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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 trial Firehouse 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.

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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.

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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.]

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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.

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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.]

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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.

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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.]

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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.

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