Police-Fire Wars: Who Is in Charge?

Firefighters and members of law enforcement work side by side, day in and day out. In 99% of cases, the relationships are respectful, even cordial. However, occasionally conflicts arise. Consider the following cases:

In May 2003, Captain David Wilson of the Robertson Fire Protection District in Missouri was arrested after refusing a Hazelwood police officer's order to move a fire truck parked at the scene of a motor vehicle accident on Interstate 270 (see page 44).

In November 2006, Deputy Chief Robert Jenkins of the Rockaway Township, NJ, Fire Department was arrested by a New Jersey state trooper after he refused to move a fire truck that was blocking the right lane of Route 80 at an accident scene.

In January 2007, a Tennessee state trooper intentionally crashed his cruiser into a car operated by Lieutenant Michael Huskey, a volunteer firefighter responding to an alarm, because he believed Huskey was eluding his efforts to pull him over.

All three of these cases resulted in the arrests of firefighters and sensational headlines that called into question the professionalism of both the fire and law enforcement organizations involved. In each case formal criminal charges were dismissed or never filed. The Missouri and Kentucky cases also resulted in the filing of lawsuits against the police officers involved, with Wilson recently obtaining a federal district court jury verdict in his favor in the amount of $17,500.

What led to these confrontations and more importantly what can be done to prevent them from happening in the future?

The scenarios that resulted in the arrests of the firefighters in these cases and numerous others can be analyzed on many levels, but essentially comes down to four primary causes: unclear formal legal authority, organizational policy conflicts, stereotypes and personal grudges. In some cases, several of these factors combine to contribute to a situation escalating to the point where a firefighter is arrested.

- Unclear formal legal authority. At the root of most cases in which a police officer arrests a firefighter at an emergency scene for refusing to comply with an order is the basic question of who has the legal authority to be "in charge" of an incident scene. In other words, who is authorized to give a lawful order, and who is duty bound to follow that order. One basic proposition must be understood from the start: Neither firefighters nor police officers have the authority to self-declare themselves to be the ultimate "in-charge" person or agency at an emergency scene. Rather, any authority to be in charge exists as a result of a complex interrelationship of state and local law.

Complicating the "who is in charge" question even further are overlapping levels of law enforcement and emergency service providers. For example, the responsibility for law enforcement may fall at the state, county or local level. State police, county sheriffs and local police officers often share responsibility for patrolling certain areas and have overlapping jurisdiction. Fire protection and EMS may be provided by county or regional fire authorities, municipal fire departments, fire districts or even volunteer fire companies that are completely separate from government. Factor in mutual aid responses and it becomes obvious that the interrelationships of these various organizations can create difficult legal waters. Determining who is in charge ahead of time is absolutely essential to avoid misunderstandings about authority.

In many cases, state or local law will dictate who is in charge of certain types of emergencies. However, in other cases, there is an absence of clear legal authority to determine who is in charge operationally. In other words, despite looking at all the relevant laws, it may not be evident who is legally in charge.

Given the differences that exist between the laws from state to state, and even locality to locality, there is no general rule in the U.S. about who is in charge at any given type of incident. Where not clearly specified by state and local law, clarification must be addressed on a case by case basis. One consideration that should be of paramount importance: agencies that receive federal emergency preparedness grants are required to adopt and implement the National Incident Management System (NIMS). According to Presidential Homeland Security Directive No. 5, "This system will provide a consistent nationwide approach for federal, state and local governments to work effectively and efficiently together to prepare for, respond to, and recover from domestic incidents, regardless of cause, size, or complexity."

NIMS mandates not only the use of the Incident Command System (ICS), but that preparedness initiatives be undertaken, including the development of policies, procedures and agreements with other agencies that will be responding to anticipated emergencies. Among the issues that must be addressed are identifying the types of incidents that local responders will respond to, what agencies will be involved, who will be part of unified command and which agency will be the lead agency at various types of emergencies.

Under ICS, there can be only one command structure operating at an incident scene, and all responders (police, fire and EMS) must operate within that single command structure. Thus, the use of unified command as required by NIMS should address and help avoid many of the "who is in charge" disputes.

Even without NIMS, ambiguity over who should be in charge must be addressed in advance by the leadership of all emergency response organizations. Within a single jurisdiction such as a city or town, the mayor, local executive or, in the alternative, the local legislative body, may stipulate which agency (police or fire) will be responsible for being the lead agency at a particular type of incident. Another option is for the leaders of the various agencies (for example, the local police and fire chiefs) to execute a memorandum of understanding (MOU) relative to authority.

