On Dec. 19, 2006, a wildland fire supervisor employed by the U.S. Forest Service was charged with manslaughter in Washington State for the July 2001 deaths of four firefighters who were overrun by a fast moving wildfire. In California, the driver of a fire truck was charged with manslaughter when a firefighter was ejected from the apparatus and killed in a vehicle accident. In Ohio and Delaware, firefighters were charged with manslaughter when the apparatus they were driving were involved in fatal accidents with civilian vehicles.
Firefighters criminally charged with manslaughter. It sounds unbelievable and a little bit frightening that fire personnel who have devoted their lives to saving others could be charged with such a serious criminal offense for a line-of-duty action. How can this happen? Is it a new trend? Is it something you should be concerned about? To answer these questions, we must understand manslaughter. To do that, we need a brief overview of homicide law and, in particular, the four criminal mental states.
Homicide is broadly defined as the killing of another person. The term homicide includes two primary groups of offenses, murder and manslaughter. Murder is the intentional killing of another. Most states recognize two degrees of murder, first degree and second degree. First-degree murder is a murder that is premeditated. A murder that is committed without premeditation is considered to be second-degree murder. A few states limit first-degree murder to special circumstances, such as the murder of a police officer in the line of duty. In such states, premeditated murder would be chargeable as second-degree murder.
Homicides that do not constitute murder may nevertheless be chargeable as manslaughter. There are two categories of manslaughter, voluntary and involuntary. Voluntary manslaughter is the intentional killing of another, committed in the heat of passion as a result of a severe provocation. The classic example of voluntary manslaughter is when a husband comes home to find another man in bed with his wife, and shoots one or both of them. It is a jury question as to whether the perpetrator acted "in the heat of passion as a result of severe provocation."
Involuntary manslaughter is an unintentional killing that results from the reckless conduct of the defendant. (Some states recognize a type of involuntary manslaughter that arises when an unintentional death results from the commission of a misdemeanor. For example, misdemeanor manslaughter may apply when a person maliciously activates a false alarm in a building - a misdemeanor - and an occupant suffers a fatal heart attack during the evacuation. Arguably, a perpetrator who turns in a false alarm that results in a fatality could be charged with involuntary manslaughter in any state provided the act of turning in a false alarm is found to be reckless.)
It is the recklessness of the actor that makes him legally responsible for the killing despite the fact that the death was unintentional. While still a serious offense, manslaughter is not considered to be as culpable an offense as murder, and the penalties for manslaughter are not as severe as those for murder. Some states have additional categories of homicide offenses, such as vehicular homicide and negligent homicide. (Many authorities refer to involuntary manslaughter as criminally negligent homicide. However, such a definition tends to gloss over the distinction that many states make between reckless conduct and criminally negligent conduct. Historically, there has been considerable uncertainty regarding the meaning of criminal negligence, and whether it is sufficient to establish manslaughter. The more modern trend, as evidenced by the Model Penal Code, is to require recklessness be proven for involuntary manslaughter, and that criminal negligence is insufficient.) The distinction between all of the homicide crimes rests on the perpetrator's mental state when the crime was committed.
Criminal Mental States
When we think about a crime, we often associate committing the act with committing the crime. However, every crime also has a mental state requirement that plays an important role in determining whether or not a crime was committed, and if so which crime. The mental state needed to convict someone varies from offense to offense. According to the Model Penal Code, there are four basic criminal mental states, although various jurisdictions and authorities may cite to slightly different terms and definitions. The four criminal mental states are purposeful, knowing, reckless and negligent.
Purposeful means the person intended or desired to engage in certain conduct or cause a certain outcome. For example, Al hates Bert and shoots him with a gun on purpose desiring to kill him. Al's mental state toward killing Bert was purposeful. The mental state of purposeful is always enough to convict someone of a crime.
