. The State alleged in the indictment that Willie Jones was the person who had an interest in the building at 5405 South Shields. However, the primary evidence offered by the State to establish this element was Jones' death certificate, which lists his address as 5405 South Shields on the date of his death, September 22, 2006. At most, this established that Jones had an interest in the property eight months before the fire and it did not establish that Jones had an interest in the property at the time of the arson. Moreover, the eight-month period is simply too long, without more, to permit a reasonable inference that any interest Jones had in the building continued after his death until the time of the fire. The only evidence relating to that eight-month period was testimony that the building was vacant and that squatters had been seen inside of it. However, this evidence does not establish that Jones or anyone else had an interest in the property during that time or at the time of the fire. The only other evidence in the record is Sloane's testimony that ‘an older guy’ used to live in the house at 5405 South Shield but that nobody lived in the house at the time of the fire. Even assuming that this was a reference to Jones, Sloane's testimony is only consistent with the death certificate and it does not add any greater proof that Jones had an interest in the property at the time of the arson.”

AGGRAVATED ARSON UPHELD

The defendant was also charged with committing the offense of aggravated arson "in that he, in the course of committing arson, knowingly damaged partially or totally any building or structure of Gregory Sloane, located at 5354 S. Princeton, in Chicago, Illinois, and [defendant] knew or reasonably should have known that one or more persons were present therein." The aggravated arson statute provides, in relevant part:

“A person commits aggravated arson when in the course of committing arson he or she knowingly damages, partially or totally, any building or structure, including any adjacent building or structure, *** and (1) he knows or reasonably should know that one or more persons are present therein ***." 720 ILCS 5/20-1.1 (West 2006).

The Court of Appeals held: “[W]e conclude that the State proved defendant guilty of aggravated arson beyond a reasonable doubt.”

Legal Lessons Learned: If the property is abandoned, so state in the indictment

Article 1-43

DUI PLEA AGREEMENT: OHIO SUPREME COURT – DRUNK DRIVER SEVERELY INJURED 13-YEAR OLD BOY, PLEAD GUILTY AND SERVED 18 MONTHS - BOY DIED 7 YEARS LATER, PROSECUTOR RE-INDICTED DRIVER FOR AGGRAVATED VEHICULAR HOMICIDE – NEW CHARGE DISMISSED SINCE THIS PROSECUTOR DID NOT RESERVE RIGHT TO BRING NEW CHARGES WHEN NEGOTAITED PLEA AGREEMENT

On Dec. 1, 2010, in State v. Dye, the Ohio Supreme Court (5 to 1), Slip Opinion No. 2010-Ohio-5728, http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-Ohio-5728.pdf, held that James Dye was improper indicted for aggravated vehicle homicide, and set aside his additional 7 ½ year sentence; victim died seven years after defendant plead guilty to aggravated vehicular assault and drunk driving. The oral plea agreement was that he could remain on bond while presentence report was prepared (about one month), and he then served the mandatory 18 months in jail (and mandatory permanent revocation of his driver’s license). There was nothing discussed in the oral plea agreement about whether the defendant could face vehicular homicide charge if the victim died.

Note: You can watch the interesting videotaped Oral Argument before the Ohio Supreme Court on March 31, 2010, where the prosecutor attempted to convince the Court that the defendant should have known that he could still be charged with the homicide of the teen died; http://supremecourtofohiomedialibrary.org/Media.aspx?fileId=124952.

DRIVING DRUNK

The Court described the tragic event:

“On August 10, 1999, appellee, James Dye, drove his truck while Dye was under the influence of alcohol and while his driver’s license was suspended. Dye’s vehicle struck Robbie Arnold, a 13-year-old boy, in front of Arnold’s home in Concord Township, Ohio. The boy suffered severe injuries, which left him a quadriplegic. Police who came to scene of the accident observed that Dye had smelled of alcohol, had slurred his speech, and had eventually admitted having drunk seven beers before driving.

In September 1999, the grand jury indicted Dye on one count of aggravated vehicular assault in violation of R.C. 2903.08, a fourth-degree felony, and one count of driving under the influence of alcohol in violation of R.C. 4511.19, a first-degree misdemeanor. The aggravated-vehicular-assault count also added three specifications: (1) that Dye was under the influence of alcohol during the offense; (2) that he was driving with a suspended license when he committed the offense; and (3) that he had a previous conviction for driving under the influence of alcohol. Dye initially pleaded not guilty to these charges, but in November 1999, he changed his plea to guilty of aggravated vehicular assault and the first specification, driving under the influence of alcohol, as well as to the second count. Based on Dye’s guilty plea, the trial court, on the state’s motion, dismissed the other two specifications in the first count of the indictment. Despite the gravity of Arnold’s injuries, apparent at the time of the plea, the state did not reserve the right to file additional criminal charges should Arnold die from those injuries.

In addition to recommending that the second and third specifications be dismissed, the state represented that an agreement had been reached with Dye regarding bond pending sentencing:

‘THE COURT: * * * You want to continue his bond? I was considering cancelling his bond today. Had you made an agreement?

[THE STATE]: I had assumed that bond was continued. We had represented to the Defendant that that would happen.

THE COURT: You would recommend that?

[THE STATE]: Yes.

THE COURT: You were involved with the case?

[THE STATE]: Yes. That’s what we had agreed to with the same conditions, one, no driving, and two, no drug and alcohol use pending the presentence report. We are also asking that a victim impact statement be ordered.

THE COURT: I will order the victim impact statement as well. And with your recommendation I will allow him to continue on bond. (Emphasis added.)’

In December 1999, the trial court sentenced Dye to the maximum prison term for each count: 18 months for aggravated vehicular assault and six months for driving under the influence, to be served concurrently. Dye was released from prison in June 2001 after serving his full prison term."

DEATH OF VICTIM – INDICTMENT FOR VEHICULAR HOMICIDE

“On December 26, 2006, more than seven years after the date of the original incident, Robbie Arnold died from complications of his injuries, prompting the state to pursue new charges of aggravated vehicular homicide against Dye. In July 2007, the grand jury indicted Dye on three counts of aggravated vehicular homicide: (1) as a proximate result of driving under the influence of alcohol, in violation of the current R.C. 2903.06(A)(1)(a), a first degree felony; (2) recklessly, in violation of the current R.C. 2903.06(A)(2)(a), a second-degree felony; and (3) recklessly, in violation of the 1999 version of R.C. 2903.06(A), a third-degree felony. Am.Sub.S.B. No. 238, 146 Ohio Laws, Part VI, 10416, 10427.

Dye moved to dismiss the indictment on the authority of Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66, [State v. Carpenter (1993), 68 Ohio St.3d 59, 623 N.E.2d 66,] contending that his 1999 guilty plea to the aggravated-vehicular-assault and driving-under-the- influence charges was a ‘negotiated guilty plea’ within the meaning of Carpenter, and therefore, further prosecution of him for the 1999 incident was barred.. The trial court denied the motion to dismiss, concluding that Dye had not pleaded guilty to a lesser offense in 1999 and that there was insufficient evidence that the guilty plea was ‘negotiated’ within the meaning of Carpenter. Dye then changed his plea to “no contest” to Count One of the indictment, which charged aggravated vehicular homicide under the current R.C. 2903.06(A)(1)(a). The trial court found Dye guilty on that count and sentenced him to nine years’ imprisonment, less the time served on the prior aggravated- vehicular-assault conviction, for a total of seven-and- a-half years’ imprisonment, and ordered Dye to pay restitution to the victim’s family.”

PLEA AGREEMENT BREACHED

The Court held:

“When may a defendant who has pleaded guilty to an offense less than homicide prior to the victim’s death be prosecuted for homicide when the victim subsequently dies? In State v. Carpenter (1993), 68 Ohio St.3d 59, 623 N.E.2d 66, syllabus, we held, ‘The state cannot indict a defendant for murder after the court has accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries sustained in the crime, unless the state expressly reserves the right to file additional charges on the record at the time of the defendant’s plea.’ The answer depends upon the meaning of ‘negotiated guilty plea’ and whether the facts show such a plea in Dye’s case.

For the reasons that follow, we hold that Dye’s original guilty plea was a ‘negotiated guilty plea’ within the meaning of Carpenter, and accordingly, his conviction for aggravated vehicular homicide under R.C. 2903.06(A)(1)(a) is barred.”

***

“Dye’s change of plea from not guilty to guilty and the state’s later recommendation that the second and third specifications be dismissed, in conjunction with the agreement on continuation of bond, support the conclusion that Dye’s guilty plea was a negotiated plea within the meaning of Carpenter. The state obtained a definite prison term and avoided the uncertainties of trial. Dye gave up rights that may have resulted in acquittal.”

Legal Lessons Learned: A written plea agreement, signed by prosecutor, defendant and defense counsel, where prosecutor reserves right to bring vehicular homicide charge, is recommended.

Article 1-42

ARSON - MICHIGAN MAN CONVICTED IN DEATH OF TWO CHILDREN, SERVING MANDATORY LIFE SENTENCE - CLAIMS INSUFFICIENT EVIDENCE OF ARSON, SIMILAR TO TEXAS MAN EXECUTED IN 2004 - DISSENTING JUDGE SAYS “JUNK SCIENCE” USED TO CONVICT MICHIGAN MAN

[Note: In 2004, Texas executed Cameron Todd Willingham for setting fire to his home, killing his three daughters. Lawyers for the “Innocence Project” have sought to clear his name. On Oct. 14, 2010, a state appeals court halted a hearing before a state judge to give Prosecutor more time to prepare for a hearing on whether Texas wrongfully executed a man based on faulty arson evidence. http://www.csmonitor.com/USA/Latest-News-Wires/2010/1014/Texas-judge-hears-arson-case-that-could-prove-wrongful-execution. “The appeals court order came at the end of an afternoon of testimony in which two fire experts said the blaze that killed Willingham's three daughters was an accident, not arson. Florida-based fire expert John Lentini ridiculed the findings and testimony of a deputy fire marshal who concluded Willingham set the house fire that killed his 2-year-old daughter and 1-year-old twins. That fire marshal, Manuel Vasquez, has since died.”]

On Sept. 3, 2010 in Andrew Babick, Jr. v. Mary Berghuis, Warden, Brooks Correctional Facility, the U.S. Court of Appeals for 6th Circuit (Cincinnati, OH), 2 to 1, upheld the denial of a writ of habeas corpus for this inmate by a federal judge in Michigan. The inmate was convicted by jury in state court in Battle Creek, Michigan. The U.S. Court of Appeals held that his court-appointed trial attorney was not ineffective. The Court was also not persuaded by articles about Lawyers for “Innocence Project” seeking to prove that Texas executed an innocent man in 2004; Cameron Todd Willingham was convicted of setting fire to his home, killing his three daughters; Florida-based fire expert John Lentini has ridiculed the findings and testimony of a deputy fire marshal who concluded Willingham set the house fire that killed his 2-year-old daughter and 1-year-old twins.

Strong Dissent: MERRITT, Circuit Judge, dissenting.

“An egregious mistake has been made in this case. The petitioner, Babick, got convicted of arson on the basis of pure ‘junk science’ in a case the local District Attorney in Battle Creek, Michigan, refused even to bring ….” [Additional information on “Junk Science” dissent at end of this article.]

The Court’s 2 to 1 majority decision described the arson in Battle Creek, Michigan:

“At 2 a.m. on September 9, 1995, a house burned down in Battle Creek, Michigan, within minutes after Andrew Babick, Jr. left it. Two young boys died in the blaze. A jury in Michigan state court later convicted Babick of one count of arson and two counts of first- degree felony murder. The state trial court sentenced Babick to two terms of life imprisonment without possibility of parole.”

Crack cocaine buy:

“Shortly before midnight on September 8, 1995, Babick left his home to buy crack cocaine. He walked to 264 Grove Street, a house where he had bought crack before. LuQuentine Caldwell was on the porch when he arrived. LuQuentine at first denied having any crack, but eventually sold Babick a small rock for $ 20, which was double its street value. Babick took the rock to his sister's house and smoked it. He then went back to the Grove Street house, where he pounded on the door. The pounding woke Belinda Sutton, who was sleeping in one of the upstairs bedrooms with Lyndon Caldwell. Sutton went downstairs and answered the door. She says that Babick was angry and that he accused LuQuentine of selling him bad crack; but Babick says he simply wanted to buy more crack. In any event, Sutton told Babick that LuQuentine had left the house and that she did not know when he would return. She locked the door and went back to sleep. According to Sutton's trial testimony, it was about 1:30 a.m. then. Babick says he spent the next 20 minutes on the house's front porch, dozing on a sofa and smoking a cigarette. At some point he went home.

At approximately 2 a.m., a smoke alarm woke Sutton and Lyndon. Lyndon tried to reach the other bedroom, where Jacqueline Caldwell's two- and three-year-old sons were sleeping, but was turned back by thick smoke in the hallway. He and Sutton jumped from a rear window and went to a neighbor's house to call for help. The Battle Creek Fire Department received that call at 2:05 a.m. Firefighters arrived about three minutes later to find the front of the house engulfed in flames. They doused the fire and made their way upstairs, where they found the boys' charred bodies.”

Arson investigation:

“At about 3 a.m. that night, Babick tried to return to the scene a third time, but was unable to get there because the street was blocked by emergency vehicles. The following afternoon, police officers went to Babick's house and asked him to come to the station for an interview. He agreed. The officers did not place Babick under arrest, but Detective Timothy Hurtt did inform him of his Miranda rights. Hurtt also told him that the interview was being videotaped. Babick answered questions for a while, but invoked his right to counsel and ended the interview after Hurtt accused him of starting the fire.

The police also interviewed the residents of the Grove Street house and several neighbors. Officers walked a canine through the house to sniff for accelerants and took numerous floor and carpet samples for laboratory analysis. They also executed a search warrant at Babick's residence and seized a pair of shoes to which the canine alerted. Meanwhile, the Fire Department brought in an investigator from the Fire Marshal division of the Michigan State Police, in addition to the Department's own investigator.

The police eventually referred the matter to the Calhoun County prosecutor's office. The prosecutor agreed that the fire was arson, but thought there was a lack of evidence that Babick was the person who set it. The Michigan attorney general's office disagreed, however, and charged Babick with arson of a dwelling house and two counts of felony murder.

Inmate claims defense attorney was ineffective.

“Babick argues here, as he did in the district court, that his convictions were tainted by ineffective assistance of counsel and prosecutorial misconduct. But Congress has made clear that there are limits to our power to grant habeas relief; and Babick's claims, for the reasons stated below, lie beyond them. We therefore affirm the district court's denial of his petition.” ***

“Babick argues that his trial counsel's representation was deficient because she should have at least consulted an arson expert before abandoning a not-arson defense at trial. We evaluate decisions not to investigate ‘for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments….’

Flammable liquid on front porch:

Babick's argument has some force, particularly when considered in isolation. But a reasonably competent lawyer could have concluded that the prosecution's evidence of arson was the strongest part of its case. The state was prepared to produce several witnesses--experienced fire investigators, the commanding firefighter on the scene, and a canine handler--to show the fire was intentionally set. The state's theory, as set forth by two fire experts at trial, was that someone had poured flammable liquid on the front porch and then into the house through the front door and up the staircase. The state would further show that laboratory analysis had confirmed the presence of an accelerant at one of the locations where the dog had alerted--namely, the cement steps leading from the porch into the house. The state was also prepared to show that several common causes of accidental fires could be positively ruled out, since the fire had not affected the kitchen, the basement electrical panel, the furnace, or the water heater.”

Crack-dealers offered immunity:

“The evidence that Babick was the arsonist appeared weak by comparison. All of the witnesses who fingered him were admitted crack dealers testifying under immunity. Moreover, the house's owner--herself a crack dealer--had insured the house and was behind on her payments, which arguably gave her a motive to burn it down.”

But the simplest ground on which to decide Babick's claim is prejudice. He has shown none as a result of his trial counsel's failure to produce an arson expert in support of his defense.

Two Texas arson cases:

“What Babick does offer, instead, are three articles, none of them specific to his case. See Pet. Supp. Ex. A-C. Two of the articles contain nothing more than general criticism of the arson evidence used to obtain convictions in two Texas cases from the late 1980s and early 1990s. Moreover, both articles were written in 2006 and emphasize the superiority of modern forensic techniques--which of course would not have been available to an expert in 1996. The third article helps Babick even less, given that it is overwhelmingly positive about the use of accelerant-detecting canines and cautions only against relying on a dog's alert as the sole indication that an accelerant was used. That caution is irrelevant here, since the alerts were corroborated by several other indications--including two different investigators' analyses of the burn patterns at the scene, and a positive laboratory result. On this record, at least, three generic internet articles are not enough to set aside the final judgment of a state court. There is simply no way for us lawfully to hold that Babick has made the requisite showing of prejudice to prevail on his claim.”

Strong Dissent: MERRITT, Circuit Judge, dissenting.

“An egregious mistake has been made in this case. The petitioner, Babick, got convicted of arson on the basis of pure ‘junk science’ in a case the local District Attorney in Battle Creek, Michigan, refused even to bring and Magistrate Judge Ellen Carmody below would have reversed in a writ of habeas corpus. District Judge Wendell Miles reversed Judge Carmody, and we now have before us this strange junk science case brought for undisclosed reasons by an Assistant Attorney General of the State instead of the local District Attorney. I agree with the local D.A. and Judge Carmody that the case should never have been prosecuted. The evidence of arson is based on expert testimony inconsistent with the clear standards set out in the bible of arson forensic science, The NFPA (National Fire Protection Association) 921, Guide for Fire and Explosion Investigations 921 (2004 and 1995 eds.). The case has gotten this far through a combination of the state's refusal to provide the defense with an arson expert, and defense counsel's failure to understand fully and explain persuasively the need for such an expert, and the consequent failure of judges and jurors along the way to recognize that the scientific evidence on which the jury based its verdict is bogus.”

            ***

As perhaps the worst example of the junk science nature of the case, take the dog-sniff evidence offered by ‘expert’ witness Jeff Austin, who told the jury that his dog, Samantha, was ‘1000 times’ more effective at detecting fire starters or liquid accelerants than a laboratory test on burnt material. The lab testing of the materials from the house had not found accelerants in the house and Samantha's dog-sniff evidence was then used to rehabilitate or contradict the negative lab tests. The jury was misled into trusting Samantha over the arson forensic lab. The authoritative Fire Guide is unequivocal that canine evidence requires lab corroboration in order to be considered reliable. ‘Research has shown that canines have been alerted to pyrolysis products that are not produced by an ignitable liquid,’ and a positive alert by a canine that is not confirmed by a forensic lab ‘should not be considered validated.’ Fire Guide § 16.5.4.7 (describing the role of canine investigation as ‘assisting with the location and collection of samples’ for laboratory testing.) The evidence is so unreliable that, in a recent case, the federal judge even granted a Defendant's motion in limini to prohibit expert testimony of a canine handler because the alert had not been confirmed by lab testing and hence conflicted with the Fire Guide and did not meet the Daubert standards for relevancy and reliability. United States v. Myers, No. 3:10-00039, 2010 U.S. Dist. LEXIS 67939, 2010 WL 2723196 (S.D.W.Va. July 8, 2010).”

            ****

“The remainder of the evidence used to convict Babick is expert testimony of a similar nature that the national standards condemn as unreliable. Fire expert Wayne Etue told the jury that char marks on the porch were evidence of an accelerant, that a "line of demarcation" burn pattern on a carpet was "suspicious" because "it should not have burned the carpeting on these jagged edges," and repeated that the burns were "not normal" and were "unnatural." (R. 17, Trial Transcript, Volume 1, at 209, 215, 217-18, 219). Fire expert Joan Tuttle also told the jury that "low burning" and that other "unnatural" patterns indicated the presence of accelerant. Both Etue and Tuttle testified -- in direct contrast to the NFPA guide -- that they were so confident in their reading of burn patterns that the absence of any laboratory confirmation of accelerant had no effect on their testimony. (R. 18, Trial Transcript Volume 2, at 38, 53).

Legal Lessons Learned: Articles about an allegedly Texas arson investigation will continue to arise in future cases; thoroughly investigate and document your evidence.

Article 1-41

MURDER (DECAPITATION) AND ARSON - INVESTIGATORS PROPERLY GOT SEARCH WARRANT FOR CONTENTS OF DEFENDANT’S LAPTOP, FACEBOOK ACCOUNT, CELL PHONE / PDA - BUT NOT iPOD

On July 12, 2010, in State of Maine v. Chad Gurney, Superior Court of Maine, Cumberland County, 2010 Me. Super. LEXIS 96, a trial judge denied the defendant’s motion to dismiss evidence seized pursuant to search warrants, based on affidavits of two homicide detectives from Portland Police Department, from defendant’s Apple laptop, and associated storage media, his Blackberry cell phone / PDS device and associated storage media, and his Facebook, Inc. account. The Court granted motion to suppress evidence from a search warrant for the defendant’s Apple brand iPod.

The Court described the facts:

“In his affidavit, Detective Chase reported learning that the Portland Fire Department had responded to reports of smoke coming from the third floor of 463 Cumberland Avenue on May 25, 2009 at approximately 6:35 in the evening. The Department found a working fire coming from apartment # 8 and forced its way inside. As they worked to extinguish the fire, members of the Fire Department found a charred female body lying on a bed in the apartment. The body was later identified as Ms. Sarnacki. The scene was secured, and the Portland Police Detectives arrived to begin their investigation.

Apartment # 8 had been rented to Mr. Gurney and his was the sole name on the lease. Inside the apartment, detectives found that Ms. Sarnacki's head had been severed and that various items including a crucifix had been placed on or around her body prior to burning.”

Detectives talk to defendant’s friend, Corey Bryant – defendant calls himself a Prophet.”
“The detectives also learned that Mr. Gurney's best friend was Corey Bryant. Detectives Scott Dunham and Lisa Sweatt located Mr. Bryant and spoke with him at his residence on May 26, 2009, at approximately 1:00 am. Mr. Bryant told the detectives that Mr. Gurney had been planning a trip to Thailand, and that Mr. Bryant had called him on May 25, 2009, but that his calls had not been returned. In the past, Mr. Gurney had told Mr. Bryant that he believed himself to be a prophet.

Defendant wants to turn himself in:
“One hour later, at approximately 2:08 am on May 26, 2009, Portland Police Department Officer Jason King was on routine patrol when he stopped a vehicle for failing to stop at a red light. Mr. Bryant was driving the vehicle, and he was actively talking to Mr. Gurney on a cellular telephone. Mr. Bryant informed Officer King that Mr. Gurney was on the phone, and then handed the phone over. Officer King was then able to speak with Mr. Gurney and learned that Mr. Gurney was staying in Room # 107 at the Crest Motel in Old Orchard Beach. Mr. Gurney indicated that he wished to turn himself in. The Old Orchard Police Department and Detectives Rybeck and Vogel from the Portland Police were notified.”

Defendant taken into custody, computer, cell phone, iPod seized:
“At approximately 4:00 am on May 26, 2009, Mr. Gurney left his hotel room and was taken into custody. He was transported to the Portland Police Department Headquarters and interviewed by Detective Dunham. After receiving and waiving his Miranda warnings, Mr. Gurney told Detective Dunham that he had been in a struggle with Ms. Sarnacki, his girlfriend, during which he strangled her until he knew she was dead. He then decapitated her with a knife and walked to a nearby gas station to purchase gasoline. He returned to his apartment, poured the gasoline on Ms. Sarnacki's body, and ignited it. Mr. Gurney then collected a bag he had packed for his trip to Thailand, his laptop, and a shotgun and drove to the Motel in Old Orchard Beach. He claimed to have no particular reason for severing Ms. Sarnacki's head or placing the crucifix and other objects on and around her body.

Detective filed affidavit to access electronic devices:
“Detective Chase arrived at the Portland Police Department's property and evidence section at approximately 11:30 am on May 26, 2009. There he examined the electronic items that had been retrieved from Mr. Gurney's hotel room after he was taken into custody. The Apple brand laptop's LED light was on and pulsing, indicating that the computer was in ‘sleep mode.’ Detective Chase did not open the computer's lid or remove its battery because he understood that doing so would risk losing a decryption key for data stored on the computer's hard drive.

On May 29, 2009, Detective Chase requested and received a warrant to search the named electronic devices for "[c]omputer records or data, whether in printed or electronic form, that are evidence of indifference to the value of Facebook account. During the conversation Mr. Bryant indicated that he had deleted Mr. Gurney as a friend. Later interviews with Mr. Gurney's friends and former girlfriends led Detective Murphy to believe that relevant information might be contained in Mr. Gurney's Facebook account.”

Motion to suppress evidence denied for laptop, Facebook, and cell phone / PDA; granted for iPod:
“The Fourth Amendment requires a showing of probable cause prior to the issuance of a search warrant. When determining whether probable cause exists, the judicial officer must rely on 'factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act. Probable cause exists when, based on the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [Case citations deleted.]

***

“Detective Chase's affidavit provides a substantial basis for the issuing justice to find a fair probability that evidence relating to Mr. Gurney's alleged criminal activity would be found on his laptop computer, Blackberry cellular telephone/PDA device, and their attendant electronic storage devices. Mr. Gurney confessed to killing Ms. Sarnacki. Credible evidence indicated that he communicated through his Facebook account shortly before the killing, and used a cellular phone to call his friend Mr. Bryant shortly after. The Blackberry telephone and Apple computer were with Mr. Gurney when he was apprehended on the same evening. The computer was turned on when it was seized, but in sleep mode.

