A group of bearded firefighters has won the latest round in the long-running legal battle over a District of Columbia Fire and Emergency Medical Services Department policy that requires firefighters to be clean-shaven. The story began in 2001, when the department adopted a "grooming policy...
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According to the appeals court, the District of Columbia's lawyer explicitly disavowed during the initial trial court proceedings any claim that SCBA were dangerous for bearded firefighters. The court cited the testimony of then-Captain (now Battalion Chief) William Flint, the fire safety officer, as a basis for concluding that the department was not concerned about the safe use of SCBA by bearded firefighters. Instead, according to the court, the district argued that the policy was necessary for a situation where a firefighter may have to go into a contaminated area (such as the World Trade Center) for an extended period.
But, in its appeal of the trial court's motion for summary judgment, the district didn't challenge the court's finding that bearded firefighters could be redeployed away from areas in which a negative-pressure mask is required for extended operations. Instead, it said that it never conceded that bearded firefighters can safely use SCBA, and argued just the opposite.
The appeals court, however, rejected the district's argument that it contested the assertion that bearded firefighters are safe when using SCBA in a smoky environment. It concluded, "Given the opportunity and the burden to dispute the safety of SCBA, the District of Columbia instead offered only a technical quibble…"
The district seemed to use one argument at the trial level, but another upon appeal. It bore the burden of showing that it had raised an issue as to the safety of SCBA worn by bearded firefighters in the initial trial, but it failed to do so. And so, it lost.
This result is troubling, however, because there certainly is debate as to the relative safety of SCBA use by bearded firefighters. In a concurring opinion, Senior Judge Stephen Williams expresses these reservations, "If the sole aim of the law were an open search for truth, we would plainly reverse" the lower court's decision. However, he writes, the district's "own muddled litigation strategy" made the initial decision a legitimate outcome for this case.
Although Judge Williams sees the result of this case unsatisfactory, he is able to look on the bright side at least a little. He sees the outcome as a "semi-natural experiment." Some DC firefighters will be fighting fires while bearded, while others will be adhering to the OSHA rule, or its equivalent. But, he concluded ominously, "Perhaps the difference will prove inconsequential. The experiment is far from ideal, however. Most obviously, the likelihood of acute calamity — and thus the risk that response teams will be stretched to the breaking point — seems greater in the district than almost any other American city."
What's next? DC Fire Chief Dennis L. Rubin (a Firehouse® contributing editor) says that the decision will be appealed to the full Court of Appeals. The recent decision really is about legal procedure and the district's legal strategy as much as it is about the safety of bearded firefighters.
This case is less about the legal status of firefighters with beards than it is about legal strategies. This leads Chief Rubin to offer an important piece of advice for departments faced with the threat of legal action. "Pay attention to the details up front," he says. When confronted with a potential legal situation, he advises to take it seriously, even if it seems frivolous at the time.
Those are wise words for all. An ounce of prevention is worth a pound of cure.
STEVE BLACKISTONE, a Firehouse® contributing editor, is a Maryland attorney who directs state and local liaison activities for an agency of the federal government. Prior to his current position, he served in a variety of posts on the staff of the U.S. House of Representatives, working both on the personal staffs of members of Congress and on congressional committees. Blackistone also is an active volunteer EMT/firefighter with the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.