Knowingly means the person knew to a substantial certainty that a certain outcome would follow from his or her act, even if the person did not intend or desire it. For example, Chris lit her house on fire. After the fire, Dan, the investigator, seized evidence that needed to be sent to the crime lab for analysis. Chris does not want the evidence to reach its destination. She plants a bomb in Dan's car and blows it up as Dan is driving the evidence from the evidence room at fire department headquarters to the crime lab. Chris does not desire to harm Dan, she only wants to destroy the evidence. However, she knows to a substantial certainty that blowing up Dan's car while it is enroute to the crime lab will result in Dan's death. Chris has acted knowingly with regard to Dan's death. Incidentally, with regard to setting the fire and blowing up the car, Chris acted purposefully. A perpetrator who acts with the mental state of knowingly can be convicted of a crime.
Recklessness occurs when a person consciously disregards a known and substantial risk of harm involving a gross deviation from the standard of care of the law-abiding citizen. Determining the standard of care of the law-abiding citizen in a given case is left up to a jury, and thus is often subject to debate. Consider this example: Ed drives his sports car through a crowded neighborhood at 75 mph and accidentally strikes Fran, killing her. The speed limit in the neighborhood is 25 mph. Ed's mental state in relation to the death of Fran is probably an example of recklessness. However, recklessness is much less definitive than purposeful or knowingly. Consider in the example above if it would be recklessness if Ed was traveling at 50 mph? What about 26 mph? At what point does a person's conduct become "reckless"? Recklessness is not enough to convict a person of many serious crimes, including murder. (Some jurisdictions draw a distinction between ordinary "willful and wanton recklessness", and an extreme type of recklessness known as "depraved heart recklessness." The classic example of depraved heart recklessness involves someone playing a game of Russian roulette. With one bullet in a revolver that holds six bullets, it cannot be said that the shooter purposefully intends to shoot the victim. It also cannot be said that the shooter knew to a substantial certainty that the victim would be shot since at best there was a one in six chance that the gun would go off. Nevertheless, the mental state of the person playing Russian roulette is so outrageous and callous with regard to the consequences that it warrants the same punishment as someone who acts purposefully or knowingly. Depraved heart recklessness will usually be enough to be convict a perpetrator of a serious crime requiring intentional conduct, such as murder. Ordinary recklessness will usually not be enough to convict for murder, but is usually adequate for involuntary manslaughter.) However, recklessness is the mental state required for involuntary manslaughter.
Negligence is a criminal mental state where a perpetrator should have been aware that a substantial and unjustifiable risk of harm would result from his or her conduct. Criminal negligence requires a gross deviation from the reasonable person standard of care. In the larger scheme of things, negligence is considered to be the least culpable of the four criminal mental states. Consider the following example: While driving her car, applying lipstick and chatting on her cellphone, Gloria does not see that she has a stop sign at an approaching intersection. She fails to stop, and strikes a motorcyclist, killing him instantly.
The definition of the criminal mental state of negligence is similar to, but not identical with, the definition of negligence as a civil action or tort. Some jurisdictions equate criminal negligence with the civil standard for gross negligence. Negligence is not sufficient to convict a person of a serious crime such as murder or involuntary manslaughter, but may be enough for a crime such a vehicular homicide or negligent homicide.
Manslaughter and Fires
Unlike attorneys or accountants, firefighters are engaged in a dangerous occupation where people are killed even when things go as best as they possibly can. Whenever people die, the potential for a homicide charge exists. Therein lies an inherent connection between the fire service and homicide crimes. History is full of examples of fire-related manslaughter cases. (Arson-related fire fatalities are usually chargeable as murder under most states' felony murder rules and thus are not changeable as manslaughter.)
- The earliest documented fire-related manslaughter charge that I could find occurred after the Iroquois Theater fire in Chicago in 1903 that killed 588 people. Manslaughter charges were brought against the managers of the theater, and the city building inspector was charged with malfeasance in conducting inspections. Ultimately, no one was convicted, although the fire did lead to nationwide reforms in theater construction.
- In 1904, five people (including two inspectors) were charged with a variety of offenses, including manslaughter, after 1,021 people died as a result of a fire on the steamship General Slocum in New York City's East River. The captain of the General Slocum was the only one convicted, and his conviction was for neglect of duty.
- The Triangle Shirtwaist Factory fire in New York City in 1911, where 146 workers died due to illegally locked doors and overcrowded, unsafe conditions led to manslaughter charges against the building owners. However, they were ultimately found not guilty.