The justice [who reviewed the detectives affidavit] could reasonably infer that Mr. Gurney had used his computer to communicate via his Facebook account or in other ways, that he had been using the computer shortly before being apprehended, and that he had used his Blackberry phone to call Mr. Bryant. It was likewise reasonable to believe that there was at least a fair probability that evidence relating to Mr. Gurney's activities, whereabouts, communications, motives, plans, and state of mind could be stored within those devices. The motion to suppress evidence obtained from the Apple computer, Blackberry cellular telephone, and their attendant storage devices is denied.”

The trial judge finds that the iPod search warrant was improperly issued, and evidence from that device must be suppressed:

“Unlike the computer and cellular telephone, Detective Chase's affidavit does not make any mention of the Apple iPod portable music player apart from its presence with the other devices. There is no reason to believe that evidence relating to the alleged criminal activity might be found on the iPod, and the motion to suppress evidence from that device is granted.”

Legal Lessons Learned: Evidence from defendant’s electronic devices can be very helpful in prosecution; get a search warrant unless defendant consents in writing.

Article 1-40

ARSON - TOWNHOUSE FIRE - DEFENDANT SENTENCED TO 25 YEARS IN PRISON FOR ARSON OF EX-GIRLFRIEND’S RESIDENCE AND CRITICALY INJURING HER DAUGHTER - DETECTIVES DID NOT VIOLATE MARYLAND WIRETAP LAW BY SECRETLY RECORDING FIRST INTERVIEW IN DEFENDANT’S HOME, AND DID NOT VIOLATE MIRANDA SINCE DEFENDANT WAS NOT IN CUSTODY

On Oct. 1, 2010, in Scott Allen Pryor v. State of Maryland, the Court of Special Appeals of Maryland, 2010 Md. App. LEXIS 147, upheld the conviction and sentence.

The Court described the facts:
“Around 7:00 a.m. on November 19, 2007, a fire consumed an end-unit townhouse at 5769 Flagflower Place in Columbia, Maryland. The townhouse belonged to Sheryl Alman, appellant's ex-girlfriend. Ms. Alman's daughter, Breanna, and the daughter's boyfriend, Andrew Lee, were injured in the fire; Breanna was critically injured. It was determined that an accelerant, a flammable liquid used to ignite or accelerate a fire, was used, and appellant was a potential suspect. After the fire was extinguished, Detective Dombrowsky spoke with the firefighters and officers involved in extinguishing the fire and several arson investigators.”

Secret tape recording:
“Around 8:30 p.m. on the day of the fire, Detectives Dombrowsky and Davis went to appellant's home in Essex to interview him in connection with the arson. Detectives Dombrowsky and Davis, dressed in plain clothes but wearing their service revolvers, knocked on the front door of appellant's home. When appellant opened the door, the detectives identified themselves as police officers and asked if they could come inside and talk to him. Appellant invited the detectives inside and the three sat around a dining room table. Detective Davis recorded the ensuing conversation on a handheld digital audio recorder that was in his pocket. Both detectives consented to the recording of their voices; appellant did not know that the conversation was being recorded.

The detectives testified that during their conversation with appellant they did not threaten him, make any promises, or yell at him. They testified that they had no physical contact with appellant and never displayed their weapons to him. During the conversation, appellant expressed little emotion and said nothing when informed of the fire or that Breanna, Ms. Alman's twenty-one year old daughter, had been injured in the blaze. After the conversation, appellant consented to a search of his car. Detective Dombrowsky smelled gasoline coming from the trunk of the car but decided not to arrest appellant at that time. The detectives then left appellant's home.”

Search warrants for defendant and his home obtained:
“The detectives returned to the police station, conferred with several arson investigators, and obtained a search warrant for appellant and his home. Around 1:00 a.m. the next day, November 20, the detectives returned to appellant's home with an accelerant trained dog. The detectives knocked on the door, but no one answered. The detectives took the dog to appellant's parked car where the dog alerted for the presence of an accelerant. The detectives seized the car.”

Defendant arrested; confessed after Miranda warnings:
“Around 5:00 a.m. the following day, November 21, appellant was arrested and taken to a police station. Around 6:00 a.m., he was placed in an interview room that measured approximately eight feet by five feet and contained a table and three chairs. The room was wired for video and sound. Appellant was not handcuffed. After appellant waived his Miranda rights, Detective Dombrowsky and Detective Upton questioned appellant. The detectives testified that they did not wear their service revolvers, and did not threaten appellant, make any promises, or have any physical contact with him during the interview. [Defendant confessed.]”

The Court of Appeals finds the recording did not violate Maryland wiretap law, and was properly admitted into evidence:

“Appellant argues that his November 19th statement should have been suppressed because it was taken in violation of the Maryland Wiretapping and Electronic Surveillance Act ("Maryland's Wiretap Act"). Md. Code (2006), Courts & Judicial Proceedings (CJ), §§ 10-401 through 414. Specifically, appellant argues that his statement, which was recorded without his consent, was illegal because the State failed to show that when the recording was made there existed a risk to public safety as required by the statute. Appellant is legally wrong.

Maryland's Wiretap Act generally prohibits the interception or recording of oral communications except under certain enumerated circumstances, including exceptions for police officers investigating certain crimes. See CJ § 10-402(a). Specifically, the Act makes it: ‘ lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication in order to provide evidence: 1. Of the commission of… .a felony….’”

Nov. 19, 2007 interview at his home; police did not need to give him Miranda warning since defendant was not in custody.

“Appellant next argues that his statement on November 19, 2007, should have been suppressed because it was taken in violation of Miranda. Although the trial court found that appellant was not in custody when he was interviewed at his home, appellant challenges that conclusion. He argues that when he was questioned by the detectives there was a coercive quality as evidenced by: (1) the detectives interviewed him at his house around 8:30 p.m., (2) the detectives were armed with their service weapons, (3) appellant was questioned by two detectives, and (4) appellant was isolated while he was questioned. We find no error by the trial court.

In the landmark case of Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that statements obtained during ‘custodial interrogation’ were not admissible unless the suspect had been previously informed of certain constitutional rights. The Court defined ‘custodial interrogation’ as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Miranda, 384 U.S. at 444 (footnote omitted). In making that determination, ‘a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’ Stansbury v. California, 511 U.S. 318, 322 (1994) (quotation marks, brackets, and citation omitted). The interrogation is to be judged by an objective standard and not the subjective views harbored by either the interrogating officers or the person being questioned. ‘ Id. at 323.”

Legal Lessons Learned: Initial, non-custody interview, did not require Miranda warnings. Informal interview, followed up by search warrant and in-custody Miranda warning, is excellent investigative technique.

Article 1-39

FIRE INVESTIGATOR CAN BE EXPERT WITNESS - BMW CAR FIRE IN GARAGE – HOWEVER HE DID NOT HAVE ELECTRIC ENGINEERING DEGREE OR EXPERTISE ABOUT VEHICLE ELECTRICAL SYSTEMS, AND THEREFORE CANNOT TESTIFY ABOUT ANY ELECTRICAL PRODUCT DEFECT - LAWSUIT DISMISSED

On Sept. 20, 2010, in Curtis Dorn and Ann Dorn v. BMW of North America, LLC., Case No. 09-1027-WEB, U.S. District Court of Kansas, 2010 U.S. Dist. LEXIS 103725, the trial judge dismissed the lawsuit against the manufacturer.

Mr. and Mrs. Dorn purchased a new BMW 528i in 2000. On March, 2007, with 53,300 miles on the car, Mr. Dorn smelled electrical odor, but could not determine the source, when he parked it in their garage that evening.

“At approximately 9:40 PM, Curtis Dorn was alerted by his wife that there was a fire in the garage. When Curtis Dorn entered the garage, the garage was full of smoke. He grabbed a fire extinguisher and attempted to put out the fire he could see behind the grill of the BMW. He exited the garage within a short time, unable to extinguish the fire. The fire department arrived, and extinguished the fire. The fire destroyed the BMW, [his wife’s] Chrysler [minivan], and there was structural damage to the garage and the house.”

The plaintiffs hired Tim Yandell, a very experienced fire investigator, as their only expert witness. Yandell identified the area of origin for the fire as "near" the BMW's headlight assembly, or within the general engine compartment of the BMW. Yandell was not able to identify the exact point of origin due to the extent of the fire damage.

“Yandell is a Certified Fire Investigator, a Nationally Certified Fire and Explosion Investigator in Oklahoma, and a Nationally Certified Vehicle Fire Investigator. Yandell has investigated or assisted in approximately 1000 origin and cause investigations, including structure and vehicles. Yandell has qualified in court as an expert witness in one Federal Court case, and six State Court cases. Yandell is also a National Fire Instructor for Public Agency Training Council, where he teaches Fire Investigation Based on NFPA 921 and NFPA 1033, Hands on Vehicle Fire / Arson Investigation and Phase 2 Hands on Fire / Arson Investigation Based on NFPA 921 and NFPA 1033. Yandell has also authored and co-authored three training manuals on fire investigation.”

BMW of North America designated Dennis Himmler as an expert witness. Himmler is an electrical engineer. Himmler was not able to identify the cause of the fire.

After pre-trial discovery, including deposition of Tim Yandell, BMW filed a motion to exclude the expert testimony of Yandell, since he was not an electric engineer. They also filed a motion for summary judgment.

The trial judge held that Yandell can testify as an expert about where in the car the fire originated, but he cannot testify to any product defect (“mechanism of failure”). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the U.S. Supreme Court set forth a two part test for admission of expert testimony under Rule 702. First, evidence must be reliable, and second, it must be helpful to the jury. Id. at 590-91.

“Although Yandell is not an electrical engineer, he is a certified fire investigator, with years of experience investigating fires. One aspect the court should consider in determining whether to allow an expert is whether the expert's testimony will be helpful to a jury. Clearly, based on Yandell's investigation, experience, and knowledge of fires, his testimony will be helpful to a jury. Yandell is qualified as an expert in fire investigation, including cause and origin investigation such as the one conducted in this case. Yandell employed the standard methodology for fire investigation to reach his conclusions. Yandell's testimony will be limited to the fire investigation, methodology, and the origin of the fire.”

Plaintiff’s expert witness can not testify about any electrical defect in the BMW:

“Plaintiff has not set forth any evidence that Yandell has any expertise which would allow him to conclude that the cause of the fire was the energized electrical wiring, wiring connections or components associated with the engine compartment of the BMW. Yandell states that the fire is ‘directly related’ to the engine compartment, however, the court cannot determine how he developed this conclusion. Yandell is not an electrical engineer, and does not claim to have any knowledge or expertise in this area. In fact, Yandell testified that he is not qualified to testify as to the cause of the fire. In his deposition, he stated that he did not make a finding or determination of a mechanism of failure that caused the fire, (Yandell Depo, p. 21), and he stated the auxiliary cooling fan and or its wiring or connections or components associated could be a possible cause of the fire, but he cannot state that with any reasonable degree of scientific certainty. (Yandell Depo., p. 91) Yandell was unable to determine the distance of the fire origination from the head lamp assembly, only that it occurred near the head lamp, (Yandell Depo., p. 114-15).”

Since there is no proof of a product defect, the lawsuit against BMW North America must be dismissed. Under Kansas law, to sue the manufacturer of a product for “strict liability” the plaintiff must produce proof of three elements: 1) the injury resulted from a condition of the product, 2) the condition was an unreasonably dangerous one; and 3) the condition existed at the time it left the defendant's control.

Legal Lessons Learned: A fire investigators may be an expert witness, but lack of expertise can limit effectiveness.

Article 1-38

INSPECTIONS: NYC – MAYOR BLOOMBERG’S OFFICE OF SPECIAL ENFORCEMENT - CRACKING DOWN ON NOTORIOUS ADULT LOCATIONS, LAWLESS CLUBS, ILLEGAL CONVERSIONS OF APARTMENT BUILDINGS INTO HOTELS

On September 9, 2010, in James McGown v. The City of New York, et al., 09 Civ. 8646 (CM), U.S. District Court for Southern District of New York, 2010 U.S. Dist. LEXIS 96595, a U.S. District judge ordered pre-trial discovery to proceed in a lawsuit filed by a property owner under 42 USC 1983 (“1983 suit”). Facts in case illustrate an aggressive inspection program, with New York City Environmental Control Board, building department, fire department, and police department all teamed up to improve “quality of life” in the Big Apple. At the end of pre-trial discovery, the city will likely file a motion for summary judgment.

The Court described the 2007 fire code and building inspections:

“The plaintiff owns premises located at 63 and 65 Fourth Avenue in Brooklyn, New York. The buildings are adjacent multiple use buildings with commercial space on the ground floor and residential units on the upper floors. The ground floor establishment at 65 Fourth Avenue is known as the Cherry Tree Restaurant; it is operated by plaintiff.

The incidents that give rise to the instant lawsuit began on May 11, 2007, when the Cherry Tree Restaurant was subject to an inspection by representatives of the New York City Department of Buildings ("DoB"). At the conclusion of the inspection, individual defendants Magdi Mossad and Michael Maffei, acting in their capacity as employees of the City of New York, issued a peremptory vacate order to issue with respect to the rear yard of 65 Fourth Avenue, citing ‘combustible fixed seating . .. obstructing the fire escape drop ladder ... [and] rear yard ... being used in connection with eating and drinking premises without adequate egress.’ (Am. Compl. Ex. A.)”

More inspections – upper floors; hostels padlocked:

“[O]n October 4, 2007, [Edward] Mungin [New York City Environmental Control Board] issued a second notice of violation against the Cherry Tree. The substance of the purported violation was identical to the first-- namely, that the Certificate of Occupancy did not permit the use of the premises as an eating and drinking establishment. (Id Ex. G.) Plaintiff appeared at a hearing and contested this notice of violation on November 29, 2007.

The day before the November 29 hearing, Mungin visited the property yet again and issued a third notice alleging that the Cherry Tree was operating in violation of the building's Certificate of Occupancy. (Id. Ex. H.) At the same time, Mungin, assisted by Inspector Edward Rivera of the New York City Fire Department, inspected the upper floors of the premises and issued a Peremptory Vacate Order (id. Ex. I), alleging that the upper floors of plaintiff's properties were being occupied as hostels. The Notice to Vacate was signed and stamped by defendant Bryan Winter, in his capacity as Brooklyn Deputy Borough Commissioner for the DoB. Mungin, accompanied by various police officers, including defendant Thomas Davis, seized plaintiff's property, entering thereon, changing the locks and padlocking the premises.”

Another inspection – 20 minutes after complaint received:

“On January 8, 2008, the ECB issued yet another notice of violation, this one in the nature of a stop work order, alleging that construction was occurring on plaintiff's property without permits. (Am. Compl. Ex. N.) The notice issued following the receipt of complaint number 3249984, which was received at the ECB at 1:40 PM on January 8, 2009. Although it is allegedly ‘exceedingly rare’ for a complaint to be investigated by the DoB on the day it is filed, Mungin arrived at plaintiff's property at 2 PM on January 8, 2008-20 minutes after the complaint was filed. Plaintiff avers that Mungin himself had to have filed the complaint that led to the issuance of the stop work order; the timing certainly suggests that this was the case. Plaintiff also alleges that he had a valid work permit for the work that was being performed: Permit 310030784-01-EW-OT, issued on October 10, 2007. (Id. Ex. O.)

All of the orders issued by Mungin bear the legend ‘OSE’ in the ‘basis of violation’ space. ‘OSE’ is the Mayor's Office of Special Enforcement, an office created by Mayor Bloomberg by executive order ‘to address quality of life issues related to notorious adult use locations, lawless clubs . . . and illegal conversions of apartment buildings into hotels.’ (Id. Ex. P.) Plaintiff alleges that Mungin's actions were not within the scope of the administrative ambit of OSE, to which he was at all relevant times assigned, thereby causing the issuance of the various violations and notices and stop work orders ultra vires.

Lawsuit filed by property owner pro se (no attorney) with over 200 paragraphs:

“The detailing of the allegations summarized above consumes the first 201 paragraphs of plaintiff's Amended Complaint. *** It alleges that the City of New York is liable to him, under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), due to the City's (1) failure to train its employees on the constitutional and statutory limits of their authority, as well as its (2) retention of Mungin--an "agent [of] vicious propensities"--in its employ. Plaintiff also alleges that the City maintained a policy, practice and custom of levying pretextual violations on building owners ‘for personal or vindictive motivations.’ (Am. Compl. P 245) (Third Cause of Action).”

Legal Lessons Learned: Nice to read about an aggressive inspection program to improve “quality of life.”

Article 1-37

AUSTRALIA AND NEW ZEALAND : SMOKE DETECTORS

We are honored to authorize the UC Fire Science smoke detector seminar video of June 28, 2010 to be shared with FDs throughout Australia and New Zealand. See following web page: http://theworldfiresafetyfoundation.org/fffs.html.

Perhaps fire codes will be amended in those nations, as they have been in a few states in USA, to require Photoelectric or Dual detectors, in commercial structures and rental property.

Legal Lessons Learned: FDs throughout the world have an opportunity to educate their residents about Photoelectric versus Ionization detectors.

Article 1-38

TN: ARSON - CAUSE AND ORIGIN EXPERT FOR OWNER OF BUILDING WAS KEY WITNESS - INSURANCE COMPANY FAILED TO PROVE ARSON – BUILDING OWNER ENTITLED TO SEEK MORE DAMAGES FROM NEW JURY

On July 30, 2010, in Acuity Mutual Insurance Company v. Darrell Frye and Lafonne Frye, d/b/a Trinity Learning Center, Case No. 1:09-cv-157, 2010 U.S. Dist. LEXIS 77787, a federal district judge in Tennessee denied the insurance company’s post trial motion.

The federal judge described the jury’s verdict:

“The jury returned a verdict finding that Darrell Frye did not intentionally set fire to the insured building. The jury awarded the following damages to Darrell and LaFonne Frye on their counterclaim under the fire insurance policy. The jury found that: (1) Darrell Frye proved the reasonable value of the fire loss and damage to the insured building is $35,000; (2) LaFonne Frye proved the reasonable value of the fire loss and damage to her business property in connection with the Trinity Learning Center is $4,500; and (3) LaFonne Frye proved loss of business income from the Trinity Learning Center in the amount of $18,000.

***

Acuity Mutual Insurance Company ("Acuity") moves for judgment as a matter of law notwithstanding the jury's verdict on the issues of arson and damages. Acuity argues that the evidence at trial conclusively proves the fire was deliberately set by Darrell Frye.”

The judge denied the motion:

“Darrell Frye testified that he did not deliberately set the fire. The fire started inside the enclosed ceiling above the second floor. Ordinarily, people bent on committing arson do not crawl into enclosed ceilings to set fires. The timing and circumstances of the fire raise legitimate questions about whether Darrell Frye could have had sufficient time to set the fire in the enclosed ceiling and then make his escape without quickly triggering the building's fire alarm. The building's smoke and heat detection systems were on and operating at the time of the fire. The Chattanooga Fire Department has a fire station located one city block away from the burned building. The building's smoke and heat detection systems were activated by the fire and sent an alarm to the fire station. The Chattanooga Fire Department promptly responded to the alarm and put out the fire. It is reasonable to infer that Darrell Frye would have needed more time to have an opportunity to get away from the premises before the fire alarm would be triggered so as to avoid being seen or caught committing arson.

Lieutenant Terrence Andrews from the Chattanooga Fire Department testified that he responded to the fire. When Lieutenant Andrews went inside the building, he did not smell the presence of any accelerant. There is nothing in the Chattanooga Fire Department's official report about an accelerant such as lighter fluid being involved in starting the fire.

Cause and Origin expert testimony:

“Darrell Frye presented expert testimony from a competent fire cause-and-origin investigator, Jerry Carter ("Carter"). Carter testified that in his expert opinion the exact cause and origin of the fire could not be determined because plaintiff Acuity's experts removed significant amounts of electrical wiring from the burned building before Carter began his investigation. Carter could not eliminate the possibility that the fire was caused by defective electrical wiring. In the final paragraph of his report [Defendant's Trial Exhibit 2, p. 6], Carter states: ‘Although no definitive cause of this fire can be related to an electrical malfunction within the enclosed ceiling space because of the alterations by prior investigators, no evidence was found to conclude that this fire was incendiary in nature.’

Acuity's motion for judgment as a matter of law notwithstanding the jury's verdict will be denied because reasonable persons could draw more than one conclusion from the evidence. The jury was entitled to believe and give credence to the testimony of Darrell Frye and his expert witness, Carter. A reasonable jury could find that Acuity did not meet its burden of proving by a preponderance of the evidence that Darrell Frye intentionally set the fire.”

Building owners entitled to new jury trial on actual losses:

“Darrell and LaFonne Frye argue that they proved they are entitled to recover damages up to the maximum limits of coverage in the fire insurance policy. The insurance policy provides coverage for fire loss to the insured building owned by Darrell Frye up to a maximum of $218,500. The policy provides coverage for fire loss to the business property of the Trinity Learning Center up to a maximum limit of $20,000. The policy also provides coverage for loss of business income derived from the Trinity Learning Center up to a maximum of $125,000.

***

“Acuity again asks the Court to indulge in speculation about the jury's deliberations. As discussed supra, Acuity speculates that a majority of the jurors felt that the fire was intentionally set by Darrell Frye and the majority agreed to a compromise verdict with one holdout juror. Acuity contends that the jury compromised by reducing the amount of damages because the majority of jurors felt that the fire was intentionally set by Darrell Frye. The Court cannot indulge in such speculation and conjecture about the jury's deliberations.”

***

“After reviewing the evidence, the Court concludes that the jury's verdict and award of $35,000 is unreasonable and against the clear weight of the evidence. The uncontroverted evidence established that the loss and damage to the insured building exceeded the maximum coverage limit of $218,500 in the insurance policy. A reasonable jury could not reach the verdict that the fire loss and damage to the insured building is an extremely low $35,000. The verdict of $35,000 is inadequate to compensate Darrell Frye because it is substantially less than the amount of damages that was unquestionably proved by the undisputed evidence. A new trial on the issue of damages to the building is appropriate because the jury's award of $35,000 bears no reasonable relation to the uncontroverted evidence.

The motion by Darrell Frye for a new trial is GRANTED pursuant to Rule 59 solely on the issue of determining the reasonable value of the fire loss and damage to the insured building.”

Legal Lessons Learned: Cause and origin expert for plaintiff was key witness; nice career opportunity for some retired firefighters.

SMOKE DETECTORS - NEW AUSTRALIAN VIDEO - PROBLEMS WITH IONIZATION SMOKE ALARMS

On June 14, 2010, The World Fire Safety Foundation, Australia, posted a “must see” video: http://theworldfiresafetyfoundation.org/home.html.

For further information, contact:

Adrian Butler
Co-Founder, Chairman, former full-time firefighter
Suite 1, Level 4, NFPTV House
23 Ocean Grove, Currumbin, QLD 4223, Australia
W: www.TheWorldFireSafetyFoundation.org
E: ab@TheWFSF.org.

In April, 2010, the Southwest Ohio Fire Safety Council (including 40 local FDs) published their Position Paper on residential smoke detectors, including:

“Our documentation clearly supports the replacement if ionization smoke detectors with photoelectric smoke detectors in areas commonly exposed to false alarms (i.e. kitchens and bathroom areas). *** The remaining portions of all homes should be protected, at a minimum, by smoke detectors utilizing both photoelectric and ionization technologies.”

The entire position paper posted on UC Fire Science web page: www.uc.edu/cas/firescience - Smoke Detector seminar, June 28, 2010.

The seminar will include a roundtable discussion by representatives of Hamilton County Fire Chiefs Association, addressing the issue of “What type of smoke alarms should Fire Departments recommend to the public (ionization, photoelectric or dual)?” The entire seminar will be videotaped and posted on our web page: www.uc.edu/cas/firescience - Video Seminars Now Online.

Legal Lessons Learned: Numerous states in the United States are now considering legislation requiring photoelectric or dual smoke detectors in residential rental properties. Vermont has recently enacted a photoelectric law. One of our guest speakers at the June 28 seminar will be Captain Russell Ashe, City of Barre, Vermont FD (rashe@barrecityfire.org); see their FD’s dramatic video, http://barrecityfire.org ). For a nationwide list of smoke alarm laws, see http://smokealarmpro.com/smoke-alarm-laws/.

Article 1-35

U.S. SUPREME COURT – MIRANDA WARNINGS – CONFESSION AFTER 3-HOURS INTERROGATION ADMISSIBLE – AFTER GIVING MIRANDA WARNINGS, POLICE MAY CONTINUE TO QUESTION UNLESS THEY ARE ASKED TO STOP

On June 1, 2010, in Berghus, Warden v. Van Chester Thompkins, the U.S. Supreme Court held 5 to 4, that a defendant who failed to ask for an attorney, and failed to ask police to stop questioning him, can not suppress his incriminating statement made after a 3-hour interrogation. http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf.

A Michigan jury convicted Thompkins of first-degree murder. Justice Kennedy wrote the majority decision, referencing the following facts:

“On January 10, 2000, a shooting occurred outside a mall in Southfield, Michigan. Among the victims was Samuel Morris, who died from multiple gunshot wounds. The other victim, Frederick France, recovered from his injuries and later testified. Thompkins, who was a suspect, fled. About one year later he was found in Ohio and arrested there.

