2011 A Fire Law Year in Review

Happy New Year!!!! Its time to take a look at the most important and most bizarre fire service legal cases of 2011.

First, the three most important cases:

Westmoreland v. Sutherland, was a 1st Amendment case handed down by the US 3rd Circuit Court of Appeals upholding an Ohio firefighter’s right to appear at a city council meeting during an open forum and speak critically about a matter of public concern without fear of retaliation or punishment. The court restated the key considerations for determining if a firefighter’s speech is protected: the firefighter must be speaking as a private citizen (off duty and not as a spokesperson for the department) on a matter of public concern. In Westmoreland, the matter of public concern was the financially driven decision to eliminate a dive rescue team, and its impact on the drowning deaths of two children in separate incidents.

Marcelin v. City of West Palm Beach, decided by the US 11th Circuit Court of Appeals, was the latest effort to clarify a firefighter’s right to remain silent during an administrative investigation. Marcelin held that a firefighter who is ordered to answer employment related questions as part of an administrative investigation must answer the questions even if the answers would tend to incriminate him/her in an active criminal case. The protection afforded by the Fifth Amendment’s self-incrimination provision is satisfied by the fact that the statements cannot be used by law enforcement in any way. However, the questions must be answered.

NAACP v. North Hudson Regional Fire & Rescue, was a US 3rd Circuit Court of Appeals decision involving residency and discrimination. The NHRFR in New Jersey required applicants to be a resident of one of the five communities making up the regional district. The district was 69.6% Hispanic, 22.9% white, and 3.4% African American. The department was 79.5% white, 19.2% Hispanic, and .6% African American. The NAACP sued claiming the residency requirement created a disparate impact on African Americans. NHRFR’s defense was that opening the process up to non-residents would disadvantage Hispanics and other minorities by allowing more white applicants from other towns to apply. The court noted that some New Jersey fire departments use residency requirements to enhance minority employment opportunities. The court even referenced a 1977 race discrimination case brought by the Federal government against twelve NJ municipalities, where the jurisdictions entered into consent decrees that mandated the use of residency requirements to enhance minority recruitment. Those consent decrees remain in effect today, some 30+ years later. But the 3rd Circuit rejected the use of a residency requirement by NHRFR in this case finding that it served to limit African Americans from applying to become firefighters, and thereby caused the disparate impact. The court further concluded that the use of the residency requirement could not be justified as a business necessity.

The most bizarre cases:

in re Estate of Thomas Araguz, was one of the most bizarre fire service cases ever, and involved a tragic LODD. A Texas judge ruled that a purported marriage between a male firefighter and a transgendered woman was void under Texas law. Judge Randy Clapp held that the marriage between Wharton Fire Department Captain Thomas Araguz III, who died in the line of duty on July 3, 2010, and Nikki Azagus, was void because Nikki was born a man. As a result, over $600,000 in survivor’s benefits were awarded to the firefighter’s children, not Nikki. The ruling made it unnecessary for the court to consider an even more contentious issue: whether Captain Azaguz knew his wife was transgendered when he married her, or whether (as his mother alleged) he was the victim of fraud.

Bernstein v. Village of Piermont, et al, is a New York suit brought in 2011 by Mark Bernstein, father of 16 year old Adam Bernstein, alleging that Adam was sodomized by other firefighters as part of a ritualized hazing of new members in the Piermont Fire Department. An adult firefighter and two juveniles have been charged criminally in connection with the case.

Otter v. Frenchtown Township et al, is another suit brought in 2011, where the driver of a pickup truck in Michigan who rounded a corner at a high rate of speed and slammed into the back of a fire truck parked at the scene of a previous accident, is suing Frenchtown Township, MI and one of the firefighters who helped extricate him. The accident was caught on videotape. The driver/plaintiff has a long record of driving infractions and was observed by a TV news crew to be feigning injuries he claims were attributable to the accident.

The Otter case shares some similarities with the first runner up for most bizzare, a case out of Colorado where a convicted arsonist, Joel  Ledermann, filed a notice of intent to sue 13 fire agencies, the Colorado State Forest Service, and the cities of Loveland and Fort Collins, that responded to the fire he set. Ledermann was a property owner who’s careless burning led to the 750 acre Reservoir Road fire that destroyed two homes and cost over $3 million to battle. He pled guilty to 4^th degree arson, and was sentenced to three years of unsupervised probation and 450 hours of community service. According to his lawyer, the firefighters used questionable tactics and responded too slowly.

You can’t make this stuff up!!!