Larry's Legal Lessons: Arsonist's Sentence Increased When Kentucky Firefighter was Injured

Howard Kirk Gibney and his son were arrested for setting seven fires at mattress and bedding stores in Louisville, KY, including one where a firefighter was injured.

The U.S. District Judge in Louisville, after obtaining a pre-sentence report, concluded that a seven-year minimum sentence must be imposed. Firefighter Carlos Cruz testified at the sentencing hearing that he had lacerated his thumb while using an axe to break a glass door at the scene of the Nov. 11, 2003 fire. He explained that he was not wearing his protective gloves because he was in a hurry to comply with his captain's orders to gain entry into building. The Court of Appeals wrote:

"Cruz stated that he suffered nerve damage, which required surgery to repair and rendered him unable to use his thumb for approximately one month. This injury required him to miss work and later necessitated a second surgery. Cruz testified he still has problems with stiffness and numbness in his thumb."

The U.S. District Judge also imposed a restitution order; while the presentence report had claims of property owners of $756,053.29, the U.S. Attorney's office informed the judge that additional claims had been received over $1 million in additional claims (final amount was over $1,103.358.10).

On appeal, the defendant argued that he should have only been sentenced to 5-years since the firefighter did not suffer "serious" or "significant" injury. The U.S. Court of Appeals disagreed, "Because we agree with the district court that the term 'personal injury' as used in the statute is not ambiguous, we likewise find no error with the district court's imposition of the mandatory minimum sentence pursuant to Sec. 844 (i)."

The Sixth Circuit held that there was no requirement to prove Firefighter Cruz suffered a "serious" or "significant" injury. The Court of Appeals wrote, "Here, Congress was free to include 'significant' or 'serious' as part of the injury element of Sec. 844(i). It did not."

The U.S. Court of Appeals referred to other statutes where Congress did use the term "significant" or "serious" or "substantial" injury, and concluded "we can only assume this omission is intentional." Examples of such statutes include:

  • 18 U.S.C. 2118 (a)(3) - robberies and burglaries involving controlled substance;
  • 18 U.S.C. 2332b (a)(10(b) - acts of terrorism;
  • 15 U.S.C. 1261 (f)(1)(A) - hazardous substances.

Conclusion: consider seeking a federal indictment in arson cases whenever a firefighter or other public safety officer is injured. I am sure that your local U.S. Attorney's Office would be honored to assist (the author of this article worked nine years in the U.S. Department of Justice, including six years as an Assistant U.S. Attorney in Washington, D.C.).

LARRY BENNETT, a Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, that is used by the National Fire Academy (NFA) in its distant learning course, Political and Legal Foundations of Fire Protection. The NFA appointed Larry as their Subject Matter Expert to update the curriculum in this course. and he serves on the NFPA 1500 Fire Service Occupational Safety and Health Committee. Larry writes a free Fire & EMS and Safety Law newsletter which you can sign up online to receive free. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at