Two Southfield police officers traveled to Ohio to interrogate Thompkins, then awaiting transfer to Michigan. The interrogation began around 1:30 p.m. and lasted about three hours. The interrogation was conducted in a room that was 8 by 10 feet, and Thompkins sat in a chair that resembled a school desk (it had an arm on it that swings around to provide a surface to write on)...

At the beginning of the interrogation, one of the officers, Detective Helgert, presented Thompkins with a form derived from the Miranda rule. It stated:

‘NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT

1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.
5. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.’

Helgert asked Thompkins to read the fifth warning out loud… Thompkins complied. Helgert later said this was to ensure that Thompkins could read, and Helgert concluded that Thompkins understood English.… Helgert then read the other four Miranda warnings out loud and asked Thompkins to sign the form to demonstrate that he understood his rights…. Thompkins declined to sign the form. The record contains conflicting evidence about whether Thompkins then verbally confirmed that he understood the rights listed on the form. Compare id., at 9a (at a suppression hearing, Helgert testified that Thompkins verbally confirmed that he understood his rights), with id., at 148a (at trial, Helgert stated, “I don’t know that I orally asked him” whether Thompkins understood his rights).

Officers began an interrogation. At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney….Thompkins was ‘[l]argely’ silent during the interrogation, which lasted about three hours….. He did give a few limited verbal responses, however, such as ‘yeah,’ ‘no,’ or ‘I don’t know.’ And on occasion he communicated by nodding his head…. Thompkins also said that he ‘didn’t want a peppermint’ that was offered to him by the police and that the chair he was ‘sitting in was hard.’

About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, ‘Do you believe in God?’ …. Thompkins made eye contact with Helgert and said ‘Yes,’ as his eyes ‘well[ed] up with tears.’ …. Helgert asked, ‘Do you pray to God?’ Thompkins said ‘Yes.’ …. Helgert asked, ‘Do you pray to God to forgive you for shooting that boy down?’…. Thompkins answered ‘Yes’ and looked away.

Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later.… Thompkins was charged with first-degree murder.” [Footnotes and references to transcript pages deleted.]

The majority decision found that the defendant waived his right to remain silent, and there no specific formality required to establish this waiver. Justice Kennedy writes:

“The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time. Thompkins’s answer to Helgert’s question about praying to God for forgiveness for shooting the victim was sufficient to show a course of conduct indicating waiver. This is confirmed by the fact that before then Thompkins had given sporadic answers to questions throughout the interrogation.”

Justice Kennedy summarized the majority decision:

“In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins’ right to remain silent before interrogating him.”

Legal Lessons Learned: Police and other law enforcement officials, including arson investigators, do not need to re-warn suspects of their Miranda rights, and do not half to get a written waiver to proceed with questioning after giving the Miranda rights.

Article 1-34

OHIO – SOVEREIGN IMMUNITY DOES NOT APPLY IF “RECKLESS OR WANTON MISCONDUCT” – POLICE ARRESTED WRONG PERSON ON CIVIL WARRANT – LOOKING FOR JACQUELYN O. WALKER, BUT ARRESTED JACQUELYN R. WALKER

On April 11, 2010, the Ohio State Bar Association published the Nov. 20, 2009 decision in Walker v. City of Toledo, 185 Ohio App.3d 212, 2009-Ohio-6259, where the Court of Appeals for Sixth District, Lucas County, held (3 to 0) that the trial judge properly denied the pretrial motion of the City of Toledo and five police officers to be dismissed from the lawsuit. The city and the police filed an immediate appeal on the claim of sovereign immunity for the city and qualified immunity for its officers. The decision is instructive for the fire service, since it holds that failure to follow departmental procedures can be found to be “reckless or wanton misconduct” which is an exception to the immunity statutes.

Jacquelyn R. Walker was arrested on a capias warrant (Latin for "that you take” – warrant issued in a civil case, such as to collect a judgment for a debt; not a criminal case) that was for another person, “Jacquelyn O. Walker.” She was arrested by Toledo police officers, transported to jail and held for an extended period of time. [Their procedures call for officers to carefully confirm the proper identify of the defendant arrested on a capias; per the lawsuit allegations, these procedures were not followed.]

The trial judge did dismiss from the lawsuit the Lucas County Sheriff’s Department, since they followed normal jail booking procedures. The trial judge refused to dismiss the City of Toledo and the police officers, finding that the complaint alleged sufficient facts that meet the exception to the Ohio political subdivision immunity statute, Ohio Rev. Code 2744.03(A)(6):

“(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.”

The Court of Appeals agreed with the trial judge, finding the lawsuit sufficiently alleged facts that could lead a jury to conclude the arresting officers conduct to be “reckless” and “wanton misconduct.”

Recklessness: Quoting from Ohio Supreme Court 2008 decision in O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, “[r]ecklessness is a perverse disregard of a known risk. Recklessness, therefore, necessarily requires something more than mere negligence. The actor must be conscious that his conduct will in all probability result in injury.”

Wanton Misconduct: Quoting from Ohio Supreme Court 1997 decision in Hawkins v. Ivy, 50 Ohio St.2d 114, 4 O.O.3d 243, “Where the driver of an automobile fails to exercise any care whatsoever toward those to whom he owes a duty of case, and his failure occurs under circumstances in which there is a great probability that harm will result, such failure constitutes wanton misconduct.”

Legal Lessons Learned: This would be an excellent case to review during emergency driver training, since Ohio law requires drivers of emergency vehicles “upon approaching a red or stop sign shall slow down as necessary for safety to traffic, but may proceed cautiously pass such red or stop sign or signal with due regard for the safety of all persons using the street or highway.” Ohio Rev. Code 4511.03.

Article 1-33

ILIINOIS – ARSONIST GETS 190 YEARS IN PRISON - BURNS OWN HOME AND KILLS HIS ELDERLY MOTHER IN FIRE – NOW CLAIMS INEFFECTIVE ASSISTANCE OF COUNSEL FOR ALLOWING HIM TO TAKE THE STAND AND TESTIFY AT TRIAL - DENIED

On May 13, 2010 in United States of America v. Marc E. Thompson, Civil Action No. 09 C 7685 (04 CR 944), 2010 U.S. Dist. LEXIS 47941, the U.S. District Judge who sent the defendant to prison after the jury convicted him, denied his motion for to reduce his sentence based on alleged ineffective assistance of defense counsel. A jury convicted him on all 19 counts charged, including wire fraud, bankruptcy fraud, and money laundering, and judge sentenced him to 190 years in prison.

The trial judge described the facts:

“The convictions arose from Thompson's devious plan to collect on a homeowner's insurance policy and shield the proceeds from creditors. In attempting to conceal his fraudulent scheme, Thompson caused the death of his own mother while attempting to make it appear as if she committed suicide….

At one time, Thompson was a successful investment broker and a member of the Chicago Board of Trade. He earned upwards of $ 1 million a year. His finances unraveled after an acrimonious divorce. He lost his position and began borrowing significant sums of money from business associates and friends. Faced with mounting financial obligations, Thompson began hiding assets from his ex-wife and creditors. In September 2000, he was afforded a brief respite from his financial troubles when his insurance carrier promptly paid a $50,000 claim for possessions allegedly stolen from his home. 1 In June of the following year, Thompson moved his then 89-year old mother, Carmen, from California to live with him in Chicago on the pretext she would just be visiting. He arranged for her California home to be sold, and then quickly spent most of the proceeds.

[1 Thompson was not charged with fraud relating to his first insurance claim. However, evidence adduced at trial indicates that several expensive possessions that were reportedly stolen in 2000 remained in Thompson's possession. See Trial Tr. 1934-49.]

Shortly thereafter, Thompson devised a scheme to defraud his insurance carrier by setting fire to his Chicago residence. The scheme would cost Carmen Thompson her life. Thompson increased his homeowner's insurance policy. He began telling others that his mother was acting delirious and suicidal. He went so far as to have a physician prescribe Carmen an anti-psychotic drug without an examination. He paid a trial witness to move boxes of personal belongings from his house to an unattached garage just before the fire. He told his housekeeper that Carmen wanted to go in the basement and burn the house down.

On August 11, 2002, Thompson took two of his sons to a nearby restaurant for dinner. They stopped home afterwards before continuing on to a movie theater. Only ten minutes after their departure, neighbors saw smoke from the house and called 911. Firefighters quickly extinguished the blaze, but found Carmen in the basement, dead of smoke inhalation about four feet from the fire's origin. A Chicago Fire Department investigator opined that the fire was caused by a flammable liquid poured or splashed in the area of origin and ignited with an open flame.

Thompson arrived home after the fire was under control, and told Chicago Police detectives that his mother acted in a psychotic manner, was taking medications, had previously burned herself, and had talked of committing suicide in the past. The detectives quickly ended their investigation, and the medical examiner declared Carmen's death a suicide.

The detectives and medical examiner were not aware of suspicious circumstances surrounding the fire. Thompson was in financial distress. His account of the night of the fire conflicted with his neighbors' observations. He claimed to have left his home around 6:15 p.m., but neighbors saw him leave around 7:00 p.m., only minutes before they saw smoke. Carmen had physical disabilities that would limit her ability to descend the steep stairs to the basement or carry canisters of incendiary liquids. At the time of her death, she had alcohol, Valium, and the anti-psychotic drug in her system. Valium was prescribed to Thompson, not to his mother. A codicil to Carmen's will dated one week before the fire stated she did not want an autopsy performed in the event of her death and that she wished to be cremated immediately. The attorney who drafted her original will knew nothing of the codicil.

The night of the fire, Thompson called his insurance carrier but waited until the following morning to notify his sister of their mother's death. Thompson ultimately collected over $ 600,000 in insurance claims as a result of the fire. He wasted little time in transferring most of the money to an offshore account he previously used to hide assets from his ex- wife and creditors. Then, in 2003, Thompson filed for bankruptcy, seeking to rid himself of his outstanding debts. At trial, he admitted fraudulently concealing assets from the bankruptcy court and lying under oath to the bankruptcy trustee.

In August 2005, a jury found Thompson guilty of all charged offenses. This court determined that Thompson deliberately killed his own mother as part of his fraudulent scheme, and sentenced him to 190 years' imprisonment. Thompson's conviction and s entence were affirmed; the Supreme Court denied certiorari. United States v. Thompson, 523 F.3d 806 (7th Cir. 2008), cert. denied 129 S.Ct. 770 (2008).”

Three Nights Prior To Fire – Tries To Show Mother Suicidal:

“Before and after the fire, Thompson told several trial witnesses, including his housekeeper and Chicago Police detectives, that his mother was suicidal and wanted to burn the house down. One of the detectives who responded to the fire found matches and burn marks in Carmen's bedroom. Only three nights before the fire that took her life, Thompson took Carmen to a local hospital for a burn injury to her shoulder, claiming Carmen had burned herself when left alone. The injury could have been construed as an unsuccessful suicide attempt. Carmen's body was found only feet from the fire's origin, and nearly empty cans of accelerants were found nearby. A responding firefighter and Wiley-Earls detected the smell of an accelerant at the scene of the fire. The evidence supported the government's theory that Thompson staged the fire to make it look like a suicide, especially when viewed in light of Thompson's greed, financial troubles, and conflicting statements. But the evidence was also consistent with the defense's theory that Carmen started the fire intentionally to carry out her previous threats. It was the jury's province to decide credibility. The jury was not persuaded that Thompson's version of events raised a reasonable doubt about his guilt.

Claim of Ineffective Assistance of Counsel Denied:

“Thompson contends his trial attorneys failed to explain the risks of testifying to him. He asserts that, but for this failure, he would not have testified at trial and been thoroughly impeached with his prior history of dishonesty and fraud. One of Thompson's trial attorneys disputes the allegation, noting Thompson was advised not to testify because his prior dishonest conduct would be brought out on cross-examination. See Government's Resp. Ex. A: Clark Affidavit.”

Legal Lessons Learned: Great investigation led to a great sentence – 190 years in prison.

Article 1-32

U.S. SUPREME COURT – LANDMARK DECISION – JUVENILES TRIED AS ADULTS FOR CRIMES WHERE NO ONE WAS KILLED – CANNOT BE SENTENCED TO LIFE IN PRISON WITHOUT POSSIBLITY OF PAROLE

On May 17, 2010, in Graham v. Florida, 560 U. S. ____ (2010) http://www.supremecourt.gov/opinions/09pdf/08-7412.pdf, the U.S. Supreme Court held (6 to 3), that that the State of Florida violated the 8th Amendment to the U.S. Constitution (“cruel and unusual punishment”) by sentencing a 17-year-old Jacksonville felon to life in prison without possibility of parole. This decision directly affects 37 states, the District of Columbia, and the federal government, which have enacted tough, no parole sentencing statutes (129 juvenile offenders are currently serving such a sentence, including 77 in Florida).

Justice Kennedy wrote for the majority: “The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.”

Terrance Graham was born to parents addicted to crack cocaine; he was diagnosed with ADHD (attention deficit hyperactivity disorder) in elementary school. By age 9 he was smoking cigarettes and drinking alcohol, and by age 13 he was smoking marijuana. He was arrested for his first felony at age 16.

The Court described a restaurant attempted robbery:

“In July 2003, when Graham was age 16, he and three other school-age youths attempted to rob a barbeque restaurant in Jacksonville, Florida. One youth, who worked at the restaurant, left the back door unlocked just before closing time. Graham and another youth, wearing masks, entered through the unlocked door. Graham’s masked accomplice twice struck the restaurant manager in the back of the head with a metal bar. When the manager started yelling at the assailant and Graham, the two youths ran out and escaped in a car driven by the third accomplice. The restaurant manager required stitches for his head injury. No money was taken. *** [He was charged by prosecutors as an adult with two felonies: armed burglary with assault or battery (Class 1 felony – possible life in prison without parole), and attempted armed robbery. He pled guilty to both charges]

The trial court accepted the plea agreement. The court withheld adjudication of guilt as to both charges and sentenced Graham to concurrent 3-year terms of probation. Graham was required to spend the first 12 months of his probation in the county jail, but he received credit for the time he had served awaiting trial, and was released on June 25, 2004.”

Six months later – home invasion robbery:

“Less than 6 months later, on the night of December 2, 2004, Graham again was arrested. The State’s case was as follows: Earlier that evening, Graham participated in a home invasion robbery. His two accomplices were Meigo Bailey and Kirkland Lawrence, both 20-year-old men. According to the State, at 7 p.m. that night, Graham, Bailey, and Lawrence knocked on the door of the home where Carlos Rodriguez lived. Graham, followed by Bailey and Lawrence, forcibly entered the home and held a pistol to Rodriguez’s chest. For the next 30 minutes, the three held Rodriguez and another man, a friend of Rodriguez, at gunpoint while they ransacked the home searching for money. Before leaving, Graham and his accomplices barricaded Rodriguez and his friend inside a closet.”

Another robbery same night:

The State further alleged that Graham, Bailey, and Lawrence, later the same evening, attempted a second robbery, during which Bailey was shot. Graham, who had borrowed his father’s car, drove Bailey and Lawrence to the hospital and left them there. As Graham drove away, a police sergeant signaled him to stop. Graham continued at a high speed but crashed into a telephone pole. He tried to flee on foot but was apprehended. Three handguns were found in his car.”

Two or three other robberies:

[The investigating detective] “asked Graham ‘Aside from the two robberies tonight how many more were you involved in’” Graham responded, ‘Two to three before tonight….. The night that Graham allegedly committed the robbery, he was 34 days short of his 18th birthday.”

The Florida trial judge revoked his probation from the 2003 restaurant armed burglary and attempted robbery. The prosecutor recommended 30 years in jail. The judge disagreed, finding that the public needed to be protected, and sentenced Graham to life in prison. Florida’s tough sentencing statute provides for no parole.

The U.S. Supreme Court, however, has now ordered Graham to be re-sentenced; Justice Kennedy wrote the majority opinion (6 Justices):

“Terrance Graham’s sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.”

Justice Thomas wrote the dissenting opinion (3 dissenting Justices):

“[The majority decision] rejects the judgments of those legislatures, judges, and juries regarding what the Court describes as the ‘moral’ question of whether this sentence can ever be ‘proportionat[e]’ when applied to the category of offenders at issue here…. I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority.
I respectfully dissent.”

Legal Lessons Learned: The fire service will be affected by this decision since repeat juvenile arsonists can no longer be sentenced to life without parole.

Article 1-31

MD: EXPERT TESTIMONY – DEPUTY STATE FIRE MARSHAL WITH 370 FIRE INVESTIGATIONS IS AN EXPERT WITNESS AND HIS AFFIDAVITS AND TESTIMONY ADMISSIBLE IN EVIDENCE IN CIVIL LAWSUIT

On March 11, 2010, in The Main Street Group v. Search, Roebuck, and Co., 2010 U.S. Dist. Lexis 22667, held that a fire investigator was a qualified “expert witness” to testify about the cause and origin of a structure fire on Nov. 12, 2007, which began in the garage near a Sears / Kenmore freezer.

The Main Street Group is the insurance carrier for the homeowner, and filed a lawsuit to recover its losses from Sears, Roebuck. They rely in part on the expert witness affidavit of a Deputy State Fire Marshal Edward Ernst.

Sears, Roebuck filed a motion to strike this affidavit. The trial judge denied the motion, on the basis of the Federal Rules of Evidence and the U.S. Supreme Court decision in Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993). The Court held that Deputy State Fire Marshall is an expert witness:

“Deputy State Fire Marshal Edward Ernst joined the State Fire Marshal's Office in 2001, at which point he began on-the-job training in fire investigations. At the time of the incident at issue, he had some experience investigating fires, but he had not obtained a Certified Fire Investigator ("CFI") or Certified Fire and Explosion Investigator ("CFEI") certificate. (Deposition of Edward L. Ernst ("Ernst Dep.") at 9-12.) By the time of his deposition, he had investigated over 370 fires and testified as an expert in several courts. (Ernst Dep., Exh. 1 Curriculum Vitae.)

Ernst responded to the fire at the Castle-Horne residence as a firefighter and began to investigate after the fire was extinguished. His investigation included interviewing Ms. Castle-Horne and conducting a visual inspection of the premises. (Ernst Dep. at 27-30.) During his investigation, he observed a V-pattern on the wall behind the freezer, and by comparing it to other parts of the wall determined that the bottom of the V-burn was the lowest area of burn. This is consistent, in Ernst's opinion, with a fire that started behind the freezer and then spread throughout the garage. He therefore concluded that the freezer was the most probable source of the fire, and ruled out the vehicles as the source. (Ernst Dep., Exh. 2 Incident Initiation Report at 2.)

Defendants challenge the reliability of Ernst's opinion that the vehicles housed in the garage were not the source of the fire. Specifically, Defendants argue that Ernst's testimony is logically flawed because the damage to the garage would be the same regardless of whether the cars began the fire or caught on fire during the ensuing blaze. (Defs.' Motion to Exclude at 29.) This argument seems to ignore significant portions of Ernst's deposition testimony. His opinion that the vehicles were not the source of the fire was based largely upon his examination of the vehicles themselves, not just the damage the burning vehicles caused to the garage structure. Specifically, he inspected the body, paint, interior, and engine of each car. (Ernst Dep. at 30-34.) This testimony is both relevant and reliable under Daubert and is therefore admissible. [Footnote omitted.]

The trial judge reviewed the Federal Rules of Evidence:

“The admission of expert witness testimony is controlled by the Federal Rules of Evidence. Under Rule 702,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The trial judge then examined the U.S. Supreme Court’s holding in Daubert:

“The burden of establishing the admissibility of expert witness testimony rests with its proponent. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 n.10 (1993). This burden is distinct from a burden of proof; the proponent has a "burden of production--that is, the burden of coming forward with evidence from which the trial court could determine" that the evidence is admissible under Daubert. Maryland Cas. Co. v. Therm- O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998) (emphasis in original). The court performs a gate-keeping function and must assess the proffered evidence using a two- pronged analysis. See Newman v. Motorola, Inc., 218 F. Supp. 2d 769, 772 (D. Md. 2002). First, the court must question whether the evidence is valid and reliable. United States v. Barnette, 211 F.3d 803, 815 (4th Cir. 2000). Second, the court must determine whether the evidence will help the trier of fact. Id. In other words, the court must ensure that the testimony is both "relevant" and "reliable." Daubert, 509 U.S. at 589.

The Court in Daubert identified several factors that may bear upon the determination of the reliability of scientific evidence, including "(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication"; (3) the error rate; and "(4) whether the theory or technique enjoys general acceptance within a relevant scientific community." Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert, 509 U.S. at 592-594); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (extending Daubert to "the testimony of engineers and other experts who are not scientists"). These factors are "neither definitive nor exhaustive, and some may be more pertinent than others depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Newman, 218 F. Supp. 2d at 773 (citing Cooper, 259 F.3d at 199-200) (internal quotation and other citations omitted).

The parties and their experts agree that NFPA 921, Guide for Fire and Explosion Investigations, is an authoritative text.

Legal Lessons Learned: Arson investigators often submit affidavits and also testify as expert witnesses; they need to understand the Daubert factors that courts use in the determination of the reliability of scientific evidence.

Article 1-30

NEW HAMPSHIRE: LEAVING SCENE OF ACCIDENT - CRIMINAL CONVICTION OF “FALSE PUBLIC ALARMS” - DRIVER IN ONE VEHICLE MVA WAS POLITICAL CANDIDATE FOR CONGRESS – FOUND UNHURT IN WOODS BY SEARCH & RESCUE TEAM 72 HOURS LATER

On Nov. 18, 2009 in State of New Hampshire v. Gary Dodds, the Supreme Court of New Hampshire, 159 N.H. 239, 982 A.2d 377, 2009 N.H. LEXIS 112, published their Aug. 21, 2009 opinion upholding the jury’s conviction of Mr. Dodds of false public alarms. He was involved in a one-vehicle MVA on a snowing night, and he disappeared for 27 hours after the car accident, evading search and rescue personnel.

The strange facts of this case were reported by the Court:

“On April 5, 2006, the defendant, who was a candidate in the Democratic primary for the United States House of Representatives, was traveling southbound on Route 16 between Dover and Portsmouth in a snowstorm. Shortly after 8 p.m., a woman driving behind him observed his car swerve left and right and then veer off the road. At the point where his car left the road, she noticed that the guardrail was bent and that the defendant's car was on the far side of it. She drove her car onto the shoulder, stopped and dialed 911.

A short distance west of where the accident occurred, an adjacent roadway, Spur Road, runs parallel to Route 16. To the west of Spur Road lies the Bellamy River. Caren Peloso, who lives on Spur Road, heard the sound of the crash and went out to her driveway to investigate. When she observed the headlights of the defendant's car, she ran back into her house and dialed 911. She then walked through a brushy area to the accident scene. When she reached the defendant's car, she noticed that its interior light was on, that its passenger side window was down, and that its airbags had deployed. No one was inside the car. Peloso then approached the witness's car and asked her whether she knew the whereabouts of the driver. She did not.

Emergency personnel and firefighters soon arrived at the scene. They unsuccessfully searched the area for the driver of the vehicle. After determining that the car belonged to the defendant, the police called his wife and she came to the scene. She reported that the defendant was supposed to have been on his way to a campaign-related meeting in Somersworth.

The defendant's whereabouts remained a mystery for nearly twenty-seven hours, and his disappearance was the subject of extensive news coverage. Family, friends, emergency personnel and other state and federal officials searched for him on land, by boat on the Bellamy River, and by helicopter. He was eventually found by a search and rescue volunteer in a wooded area west of the Bellamy River, less than a mile from the accident scene, approximately 550 feet from the Garrison School. When he was found, the defendant was awake and knew who and where he was, but not what day it was. He was wearing casual business attire, including a button down shirt, khakis and a fleece pullover. He had on dress socks and one shoe, which were very wet. His oral temperature, taken in the ambulance about fifty minutes after he was found, was 96.8 but later dropped to 96.4 degrees. His face was gray and his feet were discolored, swollen and cold to the touch.’

The facts get even stranger; prior to the accident he had somehow backtracked on toll road:

“Route 16, also known as the Spaulding Turnpike, is a toll road. The defendant had an EZ pass transponder in his vehicle that automatically paid his toll when he passed through the toll plaza. The defendant's EZ pass records reflect that his car passed through the Dover toll plaza southbound at 7:39 p.m. on the night of the accident. However, the accident occurred north of the toll plaza approximately one half hour later, as the defendant was again driving southbound on the stretch of Route 16 he had already traversed. He could not recall why he backtracked northbound on a non-toll road and then headed south again.”

***

“The defendant claimed to have little memory either of the accident or the events leading up to it. He recalled that his car swerved and crashed, and that he left the scene because he smelled smoke and thought his car was on fire. He recalled swimming across a river, walking for a long time, following a power line up a steep hill, becoming exhausted and collapsing. He did not recall the details of what he was doing or where he was going immediately before his car swerved off of the road.”

The Court of Appeals affirmed his conviction of false public alarms. You don’t have to dial 911 to be guilty of the offense; failure to remain at the scene of a MVA, and evading search and rescue are sufficient.

“To be guilty of false public alarms, a defendant must (1) directly or indirectly communicate to a governmental agency (2) a report of an emergency (3) known by him to be false. See RSA 644:3, I. The defendant does not dispute that the police constitute a governmental agency within the meaning of the statute, and it is undisputed that he did not directly report an emergency. Accordingly, we are concerned only with whether the defendant indirectly communicated a report of an emergency that he knew was false.

