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DECEMBER 2025 – FIRE & EMS LAW NEWSLETTER

[NEWSLETTER IS NOT PROVIDING LEGAL ADVICE.]


Prof. Bennett (former vol. firefighter / EMT-B at 3 FDs)
Prof. Bennett (former vol. firefighter / EMT-B at 3 FDs)


 With his pet therapy dog, FRYE.
 With his pet therapy dog, FRYE.



Lawrence T. Bennett, Esq.

Professor-Educator Emeritus

Cell 513-470-2744

Lawrence.bennett@uc.edu




You may purchase Professor Bennett's book at

waveland.com/browse.php?t=708


18 CASE REVIEWS

UPDATING: 2017: TEXTBOOK:  FIRE SERVICE LAW (Second Edition)

(ISBN 978-1-4786-3397-6); Waveland Press: http://www.waveland.com/browse.php?t=708


Chap. 9 – Americans With Disabilities Act

Chap. 10 – Family Medical Leave Act, incl. Military Leave

Chap. 12 – Drug-Free Workplace, inc. Recovery

Chap. 14 – Physical Fitness, incl. Heart Health 

Chap. 15 – Mental Health, incl. CISM, Peer Support, Pet Therapy 

Chap. 17 – Arbitration, incl. Mediation, Labor Relations  


OTHER ONLINE RESOURCES

________________________________________________________________________


Chap. 1 – American Legal System, incl. Fire Codes, Investigations, Arson


PA: ARSON – LIQUID ON FLOOR - 4 PD FLED – ONE FELONY

On Nov. 19, 2025, in Commonwealth of Pennsylvania v. Vincent Smith, the Supreme Court of Pennsylvania held (4 to 2) that the defendant, who pled guilty, can be sentenced for one count of Arson Endangering Persons (“AEP”), not four counts even though he endangered four police officers.  The trial court rejected defense argument that he only committed one arson offense; the court sentenced to 4 to 8 years imprisonment for each AEP offense. He also pled guilty to involuntary manslaughter of two roommates, for aggregate sentence of 26 to 52 years imprisonment.  THE COURT WROTE: “Thus, the Crimes Code, as a whole, was enacted to classify all crimes into grades and degrees. Moreover, Section 3301, in particular, differentiates between arson endangering persons and property − Section 3301(a) − and arson endangering only property – Section 3301(c) – and allows for a harsher sentence for the former by designating the offense of AEP as a felony of the first degree. There is nothing, however, to suggest that the underlying intent of Section 3301(a) was to allow for separate convictions and sentences for each endangered individual.” https://cases.justia.com/pennsylvania/supreme-court/2025-15-wap-2024.pdf?ts=1763559881

 

THE COURT HELD:

 “In February 2018, four police officers arrived at a rowhouse in Pittsburgh in an effort to locate a missing person, John Van Dyke. The officers forcibly entered the home and repeatedly announced their presence. Once inside, the officers heard Appellant, Vincent Smith, who was on the second floor of the residence, declare ‘Steve’s not here.’ …  After re-announcing their presence and stating their purpose, the officers observed Appellant striking matches and throwing them on the floor, instantly setting a fire that traveled down the stairs toward the officers. The officers immediately exited the residence, and Appellant was rescued by firemen and treated for smoke inhalation.

 

Subsequently, the bodies of Van Dyke and another man, Steven Pariser, were recovered from the residence. Both men had trauma to the back of their heads, and it was determined that Appellant had killed the men approximately five days earlier; thus, their deaths were ruled as homicides. Appellant told detectives that the two victims had attacked him, and he fought back by throwing them down a flight of stairs, after which he covered them with blankets and bags. Appellant also stated that he wanted to kill himself, and that he had attempted to do so by taking some pills and spreading lighter fluid around the residence.”

 

DISSENT (Opinion by Justice Sallie Updyke Mundy; joined by Justice Kevin Brobson)

“As the majority itself concedes, the offense of AEP cannot be completed without both of these actions. Majority Op. at 15 (‘[P]lacing another person in danger of death or bodily injury is not merely a description of the result of the prohibited act of starting a fire or causing an explosion, but, rather, an essential component of the minimum conduct that must be proven to support a conviction – the actus reus − under Section 3301(a)(1)(i).’). The General Assembly therefore intended a count of AEP to apply to each victim endangered by the intentional act of starting a fire.”

 

Legal lesson learned:  “Arson Endangering Persons” – the two Dissenting Justices agreed with the trial court judge – the defendant endangered four police officers and should be sentenced for four counts. 