- A fire in the Cocoanut Grove night club in Boston in 1944 killed 492 people. In the public uproar that followed the fire, the club's owner, its top managers and numerous city officials were indicted, including building inspectors, a fire inspector and a police captain. The club's owner was convicted of involuntary manslaughter for allowing overcrowding, blocked exits and numerous fire code violations that contributed to the high loss of life.
- Managers of the Barnum & Bailey Circus were charged with manslaughter after in 1944 fire in Hartford, CT, that killed 167 people. Among the numerous allegations were that they failed to have firefighters and fire protection equipment standing by. Five managers were convicted of involuntary manslaughter.
- In December 1999, a fire in the Worcester Cold Storage building claimed the lives of six Worcester, MA, firefighters. A homeless couple who started the fire by accident, but failed to report it, were charged with involuntary manslaughter.
- A fire at The Station night club in West Warwick, RI, on Feb. 20, 2003, led to manslaughter charges against the owners of the nightclub and the manager of the band, Great White. One hundred people were killed in the fire that was started when illegal pyrotechnics ignited illegally installed and highly flammable foam soundproofing surrounding the stage. The club owners and the band manager pled guilty to 100 counts of involuntary manslaughter. As was seen after the Iroquois Theater fire, the General Slocum fire and the Cocoanut Grove fire, a public outcry also sought to have public officials, including fire prevention personnel, criminally charged.
- On Jan. 23, 2005, a fire at 236 E. 178th St. in the Bronx, NY, trapped a number of firefighters on the top floor of an apartment building, leading six to jump. Two firefighters died and the rest suffered severe injuries. The owner of the building and two tenants were charged with manslaughter for illegally dividing up apartments.
As these cases demonstrate, involuntary manslaughter charges are not new to the fire service, nor are they unusual. On the contrary, they go hand in hand with the fact that firefighters are engaged in a high-risk occupation in which people are killed, sometimes in significant numbers.
When a victim dies as a result of another person's conduct, the person's mental state is absolutely critical in determining whether a homicide crime was committed, and if so which crime. The key element that distinguishes involuntary manslaughter from the other homicide crimes is the mental state of recklessness on the part of the perpetrator.
There are literally thousands of cases from all 50 states that define recklessness. (Many states refer to the recklessness necessary for involuntary manslaughter as criminal negligence, but qualify the definition by adding additional modifiers such as "willful and wanton," "a carelessness of a gross and flagrant character" or "reckless indifference" to distinguish it from ordinary negligence. The Model Penal Code's definitions were intended to clarify the difference.) Not all states concur in their definition of recklessness. Furthermore, recklessness is considered to be a fact that must be proven beyond a reasonable doubt to a jury. Thus, it is conceivable that two juries may draw differing conclusions from the same facts, making it difficult to state definitively what types of conduct constitute recklessness. Distinguishing recklessness from purposeful or knowing is relatively simple as recklessness occurs only where there is a substantial and unjustifiable risk of harm. The distinction between recklessness and negligence is more complex.
Some authorities suggest that reckless requires an element of intent - intentionally disregarding a known and substantial risk of harm - whereas negligence does not. The Massachusetts Supreme Judicial Court stated in the Worcester Cold Storage fire case: "Although it is true that recklessness must involve an intentional act or omission, a finding of recklessness is grounded in intent to engage in the reckless conduct, and not intent to bring about the harmful result." - Commonwealth v. Levesque, 436 Mass. 443 (Mass., 2002).
In other words, reckless involves an awareness of an unjustifiable risk and an intentional decision to act (or not act) despite the risk. A perpetrator need not be conscious of the exact risk of harm (for example, in the Worcester case, the homeless couple did not need to be conscious of the risk of death to the firefighters), but rather must intend to engage in the reckless conduct (for example, intentionally choosing not to report a fire). Consider the speeding car example discussed above. The driver, Ed, need not know that Fran might be crossing the street. All that is required is that the defendant intentionally chose to be reckless by deciding to drive at 75 mph through the neighborhood.
