Fire Law: When Is Arson Not Arson?

In April 2013, District of Columbia Fire Chief Kenneth Ellerbe testified before the DC Council in April that department investigators had resolved 72.7% of the city’s arson cases. His number was a large increase from previous years, and far higher than the national average.

When Council Member Tommy Wells asked about these differences at an April 17 hearing, Ellerbe attributed the change to more experience, and not to any change in the way arsons are counted. However, it turns out that the department did change the way it counts arson. DC officials later acknowledged that they were using a different way of defining the term. They explained that the department limited the term “arson” to fires in which evidence existed to establish, “willful, malicious intent to start a fire” that was adequate to support an arrest.” This is more restrictive than the generally accepted national standard of counting all incendiary fires as arson cases.


Defining arson

This episode raises the question of what, exactly, is arson. In the historic English common law upon which most American law is based, arson was considered an extremely serious crime, perhaps exceeded only by murder. It could be punished by death. However, arson also was much more limited in scope, the malicious burning of the dwelling house of another. Setting fire to a barn, personal property such as furniture, or a commercial establishment was not arson, nor could a person be charged with arson for setting his own house on fire. Under common law, a person had the legal right to destroy his or her own property in any way he or she chose.

Today, state statutes have redefined and widely expanded the arson to include the intentional setting on fire of almost all types of property. It is seen as an economic crime (such as fraud against an insurance company) as much as a crime against a person, which was the original understanding. Further the concept of maliciousness has been broadened to include a wider range of motivations.

Likewise, the FBI uses a broad definition of arson for its Uniform Crime Reporting Program. Its definition includes “any willful or malicious burning or attempting to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.” Only the fires that investigators have determined to have been willfully set are included in the FBI’s arson data collection. Fires labeled as suspicious or of unknown origin are excluded from these data.

In contrast, Ellerbe’s new definition of arson requires that evidence of malicious intent be great enough to support an arrest. This means that there must be a “reasonable suspicion” that a willful and malicious intent was present. The new standard requires a higher standard of proof in order for an event to be considered arson. If a fire is not considered as arson until there is sufficient evidence to support an arrest, then it is not surprising that a very high percentage of cases have been resolved.


Motive at issue

An ongoing arson prosecution in northern California illustrates the distinction that Ellerbe makes. The “Robbers Fire” began on July 20, 2012, in Placer County, north of Sacramento, after an individual threw a firework into a swimming hole. The device exploded and started a brushfire that burned more than 2,600 acres. The fire destroyed one home and four outbuildings, and threatened 170 additional homes at its peak. It was estimated to have cost $13 million to extinguish.

The defendant admitted to throwing the firework, and acknowledged that his action started the fire. However, his lawyers argued that he never intended to set the fire, and that he did not expect his action to cause a fire. Thus, they argued, the malicious intent necessary for the crime of arson is lacking. In response, prosecutors argued that the requirement for malice is met because any reasonable person would have recognized the danger of lighting and throwing a firework in the weather conditions –drought and high temperatures – that existed at that time.

At a preliminary hearing in March 2013, a judge decided that the prosecution had not made the case that there was malicious intent, and dismissed the charges. However, prosecutors took the case to a grand jury, arguing that the defendant’s action in throwing the firework was so grossly negligent that it amounted to malicious intent. The grand jury agreed with prosecutors and handed down an indictment.

In explaining Ellerbe’s changes, a spokesman is reported to have said that before the change, all “incendiary” fires, or those that had been deliberately set were included in DC’s statistics, similar to the contemporary definitions that many other jurisdictions use. In changing the definition of arson, it seems in some ways as if Ellerbe was reverting from a more current definition back to the more narrow common law definition, which limited the crime to truly malicious actions. In doing so, he is running counter to contemporary trends, and running the risk of minimizing the extent of this important crime.