Chap. 2 – Line Of Duty Death / Safety


NY: ARSONIST –- 1994 LODD – MUST STAY PRISON 43 YRS

On November 25, 2025, in United States of America v. Alberto Raposo, U.S. District Court Judge John P. Cronan, United States District Court for the Southern District of New York, denied the prisoner’s third motion for sentence reduction; he must serve out his sentence of 524 months.   THE COURT WROTE: “On June 5, 1994, Defendant Alberto Raposo set fire to a Manhattan building after a fight with his roommates. Waiting until his roommates were inside, Raposo ignited fires in front of the building's front door and in the subcellar, lobby, and second and fourth floors…. He then poured oil on the stairs and on the fire escapes, locked the front door even though he had the only key, and removed wires to disable the building's fire alarm….  Miraculously, Raposo's roommates survived, but New York City Fire Department Lieutenant George Lener died from carbon monoxide poisoning after he bravely responded to the scene. *** Because of Raposo's actions, a firefighter of fifteen years, a husband, and a father of three young children lost his life…. So although Raposo was young when he committed his crime [age 22], received a lengthy sentence for his offense, and appears to have made the most of his time in custody by engaging in rehabilitation efforts, the Court remains convinced that a sentence reduction is not warranted.” https://public.fastcase.com/jaEE2PXzRXmZ99jOLMt1ItgJpO3cenZHWG8%2BVkmKxH1HTTAbABiD6rHSJp3pZ1gN%2FmUtcGj1MYmfK4vUiVXj%2F7KJALcf9RQ89nZBN4g9WoM%3D?utm_medium=email&_hsenc=p2ANqtz-8GKw_r7YMLn5ao1TZxs4WqNRhri-535W3eCNA3JduD9CnJg4Ez99C9vjqiY3t5lfrKsWh0EQkMPqhDg1IfFNoFLO22ZQ&_hsmi=226712652&utm_content=226712652&utm_source=hs_email 


THE COURT HELD:

“Following a jury trial, Raposo was found guilty on February 9, 1999, of committing arson of property used in interstate commerce, with death resulting….  On June 8, 1999, the Honorable Deborah A. Batts sentenced Raposo to 524 months of imprisonment followed by five years of supervised release…. Raposo is currently incarcerated at the Federal Correctional Institution in Danbury, Connecticut, with a projected release date of June 13, [2033]. See Federal Bureau of Prisons, Find an Inmate, https://www.bop.gov/inmateloc/ (last visited Nov. 24, 2025).”


Legal lesson learned: Prisoner will serve full time for the death of a firefighter.



Chap. 3 – Homeland Security, incl. Active Shooter, Cybersecurity, Immigration


IL: FEMA GRANTS – 2 FED. INJUNCTIONS / DEI CLAUSES

On November 21, 2025, in City of Chicago, et al. v. Kristi Noem, et al., U.S. District Court Judge Manish S. Shah, United States District Court for the Northern District of Illinois, Eastern Division, issued an injunction prohibiting U.S. Government from enforcing DEI {Diversity, Equity and Inclusion] prohibitions in 2025 DHS Standard Terms and Conditions. Plaintiffs include City of Boston, City of New York, Mayor and City Council of Baltimore, City and County of Denver, City of Minneapolis, City of New Haven, City of Saint Paul and Ramsey County.  On Noc. 21, 2025, a Federal judge in California issued a similar injunct. THE COURT WROTE:  “The Secretary cannot pursue the policy objectives of the executive branch through the power of the purse…. Defendants are enjoined from imposing Part C.XVII(2)(a)(i)–(ii) & XXXI  [DEI conditions] of the 2025 DHS Standard Terms and Conditions on any plaintiff as a requirement for accepting a grant award issued under any of the statutory programs referenced in the complaint. Defendants cannot require plaintiffs to certify that they do not advance or promote DEI, DEIA, or ‘discriminatory equity ideology’ in violation of Federal anti-discrimination laws, or that they do not engage discriminatory prohibited boycotts when they accept funds pursuant to DHS Standard Terms and Conditions. Defendants cannot demand compliance with unspecified and unknown (at the time of contracting) Executive Orders as a condition of funding.” https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2025cv12765/488308/72/0.pdf?ts=1763809095

 

THE COURT HELD:

“The Department of Homeland Security and its agencies administer grant programs pursuant to statutory authority and funded by congressional appropriations. The grants cover everything from transit safety to nuclear weapon detection.

***

The Secretary cannot pursue the policy objectives of the executive branch through the power of the purse.

***

The loss of money is ordinarily a tangible harm. But here, the ripple effects on budget plans, services to residents, and efforts to mitigate the harm from terrorism or natural disasters are not quantifiable. The point of funding for disaster preparedness, infrastructure security, and firefighting is that the money is an investment that generates intangible dividends in public safety and security. Losing this funding in the interim would lead to budget cuts that directly inhibit the missions of the law enforcement and fire departments that these grants were intended to support. See, e.g., [47] ¶¶ 9–12 (Assistance for Firefights Grant Program funding already awarded to the Chicago Fire Department is needed to replace end-of-life and non-compliant self-contained breathing apparatus cylinders and provide training on hazardous material safety); [53] ¶ 10 (the City of New Haven Office of Emergency Management relies on Emergency Management Performance Grant funding for 100% of its non-salary operating budget). While going without money is not an irreparable harm, going without firefighters is.”

