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Fireground Photos, Facebook, and Discipline

I received a great question today, and wanted to add it to the online discussion: Have there been any cases or instances of firefighters receiving reprimands or disciplinary action for posting fire pictures on their Facebook page?

Answer: Yes there have been disciplinary actions taken against firefighters for posting fire photos and videos on line. The cases I am aware of occurred in fire departments that had policies on taking and/or posting digital images, and the discipline was over violations of the policies.

In departments that do not have digital imagery policies, most of the discipline cases involve EMS related photos, not fires. The EMS cases involve personnel being disciplined for breaches of confidentiality.

There is a much bigger problem out there that most firefighters have not stopped to consider, called spoliation. When someone who is involved in a law suit or criminal matter has evidence relevant to the proceeding, he/she is under an obligation to preserve that evidence. The destruction or loss of relevant evidence is called spoliation – and is a HUGE potential problem that most firefighters are completely unaware of. If a party to a law suit/criminal proceeding destroys or fails to preserve evidence (commits spoliation) the judge may instruct the jury they may infer that the spoliation was committed because the evidence was favorable to the other side.

A scenario will help explain the problem. Let's say a FD responds to a building fire, and FF Jones (who is on-duty) takes 10 photos at the scene. The next day he posts 5 photos on Facebook, but deletes the others. Later, Mr. Smith is charged with arson for the fire, and his attorneys discover the Facebook photos. They also learn that FF Jones actually took 10 photos but deleted 5 of them. FF Jones has arguably committed spoliation – which could compromise the arson case against Smith. Smith’s attorneys will argue for a jury instruction to the effect that the jury can infer the deleted photos would have shown that Smith was not guilty. The same problem occurs if the building owner were to sue the fire department for negligence in fighting the fire. The destruction of the photos by FF Jones could be held against the fire department. These are just two examples – but hopefully the potential for spoliation problems is evident.

This is a very challenging and emerging area of the law and we cover it in detail in two of the programs I teach through LLRMI, Fire Service Leadership: the Law and Legal Issues, and Managing Fire Service Liability & Safety Best Practices. The bottom line is that all fire departments need a digital imagery policy so that photos and videos can be taken for training and documentation purposes, but concerns over spoliation can be addressed.

Departments should also have a social media policy so that both the fire department administration and the firefighters themselves know what is and is not permissible. Most of the social media discipline cases we see are due to the fact that the line between permissible conduct and “conduct unbecoming” is not clear to everyone beforehand!

Comments - Add Yours

  • http://profile.typepad.com/leblancd D Leblanc

    Chief,
    What abouts News photos in regards to spoliation? I understand they are not governed by the rules of the Fire Department, but couldn’t similar arguments be made about photos that were taken and destroyed?

  • http://profile.typepad.com/6p0120a62b3877970c Curt Varone

    Good question. It all depends on who took the photos. If a news photographer or a civilian took the photos – then spoliation is not an issue.
    However, if the photo was taken by an on-duty firefighter – spoliation is an issue.
    I know its hard for us as firefighters to get an appreciation of this – so when I teach I try to use an example that makes more sense: police officers. Let’s say you were involved in a car accident with a woman. When the police arrive on the scene, you observe one of the officers taking photos with a small digital camera. A few days later you receive a copy of the police report and it mistates what happened and where the vehicles were on the scene. It also turns out the woman was the wife of another police officer.
    You ask for the report to be corrected, but your request is declined. When you ask to see the photos, they report that the police officer who took the photos was just taking them for his own personal collection, and deleted them already.
    Do you see where I am going?

  • http://profile.typepad.com/mainefirealarm MaineFireAlarm

    I understand the conduct unbecoming while you are on duty, however can you better explain the jurisdiction of the City to discipline the firefighter for comments off duty. If the firefighter is recalling factual information and not breaking any obvious confidentiality laws, how can the City discipline? Also, when the City has no policy in place for social media, does the on duty conduct policy carry over?
    Thank you

