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Duty to Act, Right to Enter, Their Well Being, Our Well Being

My friend Michael Morse from Rescuing Providence has posed a new EMS related scenario regarding the right to enter property to check on the well being of a patient.  Recall last month I wrote about a fire department’s right to enter someone’s home when the firefighters believe there is a fire in the building. Believe it or not, the right to enter for EMS related purposes is not the same.

The traditional firefighter’s right of entry comes from common sense as best understood by looking at the history of how cities throughout the world have been decimated by fire. That common sense approach has been incorporated into state and local law that authorizes fire departments to enter people’s property without their consent.

However – the scope of the firefighter’s right of entry is not without limit, and depends on the language of the law. If the statutes are narrowly drawn and limited to a fire situation, then they would not apply to an EMS related entry. If the laws are broad enough to include any type of emergency, then we would have the legal authority to enter to check on the well being of a person.

Rhode Island does not have such a broad right of entry. It is limited to a fire scenario. Take a look:

§ 23-37-1  Police authority of fire company officers at fire – Right of entry. – The chief, chief engineer, assistant engineer, captain, lieutenant, or any other executive officer of any volunteer fire company, association, fire district company, or any other organization organized or created for the purpose of extinguishing fires and preventing fire hazards, whether it is incorporated or not, and whether it is a paid department or not, when on duty at a fire in the city or town where the fire headquarters or station of the company, association, or organization is located or in response to an alarm for such a fire shall, in the absence of the chief of police, have the power to suppress any tumult or disorder and to command from the inhabitants of the city or town all needful assistance for the suppression of fires and in the preservation of property exposed to fire; the officers above enumerated shall also have authority to go onto and enter any property or premises and to do whatever may reasonably be necessary in the performance of their duties while engaged in the work of extinguishing any fire or performing any duties incidental thereto.

However, lets take a step back. What are the consequences if fire or EMS personnel wrongfully (but with good intention) break in to someone’s home or apartment out of a concern for the well being of the person inside?

Criminal charges are not likely because there is no criminal intent. If an overzealous police department and prosecutor file charges against the responders, the time honored defense of justification could be raised to argue that the entry was justified by the circumstances.

Next up would be a civil liability analysis. The most likely civil action to be brought against responders who wrongfully enter a person’s property would be trespass. Unfortunately, personnel could be liable for any damages they cause in making the entry on a trespass theory. Beyond actual damages, the property owner or occupant (in the example the woman who’s friend was concerned) could ask for additional  damages, but assuming responders acted with good faith, that would be a hard sell to a judge and jury.

The woman might also allege negligence, but there would have to be damages and that too would be a tough sell because she would have to prove that the reasonably prudent firefighter, EMT or paramedic would not have made entry under the circumstances.

The only other legal concern that I can think of would be a potential civil rights suit (violation of the 4th Amendment and her right to privacy committed under color of law), but that too seems a bit of a stretch for a good faith entry to check on the well being.

So, to summarize neither criminal law, nor civil liability pose a major legal barrier to a good faith entry.

There are a couple of other legal considerations worth mentioning. An occupant has a right to protect herself from an intruder, so if she were to shoot or otherwise injure one of the responders during the entry, she may be within her rights. Not a good scenario for the good guys to be walking into.

Second, once in the home the responder’s presence may be unlawful for purposes of evidence collection against the occupants. For example, if once inside the responders discover drugs or contraband, it may turn out that the evidence cannot be used against the occupants. The legal analysis is complicated – and I mention it for a specific reason: simply because the police cannot use evidence based on the fact that the entry was illegal, does not mean the decision to enter was wrong. The two decisions are separate and distinct, and criminal case law should not be relied upon by responders to determine whether they should or should not force entry. Just because a case holds that an entry was improper for 4th Amendment search and seizure purposes – does not mean the entry was improper for medical aid purposes. Ideally the two should align – and if we consider the situation to constitute exigent circumstances then the 4th Amendment analysis should follow suit – but the bottom line is law enforcement issues should not cloud our decisionmaking.

That’s my overview and I’d open it up to the legal eagles out there for their perspective as well.