When multiple jurisdictions are involved (for example, state police or county sheriffs and a volunteer fire company that is affiliated with a fire district) it may become necessary for state and local authorities, after consultation with attorneys and perhaps the involvement state's attorney general, to come to an agreement. In any event, thinking these issues through, establishing sound policies, providing training to all personnel and following it up with effective supervision will go a long way toward minimizing the risk of a confrontation between responders.

- Organizational policy conflicts. In some cases, different organizations have policies that are in direct conflict. In such cases, even where one agency is clearly identified as the lead agency, certain matters - particularly those involving responder safety - may be setting the stage for a confrontation.

The most common area where we see this conflict is between police officers and firefighters at accident scenes on limited-access highways. Police officers are trained to be ever mindful of the impact that traffic delays cause, including the potential for secondary accidents. Their training and formal policies often require them to minimize traffic disruptions whenever possible and keep the traffic flowing. In addition, many officers are accustomed to being on the highway and become complacent to the danger in much the same way that some firefighters become accustomed to danger at fire scenes.

On the other hand, many fire departments have strong safety policies regarding operations at highway accident scenes. Through training and compliance with procedures, firefighters are conditioned to be ever mindful of responder safety and tend to ignore the impact their actions may have on traffic backups. Some fire departments intentionally slow or stop highway traffic as a tactic to make the scene safer for personnel to operate. In such a case, a conflict between police and firefighters would seem inevitable.

The most critical step in preventing a policy conflict from turning into a confrontation between police and firefighters is to identify the areas where a conflict exists. Once such a conflict is identified, it is incumbent upon the leadership of each organization to work together to find a solution. Thereafter, effective training programs, proper supervision and joint post-incident critiques can be used to avoid future confrontations.

- Stereotypes. Police and firefighters often hold stereotypical ideas about each other that can exacerbate an already high-stress situation. Some police officers consider firefighters to be subordinate in authority, emergency response capability and/or professionalism. Some firefighters believe they are immune from the reach of law enforcement while on emergency runs and consider members of law enforcement to be little more than spectators. The organizational cultures of each department may contribute to such beliefs. Some firefighters are all too willing to test the limits of their beliefs and some police officers are willing to meet what they view as a challenge to their authority by utilizing their arrest powers or, worse, physical force.

Trying to address these issues as they arise on emergency scenes is impossible. Strong organizational policies and procedures, effective supervision and leadership, and good communication between fire and law enforcement leadership are essential to prevent stereotype-driven disputes from escalating into confrontations.

- Personal grudges. It is almost inescapable that personal grudges can and will develop between individuals and organizations. Particular officers may dislike particular firefighters who they have a long personal history with, and vice versa. In some locales there may be a history of antagonism between organizations. Personality clashes and anger-management issues on the part of the individuals involved simply fuel the fire.

Debating who is right, who is wrong, who started it and who should apologize can be counter-productive. As mentioned above with regard to stereotypes, effective leadership is essential to minimizing the potential for a confrontation. Personal animosity should be identified and the matter should be addressed at the appropriate management level of both organizations to prevent it from escalating at an emergency scene. If need be, employee assistance programs, conflict mediation and counselors should be utilized to resolve the matter. Where appropriate, disciplinary action may be necessary against members who persist in provoking hostility. As the cases listed above demonstrate, hard-line disciplinary tactics are usually preferable to fire and police departments having to deal with the aftermath of a public confrontation.

In today's world, the fact that an on-scene dispute between a law enforcement officer and a firefighter escalates to the point where the firefighter is arrested is almost unforgivable. The fact that it occurs repeatedly should serve as a warning to us all. These incidents are embarrassing to the members involved and to the fire and law enforcement agencies they represent. They result in unwarranted negative publicity, unneeded stress on members and their families, and organizational attention being diverted from more important matters.

With a little foresight and planning, areas of policy disputes can be identified and addressed. Through effective training, policies and procedures can be conveyed from agency leadership to police and firefighters in the street. Effective supervision and personnel management systems also play in important role in minimizing the risk of future confrontations.

CURT VARONE has been a member of the fire service for over 35 years. He was a career firefighter in the Providence, RI, Fire Department for over 29 years, retiring as a deputy chief. Varone is also an attorney with over 22 years of experience. He is the author of Fire Officer's Legal Handbook and Legal Considerations for Fire and Emergency Services. Varone is now the director of the Public Fire Protection Division at the National Fire Protection Association (NFPA).This column reflects the thoughts and perspectives of the author, and not the NFPA.