  • http://profile.typepad.com/6p0120a62b3877970c Curt Varone

    Maine Fire Alarm – you ask some good questions. Certainly the conduct of an on duty firefighter is expected to be of a different nature than the conduct that would be considered appropriate for an off-duty firefighter, but a fire department (as does any employer), has a right to expect good conduct from firefighters on duty and off.
    I personally have a concern with reliance on the catchall disciplinary charge of “conduct unbecoming” because it is vague. In fact it can be unconstitutionally vague in many cases…. but not always. It is a complex area of due process law that I have discussed in some other blogs and won’t repeat here. Suffice it to say – if all you can charge a firefighter with is conduct unbecoming, it had better be truly unbecoming, and not just a little unbecoming.
    As for disciplining a firefighter for off duty comments, a firefighter has a 1st Amendment Right to free speech…. but free speech has its limits.
    Generally for the 1st Amendment to kick in, the matter must be of a public nature (something that should be of concern or interest to the public and not of a private nature or petty grievance), and the employee must be speaking as a private citizen, not as a representative of the fire department. Web sites with FD photos, emblems, etc. can make it confusing to the public about who is speaking – a firefighter or a spokesperson for the FD. While as firefighters we might all agree that a captain is not a spokesperson for a fire department, but the public may not see it that way. Spokespersons for FDs do not have 1st Amendment Rights when representing the organization.
    As for a firefighter who is merely “recalling factual information”, how did he/she get that information in the first place? If he/she was there because of their position as a member of the fire department, then he/she should not abuse that position – whether the information is confidential or not. We are in a position of trust and we come into possession of a lot of information that is not of a public nature/concern, that is not strictly confidential, but nevertheless should be kept quiet (think about the things we see in people’s homes: overall cleanliness, the color of their under garments, photos and possessions, open mail on a table, etc. – these items are not strictly confidential – but it would be inappropriate for someone to be blogging about it).
    Fire departments are well advised to have policies to address these kinds of issues. Relying on conduct unbecoming can be problematic.
    Finally to answer what I think is your basic question, yes, a fire department can discipline a firefighter for conduct unbecoming for off duty activities related to releasing of factual information relating to the fire department UNDER THE RIGHT SET OF CIRCUMSTANCES. It would have to be for something that does not trigger 1st Amendment protections, and something that is CLEARLY conduct unbecoming.

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  • Keith

    What if a firefighter made a comment, off duty, that the Mayor was “a murderer” because he cut staffing that the firefighter felt contributed to the fatality? The comment was made to a reporter. True story that just happened. Is that firefighters statement protected speech? Obviously it wasn’t a smart thing to say, but can he be fired for his statement?

    • http://firelawblog.com Curt Varone

      Keith

      Criticism of elected officials and public figures has broad 1st Amendment protections, but it has its limits. Statements that are false and known to be false when made are not protected. Arguably calling the mayor a murderer is just hyperbole, but it may come pretty close to being over the line. Some of it will depend on context.

      Remember – 1st Amendment protections only apply to work related public employee speech that is of a matter of public concern when made as a private citizen.

  • Keith

    Thats more or less what I figured. Basically the answer is “maybe”. A woman was killed in a fire recently and a firefighter stupidly made the comment “the mayor is a murderer” because he felt the mayor reducing the manning was partly responsible for the death. The firefighter made a public apology and has to serve a short suspension. Hopefully thats the end of it. Thanks for the info and the reply.

    • http://firelawblog.com Curt Varone

      Keith

      I wish I could be more precise – but the US Supreme Court – in what is undoubtedly an effort to clarify the First Amendment, makes it nearly impossible to precisely say.

      There are a number of moving parts:

      Was the statement blatantly false, or was it hyperbole?

      Did he make the statement as a private citizen or as a firefighter? (Note: off-duty is not in and of itself enough, but it is relevant). It is hard to say “I am a firefighter so I am an expert and in my opinion it was murder” – but then say “I am not saying that as a firefighter, I am saying that as a private citizen”.

      Lastly there is a God-awful test called the Pickering Balancing test that a court must apply to determine if a public employee can lawfully be protected by the First Amendment. The Pickering balancing test goes something like this:

      If an employee is (1) speaking on a matter of public concern (2) as a private citizen, they must prove their interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”…

      The Court somehow thinks normal people can apply that rule in their daily affairs despite the fact that courts, judges, lawyers and law school professors struggle with it.

      So that is why my answer was a definite “maybe”.

  • Keith

    Thanks again, your opinion is greatly appreciated. In my humble opinion: the statement was clearly hyperbole. The mayor wasn’t even there as far as I know so I doubt any reasonable person could consider it a statement of fact.

    Next, I would have to say that even though off duty, the statement was made as a firefighter, especially because he is a union rep and thats why he was contacted.

    Lastly, I think he was most definitely speaking of a matter of public concern and is on record speaking of that concern numerous times before the tragedy occurred.

    Just attempting to clarify, thanks again, Keith

    • http://firelawblog.com Curt Varone

      Union reps are generally granted even more lattitude than normal employees when criticizing superiors and elected officials. However we are in strange times when the public and the courts seem to be less tolerant of this kind of conduct than in years past.