Oh yes…. the flip side of this entire case is – what if EMS personnel DO NOT force entry and the patient ends up dying. Have you been following the Alameda discussions on here? The public has a very low tolerance for mistakes that result in someone’s death, and their definition of mistake is quite broad when it comes to their expectations of responders!!!! (I wish it was that broad when it comes to financial decision makers in state and local governments…. but that’s a different story)

We could spend several pages discussing the legal duty to act, several more discussing negligence, and several more discussing immunity and the public duty doctrine. The bottom line question is: WWRPPD – what would the reasonably prudent professional (of like skill and training) do. That is the standard by which you will be judged.  If you are an EMT, you are judged as an EMT; a paramedic is judged as a paramedic, and so on. If the RPP would have forced entry and you choose not to, you may be liable civilly, and perhaps criminally liable… assuming the proximate cause of the death was the failure to enter. If the RPP would not have forced entry, you will not be liable.

In the final analysis, the decision on what the RPP would have done is a question that is left to a jury…………… which in some ways makes it rather difficult to predict.

Comments - Add Yours

  • michael

    Great analysis, thank you Curt!

  • Curt Varone

    Any time LT

  • Too Old To Work

    As you note, it varies from state to state. It also varies if it’s the FD or the PD doing the door forcing. In some states the police can force a door without a warrant if they reasonably believe that an emergency exists or if there are exigent circumstances.

    Contraband or evidence of illegal activity discovered after an entry under exigent or emergency circumstances may be admissable in court. As the lawyers are wont to say, “It depends.”

    At least that’s what I was taught all those years ago.

    I don’t know if RI has those provisions in it’s laws or not.

  • Curt Varone

    Too Old To Work

    You are correct – either police or fire can force entry under exigent circumstances. The problem is if you read some of the police cases, some courts over anal-ize the basis for the exigent circumstances. Its almost like the judges want to find a reason to let the defendant off and are looking for an excuse – but of course that’s not the case… right?

    Sometimes you would almost think the judges have never been in the situation of being a police officer or firefighter faced with such a decision… but the way they micromanage the decisionmaking you would have to assume they have some level of expertice… otherwise why would they engage in such micromanagement…

    Anyway…. my point is – regardless of why judges do what they do on the criminal side – we cannot allow such decisions to interfere with our best judgment at an incident scene. Ideally, if we feel there are exigent circumstances, so will the court.. but the truth is it doesn’t always work out that way.

  • RAN

    FD legitimately forces entry, PD, having not participated in forced entry walks thru an open door unchallenged by occupants and does his LE duty Re. stuff in view. Seen this a few dozen times in NM and WA. Can’t comment on LE outcomes, but lots of handcuffs and folks in the back of the CrownVic

  • Ricky

    I am dealing with a situation where an EMS crew responded to a call, transported a patient, then returned to the house to “look for equipment left behind”. No consent of the family, no exigent circumstance, no one was home “but the door was unlocked” according to one of their statements. Once inside things had been moved and some items removed since they were there. The located some pills and then called the police after “searching” the house for 10minutes or so. The partner in the case says the ER doctor asked them to go back and see what they could find.

    What is your thought here? Legal or not? And second does a doctor have the authority to over ride state law?

    • Curt Varone


      Interesting question – and the answer will probably be different depending on how the legal issues arise.

      If the EMS crew were to be charged criminally with breaking and entering or trespass, they would probably have a defense: necessity. If they were sued civilly for trespass… there might be some exposure but would have a good faith defense.

      If the issue was the admissibility of the evidence against the patient/homeowner in a criminal case – I think it’s a close call but I would tend to side with it being an illegal search. The crew’s initial entry was based on consent… or arguably exigent circumstances.

      The re-entry was remote in time and not justified by any overriding necessity. You could make the argument that recovering missing equipment necessary to return an emergency vehicle back in service creates an exigency…. maybe it would fly.

      Change the facts to create a clear exigency or consent situation… the crew returned to try to find a missing body part (hand, arm, etc.) – to search for another victim the patient said was unconscious somewhere in the house… to turn off a stove that was left on… maybe even to confirm the patient’s meds/dosage from his medicine cabinet – and it could change the outcome. It could also be a stretch.

      No – a doctor cannot order EMS personnel to violate the 4th Amendment Rights of a patient. If the doctor recognized a true medical emergency and somehow tied the medical emergency to the need for re-entry then perhaps it may go toward making a case for exigent circumstances… but it would be the exigencies that creates the justification, not the doctor’s order.

      One final thought… if the EMS personnel were private providers not affiliated with government – then arguable there would not be illegal search.