The plain and ordinary meaning of ‘indirectly’ includes ‘not directly aimed at or achieved ... : not resulting directly from an action or cause.’ Webster's Third New International Dictionary 1151 (unabridged ed. 2002). ‘Communicate’ means, among other things, ‘to ake known.’ Id. at 460. A ‘report’ includes ‘something that gives information ... : NOTIFICATION.’ Id. at 1925. We find that these terms are not ambiguous, and that they are sufficiently broad to include the conduct at issue in this case. The plain meaning of these terms does not require that an indirect communication occur solely by spoken word from the mouth of the defendant. To the contrary, a defendant could make known or ‘communicate’ an emergency through his conduct -- in this case, by evading search and rescue. The statute proscribes communicative conduct that indirectly causes a "report" of an emergency that the defendant knows is false, as was the case here.

The defendant was convicted of ‘failing to return from an undisclosed location and failing to communicate his location thereby evading search and rescue personnel,’ after having been in an automobile accident, and of doing so knowingly. Conviction for this conduct was not inconsistent with our interpretation of the false public alarms statute and did not constitute an error of law under the plain meaning of its terms. The acts of failing to return from an undisclosed location, evading search and rescue personnel and of doing so knowingly constitute conduct that ‘indirectly communicates’ a report of an emergency based upon the plain meanings of those terms.”

Legal Lessons Learned: Nice to see criminal conviction for evading search & rescue efforts.

Article 1-29

D.C. – METRO TRAIN CRASH ON JUNE 22, 2009 KILLED 9 AND INJURED 76 - LOVELY TRIBUTE VIDEO - BUT NOT SO LOVELY SOLICITATIONS BY LAWYERS

On Oct. 21, 2009 the D.C. Fire & EMS Department released a video of the incident, dedicated to the victims and their families and to the emergency responders. It is a wonderful, 15-minute video.

http://cms.firehouse.com/content/article/article.jsp?sectionId=46&id=6626.

The Oct. edition of the D.C. Bar Association magazine, "Washington Lawyer" includes a sobering article by the Bar Counsel (investigates complaints against attorneys) Gene Shipp, Esq. and law clerk Joe Perry, entitled "Tragedy and the Attorney Solicitation Debate." Shortly after the crash, lawyers began soliciting clients:

"Meanwhile, Web sites directed at victims of the crash began sprouting up, speculating on the potential negligence involved in the crash and prodding would- be clients with flashing buttons announcing live chats with attorneys who were only a mouse-click away. Other lawyers chose instead to make both phone and in-person calls to victims’ homes."

If this had been an Amtrak train crash or other "interstate" rail line, instead of a Metro commuter line, then the federal Rail Passenger Family Assistance Act, 49 U.S.C. 1139 (2008), would have imposed a 45-day waiting period of attorney solicitation.

Likewise, if this had been an aviation crash, the Aviation Disaster Family Assistance Act, 49 U.S.C. 1136, imposes a 45-day waiting period.

Many states have enacted similar waiting-period laws, and Bar Associations in numerous states have adopted ethical rules on this issue. Florida, for example, prohibits direct-mail solicitation of motor vehicle accident victims and disaster victims for 30 days. The U.S. Supreme Court upheld this rule in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), finding that Florida had a legitimate interest in protecting the "flagging reputation of Florida attorneys."

Legal Lessons Learned: It is time for the D.C. Bar Association, and other state Bar Associations or legislatures, to impose similar restrictions on direct solicitations.

Article 1-28

INDIANA: POLICE BRING THREE WOMEN TO FIRE STATION FOR STRIP SEARCH – LAWSUIT FILED BY WOMEN AGAINST POLICE & FF - VOLUNTEER FIRE CAPTAIN AND VOLUNTEER FF ARE DROPPED FROM LAWSUIT

On Aug. 21, 2009, in Kristy L. Lessley, Kara J. Rhodehamel and Kaya M. Messer v. The City of Madison, et al., U.S. District Court for Southern District of Indiana, 2009 U.S. Dist. LEXIS 74618, granted the motion for summary judgment by a Fire Captain and another volunteer firefighter. The two firefighters were at the fire station, when police arrived with three females in custody. The police has stopped their vehicle for a broken license plate light, and police were searching for drugs. At the fire station, a female police officer conducted a strip search of the three women, and found marijuana on one of them.

The facts, as reported by Chief Judge David Hamilton:

"It all began with a broken license plate light. One thing led to another, and the ensuing traffic stop in Madison, Indiana has become the subject of elaborate and expensive litigation that requires this lengthy tour through wide tracts of Fourth Amendment law, federal civil rights remedies, and state tort law.

On January 19, 2007, Madison police officers pulled over plaintiffs Kristy Lessley, Kara Rhodehamel, and Kayla Messer for a broken license plate light. An officer smelled marijuana emanating from the car, and he searched the car. He found either nothing or a trace amount of marijuana. Another officer searched the plaintiffs' pockets. He found nothing. The officers then called a female Madison officer who performed warrantless strip-searches on the three plaintiffs at a local fire station. The female officer found marijuana on Kristy Lessley. Lessley was arrested and charged with possession of marijuana, but those charges were dismissed. Plaintiffs filed this complaint against the officers involved in the stop and search, the City of Madison and many of its supervisory officials, and the fire station and two volunteer firefighters. The complaint includes multiple state and federal claims."

The judge dismissed the two volunteer firefighters from the case, including Captain James Hendrick, who was in charge of the Clifty Station:

"The captain of Clifty at the time of the searches was James Hendrick. The undisputed evidence shows that he did not know that the officers were committing any torts on the property. Royce knew what was occurring, but he was acting as a police officer, not as a firefighter. More fundamental, plaintiffs' argument that a property owner should be liable for failing to stop police officers from performing their duties, at least when their actions are not obviously unlawful, would place landowners in an impossible position. The argument would even invite small-scale anarchy as it would impose a civil legal duty to interfere with officers performing their duties if it were later determined that they were performing those duties in an unlawful manner. But it is a crime in Indiana to interfere with police officers engaged in the lawful execution of their duties. Ind. Code § 35-44-3- 3(a)(1). Clifty did not breach a duty to provide safe premises to the plaintiffs, and it is not liable for negligence.

The lawsuit against the arresting police officers will proceed to trial.

Legal Lessons Learned: It is unlawful to interfere with police officers while performing their duties, even if it is at your fire station. Suggestion: have your Fire Chief call the Police Chief and kindly request that in the future, please conduct strip searches at the PD.

Article 1-27

U.S. SUPREME COURT – CONFESSIONS - DEFENDANT WHO IS APPOINTED LEGAL COUNSEL CAN AGREE TO TALK TO POLICE AND GO WITH THEM TO FIND MURDER WEAPON PRIOR TO MEETING HIS ATTORNEY - LETTER OF APOLOGY TO FAMILY OF MAN HE KILLED IS ADMISSABLE

On May 26, 2009 in Montejo v. Louisiana, the Court held (5 to 4) that defendant’s letter of apology was properly admitted into evidence during his murder conviction (where he was sentence to death). Significant to the fire service and arson investigators, the Court overturned a 1986 decision forbidding police to initiate any questioning once a defendant requests an attorney. Under this new precedent, police may tell a defendant that he is free to change his mind and talk to the police and travel with them to look for evidence. Caution: Do not do this once the attorney has actually met or talked with his client.

Full opinion can be read: http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf.

The majority opinion, written by Justice Scalia, held:

"We consider in this case the scope and continued viability of the rule announced by this Court in Michigan v. Jackson, 475 U. S. 625 (1986), forbidding police to initiate interrogation of a criminal defendant once he has requested counsel at an arraignment or similar proceeding."

***

"In sum, when the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth seeking process and the criminal justice system, we readily conclude that the rule does not "pay its way," United States v. Leon, 468 U. S. 897, 907– 908, n. 6 (1984). Michigan v. Jackson should be and now is overruled."

The facts are described by Justice Scalia:

"Petitioner Jesse Montejo was arrested on September 6, 2002, in connection with the robbery and murder of Lewis Ferrari, who had been found dead in his own home one day earlier. Suspicion quickly focused on Jerry Moore, a disgruntled former employee of Ferrari’s dry cleaning business. Police sought to question Montejo, who was a known associate of Moore. Montejo waived his rights under Miranda v. Arizona, 384 U. S. 436 (1966), and was interrogated at the sheriff’s office by police detectives through the late afternoon and evening of September 6 and the early morning of September 7. During the interrogation, Montejo repeatedly changed his account of the crime, at first claiming that he had only driven Moore to the victim’s home, and ultimately admitting that he had shot and killed Ferrari in the course of a botched burglary. These police interrogations were videotaped.

On September 10, Montejo was brought before a judge for what is known in Louisiana as a "72-hour hearing"—a preliminary hearing required under state law. Although the proceedings were not transcribed, the minute record indicates what transpired: ‘The defendant being charged with First Degree Murder, Court ordered N[o] Bond set in this matter. Further, Court ordered the Office of Indigent Defender be appointed to represent the defendant.’ App.to Pet. for Cert. 63a.

Later that same day, two police detectives visited Montejo back at the prison and requested that he accompany them on an excursion to locate the murder weapon (which Montejo had earlier indicated he had thrown into a lake). After some back-and-forth, the substance of which remains in dispute, Montejo was again read his Miranda rights and agreed to go along; during the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence.

At trial, the letter of apology was admitted over defense objection. The jury convicted Montejo of first-degree murder, and he was sentenced to death." {Footnote omitted.]

The majority decision reviewed the right-to-counsel decisions:

"Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited.

The Court remanded the case for a hearing be held by the trial court:

"If Montejo made a clear assertion of the right to counsel when the officers approached him about accompanying them on the excursion for the murder weapon, then no interrogation should have taken place unless Montejo initiated it. Davis, supra, at 459. Even if Montejo subsequently agreed to waive his rights, that waiver would have been invalid had it followed an ‘unequivocal election of the right.’"

Legal Lessons Learned: This is a helpful decision for arson investigators nationwide; if defendant decides to talk or visit the crime scene prior to legal counsel meeting his client, this is permissible.

Article 1-26

ALABAMA: MOBILE HOME UNSAFE FOR OCCUPANCY AFTER FIRE –POSSIBLE USE AS METH LAB - OWNER HAS PURSUED APPEALS FOR PAST 5 YEARS

On March 9, 2009, in Barabara Mousseau v. City of Daphne Board of Zoning Adjustments, Court of Civil Appeals, 2008 Ala. Civ. App. LEXIS 643, the court authorized the publication of its Oct. 10, 2008 decision, which affirmed the decision by the Baldwin Circuit Court. The Circuit court had upheld the Board of Zoning Adjustments order prohibiting the property owner from seeking to restore a 31-year old mobile home on her property (worth only $2000) after it was seriously damaged by an early morning fire. The fire reportedly "had resulted from a methamphetamine-lab explosion." This case illustrates some of the multiple appeals that Fire Department and code enforcers must deal with to enforce fire and other codes.

Ms. Mousseau lives in a frame house in the City of Daphne, Alabama. On Jan. 15, 2004 there was an early morning fire in her mobile home. The fire started in the kitchen, and it burned through and busted a water line.

The City’s fire chief inspected the fire-damaged mobile home and determined it was unsafe. He asked the City’s building official to inspect the mobile home, and concluded it was uninhabitable and "could not be repaired economically and/or satisfactorily to remedy [its] unsafe conditions."

Ms. Mousseau, her brother and other family members disregarded these orders and began repair of the kitchen and other areas of the mobile home. On July 19, 2004 the City passed a resolution declaring the mobile home a nuisance, and should be demolished. Ms. Moousseau’s brother sent a letter to the building official requesting a 90-day extension; this extension request was denied. On September 9, 2005, the City building official wrote Ms. Mousseau a letter advising that the mobile home was a "nonconforming structure" since it had been damaged or destroyed to an extent "exceeding 50% of the reasonably estimated replacement cost."

Ms. Mousseau appealed to the Zoning Board. A hearing was held September 7, 2006. The City’s Director of Community Development testified that the fire had resulted from a METH Lab explosion. Ms. Mousseau’s attorney argued that the mobile home had been "grandfathered" because it had been moved on to the property sometime before the City’s 1987 land-use-and-development ordinance had been enacted. On Sept. 14, 2006, the Zoning Board denied the appeal.

Ms. Mousseau then filed an appeal to the Baldwin Circuit Court, and the Zoning Appeal filed a motion for summary judgment. The case was tried on Oct. 23, 2007 during a "bench trial" (no jury). The court concluded that the mobile home was not "grandfathered" since it was placed on the property AFTER the 1087 ordinance became effective.

Ms. Mousseau filed an appeal to the Alabama Supreme Court, which directed it to the Alabama Court of Appeals. Held: affirmed; mobile home is not "grandfathered" and must be removed. "The circuit court was also entitled to consider the undisputed evidence – that the mobile home has been appraised on January 28, 1989, for $2000, and that the appraisal had been done for the purpose of settling of the estate of James White, Mousseau’s late ex-husband [and the mobile home was then moved on to the property, after the ordinance became effective].

Legal Lessons Learned: What a long fight over a $2000 mobile home [must have other value] now there will probably be an appeal to the Alabama Supreme Court.

Article 1-25

COLORADO: ARSONIST RAN FROM BURNING CAR, AND BYSTANDER TACKLED HIM AND KICKED HIM IN HEAD - STATEMENTS MADE TO POLICE AT SCENE AND AT HOSPITAL ARE ADMISSABLE SINCE NOT YET IN CUSTODY

On April 27, 2009, in State of Colorado v. Robert William Harper, Court of Appeals of Colorado, 2008 Colo. App. LEXIS 1399, the court (3 to 0) denied his petition for a writ of certiorari, and published its Oct. 2, 2008 decision affirming his jury conviction of first degree aggravated motor vehicle theft, second degree arson, and first degree criminal trespass. Mr. Harper was seen running from a burning stolen car. A bystander tackled him, kicked him in the face, and held him until police and the fire department arrived.

Harper made statements to the police on three occasions:

(1) At the scene of the incident, while receiving treatment for his injuries inflicted by the bystander, he told the officer he had been "moving some items around in his car [when] the seat belt knocked the cigarette out of his mouth and started the fire."

(2) Harper was taken to the hospital for further treatment, and he told police "he was in the area walking, and he observed the vehicle on fire. He recognized it as his friend’s and [tried] to save some property from it." Harper could not name his friend.

(3) After being treated and released by the hospital, Harper was arrested and taken to the police station. He received a Miranda warning of his rights, waived his rights, and said that he encountered the burning car while walking and had entered the car to rescue its contents.

The trial judge, after hearing testimony on Harper’s motion to suppress his first two statements, held that his first two statements, as well as the third, could be admitted in evidence for the jury to hear. The judge found that the police had maintained a conversational tone and did not draw their weapons, or try to intimidate Harper, or otherwise place him into custody until he was treated and released by the hospital.

The Court of Appeals agreed. "Harper was not in custody at the scene or in the hospital" and his statements were "voluntary."

Legal Lessons Learned: In arson investigations, as well as other criminal offense, Miranda warnings are only required after a defendant is taken into custody. The term "custody" has been widely interpreted, so be cautious in withholding a Miranda warning if you plan to arrest the subject.

Article 1-24

OHIO: 911 DISPATCH OPERATED BY SHERIFF - CAN NOT CHARGE A SERVICE FEE FOR DISPATCHING AMBULANCES FOR THE COUNTY EMS - OHIO ATTORNEY GENERAL OPINION

On Jan. 29, 2009, Ohio AG Richard Cordray issued Opinion No. 2009-04 to the Coshocton County Prosecuting Attorney, advising that the county sheriff may not charge the Board of County Commissioners a fee for dispatching EMS runs for the county operated emergency medical service organization; http://www.ag.state.ohio.us.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-23

OHIO: SEARCH WARRANTS – EVIDENCE SEIZED DURING EXECUTION OF SEARCH WARRANT STILL ADMISSABLE AT TRIAL, EVEN IF AFFIDAVIT WAS DEFICIENT, UNDER U.S. SUPREME COURT’S "GOOD FAITH EXCEPTION"

On May 11, 009, the Ohio State Bar Association published State of Ohio v. Nunez, 180 Ohio App.3d 189, 2008-Ohio-6806 (Ohio Court of Appeals for 6th District, Huron County, Dec. 19, 2008). Lorenzo Nunez, Jr. pled no contest to possession of cocaine, subject to his right to appeal the trial judge’s denial of his motion to suppress evidence. He was sentenced to 16 months in prison, $500 fine, and a one-year suspension of his driver’s license. On appeal he challenged trial judge’s decision to allow the cocaine to be admitted into evidence, even though the affidavit supporting the search warrant for his residence was deficient – it was based on information from at least one informant ("Informant B") whose veracity was not known to the police officer. The trial judge allowed the cocaine to be admitted into evidence based on the "good faith exception" and the Court of Appeals (3 to 0) affirmed.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

CA: Good Samaritan Immunity Limited to Medical Assistance; Suit for freeing person, causing injuries goes to trialFirehouse story here

Article 1-22

PA: JUDGE WHEN IMPOSING CRIMINAL SENTENCE OF 15-40 YEARS PROPERLY CONSIDERED FACT THAT DEFEDANT’S CONDUCT IN STARTING A FIRE TO COVER UP THE MURDER ENDANGERED RESPONDING FIREFIGHTERS

On Jan. 28, 2009, in Commonwealth of Pennsylvania v. Mark W. Miller, the Superior Court of Pennsylvania, 2009 PA Super 14, 2009 Pa. Super. Lexis 21, upheld the sentenced imposed.

On October 2, 2007, Miller pled guilty to criminal homicide, murder of the third degree, in the October 31, 2001 killing of Helen Theresa Biank. "Specifically, [Miller] admitted to shooting [Ms. Biank] in the back of her head with a Remington XP 100 firearm. In return for his plea, the Commonwealth agreed to nolle pros the remaining charges (Aggravated Assault, Arson, Tamper with/Fabricate Physical Evidence)." The arson count related to the fire Miller had started in the home to cover up the crime scene.

The trial judge, after reading a pre-sentence investigation (PSI) report, and letters from the family members of the deceased, ordered Miller to spend 15 to 40 years in prison. The judge made the following comment:

"The tragedy of the fire as well and the lives of our firefighters and police and everyone else that were risked in putting out that fire is something I also consider because we -- you know, this could have been -- there could have been even more lives either injured or taken. So while I have ranges to work within by the legislature and statutorily, I've considered all these things. This carries an offense gravity score of 14."

Mr. Miller filed an appeal, claiming that the trial judge improperly considered the dripped arson charge in the sentence. The Pennsylvania Superior Court (3 to 0) disagreed:

"As clearly evidenced by the foregoing, Judge Worthington carefully reviewed the PSI and letters presented, and considered many factors in imposing sentence, including: the seriousness of the offense; the situation that faced firefighters and police when they arrived at Ms. Biank's residence; the manner in which the murder of Ms. Biank impacted her family and friends and Appellant's family; Appellant's apparent unwillingness to accept responsibility for his actions; and Appellant's misconduct while incarcerated. Contrary to Appellant's assertion that the trial court improperly considered the charge of arson that was nolle prossed as part of the plea agreement, we do not find that the court's mere reference to the fact that the lives of firefighters and police were at risk due to Ms. Biank's residence being ablaze when these individuals arrived on the scene indicates that the court specifically considered the charge of arson and enhanced Appellant's sentence based thereon. Cf. Stewart, 867 A.2d at 593 (trial court specifically indicated that it was sentencing the appellant in the aggravated range because of three (3) counts that were nolle prossed). Consequently, we find no abuse of discretion by the learned trial judge."

Legal Lessons Learned: Courts may consider risk to firefighters when imposing a criminal sentence, even if he did not plead guilty to arson.

Article 1-21

OH: CITY OF CINCINNATI AND 911 DISPATCHERS CANNOT BE SUED FOR NEGLIGENT ADVICE TO MOTHER – THEY TOLD MOTHER TO STOP TRAILING HER ESTRANGED HUSBAND WHO HAD JUST KIDNAPED, AND THEN KILLED 18-MONTH OLD DAUGHTER

On Dec. 26, 2008, in Lynetta Myrick v. City of Cincinnati,et al., the Ohio Court of Appeals for Hamilton County held (2 to 1), that the City and 911 Dispatchers and Dispatch Supervisors have immunity from liability since there was no evidence of willful or wanton misconduct.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-20

CA – ARSONIST - LIFE IN PRISON WITHOUT POSSIBILITY OF PAROLE – NOT ONLY FOR MURDER OF ONE PERSON, BUT ALSO ATTEMPTED MURDER OF THREE OTHERS IN HOUSE – THE THREE WERE IN THE "KILL ZONE"

On Dec. 30, 2008 in The People v. Suze Adams, the Court of Appeals of California, 2008 Cal. App. LEXIS 2474, upheld the jury’s verdict of guilty of one count of premeditated murder, and three counts of attempted premeditated murder. She was sentenced to life without possibility of parole.

On June 18, 2004, Ms. Adams set fire to both the front porch and rear of the residence where Kristina Soult resided. Three others in the house, including Ms. Soult’s son escaped out the rear before the flames prevented Ms. Soult from getting out. This was the second time she started a fire at the home; on March 25, 2004 the City of Turlock FD put out a fire on the front porch.

During a polygraph examination of Ms. Adams on August 4, 2004, which she voluntarily agreed to take, and which was videotaped, she denied starting either fire. When the polygraph examiner advised her that she was being "deceptive" and two sets of "pretty good" fingerprints had been left at the scene, she at first denied they were hers.

She then confessed, stating that Soult was dating her boyfriend, and that Soult was bullying her by calling and hanging up, and following her home from work. The polygraph examiner asked her to describe what happened. Ms. Adams replied:
"I don’t know. Its like you said. It got out of control."

Ms. Adams explained that she started the two fires, not just because Ms. Soult was dating her boyfriend, but also because Soult "was being a bitch" and driving her "nuts." She finally "snapped" when Soult phoned her and called her "a ugly fucking bitch and stuff like that."

When asked how she started the second fire, she said she walked to the house (about a mile from her home) at about 3:30 am: 
"Adams related that she went to Soult’s house by herself, denying that Godoy [her boyfriend] was involved. Soult’s home was not dark, and Adams did not know if occupants of the home were asleep. She took ‘Rosemary and dried it and soaked it in rubbing alcohol for over a week, if not more,’ which made it ‘very flammable.’ She then put it on a chair on the front porch of the house and ‘lit it on fire’ with a match. She then went to the back of the home and did ‘[t]he same thing,’ scattering flammable material, which was in a plastic bag, around the back door and setting it on fire with a match. She walked to and from Soult’s home. When she got back to her own home, Godoy was still asleep, as he ‘sleeps pretty heavy.’ She claimed that she did not mean to kill Soult and considered it to be a case of ‘temporary insanity’ because Soult, who was ‘psycho,’ was driving her nuts and causing her to fear for her own life."

The polygraph examiner asked her how she started the first fire on March 25, 2004, and she explained that she only started a fire on the front porch, not also the rear as n the fatal fire. Once again, Adams explained she used Rosemary soaked in rubbing alcohol.

The jury was shown the videotaped confession, and found her guilty. On appeal, Ms. Adams challenges the trial judge allow the jury to see the full videotape. [Note: Court of Appeals held that she agreed to the polygraph, after being informed she had a right to refuse. In an unpublished portion of the decision, the Court held the entire videotape was admissible in evidence.]

She also contends that her convictions of attempted premeditated murders of three other people who were in the residence should be vacated because she did not know they were present. The Court disagreed, citing California Supreme Court decision about the "kill zone."

"However, the California Supreme Court also recognized that ‘a shooter may be convicted of multiple counts of attempted murder on a ‘kill zone’ theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm."

The Court explained that Ms. Adams did not need to know that 3 other people were in the house she lit on fire:

"Whether or not the defendant is aware that the attempted murder victims were within the zone of harm is not a dense, as long as the victims actually were within the zone of harm. 
*** 
Thus we reject Adam’s argument that her attempted murder convictions should be vacated because she was not aware of the presence of persons other than Soult at the house."

Legal Lessons Learned: This "kill zone" doctrine is very helpful and appropriate for arsonists.

Article 1-19

OHIO – CARRYING CONCEALED WEAPONS - OHIO SUPREME COURT DECIDES THAT CITY CAN NOT PROHIBIT LICENSED PERSONS FROM CARRYING IN PARK

On September 18, 2008, in Ohioans For Concealed Carry, Inc. v. City of Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, 2008-Ohio-4605, the Ohio Supreme Court (4 to 3) held that "Clyde City Ordinance No. 2004-41 is an exercise of the municipality’s police power that conflicts with R.C. 2923.126, a general law. The ordinance is therefore unconstitutional."

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-18

OHIO - FIREFIGHTER / PARAMEDC IN CLASSIFIED SERVICE FOR CITY OF MENTOR CAN NOT ALSO SERVE AS ELECTED MEMBER OF CITY COUNCIL FOR ASHTABULA - AG OPINION CONFIRMS THAT CITY OF MENTOR CAN AUTHORIZE THIS UNDER HOME RULE POWERS

On Nov. 19, 2008, the Ohio AG issued an opinion letter to the Ashtabula County Prosecuting Attorney (Opinion No. 2008-037; http://www.ag.state.oh.us/legal/opinions/2008/2008-037.pdf), advising that a FF / paramedic in the classified service for the City of Mentor, FD can not simultaneously also serve as an elected member of the City of Ashtabula’s legislative authority since this is also a classified service position.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-17

FEDERAL: MASSIVE HEYMAN FOREST FIRE IN COLORADO - STARTED BY ON DUTY U.S. FOREST SERVICE TECHICIAN / FIREFIGHTER - U.S. NOT LIABLE TO PROPERTY OWNERS AND THEIR INSURANCE COMPANIES

On Nov. 25, 2008, in State Farm Fire & Casualty Company, Inc. et al. v. Unites States of America, 2008 U.S. Dist. Lexis 95996, Federal District Judge Wiley Y. Daniel in Colorado held that under the Federal Tort Claims Act, the U.S. Government is immune from liability since the Forest Service employee was not acting within the scope of her employment when she burned a letter from her husband in a campfire ring that had dry grass. 