Some states also require that the perpetrator have acted with malice, or in a way that is "willful and wanton," implying that besides intentionally choosing to take an unreasonable risk, that there must be an element of misconduct or bad faith. In several of the historically significant manslaughter cases discussed above, there were questions of bribes or the overlooking of fire code violations in exchange for free admission to certain events. Certainly, such conduct would satisfy any malice requirement. However, many states allow a jury to infer malice when there is "a plain and strong likelihood of death." - Commonwealth v. Vizcarrondo, 427 Mass. 392 (1998); Commonwealth v. Sires, 413 Mass. 292 (1992).
Thirtymile Fire Cas
In July 2001, Ellreese N. Daniels was supervising personnel operating at a wildland fire in the Chewuch River Canyon in Washington State, named the Thirtymile Fire. At the time, the region had been subject to a severe drought and the fire danger was high. Four firefighters died when fire overran their position on the side of a hill. An affidavit submitted in support of a criminal complaint alleged that Daniels:
- Underestimated the potential for extreme fire behavior
- Did not request adequate resources
- Allowed two squads of relatively inexperienced firefighters and two civilian hikers over which he was personally in command to become entrapped by the rapidly growing fire
- Allowed members of the crews to separate
- Had the opportunity to prepare crews for fire burning over them, but failed to do so, including failing to direct personnel to deploy their fire shelters
Daniels was charged with four counts of involuntary manslaughter. It should be kept in mind that the above allegations have not been proven in court. In addition, even if they can be proven, it is not clear whether these allegations will be sufficient to constitute involuntary manslaughter. The major issue at trial will be whether or not Daniels acted recklessly.
Firefighters face a number of risks in the performance of their duties. The obvious risks we face involve risks to our own lives, the lives of our co-workers and subordinates, and the lives of those we are sworn to protect. However, there are a variety of risks associated with some of the more mundane roles in which fire personnel are involved where lives may hang in the balance. Fire inspectors and plan reviewers hold the safety of the public as well as firefighters in their hands. Apparatus operators, dispatchers, maintenance personnel and even SCBA repair technicians similarly perform tasks that can forseeably lead to fatalities. While firefighters often tend to downplay this reality, lives depend on many of the day-to-day things we all do.
We in the fire service are all guilty of viewing ourselves as the "good guys," here to help serve the public. Many times, we scoff at the less-glamorous duties associated with fire prevention, training, equipment maintenance and documentation because it does not square with the image we have of what we do. However, we have to recognize that when lives are lost, people will want someone to blame.
Perhaps a psychiatrist could help explain the phenomenon better than an attorney - but it is not simply a matter of unscrupulous lawyers trying to drum up business; it is a reality of the human condition. People want someone to blame for their loss and the larger the loss of life, the stronger the reaction seeking what they perceive as justice. Whether we consider the Thirtymile Fire, The Station night club fire (family members have been publicly demanding that the fire marshal who failed to notice flammable foam soundproofing be charged with manslaughter) or even some of the historical examples from 100 years ago such as the Iroquois Theater fire, people who feel they have been wronged - even by "good guys" - will become vocal about demanding justice. Add to the mix the media's willingness to sensationalize such tragedies to boost sales and ratings, and the result can be a lynch-mob mentality where firefighters can be caught in the crosshairs.
The bottom line is that manslaughter charges are neither unusual nor to be unexpected in our profession. In particular, in the aftermath of a major disaster, it is entirely predictable that those grieving the loss of their loved ones will demand what they perceive as justice.
When unintentional deaths are involved, manslaughter is potentially on the table. This sobering reality is all the more reason why firefighters need to be properly trained, properly equipped, follow comprehensive and up-to-date standard operating procedures, and document everything that we do.
CURT VARONE has been in the fire service for more than 34 years, with experience as a volunteer, paid-on-call and career firefighter. He also has over 21 years' experience as a practicing attorney representing firefighters and fire departments. Varone is currently a deputy assistant chief (shift commander) with the Providence, RI, Fire Department. He is also an adjunct faculty member of the National Fire Academy, Executive Fire Officer (EFO) program and of Providence College's fire science program. He is the author of Legal Considerations for Fire and Emergency Services, from Thomson-Delmar Publishing.