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!

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.

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