The fire was started on June 8, 2002 by Forestry Technician / Firefighter Terry Barton while on duty, as a Fire Ban was in place. She had filed for divorce and was distraught about a two-page letter from her husband accusing her of being taken over by Satan. She placed the letter in a campfire ring of rocks, lit it and drove away. Apparently grass in the campfire ignited and led to the forest fire (she plead guilty in 2003 and was sentenced to 72 months in federal prison). 

This civil suit was filed by 5 insurance companies and several individuals, and tried as a "bench trial" (no jury) before Judge Daniel. Terry Barton was brought from Federal prison to testify. Judge Daniel wrote: 

"She testified that on June 8, 2002, she was emotionally upset by a letter that he husband had given her. She claimed that while emotionally distraught, she burned the letter in the campfire ring, and then left the area thinking it had burned out." 

When she returned to the area sometime later: "she observed that a fire was burning in the grass. Barton stated that she then parked her truck and reported the fire on her radio. She then tried to suppress the fire with a hand tool but was unsuccessful because it was too big for her to put out." 

A Forest Service expert testified that the fire could have spread to the Ponderosa Pine trees located 38 feet away from the campfire ring in only 45 seconds to 1 ½ minutes after the fire was established in the grass.

Judge Daniel found: "Based on the evidence, I am not persuaded that Terry Barton lit the fire intending that the fire escape the campfire ring. I find that Terry Barton lit a letter which in turn ignited the grass within the ring. As such, Terry Barton violated the Fire Ban and committed the felony of Setting a Fire on Lands of the United States in violation of 18 U.S.C. 1855." 

The U.S. Government enjoys governmental immunity, except to the extent it has waived that immunity under the Federal Tort Claims Act (FTCA). The federal government can only be sued for damages caused by the negligent or wrongful conduct of its employees, if the law in the state where the act occurred would allow a private person to be liable for such an act. 

The Hayman Fire occurred in Colorado. An employer under Colorado law can be liable for the actions of its employees only if the employee was acting for the benefit of the employer. In this case, Terry Barton was violating the Fire Ban when she burned her husband’s letter. Judge Daniel held: "The fact that Barton was on-duty and on Forest Service property when she lit the fire in the campfire ring does not establish she was acting within the scope of her employment." 

Plaintiffs also claim that the Forest Service was negligent in fighting the fire. The Incident Commander promptly ordered two engines and two water tenders from the Lake George Volunteer Fire Department, two Forest Service engines, a Hot Shot Crew, plus two Type I airtankers, a Type helicopter (2000 gallon tank), and a Type 3 helicopter. 

Fighting fires is a "discretionary" duty and the FTCA does not waive the U.S. Government’s sovereign immunity for any claim based upon the "failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government." 

LEGAL LESSONS LEARNED: Intentional misconduct by an employee is normally outside the scope of responsibility of an employer.

Article 1-16

OHIO: INTERNET POSTING OF PHOTO OF ANOTHER HIGH SCHOOL STUDENT - ON "MySpace" WITH THE CAPTION "MOLESTED A LITTLE BOY" - CONVICTION REVERSED - PROSECUTOR FAILED TO PROVE INTENT TO HARASS

On October 10, 2008, in State of Ohio v. Ripley C. Ellison, the Ohio Court of Appeals for Hamilton County (3 to 0) reversed the criminal conviction of Ms. Ellison for telecommunications harassment since the prosecutor failed to prove she intended to harass the other student.  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070875_10102008.pdf

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-15

UC Fire Science Student’s "Best Paper" – Rhode Island Station Nightclub Fire

Lessons learned for Fire Inspectors? See the outstanding term paper, "The Station Nightclub Fire That Occurred 20 Feb. 03" by Charles McGrevy, a student in our Political and Legal Foundations class, Summer 2008 (posted on UC Fire Science web page, www.uc.edu/cas/firescience), click on Best Term Papers.Charles is a firefighter, and is also in the Ohio National Guard; SFC McGrevy is currently deployed in Kuwait.

The Station Nightclub fire on Feb. 20, 2003 killed 100 people.On 9/2/08 the press reported that that the Great White rock band has settled for $1 million; it was the band’s pyrotechnics that ignited the sound-proofing panels purchased by the two owners of the night club.The two owners, Jeffrey and Michael Derderian, have also reportedly just settled for $813,000.This brings the total settlements so far by a dozen defendants to about $175 million.

See the dramatic photo taken inside the club, just as the pyrotechnics start to ignite the soundproofing panels:

http://www.newsvine.com/_news/2008/09/02/1817433-ri-nightclub-owners-reach-settlement-in-fatal-fire.

Legal Lessons Learned: share the term paper and the photo with your fire inspectors; thorough inspections can save lives.

Article 1-14

OHIO - GOVERNMENTAL IMMUNITY – CITY OF CLEVELAND NOT LIABLE FOR FIRE DAMAGE TO LEXUS PARKED UNDER ELECTRICAL TRANSMISSION WIRES THAT CAUGHT FIRE WHEN FUSES FAILED

 On July 26, 2008, the Ohio State Bar Association published the opinion in Daniels v. Cleveland,

Cleveland Municipal Court, 147 Ohio Misc. 2, page 1, 2007-Ohio-7268, Feb. 22, 2007. On July 15, 2006, Sabrina Daniels parked her 1996 Lexus SC400 coupe outside a beauty salon. She was informed that the electrical wires above her car were on fire; she got two repairs for her car: $2,781.34 and $2,776.60. Her car insurance company, State Farm, suggested she sue the City of Cleveland since the electrical distribution line was maintained by Cleveland Public Power, a public utility owned and operated by the city.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-13

Guns In Firehouses – U.S. Supreme Court’s Landmark Decision Does Not Authorize Fire & EMS Personnel To Possess A Firearm While On Duty

On June 26, 2008, in District of Columbia v. Heller, the U.S. Supreme Court (5 to 4) held that the Second Amendment to the U.S. Constitution protects the right of individuals to keep handguns for protection within their home. The decision does not extend this right of individuals to have firearms in government buildings, including fire houses. Fire & EMS departments should post signs prohibiting firearms at the department, and in department vehicles. Also issue a policy on this subject for all employees. Also schedule police training on the handling and unloading of firearms encountered on an emergency run. See opinion:

http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf.

Dick Heller is a D.C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a permit from the D.C. Chief of Police to keep a handgun at home, but this was denied. The District of Columbia statute makes it a crime to carry an unregistered firearm, and also prohibits the registration of handguns. D.C. Code 7-2501.01(12), 7-2502.01 (a), 7-2502.02(a)(4). The D.C. law does allow possession of long guns, but they must be “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a business. D.C. Code 7-2507.02.

Heller filed a lawsuit in the.S. District Court seeking an injunction. His lawsuit was dismissed, and he appealed. The U.S. Court of Appeals for D.C. reversed the trial judge, and held that the D.C. law violated the Second Amendment. The District of Columbia appealed to the U.S. Supreme Court.

The majority opinion, written by Justice Scalia, quoted the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The majority held that the Second Amendment provides an individual right to own firearms to protect your home. It rejects the dissenting justices, who suggested that one can possess a handgun only if you were in an organized militia:

[T]he “militia” in colonial America consisted of

a subset of “the people” – those who were male,

able bodied, and within a certain age range. Reading

the Second Amendment as protecting only the right

to “keep and bear Arms” in an organized militia therefore

fits poorly with the operative clause’s description of

the holder of that right as “the people.” (Opinion, p. 7.)

The majority opinion makes it clear that it is addressed only the right to possess a firearm gun in your home. The majority did not authorize firearms at work or at school:

[N]othing in our opinion should be taken to cast

doubt on longstanding prohibitions on the possession

of firearms by felons and the mentally ill, or laws

prohibiting the carrying of firearms in sensitive places

such as schools and government buildings, or laws

imposing conditions and qualifications on the commercial

sale of arms.” (Opinion, pages 54-55.)

Legal Lessons Learned: This landmark decision may lead to increased firearms in the home. Fire and EMS Departments should conduct training with police concerning the handling and unloading of firearms discovered in a home or elsewhere during an emergency run.

Article 1-12 - www.firehouse.com

November 2007

Larry's Legal Lessons: Met Lab Owner Gets 188 Months In Jail (11-23-2007)
The U.S. Sentencing Guidelines, allow an increase in a sentence by three offense levels when the defendant has created a "substantial risk of harm to human life."

Article 1-11 - www.firehouse.com

April 2008

Larry's Legal Lessons: Arsonist's Sentence Increased When Kentucky Firefighter was Injured (04-28-2008)
Howard Kirk Gibney and his son were arrested for setting seven fires at mattress and bedding stores in Louisville, KY, including one where a firefighter was injured.

Article 1-10

Ohio – Hydrants - Homeowner Can Not Sue Village For Defective Hydrant That Caused Total Destruction Of Their Home – Governmental Immunity.

On Nov. 13, 2007, in Landwehr v. Village of Batavia, the Ohio Court of Appeals for Clermont County, 173 Ohio App.3d 599, 2007-OH-6035, held (2 to 1) that the homeowners of a home, completely destroyed when the fire department “hit” the hydrant in front of the house and found it was not functioning, could not sue the Village of Batavia for negligence in maintaining their hydrants. The Village enjoys “governmental immunity” since maintaining hydrants was part of the “governmental functions” of the Village, and not a “proprietary function.”

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-9

TEXAS – Arsonist Started Fire In Back Of Nightclub - Guilty Of Felony Murder For Death of Houston Firefighter

On February 15, 2007, in Jeremy Steven Robinson v. The State of Texas, 236 S.W.3d 260; 2007 Texas App. LEXIS 1102, the Court of Appeals of Texas held that Robinson was properly convicted by a jury of felony murder, in the death of a Houston FF (unfortunately jury imposed life imprisonment, not death). See photo of scene, and read details of fire fighting efforts in NIOSH Firefighter Fatality Investigation Report No. 2004-14, http://www.cdc.gov/niosh/fire/reports/face200414.html

Robinson and two friends, including James Guervara, were involved in a fraudulent check-writing crime ring. Guervara was also in the middle of a nasty a divorce, and child-custody battle with his wife, Ruiz. She worked at the El Festival Ballroom, an after-hours club in Northwest Houston (club was open 4 pm – 7 am). On Sunday, April 4, 2004, Robinson and another bought gas cans and black T-shirts at a Wal-Mart. They met up with Guervara and others and went to a gas station where they were videotaped buying $60 worth of gas. At 5 am they drove to the El Festival Ballroom, saw cars parked in front. Guervara poured gas over the back of the building and Robinson lit the gasoline trail on fire.

Guervara’s wife went to the bathroom inside the El Festival Ballroom, and smelled the heavy odor of gasoline. She went outside, observed the fire in the rear of the building, called 9-1-1 on her cell phone, and ran back in to warn about 50 customers and staff.

The Court of Appeals described the tragic fire scene. “ In response to Ruiz's 9-1-1 call reporting a fire, firemen from Station 50 of the Houston Fire Department arrived and heard customers standing outside say that there were still people inside. Captain James Walterbach decided to do a ‘fast attack,’ in which he and two other firefighters would enter the building and attempt to extinguish the fire and to rescue people who might be trapped inside. Thus, Captain Walterbach, Larry Roberts, and Kevin Kulow entered the building. The interior was dark and smoky, and there was no visibility. The fire hose got tangled on something inside, and the firefighters had to exit. The three firemen entered the building a second time and shot water on different areas to cut down on the smoke and to cool off the building. Captain Walterbach heard on his radio that the fire had vented through the roof, and he considered this unusual. He ordered his men out, but his air regulator malfunctioned, and he passed out immediately afterward. Kulow got separated from the others and was left inside. Roberts made it out. Another firefighter, Abel Sarabia, rescued Captain Walterbach, but could not find Kulow. As soon as Sarabia got out, the building experienced a flashover, which is the point at which everything inside reaches ‘ignition point’ at the same time. At that point, it was impossible to rescue anyone inside. The firefighters could not re-enter the building, and Kulow remained missing. When the fire was under control, firefighters re-entered the building and found Kulow's body; he had died from burning and not from smoke inhalation. Arson investigators determined that 47 samples of debris taken from the scene of the fire all tested positive for gasoline, which indicated a case of arson.” [Footnotes omitted.]

The Texas Court of Appeals upheld Robinson’s conviction of felony murder even though the death was of someone not in the building at the time he set the fire. “ At the outset, it might be tempting to assume that, if one caused the death of someone by setting on fire an occupied building, the death would most likely have been caused to an occupant of the building. Nevertheless, in a case from this Court, a defendant's conviction for felony murder of non-occupants of a building was upheld based on the defendant having set fire to the building. Torres v. State, Nos. 01-01-00999-CR & 01-01-01000-CR, 2002 Tex. App. LEXIS 9114, 2002 WL 31838694, at *3-5 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (not designated for publication). The argument that we rejected in Torres was that starting a fire in an empty, freestanding building is not dangerous to human life. 2002 Tex. App. LEXIS 9114, [WL] at *3-5. In Torres, two firefighters lost their lives fighting a fire set by the defendant as he was leaving an unoccupied restaurant. 2002 Tex. App. LEXIS 9114, [WL] at *2.”

The court continued, “It has long been the law that one who commits arson may be found guilty of the murder of a person who died inside the house or by fighting the fire, even though the arsonist did not intend to cause any personal injury by his act. The basis for these decisions is that burning a building within a city often produces certain dangerous consequences, such as (1) firefighters' (or good Samaritans') responding to try to save any occupants and to extinguish the fire or (2) other nearby buildings catching on fire. In these situations, the burning of a building "thereby causes" the death of (1) firefighters (or good Samaritans) who respond to fight the fire, whether or not they actually enter the building and become occupants, or (2) occupants of nearby buildings that catch on fire due to their proximity to the targeted building.”

“Accordingly, we reject appellant's argument that the only deaths that can be ‘ thereby caused’ by setting fire to an occupied building are those of the occupants of that building. Furthermore, appellant does not challenge the sufficiency of the evidence proving that he intended to burn an occupied building and that the fire that he started caused the death of Kulow. Thus, having rejected appellant's argument that Kulow had to have occupied the building at the time of appellant's conduct, we overrule appellant's first point of error.” [Footnotes; case citations omitted.]

Legal Lessons Learned: Those who commit arson may be convicted of felony murder for death of occupants, FF and others. FD safety officers / incident commanders should share lessons from this NIOSH report.

Article 1-8

“Larry’s Legal Lessons: Met Lab Owner Gets 188 Months In Jail.” Article published 11-23-07 in www.firehouse.com; to read go to this web site and Search, “Bennett.”

Article 1-7

U.S. SUPREME COURT – POLICE CRUISER VIDEO – VIDEOTAPE PROVES OFFICER ACTED REASONABLY IN CHASE - QUADRIPLEGIC’S LAWSUIT DISMISSED SINCE OFFICER ENJOYS “QUALIFIED IMMUNITY”

On April 30, 2007, the U.S. Supreme Court in Scott v. Harris, 550 U.S. ____ (2007), 127 S.Ct. 1769 (Case No. 05-1631), held (8 to 1) that a lawsuit against Georgia county deputy sheriff should be dismissed. The onboard video showed the pursuing deputy was properly trying to protect the public when he rammed his cruiser into the back bumper of a fleeing driver. The fleeing driver is now a quadriplegic. The court held that the fleeing driver’s story that he was not endangering other motorists or pedestrians in the 10-mile, 6 minute chase was directly contradicted by the police videotape. The deputy sheriff was acting reasonably and therefore he enjoys “ qualified immunity” and the lawsuit should be immediately dismissed.

In March, 2001, County Deputy Sheriff Timothy Scott heard on the police radio that another deputy was chasing Victor Harris, after trying to stop him for driving 73 mph in a 55 mph zone. When Harris sped into a shopping center, several deputies attempted to box him in. Harris evaded the trap by making a sharp turn, and colliding into Deputy Scott’s cruiser. Harris speed off down a two-lane highway, with Deputy Scott right behind him. The chase continued for 10 miles (about 6 minutes), and Scott called his supervisor on the radio and got permission to use the “PIT” (Precision Intervention Technique”) maneuver by running his push bumper into the side of the fleeing vehicle and spinning it around.

Deputy Scott decided they were travelling too fast to safely perform the “PIT” on the two-lane road. Instead, he decided to ram his front pusher pumper into Harris’s rear bumper. The technique stopped the chase. Harris lost control, ran down an embankment, overturned, and is now a quadriplegic.

Harris filed a lawsuit in the U.S. District Court for Northern District of Georgia against Deputy Scott and several other police officers. The trial judge denied the officers’ motion for summary judgment, holding that there was material facts in dispute, and a jury should decide if the officers’ “qualified immunity” applied in this case. The officers filed an immediate appeal to the U.S. Court of Appeals for the 11 th Circuit, where a 3-judge panel affirmed the trial judge’s decision. The panel held that Deputy Scott’s actions constituted “deadly force” and a reasonable jury could find the force was excessive.

The officers asked the U.S. Supreme Court to hear their appeal, given the national significance of police officers facing similar lawsuits and jury trials. The U.S. Supreme Court agreed (requires vote of at least 4 justices to take the case). Justice Scalia wrote to majority opinion (8 justice agreed) holding that the lawsuit should be immediately dismissed because the police video camera accurately reflected what really happened, and Deputy Scott did not act with excessive force.

Justice Scalia writes, “The videotape quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.” While Harris asserted that the chase created no real risk to pedestrians or other motorists as the roads were mostly empty, “the videotape tells quite a different story.” The videotape shows Harris’ vehicle “racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen cars, cross the double-yellow line, and force cars travelling in both directions to their respective shoulders to avoid being hit.”

Since Deputy Scott’s actions are objective reasonable, he enjoys “qualified immunity.” Justice Scalia quotes from a Supreme Court decision in Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), that qualified immunity is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.”

See the video. Justice Scalia commented about the one dissenting justice, “ Justice Stevens suggested that our reaction to the videotape is somehow idiosyncratic, and seems to believe we are misrepresenting its contents.” “We are happy to allow the videotape to speak for itself.” See http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb.

Legal Lessons Learned: Videotapes can be wonderful evidence, not only in police chases, but also for fire & EMS vehicles and in arson investigations. Video cameras in emergency vehicles can lead to prompt dismissal of lawsuits (unless you are driving with willful or wanton disregard for the safety of others).

Article 1-6

Ohio – Arson Conviction Of Municipal Judge Is Upheld – Immunity Granted To Two Other Conspirators, Who Secretly Tape Recorded Conversations With The Judge

On June 22, 2007, in United States of America v. Don S. McAuliffe, the U.S. Court of Appeals for the 6 th Circuit in Cincinnati upheld (3 to 0) the conviction of former Fairfield County municipal judge McAuliffe, age 62, Lancaster, OH for conspiring to burn down his vacation home at a lake in Millersport, OH on March 8, 2002. He is serving a 13- year prison sentence.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-5

U.S. SUPREME COURT – UNLAWFUL SEARCH AND SEIZURE – IMPLICATIONS FOR ARSON INVESTIGATIONS

On June 18, 2007, in Brendlin v. California, Case No. 06-8120, in a 9 to 0 decision, the U.S. Supreme Court held that the evidence seized from Bruce Edward Brendlin, a passenger in a vehicle stopped by police without probable cause, must be suppressed. The court held that not only was the driver of the car “seized” for Fourth Amendment purposes, but also that “a passenger is seized as well and so may challenge the constitutionality of the stop. ” The court’s decision has implications for other types of “stops,” including at fire scenes where arson investigators seek to interview suspicious persons.

On Nov. 27, 2001, early in the morning, a California Deputy Sheriff and his partner saw a parked Buick with expired registration tags. The called dispatch, and were informed that an application for renewal of the registration had been filed and was being processed. The deputies later saw the Buick being driven on the road, and observed that the temporary license plate had the number “11” (meaning it could be driven through Nov. 2001). They pulled the vehicle over to verify that the temporary tag was issued for this vehicle.

The deputy asked the driver, Karen Simeroth, for her driver’s license and registration. The deputy recognized the passenger, Bruce Edward Brendlin, as “one of the Brendlin brothers’ and knew that either Bruce or his brother, Scott, was a parole violator wanted on a warrant for dropping out of parole supervision. The deputy returned to his patrol car, called for back up, and confirmed with the dispatcher that Bruce Brendlin was wanted on a warrant.

While waiting for back up, he saw Bruce Brendlin open the front passenger door, and then quickly close it again. When backup arrived, the deputy approached Bruce Brendlin with his service weapon pointed at Bruce, ordered him out of the car and placed him under arrest. The search of his clothing revealed a syringe cap. The deputies also conducted a pat down search of the driver, and found syringes and a plastic bag of green leafy material (marijuana). A search of the car turned up tubing, a scale, and other items to produce methamphetamine.

Brendlin subsequently pled guilty to possession and manufacture of methamphetamine, subject to his right to file a motion to suppress the evidence. The trial judge denied his motion to suppress, finding the traffic stop of the vehicle to be lawful. The California Court of Appeals reversed, finding there was no probably cause to stop the vehicle and that Brendlin was “seized” when the car was stopped. The California Supreme Court reversed, and found that while the traffic stop was unlawful, Brendlin was not the target of the stop, and he therefore had no basis to challenge the seizure of the evidence.

The U.S. Supreme Court agreed to hear Brendlin’s appeal, and the court held that the traffic stop subjects a passenger, as well as the driver, to Fourth Amendment seizure. The court wrote, “It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety.” The court held, “Brendlin was seized from the moment Simeroth’s care came to a halt on the side of a road, and it was error to deny his suppression motion on the ground that seizure occurred only after his formal arrest.”

Legal Lessons Learned: Arson investigators should carefully read the full decision, since it may well be applied by lower courts to “seizures” at fire scenes where suspects are temporarily detained.

Article 1-4

OHIO – STRUCTURE FIRE / UPSTAIRS BEDROOM - U.S. COURT OF APPEALS UPHOLDS SEIZURE OF 1,250 POUNDS OF FIREWORKS IN BASEMENT

On May 7, 2007, in United States of America v. James Buckmaster, the U.S. Court of Appeals for the 6 th Circuit (located in Cincinnati), 2007 U.S. App. LEXIS 10776, 2007 FED App. 0161P, upheld the search of the basement of a house, after a fire in second floor bedroom, thereby confirming the conviction of Mr. Buckmaster for unlawful possession of explosives. The court held that a fire investigator and a police officer properly entered the basement and furnace area, since water from fire hoses and a waterbed that burst had flowed into the basement, creating an electrical hazard. With humor, the court wrote, “Oxymoronic and unfortunate as it may seem, Buckmaster appears to have been done in by a burning waterbed.”

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-3

U.S. SUPREME COURT LIMITS “WHISTLEBLOWER” LAWSUITS –MUST HAVE DIRECT AND INDEPENDENT KNOWLEDGE OF FALSE CLAIM

On March 27, 2007, the U.S. Supreme Court in Rockwell International Corp. v. United States, http://www.supremecourtus.gov , held that a laid off engineer (James Stone) at the Rockwell nuclear weapons plant in Rocky Flats, Colorado was not entitled to any of the money awarded to the U.S. Government by a jury against Rockwell ($1,390,775.80, tripled per False Claims Act).

The U.S. Supreme Court held that Mr. Stone was not an “original source” of information about the false claims, because he merely predicted in an engineering report in 1982 that storing contaminated nuclear pond waste in rectangular, concrete boxes (“pondcrete”) would fail; the actual failures (called “ insolid” blocks) occurred in 1986 after he was laid off, when a foreman reduced the percentage of concrete in the mix.

Justice Anthony Scalia wrote the majority opinion (6 to 2; Justice Breyer did not participate in this case), holding that Mr. Stone did not meet the False Claims Act definition of an “original source” since he did not have direct and independent knowledge of actual failures – he merely predicted they would occur.

Legal Lessons Learned: “ Qui tam” lawsuits can be brought by any individual alleging that a company or grant recipient has submitted a false claim for payment to the U.S. Government; Congress has created in the False Claims Act a financial incentive for such claims – hopefully your FD will never be faced with such a claim.

Article 1-2

OHIO SUPREME COURT – POLICE PROPERLY IMPONDED AUTOMOBILE AND DEPLOYED A CANINE TO SMELL FOR NARCOTICS WHILE WAITING FOR A TOW TRUCK

On March 28, 2007, in Blue Ash v. Kavanagh, 113 Ohio St.3d 67, 2007-Ohio-1103, http://www.sconet.state.oh.s , the Ohio Supreme (4 to 3), held that the Ohio Court of Appeals for Hamilton County h ad improperly reversed the conviction of William Kavanagh, since Blue Ash police officer Robert Rockel had a legal right to pull him over on Interstate I-71 for driving on expired license plates, to impound the vehicle, and to deploy his narcotics-detection canine (when the dog alerted, Kavanagh admitted he and his friends regularly smoked marijuana, but none was in the car, and that he had a loaded 9 mm weapon in the consule).

