The Consequences of Looking The Other Way in the Facebook Age

The New York Post ran an expose Sunday about the apparent widespread practice by FDNY EMTs of taking emergency scene pictures of patients and posting them in the social media. The article lists example after example of outrageous behavior and callous attitude.  The reporter  notes: “The photos of grisly corpses, gruesome wounds or humiliating circumstances provide fodder for mocking and gawking.”

The problem is hardly a new one, nor is it limited to FDNY. However, it comes of the heals of two recent high profile social media cases involving inappropriate tweets, one involving FDNY EMS Lt. Timothy Dluhos, currently suspended, and the other involving FDNY Fire Commissioner Sal Cassano’s son Joseph, an EMT who resigned.

Many will read the NY Post headlines and dismiss the photo-taking debacle by reciting any of a number of worn-out slogan-esque explanations… the EMTs showed a lack of common sense, stupid is as stupid does, WTF were they thinking, etc. etc. etc.

However, the cause of this problem is actually much bigger than a cutesy little expression and IMHO goes to the heart of our culture. People – coworkers and supervisors alike – had to know that the photo taking and posting was going on. What prompts us… each of us … coworkers and supervisors… to make a deliberate choice to look the other way at misconduct rather than do something about it?

How is it that there can be near universal condemnation after a firefighter is disciplined for posting something inappropriate – like we saw in 2010 when NY EMT Mark Musarella posted a photo of a murder victim on Facebook – yet beforehand the “condemners” lack the willingness… the courage to reach out to the person to say “Hey man… I have been noticing some of things you’ve been posting, and I am concerned for you. You are headed for trouble.”… Was the posting that led to the discipline the first inappropriate post the person ever made? I’m not buying that one!

Do “officers” deliberately ignore inappropriate conduct by subordinates because they fear a backlash against them in the stations? Does ignoring misconduct make headlines like we are seeing in the NY Post more likely or less likely? Does our firehouse culture support stricter regulations on photo taking and social media use, or will we collectively fight tooth and nail against any effort by the fire chief to draw a line?

While we debate, the clock is ticking on our opportunity to address the photo taking and inappropriate posting problem.

New York sits between two states that have chosen to address the problem through legislation. Both New Jersey and Connecticut have made it a criminal offense for an emergency responder to take a photo of a patient or victim, and a separate criminal offense to post it online. A CRIMINAL OFFENSE!!!!

In NJ, besides making photo taking or posting a photo a crime – the law also allows a victim to sue a firefighter, EMT, paramedic or other responder who takes their picture (or posts it without their written permission) and recover $1,000 per photo plus attorneys fees. Both the NJ and CT laws have exceptions for legitimate work related photo taking for training and documentation purposes.

Do we really want the legislature to fix this problem for us?

I cannot help but go back to something one of my captains told me very early in my career with Providence. He said  “Kid, we either keep our own house clean, or someone’s gonna come in here and clean it for us… and we’re probably not going to like the way they keep it clean…” He was not talking about housework….

This is where the fire service finds itself today.  We have an internal housekeeping problem. It is a serious problem but it is one we can fix… we can get our own house in order…  but we have to overcome those parts of our culture that are preventing us from implementing the solution.

…. Let me rephrase. In 48 states, we still have the opportunity to fix this problem on our own terms. There is still time. It will take leadership… and followership…

Although….. in the aftermath of the NY Post expose, I am thinking we may be down to 47 states… It is hard to imagine that someone in the NY state legislature is not working on a solution to help FDNY get their house in order.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • Jim Panknin

    Kurt, maybe I've missed this in a previous posting, what is the 1st Amendmant difference between a first responder taking a picture on a scene and a private citizen (buff, journalist, or free-lance) taking the same picture over the first responders shoulder?  Both pictures (or video) show the exact same scene and it seems that one is protected by the 1st Amendment and the other isn't. 
    Understand that I am not supporting first responders who do this, but I am having trouble understanding how they can lose their job, be fined, and even jailed for  the exact same actions a private citizen can do without so much as a slap on the wrist.
    Are you aware of any other laws that are so discriminatory?

    • Jim

      I get asked that question alot. It is really a rather simple distinction that many firefighters find it convenient to ignore: when you are on duty, your employer has the right to allow or disallow you to take photos. Said another way, you do not have a First Amendment Right right to cover the news while you are being employed. In the volunteer service, the same principle holds true because even though you are not being compensated a firefighter is acting as an agent of the organization and is subject to the organizations rules and regulations.

      Some folks won't feel comfortable with that explanation, so let me use the analogy I use in class: You have to go to a psychiatrists office to pick up some paperwork for a "friend". While checking in you see the wife of another firefighter who is working in the office. The next day the rumor has spread all around the department that you have had to see a psychiatrist. Has she violated HIPAA/medical confidentiality (assuming she is the source)?

      The answer is – yes. Would it matter if she was doing a volunteer internship in the office? No it would not.

      Now let's rewind the scenario. Let's assume you go to the same psychiatrists office but are seen by the wife of a firefighter who is a patient and is in the waiting room waiting for her appointment. Assuming she tells others that you are seeing the psychiatrist, has she violated HIPAA/medical confidentiality?

      The answer is no. HIPAA and medical confidentiality laws do not apply to her.

      Thus a person's status as an employee or agent CAN create different duties and responsibilities.


  • Legeros

    While we await Curt's response on the legal front, allow me to observe that not all seen photos are not created equal.

    Telephoto lenses in public places notwithstanding, pictures made "inside the tape" are potentially more revealing, and more graphic.  

    Responders with cameras can have access to spaces that public cameras cannot necessarily reach, such as inside private buildings, or inside smaller spaces, such as the interior of an automobile.

    In that regard, there is a distinct difference. And is likely but perhaps not solely the reason that laws and rules exist, with consequences for responders who use cameras in certain ways in the course of their official duties.

  • Legeros

    Nice typos there. Oh well. 

  • OK Folks… it has been pointed out to me that the NY State legislature has already introduced legilstaion to address emergency responders taking and posting pictures… it was named after Caroline Wimmer…. whose photo a previous FDNY EMT posted on facebook. Here is the story:


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