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 1-1

SOUTH DAKOTA – FIREFIGHTERS AND POLICE HAD AUTHORITY TO ENTER OPEN FIELDS OF A FARM WHEN THEY OBSERVE OPEN BURN – LAWSUIT AGAINST THEM BY LANDOWNER DISMISSED SINCE THEY ENJOY “QUALIFIED IMMUNITY.”

 On November 28, 2006, a federal judge ordered the lawsuit dismissed in George W. Ferebee v. Jerome Smith, et al., U.S. District Court for District of South Dakota, Western Division, CIV. 04-5123, 2006 U.S. Dist. LEXIS 86404. The federal district judge dismissed the lawsuit, holding that the doctrine of qualified immunity shields government officials from such lawsuits, citing the U.S. Supreme Court, so long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would know.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The case arose on Dec. 30, 2002, when a Pennington County deputy sheriff, Jerome Smith, while on the way to a 9-1-1 call, observed a lot of smoke coming from both a burn barrel and from other places on the property of George Ferebee. Deputy Smith called dispatch, and was informed that Ferebee had a permit to burn in the barrel only. After the 9-1-1 call, the deputy sheriff arranged for two firefighters from Hill City Fire Department, along with two fire management officers with the South Dakota Department of Agriculture, to meet him at the property.

The five officials saw smoke still rising from the property, so they entered the property. The observed Mr. Ferebee burning pine needles and other debris in a draw well away from the residence, both in a burn barrel and also in piles on the forest floor around the barrel. At least 50 square feet of the forest floor had been burned. The two fire management officers told the property owner he was burning in violation of his permit, and they asked the deputy sheriff to issue a citation to the farmer.

Deputy Sheriff Smith asked Ferebee for some information for the citation. Ferebee refused to provide this information, and refused to accept the citation. The deputy sheriff then placed him under arrest, took him to jail and advised him that his wife could post a $300 bond to get him out. At the jail, Ferebee also refused to complete the booking information. When his wife came to jail and posted the $300 bond, Ferebee continued to refuse to provide the information, so he remained in jail for another three hours until he decided to cooperate.

Deputy Sheriff Smith had a subsequent opportunity to arrest Ferebee. In 1999, three neighbors got a protective order against Ferebee for “stalking.” The protective order was still in effect in March, 2003, when one of Ferebee’s neighbors videotaped Ferebee walking on the neighbor’s driveway. Deputy Smith tried to arrange to talk to Ferebee, but he would not return Smith’s calls. Smith therefore obtained an arrest warrant, and arrested him on March 15, 2003. He was held in jail without bond over the weekend.

This federal lawsuit was filed by Ferebee pro se (did not have an attorney). He also named as defendants his three neighbors who had obtained the 1999 protective order, and also against the local judge who had issued the protective order.

Attorneys for the firefighters and for the deputy took plaintiff’s deposition, and then filed a motion for summary judgment. Fortunately, all defendants were dismissed by federal district senior judge Andrew W. Bogue. Regarding the firefighters and Deputy Smith, Judge Bogue wrote:

“The Plaintiff's Complaint contains numerous allegations against Smith. First, the Plaintiff alleges Smith and the firefighters trespassed onto the Plaintiff's private property, in violation of the Plaintiff's constitutional rights. Liberal construction of the this claim indicates the Plaintiff's section 1983 claim [42 U.S.C. Sec. 1983] would have to be premised on a violation of his Fourth Amendment rights against unreasonable searches. Also, during his deposition, the Plaintiff claimed Smith violated his constitutional rights by removing a pocket: knife from the Plaintiff's pocket when they arrived at the Jail.”

The court wrote that there was no illegal search of the residence or its cartilage (immediate surrounding area). “In this case, the evidence shows the area where Smith and the firefighters entered was an open field. The Plaintiff was burning pine needles "in a draw well away from" the residence, showing the burning area was not in close proximity to the home. No evidence is presented to show the area was in an enclosure surrounding the home. The Plaintiff testified in his deposition that he was raking and burning pine needles in an effort to keep the pine needles out of the hay he fed his cattle, see Ferebee Dep. (doc. # 127-2) at 13:14-15:9, indicating the "nature of the use" was for grazing, or for harvesting or storing hay. The Plaintiff also admitted he was burning pine needles out in the open. See id. at 20:9-11. This use indicates the area is more akin to an open field than it is to the curtilage of the home. Also, the Plaintiff has not presented evidence that he had taken steps to protect the area from observation by passers by. In sum, this area was not "so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301. Because the Plaintiff cannot show Smith violated the Fourth Amendment by entering onto the property, Smith entitled to qualified immunity, and is granted summary judgment on the Plaintiff's claim against him based on an unreasonable search.”

The court also cited the “qualified immunity” doctrine. Even assuming that the Plaintiff could show the Defendants violated his constitutional right to be free from unreasonable searches, the second inquiry under the qualified immunity analysis requires the Plaintiff show the right was clearly established, or "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 201-02. This objective element ‘requires the court to look beyond the generalized constitutional protection, such as the right to be free of unreasonable searches and seizures, and to determine whether the law is clearly established in a more particularized sense.’ Kerman v. City of New York, 261 F.3d 229, 236 (2d Cir. 2001) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1986)). ‘The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ Id. at 236-37 (quoting Anderson, 483 U.S. at 640). The particular right the Plaintiff asserts, the right to be free from a warrantless entry into an open field by a deputy to investigate an open fire, is not clearly established. Thus, qualified immunity applies to shield Smith from this lawsuit.”

LEGAL LESSONS LEARNED: Entry into an open filed to investigate an open burn does not require a search warrant. Qualified immunity offers strong protection against personal liability for firefighters and police when performing official duties in a reasonable manner.

NEWSLETTER IS NOT PROVIDING LEGAL ADVICE;

Posted by UC solely as information and for the benefit of students.

RECENT CASES

Article 2-24 (July, 2009)

Article 2-23  

CT: TWO LODDs - FD CITED BY STATE-OSHA - “MAYDAY” CALLS, HYDROSTATING TESTING OF SCBAs, FIT TESTING, MEDICAL EVALUATIONS, NOT WEARING SCBAs

On Jan. 24, 2011 the Connecticut OSHA issued citations to the Fire Chief of City of Bridgeport FD, arising out of two LODDs at a structure fire on July 24, 2010. State-OSHA is seeking $5000 in penalties, alleging 5 “serious” violations: http://www.firehouse.com/files/article_pdfs/OSHA+report.pdf

The citations have also led to numerous press articles, including Firehouse.com and CT Post:

Firehouse.com, Feb. 13, 2011
Fallen Conn. Firefighters' Families Angry Over Findings
A recently completed OSHA report faulted the city of Bridgeport in the July 24 blaze killing two firefighters.

CT Post, Feb. 11, 2011
Bridgeport cited for serious safety violations in death of two firefighters: city contesting

The citations are allegations, which the FD can contest or negotiate a settlement.

• “Citation 1, Item 1: Serious ($1000)

The employer did not follow existing Standard Operating Procedures regarding “Maydays” on July 24, 2010.

Feasible means of abatement:

(1) The employer should ensure that if “Mayday” calls on the fire ground are in question, clarification should be made onsite ICS and with offsite dispatch to ensure the safety of firefighters, including accounting for all firefighters on scene.
(2) Retrain all employees on existing “Mayday” Standard Operating Procedures.”

• Citation 1, Item 2: Serious ($1000)

Hydrostatic testing was not performed on all SCBA air cylinders that were worn by firefighters who performed interior structure firefighting.

• Citation 1, Item 3: Serious ($1000)

Employer did not ensure that medical evaluations were performed on employees who wear self contained breathing apparatus (SCBA).

• Citation 1, Item 4: Serious ($1000)

Annual fit testing was not performed on firefighters who wore self contained breathing apparatus while performing interior structure firefighting.

• Citation 1, Item 5: Serious ($1000)

The employer did not ensure that all firefighters wore self contained breathing apparatus while performing all aspects of interior structure firefighting on July 24, 2010.”

  • Legal Lessons Learned: These citations should be carefully reviewed by every FD. In Ohio, such violations can result in a VSSR claim (Violation of Specific Safety Regulations), under the state workers compensation program.

Article 2-22

LODD: LAWSUIT BY FAMILY OF BALTIMORE RECRUIT, KILLED IN LIVE BURN TRAINING FIRE, DISMISSED BY FEDERAL JUDGE – ALLEGED FD NEGLIGENCE DID NOT “SHOCK THE CONSCIOUS” OF COURT

On Dec. 3, 2010, in Virginia Dean Slaughter v. Mayor and City Council of Baltimore, Civil Case No. L-10-1157, 2010 U.S. Dist. LEXIS 127698, a U. S. District judge granted the city’s motion to dismiss this federal lawsuit brought by the family of recruit Racheal Wilson, who died in live burn training in a row house on Feb. 9, 2007. “[T]he Court cannot say that the actions of the Fire Department, however reckless they may have been, rise to the level of a constitutional violation.” Full decision can be read:

http://www.mdd.uscourts.gov/Opinions/Opinions/SlaughterMemoOrder.pdf.

[Note By Author Of This Newsletter: The NIOSH Firefighter Fatality Investigation report is a “must read” for all involved in live fire training. See report F2007-09, Dec. 8, 2008, http://www2a.cdc.gov/NIOSH-fire-fighter-face/state.asp?State=MD&Incident_Year=ALL&Submit=Submit.

The LODD has also resulted in adverse press and FD discipline. See for example: “Third Baltimore Fire Official Suspended Following Recruit's Death,” 6/14/2007, http://www.firehouse.com/news/news/third-baltimore-fire-official-suspended-following-recruits-death.]

ALLEGATIONS

The U.S. District Court judge described the allegations from plaintiff’s complaint. This lawsuit was dismissed without any pre-trial discovery (depositions, etc.):

“This case arises out of the tragic death of Racheal Wilson, a Baltimore City firefighter recruit in training, during a ‘live burn’ training exercise. Ms. Wilson’s family and personal representative (“Wilson’s Estate”) brought suit against the Mayor and City Council of the City of Baltimore, as well as three individual members of the Baltimore City Fire Department.

***

On February 9, 2007, Racheal Wilson participated in a ‘live burn’ training exercise, wherein recruits battle a live blaze purposely set by Fire Department instructors. Wilson was a member of the first team to enter 145 South Calverton, a three-story row house. Her assignment was to carry the hose nozzle for her team, though her hose was not ‘charged’ with water pressure. Despite the presence of fires on the first and second floors, Wilson’s team was instructed to bypass them and proceed directly to the third floor. On their way upstairs, the team encountered severe conditions that required them to stop and confine another fire before proceeding. Upon arriving on the third floor, the team was confronted with a conflagration so powerful that evacuation became the only option. The recruits began to escape through a small window in the back of the third floor that opened onto a section of the second-story roof.

Though Wilson’s teammates were able to make it out onto the roof, Wilson had trouble getting through the window. Three times a fellow recruit tried to pull her through, only to have her slip back into the house. Finally, a crew member still inside managed to lift Wilson by the legs and others pulled her, unconscious and unresponsive, onto the roof outside. Teammates administered CPR, but to no avail.”

NFPA

“The Amended Complaint alleges that conditions inside 145 South Calverton were wholly inappropriate for the exercise conducted there, and that the planning and execution of the exercise failed to conform to requirements promulgated by both the National Fire Prevention Association and the Baltimore City Fire Department. Defendants, the Complaint charges, recklessly created an inferno that quickly burned out of control. Among other conditions, the Plaintiffs cite that some walls and ceilings were torn down to expose the framing and allow the fire to spread more quickly, an accelerant (excelsior) was stuffed behind other walls, the building was not cleared of inflammable debris, and at least seven separate fires were set. Wilson’s Estate similarly takes issue with the recruits’ gear and training, claiming that many participants were not given a proper breathing apparatus or protective clothing, that the water pressure was inadequate to address the number and strength of the fires, that there was no evacuation plan, and that the recruits were never given a pre-burn walkthrough or even instructed as to the basic construction of the building.”

INSTRUCTORS ALLEGEDLY NOT PREPARED

“Finally, the Complaint alleges that the instructors in charge of the exercise were similarly unprepared: they were not equipped with radios to report developing problems, several had never been trained in live fire training exercises, they were unfamiliar with the recruits, they set the fires before confirming that the recruits were ready to begin, three instructors left their crews, and those with the authority to terminate the exercise failed to do so when it became clear that lives were in danger.”

[Footnote 1: Defendants deny that the training exercise was poorly planned. Because of the procedural posture of the case, a motion to dismiss, the Court must accept as true the allegations in the complaint. This means crediting the allegation that the exercise was recklessly conceived and carried out.]

“SHOCK THE CONSCIOUS”

Wilson’s Estate sues under 42 U.S.C. § 1983, claiming that the Defendants’ conduct violated Wilson’s Fourteenth Amendment right to life. Analogous State Constitutional claims are advanced under Article 24 of the Maryland Declaration of Rights. Finally, Wilson’s Estate brings wrongful death and survival actions under Maryland tort law. The Defendants have moved to dismiss all counts for failure to state a claim.”

“The Court notes initially that Wilson’s Estate applied for and received pension benefits from the Fire and Police Employees’ Retirement System as a result of her line-of-duty death. Where a state provides for such compensation, it will normally be the exclusive remedy for injury or death occurring on the job. Section 1983 was never intended as a federal means of redress for those injured by the negligence of so-called ‘state actors.’ Rather, it creates a federal cause of action in favor of individuals whose constitutional rights have been abridged by those acting under color of state law. Consequently, in order to prevail, Wilson’s Estate must demonstrate that the Defendants’ conduct rose to the level of a constitutional violation.

The Due Process Clause of the Fourteenth Amendment is violated by executive action only when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992). Section 1983, therefore, does not create a cause of action for negligent conduct. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Either an intent to harm or deliberate indifference is required. See Waybright v. Frederick Cnty., MD Dep’t of Fire and Rescue Servs., 528 F.3d 199, 206 (4th Cir. 2008). Wilson’s Estate does not allege that the City intended to harm Ms. Wilson. It does, however, contend that the fire exercise was shockingly ill-conceived and ill-executed. Plaintiffs maintain that the Defendants' deliberate indifference to the dangers posed to the recruits is actionable under § 1983 because it ‘shocks the conscience.’”

WASHINGTON, D.C. – TWO LODDs – FEDERAL LAWSUIT DISMISSED

“[T]he D.C. Circuit in a similar case persuasively rejected the idea that the state has a heightened obligation towards firefighters, even when local law restricted their ability to terminate their employment or to leave the District of Columbia. See Phillips v. D.C., 455 F.3d 397, 405 (D.C. Cir. 2006). In that case, two firefighters died while battling a multi-alarm blaze, allegedly due to the fire chief’s deliberate indifference to his duty to see that the department complied with its own standard operating procedures. The Phillips court ruled that the restrictions placed on firefighters, which distinguish them from at-will employees ‘are not imposed; rather, a firefighter agrees to them as conditions of employment.’ Id. at 405 n. 10. The Plaintiffs cannot, therefore, avail themselves of the ‘special relationship’ line of cases.”

***

“The D.C. Circuit also addressed the state-created danger exception in Phillips. Confronted with the plaintiffs’ argument that the D.C. fire department’s failure to follow standard procedure constituted ‘avoidable state-created additional risk,’ the court held that while the fire chief’s deliberate indifference may have increased the firefighters’ exposure to risk, ‘the risk itself—injury or death suffered in a fire—is inherent in their profession. . . . [T]he District is not constitutionally obligated by the Due Process Clause to protect public employees from inherent job-related risks.’ 455 F.3d at 407.”

[Note: The D.C. Circuit in Phillips case involved IC, ventilation, and radio issues. The Court in its 2006 decision wrote:

“Shortly after midnight on May 30, 1999, D.C. firefighters responded to a multi alarm townhouse fire at 3146 Cherry Road N.E. *** [T]he Incident Commander initially in charge of coordinating the Department's efforts at the site, relied on a portable radio device rather than the stronger-signal mobile radio mounted in his vehicle that he could have used had he established a fixed command post. [IC] radioed Redding twice to locate his position but Redding, inside the house, never received the transmission. Soon another fire truck arrived and began ventilating the townhouse's basement by breaking the rear basement sliding glass door. The truck improperly conducted the ventilation, resulting in a sudden temperature increase inside the structure. Superheated gases from the fire shot up the basement stairway to the first floor. Redding, still on the first floor and in the gases' path, ran out of the house, his face and back burning. He told [IC] that Matthews was still in the townhouse, unaware that Morgan and Phillips were still inside as well. [IC] did not order a rescue effort until 90 seconds later, when Morgan exited the house suffering from severe burns. Seven minutes after the rescue effort began firefighters found Phillips severely burned and unconscious. Four minutes later they found Matthews in a similar state. Phillips died of his injuries 23 minutes after his removal from the townhouse. Matthews died of his injuries the following day. Morgan and Redding survived but suffered severe injuries.”]

MARYLAND – LODD FROM HEAT STROKE DURING RECRUIT TRAINING RUN – FEDERAL LAWSUIT DISMISSED

“The Fourth Circuit has been careful, however, to limit the state-created danger exception to cases in which the state has compelled the injured person to encounter the danger. See Waybright v. Frederick Cnty., MD Dep’t of Fire and Rescue Servs., 475 F. Supp. 2d 542, 553(D. Md. 2007). This limiting principle operates in workplace safety cases. Section 1983 does not require the state to provide a workplace that is free from unreasonable risks of harm. Collins, 503 U.S. at 128 (‘We . . . are not persuaded that the city’s alleged failure to train its employees, or to warn them about known risks of harm, was an omission that can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’). If the employee voluntarily encounters the risk, the exception does not apply.”

“In Waybright v. Frederick County, MD Department of Fire and Rescue Services, 528 F.3d 199 (4th 10 Cir. 2008), Andrew Waybright, a Frederick County firefighter recruit, died of heat stroke during a training session conducted in 84-degree weather without water. Waybright’s parents filed a § 1983 claim against the county, the fire department, the supervising firefighter, and others. After rejecting the opportunity-to-deliberate line of cases and finding that Waybright’s status as a firefighter trainee was insufficient to invoke the ‘special relationship’ exception, the Fourth Circuit considered whether the state-created danger theory might provide a path to recovery. Waybright’s parents argued that ‘the training session should qualify as a state-created danger because [the supervising firefighter] had used his authority to create an opportunity for danger that otherwise would not have existed and thereby knowingly put Waybright in harm’s way.’ Id.at 207 (internal quotations omitted). In denying the claim, Judge Wilkinson, writing for a unanimous panel, invoked the Supreme Court’s holding in Collins v. Harker Heights that due process does not impose a duty on municipalities to provide their employees with a safe workplace or warn them against risks of harm. Id.”

RACAEL WILSON LODD – THIS FEDERAL LAWSUIT MUST ALSO BE DISMISSED

“Because Ms. Wilson voluntarily participated in the exercise, the Plaintiffs cannot satisfy the ‘state-created danger’ test even if the City acted with deliberate indifference. The theory behind the state-created danger exception is that a state actor should be liable when that actor affirmatively puts a victim in harm’s way without giving the victim a choice about whether to face the peril or not. The Court recognizes that the training exercise was not optional. Had Wilson refused to participate, she would not have graduated. Nevertheless, in a § 1983 case Wilson’s option of declining to participate is sufficient to defeat the claim. 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.”

***

“This ruling, it should be noted, does not leave the Plaintiffs without a remedy. As mentioned, they retain all rights afforded under the Workers’ Compensation system, the Fire and Police Employees’ Retirement System, state tort law, and Article 24 of the Maryland Declaration of Rights. 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 without the intent to injure.”

Legal Lessons Learned: More precedence for dismissal of LODDs filed in federal court, alleging FD violated constitution; “shock the conscious” very difficult burden to prove.

Article 2-21

FIREFIGHTER SAFETY - REAR INTAKE CAP ON ENGINE BLEW OFF STRIKING FF IN FACE - SUED ENGINE MANUFACTURE ALLEGING IMPROPER DESIGN – JURY FOUND PIERCE NOT AT FAULT - FD IS “SOPHISTICATED INTERMEDIARY” AND RESPONSIBLE TO TRAIN PERSONNEL ON SAFE OPERATION, INCLUDING THE QUICK-RELEASE STORZ CAP THE FD INSTALLED

On September 7, 2010, in David Hatter and Kristina Hatter v. Pierce Manufacturing, Inc., Court of Appeals of Indiana, 934 N.E.2d 1160; 2010 Ind. App. LEXIS 1625, the Court of Appeals refused to order a new trial. The jury returned a verdict finding Pierce "was not at fault” and the Court of Appeals affirmed.

Injury to face:

“While working as a Pike Township firefighter, David Hatter was injured when the cap on a fire truck's rear intake pipe was propelled off the pipe by pressurized air and the cap struck Hatter in the face. Hatter and his wife Kristina brought this products liability action against Pierce Manufacturing, Inc. ("Pierce"), the manufacturer of the fire truck. Following a jury trial and verdict in favor of Pierce, Hatter appeals.

The accident occurred on September 19, 2001.

“Hatter was on duty and responded to a fire call. Initially rookie firefighter Amanda Burt attempted to remove the quick-release cap in order to connect the rear intake port to a hydrant. Having difficulty doing so, Burt found Hatter, who also could not remove the cap through manual strength. Hatter then found firefighter Neil Dorbecker, who was the engineer operating Engine 113 that day. Dorbecker grabbed two spanner wrenches, which are designed to fit around and remove a quick-release cap, and went with Hatter to the back of the truck. As Dorbecker loosened the cap, Burt, who was standing next to Hatter, heard a "loud boom." Id. at 352. Hatter was struck in the face by the quick-release cap and "flew back about 10 feet and fell to the ground." Id. Hatter suffered fractured facial bones and was taken by ambulance to the hospital.

Alleged negligent design not proved:

“Engine 113 was a pumper truck with two large-diameter horizontal intake pipes, one opening at the front and one opening at the rear of the truck, with each opening connectable by a hose to a fire hydrant. The opening of the rear intake pipe, known as the rear intake port, was located about five feet above the ground, at head height. Inside the fire truck, the front and rear intake pipes were connected as a single, continuous, five- inch diameter pipe. A T-connection located near the middle of the piping brought water from either intake pipe into a vertical pipe leading to an interior reservoir; the reservoir would pump water at various pressures to outlets connected to fire hoses. The rate at which pressurized water entered the reservoir from either intake pipe was controlled by a butterfly valve inside the piping, located between the intake port and the reservoir, a few feet on either side of the T-connection. Each butterfly valve was adjusted by turning its own control wheel at the fire truck operator's station, ten complete turns between fully closed and fully open. When either the front or rear intake pipe was not in use, its corresponding butterfly valve typically remained closed and its intake port capped.

Hatter alleged the following aspects of the piping design rendered Engine 113 unreasonably dangerous. Because the front and rear intake pipes were connected, when a pressurized hydrant was connected to the front intake port, pressurized water would not only flow through the front intake pipe to the reservoir, it would also travel backwards through the rear intake pipe as far as it was able to go. With the front butterfly valve opened, pressurized water would flow past the T-connection and into the rear intake pipe until it reached the rear butterfly valve, where it would remain under pressure as long as the pressurized hydrant was connected to the front intake. So long as the rear butterfly valve remained closed, the fifteen feet of pipe between the rear butterfly valve and the rear intake port would be filled with air at atmospheric pressure. If, however, the rear butterfly valve were inadvertently opened, the laws of physics would require the pressure on either side of the valve to immediately equalize. As a result, the air in the rear intake pipe would be compressed to the same pressure as the water pressure from the hydrant connected to the front intake. If the rear butterfly valve were then closed, the pressurized air between the rear butterfly valve and the rear intake port would remain trapped under pressure, even after the fire truck was disconnected from the hydrant. After the incident, PTFD firefighter David Estes determined that this mechanism caused Engine 113's rear intake pipe to become, in effect, a pressurized air cannon.

The rear intake pipe could have been harmlessly depressurized in two ways: opening the rear butterfly valve, or opening an ‘air bleed’ valve located inside the rear intake pipe aft of the rear butterfly valve. Transcript at 298. The parties disputed at trial whether such a depressurization should have been accomplished during Engine 113's weekly inspection done two days before the incident. The protocol for such inspections called for operation of the rear air bleed, and the PTFD log book for Engine 113 showed no activity between the Monday inspection and the Wednesday incident that could have resulted in pressurization during that intervening time. Hatter argued, however, that because the activities routinely recorded in the log book did not include all instances of using an intake pipe to fill Engine 113's tank, the pressurization may well have occurred at some point following the Monday inspection. However, the parties agreed there was no protocol for an inspection aimed specifically at ascertaining the pressurization of the rear intake pipe. Rather, Pierce concedes "[d]eposition and trial testimony established that no one had ever heard of an inlet pipe becoming pressurized." Appellee's Brief at 10.

Engine with threaded cap as specified by FD; then FD changed it to Storz cap:

“It was also undisputed that the injury-causing potential of pressurization of the rear intake pipe would differ based on whether the cap on the rear intake port was a threaded cap or a quick-release cap. PTFD's specifications called for a threaded cap, and Engine 113 was delivered with a threaded cap. Like a cap on a two-liter soda bottle, a threaded cap detaches only after several turns. If a threaded cap is unscrewed from a pipe under pressure, the pressurized air or water will escape gradually as the cap is turned. After Engine 113 arrived in Pike Township, and without informing Pierce, PTFD replaced the threaded cap with a quick-release or "Storz" cap. Tr. at 125. A quick-release cap is removed by pushing two levers and turning the cap a quarter-turn to the left, which makes the cap come off as soon as it is loosened; thus, a quick-release cap is ‘either on or off.’ Id. at 191. Any pressure in the pipe will be released suddenly and may propel the quick-release cap away from the pipe with proportionate force.”

Jury properly instructed at the request of Pierce Manufacturing that FD was a “sophisticated intermediary.”

“The sophisticated intermediary doctrine provides a defense to a manufacturer's duty to warn and is applicable only if the intermediary -- in this case, PTFD as the intermediary between Pierce and Hatter -- knew or should have known of the product's dangers. See id. at 164 (‘[F]or the exception to apply, the intermediary must have knowledge or sophistication equal to that of the manufacturer or supplier, and the manufacturer must be able to rely reasonably on the intermediary to warn the ultimate consumer. Reliance is only reasonable if the intermediary knows or should know of the product's dangers.’).

However, evidence presented at trial established the following, from the totality of which the jury could reasonably have inferred PTFD should have known of the danger arising from the combination of Engine 113's plumbing design with a quick-release cap. First, even though Pierce did not provide any drawings of the interior plumbing configuration, which was not part of PTFD's specifications submitted to Pierce, firefighter Estes knew that configuration well enough to accurately hypothesize the cause of Hatter's injury immediately after it occurred. Second, PTFD's firefighters were aware that pipes on fire trucks can become pressurized. See tr. at 304 (Estes's testimony regarding his experience as a firefighter in removing caps that contain "pressurized air or water"). Third, PTFD unilaterally decided to install, and did itself install, the quick-release cap on Engine 113. Fourth, the firefighters' difficulty in removing the quick-release cap was a potential sign that the rear intake pipe had become pressurized.”

Therefore, the trial court did not abuse its discretion by giving the sophisticated intermediary instruction.

Legal Lessons Learned: Firefighters injured by an engine have a very difficult time proving product design defect when the engine is altered without knowledge of manufacturer.

Article 2-20

OSHA – SEEK AUTHORITY FROM CONGRESS TO INSPECT / FINE PUBLIC EMPLOYERS – INCLUDING FIRE DEPARTMENTS

On April 27, 2010, David Michaels, Assistant Secretary for OSHA, testified before the U.S. Senate, Committee on Health, Education, Labor and Pensions, in support of the proposed “Protecting America's Workers Act.” One of its provisions would amend the 1970 OSHA Act to give OSHA inspectors authority over public employees in all states; currently 26 states have voluntarily adopted state-OSHA plans. This law would give OSHA authority over the remaining 24 states. http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=TESTIMONIES&p_id=1122.

He testified:

“It is a fact little known among the American public that public employees in the United States - who respond in our emergencies, repair our highways, clean and treat our drinking and waste water, pick up our garbage, take care of our mentally ill, provide social services and staff our prisons - are not covered by OSHA unless the state in which they work chooses to do so. Today, almost 40 years after passage of the Occupational Safety and Health Act, half of the states still do not provide federally-approved coverage for public employees.

According to the Bureau of Labor Statistics, the total recordable case injury and illness incidence rate in 2008 for state government employees was 21 percent higher than the private sector rate. The rate for local government employees was 79 percent higher. Clearly, some public sector jobs are extremely dangerous. Public employees deserve to be safe on the job, just as private-sector employees do.

In testimony before this Subcommittee in May 2007, Jon Turnipseed, Safety Supervisor for the City of San Bernardino Municipal Water Department in California, said it most succinctly:

From my own view as a public sector employee, the simplest but most compelling reason is that saving lives and preventing injuries always tops the list of values that our government holds dear in every other responsibility it undertakes. State and local government workers are, in many instances, the "first responders" upon whom we all depend. Whether a terrorist attack or a natural disaster, these first responders are the first people who rush in to help save lives. We put a premium on that capability in our society. These same people who protect the public from hazards deserve no less of a commitment to occupational safety and health protections from their employers, the public, and all of us here today.

Twenty-six states and one territory now provide federally-approved OSHA coverage to their public employees and you will find that they consider it not a hardship, but a necessary provision for the safety of their employees and the provision of good government. Nonetheless, in 2008 there were more than 277,000 injuries and illnesses with days away from work among state and local governmental employees. In a state that has public employee coverage, a public employer can be held responsible for safety violations. A crane operator in New Jersey died from injuries after his head was crushed by a cargo spreader in 2008. New Jersey, which has an OSHA program for public employees, issued a citation for willful OSHA violations. However, if this tragedy had occurred in Pennsylvania or Delaware, which have no public employee safety and health programs, the employer could not have been held accountable.

Again, we support the Protecting America's Workers Act, which extends OSHA coverage to public sector employees. Because the extension of such coverage will have costs, it should occur over time, and we welcome further discussion of implementation issues. But there is simply no good argument in the 21st century for allowing public employees to be injured or killed under conditions that would be illegal and strictly punished if they were private sector employees. The days of treating public employee as second class citizens must come to an end.”

Legal Lessons Learned: We all want to reduce firefighter line-of-duty-deaths and injuries; this proposed statute would give OSHA authority over all public and private FDs.

Article 2-19

KANSAS: MEDICAL HELICOPTER CRASH KILLS THREE – LAWSUIT AGAINST MEDICAL CENTER FOR FAILURE TO SUPERVISE THE SUBCONTRACTED FLIGHT SERVICE IS DISMISSED

On Jan. 29, 2010, in Ethan Hauptman (surviving spouse of Jennifer Hauptman) and John F. and Wynema M. Dye (surviving parents of Jonathan Dye) versus WMC, Inc., d/b/a Wesley Medical Center), 224 P.3d 1175, 2010 Kan. App. LEXIS 11, the Court of Appeals of Kansas affirmed the grant of summary judgment in favor of the Medical Center.

On Feb. 17, 2004, a Beach B90 air ambulance crashed while returning to Dodge City Regional Airport after delivering a patient from Mercy Hospital of Independence, Kansas to Wesley Medical Center. The pilot and EMT Jonathan Dye, and RN Jennifer Hauptman died in the crash; both Dye and Hauptman were employees of Ballard Aviation, the operator of the air ambulance service under contract with Wesley Medical Center. The families sued the Wesley Medical Center, alleging that Wesley had failed to perform adequate oversight of Ballard’s operations.

The plaintiff claimed among other allegations:

"c. [Wesley] knew or should have known that the lack of experience, training and qualification of the [Ballard] dispatchers and [Ballard] dispatch department would result in the dispatch of aircraft with pilots who were fatigued and near the limit of their permissible legal duty time.

d. [Wesley] knew or should have known that the aircraft utilized by [Ballard], including EagleMed 4, on February 17, 2004, a Beech B90 registered as N777KU, did not utilize terrain avoidance system technology because their flight operations were a combination

of Part 91 and Part 135 medical service operations.

e. [Wesley] knew or should have known that fatigue and pilot duty hour considerations were so severe at [Ballard] that medical personnel onboard aircraft flights were known to handle aircraft flight duties and responsibilities in order to provide relief for fatigued pilots.”

The trial court granted summary judgment for Wesley Medical Center, since EMT Jonathan Dye and RN Jennifer Hauptman were employees of Ballard Aviation, not the Wesley Medical Center and the Medical Center did not owe them a specific duty of care. Plaintiffs argued on appeal that the Medical Center was negligent in its failure to supervise Ballard Aviation.

The Court of Appeals disagreed:

“Based on the plain language of the contract between Wesley and Ballard, the appellants cannot prove a vital element of their negligent supervision or control claim against Wesley: that Wesley retained control over Ballard's flight operations. Under the contract, it is clear that Ballard maintained control of its flight operations, its aircraft equipment, and its safety obligations. There is nothing to indicate that Wesley assumed a duty to furnish safe transportation of Ballard's employees, to ensure the hiring of competent pilots, or to supervise the pilots of the air ambulance. Further, Wesley neither agreed to maintain control over Ballard's flight operations nor to assume any of Ballard's obligations as an air ambulance provider. Thus, under the plain language of the contract,the appellants are unable to prove their negligent supervision claim.

Wesley's Conduct with Ballard

Moreover, there is no evidence that Wesley retained or exercised control over the details of the work Ballard (through its agents or employees) performed. Wesley did not control Ballard's use of its airplanes. Wesley did not direct Ballard's method of picking up and delivering patients to Wesley's facility. Wesley did not monitor Ballard's flight operations. Moreover, Wesley offered no specifications to Ballard on how to perform its work.

Instead, the undisputed evidence in this case was that Ballard's flight coordinators were responsible for determining the aircraft and the flight crew that would be used for a particular flight. Ballard employees determined the number of pilots and medical crew at each base and assigned the shifts for the pilots and medical crew. Further, Ballard was responsible for hiring, supervising, and providing training to pilots and crew members. In addition, as Wesley points out, there is no evidence that it was in control or directing the air ambulance when it crashed and killed the decedents. Wesley did not dispatch the air ambulance flight on which the decedents were flight crew members. There is no evidence that Wesley directed the return flight path of the air ambulance or dictated the base to which the air ambulance would return. As a result, Wesley was not in control of the air ambulance flight when the decedents were tragically killed, and the appellants cannot pursue a negligent supervision or control claim against Wesley.”

Legal Lessons Learned: In the fire service, fatigue can also be an issue that results in litigation, particularly for part-timers who are on multiple FDs. Consider an SOG that requires personnel coming on duty to advise their OIC if they have not had adequate sleep or are otherwise fatigued.

Article 2-18

OHIO: EMPLOYER INTENTIONAL TORT - OHIO SUPREME COURT UPHOLDS STATUTE MAKING IT MUCH HARDER FOR EMPLOYEES TO SUE FOR WORKPLACE INJURIES – GOOD NEWS FOR FIRE DEPARTMENTS AND INCIDENT COMMANDERS

On March 23, 2010, in Kaminski v. Metal & Wire Prods. Co., the Ohio Supreme Court held (6 to 1) that Ohio Revised Code 2745.01 is “constitutional on the grounds at issue in this case. We accordingly reinstate the trial court’s grant of summary judgment in favor of Metal & Wire.”

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-ohio-1027.pdf. The Court also similarly decided two other companion cases.

In 2005 the Ohio General Assembly enacted a new statute, effective April 7, 2005, that made it much harder for employees to file lawsuits against their employers seeking damages from a jury for workplace injuries. The legislators wanted to keep most workplace injuries out of the Courts, since injured employees can always file workers comp claims (a no fault system of compensation; but no punitive damages). The 2005 statute has been the subject of intense public debate and litigation in the lower courts.

Ohio Rev. Code 2745.01 provides in part:

“(A) In an action brought against any employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortuous act with the intent to injure another or with belief that the injury was substantially certain to occur.”

(B) As used in this section, ‘substantially certain’ means than an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or both.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substances causes a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.”

Legal Lessons Learned: The fire service in Ohio will benefit from this statute; throughout the nation we are seeing increased litigation by injured firefighters against Incident Commanders, mutual aid fire departments and others.

Article 2-17

FED: SEATBELTS – OSHA - EMPLOYEE KILLED IN ROLL-OVER DEATH OPERATING BUSH HOG CLEARING UTILITY RIGHT-OF-WAY - COMPANY FINED $4000 - FOREMAN SUBMITTED FALSE SAFETY REPORTS EVEN THOUGH SEATBELT WAS INOPERABLE FOR PAST SIX MONTHS

On Jan. 18, 2010, in U.S. Secretary of Labor v. Burford’s Tree, OSHRC Docket No. 07-1899, http://www.oshrc.gov/decisions/html_2010/07-1899.htm, OSHA Review Commission held that the company had failed to enforce wearing of seat belts, and was properly cited and fined in the death of the employee. This case should “send a message” to all employers, including FDs that do not enforce their seat belt SOG (even if the FD is not in a state which enforces OSHA regulations).

Burford’s Tree, Inc. is an Alabama-based company which performs utility right-of-way clearing, including mowing using bush hogs for utility companies throughout the Southeast. After the deadly roll-over accident, OSHA issued a citation and proposed $7000 fine. The company requested a hearing and Administrative Law Judge Ken S. Welsh vacated the citation, finding that the company had appropriate policies in place requiring the wearing of seat belts, and should not be fined for “unpreventable employee misconduct.”

OSHA appealed to the Review Commission, which reversed and in rather strong language held company was properly cited and fined:

“On the day of the accident, BTI assigned a two-man crew to mow a utility right-of-way in a hilly off-road area near Wedowee, Alabama. To mow the area, the deceased employee operated a tractor with a mowing device, known as a ‘bush hog,’ attached. He was killed when the bush hog ran over him. His fellow crew member, foreman Michael Mitchell, was in a truck about a quarter mile away and did not observe the accident. Rodney Walker, a reserve deputy, arrived at the worksite within an hour of the accident. According to his undisputed testimony, the tractor had gone off a dirt road and rolled over, apparently ejecting the deceased employee from the tractor cab onto the ground. The record shows, as the judge found, that the seatbelt on the tractor had been inoperable for some time before the day of the accident. Both Walker and the OSHA compliance officer who inspected the worksite six days after the accident made this determination, which is corroborated by photographs of the seatbelt admitted into evidence.

BTI required foreman Mitchell to perform daily inspections of the tractor seatbelt to assess its operability and submit weekly Tractor Safety Inspection Reports (“Reports”) to BTI’s safety department documenting his daily inspections. Mitchell, however, did not inspect the tractor’s seatbelt on the day of the accident, nor had he inspected it during the preceding six-month period. Nonetheless, he submitted weekly Reports to the safety department over this six-month period indicating that he had inspected the seatbelt every day.

Monitoring compliance with BTI’s safety program, including ensuring that seatbelts are operable, is also the responsibility of the company’s safety department. BTI safety director Dennis Jones and his staff conduct field audits, which include determining whether personal protective equipment such as seatbelts are being worn. The safety department is also responsible for reviewing weekly Reports like those submitted by Mitchell. Monitoring to ensure that seatbelts are operable is also conducted by BTI’s general foremen, including James Varnon, who was responsible for supervising foreman Mitchell.

The OSHA Review Commission focused on lack of safety inspections:

ANALYSIS

“In finding that BTI established the affirmative defense of unpreventable employee misconduct and vacating the citation, the judge primarily relied on the field audits conducted by BTI’s safety department, general foreman Varnon’s worksite inspections, and BTI’s requirement that foreman Mitchell perform daily inspections of the tractor’s safety equipment and submit weekly Reports to BTI. Based on our review of this evidence and the remainder of the record, we discern no basis for such a finding. Instead, we find that BTI failed to exercise reasonable diligence in monitoring the operability of the tractor’s seatbelt during the six months prior to the accident, which established the company’s constructive knowledge of the seatbelt’s inoperability over a significant period of time and, therefore, its inability to be worn.

Although foreman Mitchell was required to inspect the operability of the tractor’s seatbelt on a daily basis, he admitted failing to do so for almost six months up to and including the day of the accident. He also admitted to filing weekly Reports that incorrectly indicated he had conducted these daily inspections. As the judge found, if Mitchell had inspected the seatbelt, he would have known that it was inoperable and could not have been worn by the deceased. Furthermore, neither general foreman Varnon nor safety director Jones made adequate efforts to monitor Mitchell’s compliance with this daily inspection requirement or otherwise monitor the operability of the seatbelt.

***

For these reasons, we conclude that the Secretary established that BTI had constructive knowledge of the cited condition.”

Legal Lessons Learned: FDs should enforce their seatbelt SOGs. Even if you are not in an OSHA state, failure to enforce can be very expensive. In Ohio, for example, if a FF is injured in a roll over accident, he can file a VSSR claim on line with the Ohio Bureau of Workers Compensation; if a violation of specific safety requirements is proved, it could cost the FD $728,000; see calculations provided to author of this newsletter by the manager of the Ohio VSSR Unit: www.uc.edu/cas/firescience - OFFICER DEVELOPMENT SEMINARS – SEATBELT. If the FF was killed, then the VSSR investigation file may lead the family of the deceased FF to the file an “intentional tort” lawsuit seeking $ millions in punitive damages from a jury: http://www.cccouncil.com/SVIU/Brochure.pdf.

Article 2-16

FED: BULLET PROOF VESTS – MANUFACTURER OF DEFECTIVE VESTS AGREES TO PAY $4 MILLLION TO SETTLE LAWSUIT FILED BY U.S. GOVERNMENT - $54 MILLION IN TOTAL SETTLEMENTS

On Feb. 12, 2010, the U.S. Department of Justice announced the settlement involving “Zylon bullet-proof vests” with Lincoln Fabrics, Inc., a Canadian weaver of ballistic fabrics, and their American subsidiary. http:///www.justice.gov/opa/pr/2010/February/10-civ-136.html.

These vests were purchased by the U.S. Government from several companies, including Second Chance Body Armor Inc., First Choice Armor Inc. and Point Blank Body Armor Inc. These vests lost their ballistic capacity quickly, especially when exposed to heat and humanity.

In Aug. 2005, the National Institute of Justice issued a report that Zylon degraded quickly. At that time, all American body armor manufacturers stopped using Zylon in body armor. The U.S. Government alleged in their False Claims Act suit that Lincoln Fabrics knew about this defect as early as Dec. 2001.

The U.S. Government has sued other Zylon manufactures, and has settled with six others for $54 million.

Legal Lessons Learned: FDs with Zylon bullet proof vests should replace them immediately.

Article 2-15

OHIO: INTENTIONAL TORT LAWSUITS – FOURTH COURT OF APPEALS TO DECLARE STATUTE REQUIRING PROOF THAT EMPLOYER “INTENDED TO CAUSE INJURY” VIOLATES OHIO CONSTITUTION - MORE INJURED EMPLOYEES WILL BE FILING LAWSUITS IF OHIO SUPREME COURT ALSO HOLDS STATUTE ILLEGAL

On Dec. 18, 2009 in Edward W. Warren v. Libby Glass, Inc., 2009-OH-6686 (Court of Appeals for Sixth District, Lucas County), held (3 to 0) that the Ohio intentional tort statute was unconstitutional. This is the fourth Ohio Court of Appeals to hold the statute is too restrictive. If the Ohio Supreme Court agrees, then Ohio employers (including fire departments) will undoubtedly see more lawsuits by injured employees who seek not only workers comp, but also punitive damages from a jury.

This holding does not, however, help the plaintiff, Edward W. Warren. He had been injured on a cardboard bailer machine, which he claimed had inadequate guarding. His employer proved, however, that (1) there had never been any injuries or even “near misses” with this machinery, and (2) Mr. Warren was never required to work on the machine or to even enter the area where he was injured. The Court of Appeals held that his lawsuit was therefore properly dismissed by the trial court.

In 1999, the prior version of the Ohio intentional tort statute was declared unconstitutional by the Ohio Supreme Court in Johnson v. BP Chems., Inc., 85 Ohio St.3d 298 (1999). On April 7, 2005, the Ohio General Assembly amended the statute in an effort to protect Ohio employers from frivolous lawsuits. The new statute requires injured employees to prove that injury was “substantially certain” to occur. Ohio Rev. Code 2745.01(A) and (B).

Three other Ohio Courts of Appeal have found the 2005 amended statute to be a violation of rights protected by the Ohio constitution. The issue has been certified to the Ohio Supreme Court in Kaminski v. Metal & Wire Prods. Co., 119 Ohio St. 3d 1407, 2008-Ohio-3880; but that court has not yet issued a decision. If the Ohio Supreme Court also declares the statute as unconstitutional, then employees may bring “common law” intentional tort claims seeking damages from a jury.

Legal Lessons Learned: The fire service is collecting “near miss” reports and this is commendable; FDs like other employers, however, must aggressively address safety issues to avoid jury trials.

Article 2-14

WA: GUARD YOUR FIRE POLE OPENINGS - SEATTLE FIREFIGHTER, SEVERELY INJURED WHEN HE FELL THROUGH UNGUARDED FIRE POLE HOLE - AWARDED $12.75 MILLION BY JURY

On October 23, 2009, the Seattle Times reported that the firefighter was on temporary assignment to Station 33 on Dec. 23, 2003, when he walked towards the second floor bathroom in the early morning hours from a dark bunk room, entered the wrong door, and fell through the pole hole to the concrete floor below. He fractured five vertebrae in his lower back, and had lung, bladder and liver injuries. This ended his career as a firefighter; his injuries prevented him from even doing light duty, clerical work. After a six-week trial, the jury awarded him $12.75 million. Lesson learned for all FDs – install metal guard that requires manual opening to the pole.

http://seattletimes.nwsource.com/html/localnews/2010120928_webfirefighter23m.html.

In many jurisdictions, however, workers compensation is your sole remedy against a public employer. Cities and other political subdivisions in many states enjoy governmental immunity. For example, in the civil litigation filed by the families of the nine firefighters who died in 2007 the Sofa Super Store fire in Charleston, SC, the trial judge in August, 2009 ruled that the plaintiffs may not add the City of Charleston as a defendant. This ruling came despite the fact that the FD was fined $42,100 by State OSHA officials for safety violations.

http://www.firerescue1.com/fire-products/incident-management/articles/311536-Charleston-Fire- Department-sofa-store-fined-for-deadly-June-fire/#.

http://www.postandcourier.com/news/2009/aug/18/judge-charleston-not-part-civil-lawsuit-sofa-store/.

In Ohio, for example, firefighters and other public employees have had little success in suing their public employers for damages arising out of workplace injuries. While employees working for a private employer may file "intentional tort"lawsuits seeking damages not reimbursed under workers comp., they face a very difficult burden of proof. The injured employee must prove not only that the employer knew of a dangerous workplace condition, but also that the employer knew that harm was substantially certain to occur.

For example, on May 23, 2009 in Helfinstine v. Plasticolors, 12 Ohio App.3d 430, 2009-Ohio-2442, the Court of Appeals for Ashtabula County upheld the dismissal of an "intentional tort"lawsuit filed by an employee who suffered severe chemical burns to his feat and ankles when the company failed to supply appropriate protective footwear. He was loading dangerous chemicals into a shipping container, wearing a Tyvek pair of coveralls from his neck to his ankles, two sets of gloves, and a respirator hood. The gloves were taped to his arms, and the Tyvek pants were taped to his ankles. He inadvertently kicked over a container which spilled onto his steel toed shoes and his socks. The lawsuit was dismissed because no other employees had ever suffered such injuries. The Court of Appeals quoted from a 2006 decision, "The absence of prior accidents strongly suggests a lack of knowledge by an employer that injury from a particular procedure or process was substantially certain to occur."


Legal Lessons Learned: Guard the poles to prevent inadvertent entry. Even if workers comp is the sole remedy, what a terrible way to end a career in the fire service.

Article 2-13

FIREFIGHTER CANCER - SOOT - IAFC TO PUBLISH ANOTHER ARTICLE

The IAFC (International Association of Fire Chiefs) has kindly agreed to publish a follow-up article by the author of this newsletter on new research being conducted by UC into the dangers of soot. This article will review the Firefighter Cancer / Wellness seminar we hosted at UC on July 12, 2009 (now posted at www.uc.edu/cas/firescience), and the on going research being conducted by UC Medical – Department of Environmental Health. On April 15, 2009, IAFC On Scene published our article, "Firefighter / EMT Safety, Health & Survival: Firefighter Cancers: Soot," http://www.iafc.org (search "Bennett").

SOOT: Fire Department should carefully review their practices on cleaning of turn out gear, and interior cabs of fire apparatus. See the presentation by District Chief Ron Texter, Cincinnati FD’s Health & Safety Officer, at the July 12, 2009 seminar: www.uc.edu/cas/firescience.

NEW RESEARCH: FDs are urged to watch the presentation by Dr. Erin N. Hayes, UC Medical at our July 12, 2009 seminar.

LEGAL ISSUES SEMINARS:

Contact us if your FD might be interested in seminar covering topics in my National Fire Academy course, "Political & Legal Foundations of Fire Protection." The host FD selects the topics to be covered – see 18 topics: www.uc.edu/cas/firescience (ON LINE BENNETT).

Feb. 2009 – Palm Beach, FL and area FDs;

Oct. 31, 2009 – Ohio Society of Fire Service Instructors, Columbus FD;

Oct. 1, 2, 3, 2009 – Rancho Santa Fe FD, San Diego;

Sept. 17, 2009 – Delhi FD and area FDs, Cincinnati;

July 30, 2009 – Mason FD, Warren County, OH.

Article 2-12

OHIO: FIREFIGHTER CANCER / WELLNESS

 On July 12, 2009, UC Fire Science & Emergency Management Department hosted an officer development seminar, which is now posted on our web page: www.uc.edu/cas/firescience. FDs need to focus on the dangers of soot, including safety precautions before removal of SCBAs during overhaul, washing of turn out gear in dedicated washing machines at the station, cleaning apparatus interiors, and taking of showers after structure fires.

 A special "thank you" to Jim Burneka, Regional Director – Ohio, www.FireghterCancerSupport.org, and a City of Dayton firefighter. Jim arranged for two members of their organization who are cancer survivors to speak at our seminar, and now the support organization is sharing the seminar video nationwide.


Legal Lessons Learned: Get an annual physical. If you would like to contact any of the speakers, please send me an e-mail at lawrence.bennett@uc.edu

Article 2-11

HIGH-VISIBILITY SAFETY VESTS – EFFECTIVE NOV. 24, 2008 – LAST MINUTE EXCEPTION FOR EMERGENCY RESPONDERS DIRECTLY EXPOSED TO FLAME, FIRE, HEAT OR HAZARDOUS MATERIALS

 On Nov. 24, 2008, public safety officers, including firefighters and EMS must wear high-visibility vests when responding to an incident on a federal aid highway. On November 21, the Federal Highway Administration revised its regulations in response to fire industry safety concerns; the amended rule provides:

 "§ 634.3 Rule. All workers within the right-of-way of a Federal-aid highway who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction equipment within the work area shall wear high-visibility safety apparel. Firefighters or other emergency responders working within the right-of-way of a Federal- aid highway and engaged in emergency operations that directly expose them to flame, fire, heat,and/or hazardous materials may wear retroreflective turn-out gear that is specified and regulated by other organizations, such as the National Fire Protection Association. Firefighters or other emergency responders working within the right-of-way of a Federal-aid highway and engaged in any other types of operations shall wear high- visibility safety apparel." [FR Doc. E8–27671 Filed 11–20–08.]

The Interim Final Rule can be read at http://edocket.access.gpo.gov/2008/pdf/E8-27671.pdf.

One of the fire industry comments was submitted by Fire Chief Phil Stittleburg, Chairman of National Volunteer Fire Council. See his July 31, 2008 letter to U.S. Department of Transportation; www.nvfc.org

The original safety vest regulations went into effect for highway workers in the Manual on Uniform Traffic Control on November 24, 2004. See 23 CFR Sec. 634.1: Sec. 634.1,
Purpose: "The purpose of the regulations in this part is to decrease the likelihood of worker fatalities or injuries caused by motor vehicles and construction vehicles and equipment while working within the right-of-way on Federal-aid highways."

See CFR at http://www.gpoaccess.gov/cfr/index.html.

 The former regulation provided:
Sec. 634.2, Definitions. "High-visibility safety apparel means personal protective safety clothing that is intended to provide conspicuity during both daytime and nighttime usage, and that meets the Performance Class 2 or 3 requirements of the ANSI/ISEA 107-2004 publication entitled "American National Standard for High-Visibility Safety Apparel and Headwear.""

        ***

"Workers means people on foot whose duties place them within the right-of-way of a Federal-aid highway, such as highway construction and maintenance forces, survey crews, utility crews, responders to incidents within the highway right-of-way, and law enforcement personnel when directing traffic, investigating crashes, and handling lane closures, obstructed roadways, and disasters within the right-of-way of a Federal- aid highway."

See CFR at http://www.gpoaccess.gov/cfr/index.html.

LEGAL LESSONS LEARNED: Fire & EMS departments must comply with these new regulations. Safety vests should be placed on all apparatus that respond to highways, and they should be worn at all highway scenes.

Article 2-10

NEW MEXICO: FIREMAN’S RULE – NATURAL GAS PIPELINE EXPLOSION – FAMILY OF 12 KILLED - FIREFIGHTERS / EMS MAY PURSUE LAWSUIT AGAINST GAS COMPANY FOR EMOTIONAL DISTRESS – MUST PROVE INTENTIONAL WRONGDOING

On January 23, 2008, in Christopher Lee Baldonado, et al. v. El Paso Natural Gas Company, 143 N.M. 299, 2007 N.M. Lexis 697, the New Mexico Supreme Court held (5 to 0) that while the Fireman’s Rule continues to bar most lawsuits by responding firefighters/EMS, in this case the firefighters and EMS, while not personally injured, had to attend to severely burned adults and children.  They may therefore proceed to a jury trial on their claim of "intentional infliction of emotional distress."

On August 19, 2000, a high-pressure natural gas pipeline (thirty inches in diameter) exploded in the early morning hours near the Pecos River, south of Carlsbad, New Mexico.  A family of twelve were camping nearby.  The escaping gas ignited, creating a fireball that lead to a horror scene.  All twelve members of the extended family, including young children, were either immediately killed during the fire or died later of severe burns.

The plaintiffs are FF and EMS, with both paid and volunteer members of local FDs, who responded to the explosion.  They did not assist in putting out the fire, nor did they suffer any physical injuries.  Rather, they claim they suffered extreme emotional distress in witnessing the severe injuries suffered by the victims when the FF assisted them after the explosion.

In the lawsuit filed by the FF/EMS, they allege that the gas company had negligently designed and maintained the pipeline.  The gas company had been cited for prior safety violations, and had experience at least two prior gas pipeline explosions, one of which involved severe burns.  The lawsuit alleges that this particular pipeline, 50 years old, had similar problems to those involved in the prior two explosions.

The lawsuit was dismissed by the trial court, citing the Fireman’s Rule, which has been the law in New Mexico for past 20 years.  The rule prohibits firefighters from suing for damages sustained while responding to a fire, except where the owner or occupier fails to warn of a known danger, or misrepresents the nature of the hazards being confronted.

The FF/EMS appealed to the New Mexico Court of Appeals reversed and decided that a potion of the lawsuit may proceed; only on the claim of alleged "intentional misconduct" of the gas company.  The gas company appealed, and the New Mexico Supreme Court agreed to hear this appeal.  

The New Mexico Supreme Court held that the Fireman’s Rule should generally remain in effect in New Mexico, but the Court would allow a narrow exception – intentional misconduct claims.  The New Mexico Supreme Court noted that the Fireman’s Rule is based on a public policy rationale.  The rule it encourages the public to dial 911 and summons assistance when they need help, without concern that they would be sued by the responding FF.   

The New Mexico Supreme Court held, "We agree … that there should be a fireman’s rule."  "We take this opportunity, however, to clarify the rule’s definition and scope.  In doing so, we hope to avoid the necessity for myriad exceptions that other states have face."

Plaintiffs must prove:  (1) Defendant’s conduct was intentional or  (2) in reckless disregard of safety.  Recklessness is the intentional doing of an act with utter indifference to the consequences. 

Apply this standard to this case, the FF and EMS personnel may proceed to a jury trial, because:  

·       The natural gas pipeline company has numerous safety regulations, and therefore has a special relationship with emergency responders;

·        The natural gas company can be held liable if the plaintiff’s can prove the company’s  conduct was intentional or in reckless disregard of safety; and

·        FFs must prove their mental distress was extreme and severe, and there is a causal connection between Defendant’s conduct and FFs mental distress.

The Court concluded, "Plaintiffs have thus alleged sufficient facts to support each element of a claim of intentional infliction of emotional distress."   The court cautioned that the Plaintiff FF / EMS have a difficult burden of proof:   "Firefighters will always be subject to some emotional distress when responding to an emergency call.  We must determine whether Plaintiffs have alleged facts sufficient to show their distress could have exceeded the normal scope of distress inherent in their profession; ultimately, it will be up to a jury to determine whether Plaintiff’s stress did in fact exceed that scope."

Legal Lessons Learned:  Several states have modified the Fireman’s Rule, and a few states have abolished it, either by statute or court decision;  check the law in your state.

Article 2-9

Public Safety Officer Death Benefits - U.S. Department Drafts New Rules

September 8, 2008 was the deadline to send comments to the U.S. Department of Justice, on the draft rules they posted in the Federal Register on July 10, 2008. See proposed new rules, http://www.nvfc.org/files/documents/2008-PSOB-Regulations.pdf.

The PSOB program is a one-time payment (currently $303,064) for the families of fire, EMS, police and other public safety officers who die as a result of injuries suffered in the line of duty, or die of heart attacks or strokes sustained within 24-hours of engaging in non-routine line-of-duty activities. The PSOB also covers public safety officers who are permanently disabled as a result of a line-of-duty injury.

The PSOB was established by Congress by the Public Safety Officers’ Benefit Act of 1976, and is administered by the U.S. Department of Justice, Office of Justice Programs. The program has been the focus of much criticism, because of delays and denials of applications for benefits. Lawsuits and appeals have been filed, leading two four opinions in 2006 and 2007 by the U.S. Courts of Appeals for the Federal Circuit, and four additional opinions in 2006 and 2007 by the Court of Federal Claims.

In 2003, The Hometown Heroes Survivors Benefits Act of 2003 was enacted. This caused the Department of Justice overhaul its rules, effective on an interesting memorial date in history: September 11, 2006.

The DOJ has now processed nearly 200 cases since 9/11/06. The DOJ advises that its proposed new rules will "make it somewhat easier for affected claimants to establish their claims."

Here are some of the proposed changes and reasons offered by the DOJ.

• Heart Attack: The current definition "is too narrow to capture some types of sudden cardiac-related deaths." Section 32.3 would be expanded to cover other cardiac arrests, not just two current listed events, myocardial infarctions and sudden cardiac arrests.
• Prior heart disease: The "mere presence of cardio-vascular diseases/risk factors is not dispositive in analysis of what is ‘competent medical evidence to the contrary."
• Non-routine activities: "The PSOB Office’s approach to the term ‘routine’ has been changed and it would be helpful to have the regulation reflect that. *** This proposed rule would treat [a response to an emergency call] as ‘prima facie evidence’ that the action was non-routine."
• Frequency of call: The proposed regulation has "language reflecting that the frequency with which the activity is performed shall not be the deciding factor in determining whether an activity is ‘routine’" [including frequent police responses to domestic violence calls].
• Travel for public safety activity: "Travel in response to a specific request by the employer to perform public safety activity would be treated the same as response to a fire -, rescue-, or police emergency currently is."
• Trainers: Coverage would be expanded to cover trainers in official training programs; "currently only participants who are trainees are covered."
• Intoxication: "The proposed rule would provide additional evidentiary mechanisms for evaluating potentially-disqualifying facts relating to whether or not a public safety officer was intoxicated at the time of death or injury."

Legal Lessons Learned: the PSOB program appears to be improving.

Article 2-8

Mother's tribute to Captain Robin Broxtermen

Article 2-7

TEXAS – Arsonist Started Fire In Back Of Nightclub - Guilty Of Felony Murder For Death of Houston Firefighter

On February 15, 2007, in Jeremy Steven Robinson v. The State of Texas, 236 S.W.3d 260; 2007 Texas App. LEXIS 1102, the Court of Appeals of Texas held that Robinson was properly convicted by a jury of felony murder, in the death of a Houston FF (unfortunately jury imposed life imprisonment, not death). See photo of scene, and read details of fire fighting efforts in NIOSH Firefighter Fatality Investigation Report No. 2004-14, http://www.cdc.gov/niosh/fire/reports/face200414.html

Robinson and two friends, including James Guervara, were involved in a fraudulent check-writing crime ring. Guervara was also in the middle of a nasty a divorce, and child-custody battle with his wife, Ruiz. She worked at the El Festival Ballroom, an after-hours club in Northwest Houston (club was open 4 pm – 7 am). On Sunday, April 4, 2004, Robinson and another bought gas cans and black T-shirts at a Wal-Mart. They met up with Guervara and others and went to a gas station where they were videotaped buying $60 worth of gas. At 5 am they drove to the El Festival Ballroom, saw cars parked in front. Guervara poured gas over the back of the building and Robinson lit the gasoline trail on fire.

Guervara’s wife went to the bathroom inside the El Festival Ballroom, and smelled the heavy odor of gasoline. She went outside, observed the fire in the rear of the building, called 9-1-1 on her cell phone, and ran back in to warn about 50 customers and staff.

The Court of Appeals described the tragic fire scene. “ In response to Ruiz's 9-1-1 call reporting a fire, firemen from Station 50 of the Houston Fire Department arrived and heard customers standing outside say that there were still people inside. Captain James Walterbach decided to do a ‘fast attack,’ in which he and two other firefighters would enter the building and attempt to extinguish the fire and to rescue people who might be trapped inside. Thus, Captain Walterbach, Larry Roberts, and Kevin Kulow entered the building. The interior was dark and smoky, and there was no visibility. The fire hose got tangled on something inside, and the firefighters had to exit. The three firemen entered the building a second time and shot water on different areas to cut down on the smoke and to cool off the building. Captain Walterbach heard on his radio that the fire had vented through the roof, and he considered this unusual. He ordered his men out, but his air regulator malfunctioned, and he passed out immediately afterward. Kulow got separated from the others and was left inside. Roberts made it out. Another firefighter, Abel Sarabia, rescued Captain Walterbach, but could not find Kulow. As soon as Sarabia got out, the building experienced a flashover, which is the point at which everything inside reaches ‘ignition point’ at the same time. At that point, it was impossible to rescue anyone inside. The firefighters could not re-enter the building, and Kulow remained missing. When the fire was under control, firefighters re-entered the building and found Kulow's body; he had died from burning and not from smoke inhalation. Arson investigators determined that 47 samples of debris taken from the scene of the fire all tested positive for gasoline, which indicated a case of arson.” [Footnotes omitted.]

The Texas Court of Appeals upheld Robinson’s conviction of felony murder even though the death was of someone not in the building at the time he set the fire. “ At the outset, it might be tempting to assume that, if one caused the death of someone by setting on fire an occupied building, the death would most likely have been caused to an occupant of the building. Nevertheless, in a case from this Court, a defendant's conviction for felony murder of non-occupants of a building was upheld based on the defendant having set fire to the building. Torres v. State, Nos. 01-01-00999-CR & 01-01-01000-CR, 2002 Tex. App. LEXIS 9114, 2002 WL 31838694, at *3-5 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (not designated for publication). The argument that we rejected in Torres was that starting a fire in an empty, freestanding building is not dangerous to human life. 2002 Tex. App. LEXIS 9114, [WL] at *3-5. In Torres, two firefighters lost their lives fighting a fire set by the defendant as he was leaving an unoccupied restaurant. 2002 Tex. App. LEXIS 9114, [WL] at *2.”

The court continued, “It has long been the law that one who commits arson may be found guilty of the murder of a person who died inside the house or by fighting the fire, even though the arsonist did not intend to cause any personal injury by his act. The basis for these decisions is that burning a building within a city often produces certain dangerous consequences, such as (1) firefighters' (or good Samaritans') responding to try to save any occupants and to extinguish the fire or (2) other nearby buildings catching on fire. In these situations, the burning of a building "thereby causes" the death of (1) firefighters (or good Samaritans) who respond to fight the fire, whether or not they actually enter the building and become occupants, or (2) occupants of nearby buildings that catch on fire due to their proximity to the targeted building.”

“Accordingly, we reject appellant's argument that the only deaths that can be ‘thereby caused’ by setting fire to an occupied building are those of the occupants of that building. Furthermore, appellant does not challenge the sufficiency of the evidence proving that he intended to burn an occupied building and that the fire that he started caused the death of Kulow. Thus, having rejected appellant's argument that Kulow had to have occupied the building at the time of appellant's conduct, we overrule appellant's first point of error.” [Footnotes; case citations omitted.]

Legal Lessons Learned: Those who commit arson may be convicted of felony murder for death of occupants, FF and others. FD safety officers / incident commanders should share lessons from this NIOSH report.

Article 2-6

“Larry’s Legal Lessons: Volunteer’s Family Awarded Money after 9/11 Death; Parents battered for justice for years.” Seymour Winuk v. United States, U.S. Court of Federal Claims, June 20, 2007. Article published 7-23-07, in www.firehouse.com; to read article go to this web site and Search, “Bennett.”

Article 2-5

PROPANE EXPLOSION KILLED TWO FF IN JAN. 2007, WEST VIRGINIA - U.S. CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD INVESTIGATION - INVITE LOCAL PROPANE COMPANY TO YOUR FD TO DISCUSS SAFETY HAZARDS OF PROPANE

The U.S. Chemical Safety and Hazard Investigation Board (CSB) is conducting an investigation into the January 30, 1997 explosion at the Little General Store in Ghent, WV, which killed four people (including a responding FF) and seriously injured five others, http://www.csb.gov. The CSB is an independent federal agency charged with investigating chemical accidents. This report should be a “must read” for every FF called to a leaking propane tank.

Their Press Statements of Jan. 30, February 1, and Feb. 15, 2007 give some insight into the risks of propane leaks. The store had decided to change gas suppliers, and on the morning of Jan. 30, a technician for Appalachian Heating was preparing to switch propane service from the old propane tank of Ferrellgas Company to the new tank of Thompson Gas Company. The old tank was located near the rear wall of the store, and the new tank was 10 feet away.

At some point in the gas transfer process, there was an uncontrolled leak of propane gas from the old tank. The technician could not stop it, so he called 911 at 10:40 a.m. Two EMTs arrived first by ambulance, soon joined by two volunteer FF from Ghent Volunteer FD who arrived in separate vehicles. Another Appalachian Heating technician showed up to try and stop the leak.

Firefighters observed a “billowing vapor” or mist near the old tank. The mist was traveling along the ground. They recognized the dangers, and warned store employees and others to get out immediately. Unfortunately, some took their time, with one employee hanging a sign on the front door, “Closed due to gas leak.”

At 10:53 a.m. there was a massive explosion, 13 minutes after the initial 911 call. It killed the two Appalachian technicians, and two emergency responders: Captain Frederick Burroughs, age 51, and FF / EMT Craig L. Dorsey, age 21 (to read their bios, see http://www.usfa.dhs.gov, search “Firefighter Fatalities” then go to Fatality Notices).

Legal Lessons Learned: Do not wait for the final report to issue; invite a local propane company to come to your FD and conduct training, and provide every FF with a copy of the fatality notice of Captain Burroughs and FF / EMT Dorsey.

Article 2-4

SAFETY - OHIO SUPREME COURT HOLDS THAT EMPLOYEE WHO WILLFULLY AND REPEATEDLY IGNORED SAFETY WARNING CAN LOSE WORKERS’ COMP TEMPORARY TOTAL BENEFITS

[UPDATE: On 9/27/07, the Ohio Supreme Court granted David Gross’ request that the case be reconsidered. Their Dec. 27, 2006 decision, summarized below, may be modified or even overturned.]

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 2-3

OHIO – FIREFIGHTER WITH PRE-EMPLOYMENT RESPIRATORY AILMENT IS NOT ENTITLED TO PRESUMPTION THAT MEDICAL PROBLEMS OCCURRED ON DUTY

On Dec. 27, 2006, in State ex rel. Worrell v. Ohio Police & Fire Pension Fund, 112 Ohio St.3d 116, 2006-Ohio-6513, the Ohio Supreme Court (7 to 0) held that the statutory presumption in Ohio Rev. Code 742.38 (D) that respiratory ailments of firefighters are incurred while performing official duties did not apply in this case because a pre-employment physical revealed evidence of the ailment. The Ohio Police & Fire Pension Fund denied his application for a medical disability, and the Ohio Supreme Court concurred in lower court decisions refusing to overturn the Pension Fund.

[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]

Article 2-2

PUBLIC SAFETY OFFICERS’ DEATH BENEFITS – REVISED DEPARTMENT OF JUSTICE REGULATIONS IMPLEMENT CONGRESSIONAL INTENT TO BROADEN COVERAGE

 Effective 9/11/06, the U.S. Department of Justice, Bureau of Justice Assistance regulations implement Congressional amendments to the 1976 Public Safety Officers’ Benefit Act, and broaden the definition of the term “firefighter” and “rescue squad or ambulance crews.” As of October 1, 2006, the PSOB payment has been increased to $295,194 for fiscal year 2007. These statutory amendments and new regulations can be read at http://www.ojp.usdoj.gov/BJA/grant/psob/psob_main.html.

The 2006 regulations list the following kinds of public safety officers:

Law enforcement officers;

Firefighters;

Chaplains;

Members of rescue squads or ambulance crews; and

Disaster relief workers.

“Firefighter” under the new regulations means an individual who “(1) Is trained in - (i) Suppression of fire; or (ii) Hazardous materials emergency response; and (2) Has the legal authority and responsibility to engage in the suppression of fire, as (i) An employee of the public agency he serves, which legally recognizes him to have such (or, at a minimum, does not deny (or has not denied) him to have such); or (ii) An individual otherwise included within the definition provided in the Act, 42 U.S.C. 3796b(4).” This U.S. Code provision defines “firefighter” as “includes an individual serving as an officially recognized or designated member of a legally organized volunteer fire department.”

“Rescue Squad or Ambulance Crew” is defined under the new regulations as “members who are rescue workers, ambulance drivers, paramedics, health-care responders, emergency medical technician, or similar workers, who – (1) Are trained in rescue activity or the provision of emergency medical services, and (2) As such members, have the legal authority and responsibility to (i) Engage in rescue activity; or (2) Provide emergency medical services.

“Disaster relief worker” is not further clarified in the regulations, other than to say it is any individual who meets the definition provided by Congress in 42 U.S.C. 3796b(9)(B) or (C). This statute states in 42 U.S.C. 3796b(9):

"public safety officer" means—

(A) an individual serving a public agency in an official capacity, with or without compensation, as a law enforcement officer, as a firefighter, as a chaplain, or as a member of a rescue squad or ambulance crew;

(B) an employee of the Federal Emergency Management Agency who is performing official duties of the Agency in an area, if those official duties—

(i) are related to a major disaster or emergency that has been, or is later, declared to exist with respect to the area under the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and

(ii) are determined by the Director of the Federal Emergency Management Agency to be hazardous duties; or

(C) an employee of a Statelocal, or tribal emergency management or civil defense agency who is performing official duties in cooperation with the Federal Emergency Management Agency in an area, if those official duties—

(i) are related to a major disaster or emergency that has been, or is later, declared to exist with respect to the areaunder the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and

(ii) are determined by the head of the agency to be hazardous duties.

Heart Attack / Strokes: The new regulations also implement the 2003 Congressional expansion of death benefits to public safety officers who die of a heart attack or stroke within 24 hours of engaging on duty in “nonroutine stressful or strenuous” activity, or while participating in a training exercise involving nonroutine stressful or strenuous activity. 42 U.S.C. 3796, Section 1201. The International Association of Fire Chiefs issued a press release in August, 2006 announcing they were pleased the regulations require a case-by-case review by the Department of Justice concerning prior medical condition of those who die heart attacks and strokes within 24 hours.

Legal Lesson Learned:Since the PSOB benefits extend only to those rendering services “in an official capacity,” fire & EMS departments should establish paperwork which “officially appoints” personnel, including volunteers. Heart attacks are a major cause of LODDs, and fire & EMS departments should consider implementing annual physicals.

Article 2-1

WORN TIRE ON LIFE SQUAD - DEATH OF FLORIDA EMT

On July 14, 2006, NIOSH issued its Fire Fighter Fatality Investigation Report (F2005-12) on the death of a 22-year-old EMT, www.cdc.gov/niosh/fire/reports/face200512.html . The report focused on the rear tires, which showed “excessive wear”, with “wear bars” and “tread indicators” visible (see photos of the tires in the report). This report and its dramatic photos of the Life Squad wrapped around a tree should be “mandatory reading” for all fire and EMS personnel who perform daily checks of fire and EMS vehicles.

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See also Sept. 2011 video with Dr. Kathy Platoni, Col. US Army Reserve and SW Ohio CISM Team:

http://aerospace.ceas.uc.edu/FireScience - CONTINUING EDUCATION

Article 15-1 (July, 2006)

Ohio Legislature Establishes CISM Privilege

Ohio Revised Code § 2317.02. Privileged communications

The following persons shall not testify in certain respects:

   (A) An attorney, concerning a communication made to the attorney by a client in that relation or the attorney's advice to a client, except that the attorney may testify by express consent of the client or, if the client is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased client. However, if the client voluntarily testifies or is deemed by section 2151.421 [2151.42.1] of the Revised Code to have waived any testimonial privilege under this division, the attorney may be compelled to testify on the same subject.

   The testimonial privilege established under this division does not apply concerning a communication between a client who has since died and the deceased client's attorney if the communication is relevant to a dispute between parties who claim through that deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction, and the dispute addresses the competency of the deceased client when the deceased client executed a document that is the basis of the dispute or whether the deceased client was a victim of fraud, undue influence, or duress when the deceased client executed a document that is the basis of the dispute.

*****
   
(K) (1) Except as provided under division (K)(2) of this section, a critical incident stress management team member concerning a communication received from an individual who receives crisis response services from the team member, or the team member's advice to the individual, during a debriefing session.

      (2) The testimonial privilege established under division (K)(1) of this section does not apply if any of the following are true:

         (a) The communication or advice indicates clear and present danger to the individual who receives crisis response services or to other persons. For purposes of this division, cases in which there are indications of present or past child abuse or neglect of the individual constitute a clear and present danger.

         (b) The individual who received crisis response services gives express consent to the testimony.

         (c) If the individual who received crisis response services is deceased, the surviving spouse or the executor or administrator of the estate of the deceased individual gives express consent.

         (d) The individual who received crisis response services voluntarily testifies, in which case the team member may be compelled to testify on the same subject.

         (e) The court in camera determines that the information communicated by the individual who received crisis response services is not germane to the relationship between the individual and the team member.

         (f) The communication or advice pertains or is related to any criminal act.

      (3) As used in division (K) of this section:

         (a) " Crisis response services" means consultation, risk assessment, referral, and on-site crisis intervention services provided by a critical incident stress management team to individuals affected by crisis or disaster.

         (b) "Critical incident stress management team member" or "team member" means an individual specially trained to provide crisis response services as a member of an organized community or local crisis response team that holds membership in the Ohio critical incident stress management network.

         (c) "Debriefing session" means a session at which crisis response services are rendered by a critical incident stress management team member during or after a crisis or disaster.

Eff. 8-3-06; 151 v S 8, § 1, eff. 8-17-06.

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