 

Legal lesson learned: The new “DEI” provisions have also led to litigation elsewhere. 

 

Note: See November 21, 2025 injunction in County of Sata Clara, et al. v. Kristi Noem, et al., by U.S. District Court Judge US District Judge William Orrick in San Jose.

“Defendants’ arguments here have been soundly rejected by courts around the country,

which have found similar agency conditional funding schemes to be unconstitutional.  The message to the Executive Branch in these cases is consistent: no one is above the law, and the separation of powers between the three branches must be respected.”

***

Plaintiffs are the County of Santa Clara , City and County of San Francisco, City of Alameda, City of Bellingham, City of Berkeley, City of Culver City, City of Los Angeles, County of Los Angeles, Los Angeles County Consolidated Fire Protection District, Martin Luther King, Jr. County, County of Marin, City of Oakland, City of Palo Alto,  City of Pasadena, City of Petaluma, Pierce County, City of Sacramento, City of San Diego, County of San Diego, City of San José (“San José”), County of San Mateo (“San Mateo County”), City of Santa Monica, City of Santa Rosa, Snohomish County, County of Sonoma, Sonoma County Community Development Commission, Sonoma County Water Agency, Sonoma Valley County Sanitation District. and the City of Tucson.


Note:  See these articles.

 


Chap. 4 – Incident Command, incl. Training, Drones, Communications


MA: CPT NOT PROMOTED – POOR INTERVIEW / DECK GUN

On November 25, 2025, in Pierre Grenier v. City of Springfield, et al., U.S. Magistrate Judge Katherine A. Robertson, United State District Court for the District of Massachusetts, granted summary judgment to the City and Fire Commissioner.  Captain Grenier was one of 6 candidates for 5 District Chief positions – promotion interview panel on Jan. 7, 2020  rated him lowest. The Captain claimed he was not promoted because of his PTSD from three Marine Corps deployments and because of his age (55). THE COURT WROTE: “Plaintiff has not pointed to evidence from which a reasonable jury could infer that Plaintiff's disability was a determinative factor in [Fire Commissioner] Calvi's decision to bypass him for promotion. *** Of the six candidates who were interviewed.  Plaintiff received the lowest numerical score (204).  All the interviewers were consistent in this judgment.… As to the hypothetical fire scene, Plaintiff's answer received a low score from [Fire Commissioner] Calvi and the other firefighters on the interview panel. *** Plaintiff answered that he would order a deck gun (mainstream) attack from outside the building, a search inside the building from the B and C sides, and the use of hand lines while searching the interior. Plaintiff's proposal to use the mainstream repeated the scenario that Calvi had countermanded when he arrived at the Crystal Avenue fire scene [November 5, 2019]…. Calvi was concerned because Plaintiff's response described the same scenario that worried Calvi when Calvi arrived at the Crystal Avenue fire. Calvi was particularly troubled by Plaintiff's repetition of the dangerous mistake he made at the Crystal Avenue fire, his failure to learn from the coaching that Calvi provided, and the lack of critical thinking skills Plaintiff had displayed during his interview….” https://app.midpage.ai/document/pierre-grenier-v-city-of-11209117?refG=true 


THE COURT HELD:

“Plaintiff appealed Calvi's bypass decision to the Civil Service Commission (‘CSC’) …. The CSC upheld Calvi's decision … The Hampden County Superior Court affirmed the CSC's decision; in turn, the Massachusetts Appeals Court affirmed the Superior Court decision.

***

Three candidates who ranked lower than Plaintiff on the Civil Service list - Daley, Marcellin, and Tetreault - bypassed Plaintiff and were promoted… Calvi's January 29, 2020, letter to Plaintiff gave three reasons for the bypass … that Plaintiff's continuing education was limited to furthering his side job as an electrician …; that his answer to the hypothetical fire scenario showed his failure to apply his real life experience and the coaching Calvi gave him at the Crystal Avenue fire … and that Plaintiff's vision for the future of the SFD - no changes necessary - showed a lack of understanding of the department and the ever-changing fire industry.”

***

[CRYSTAL AVENUE FIRE.] On November 5, 2019, Plaintiff was acting as a district fire chief when the SFD responded to a house fire at 51 Crystal Avenue…. Captain Brian Tetreault, the first ranking officer to arrive at the scene, was in command when Plaintiff arrived …  SFD policy directed that an officer who intended to assume command of a fire scene first have a radio or face-to-face conversation with the officer he was relieving before announcing over the radio that he was assuming command …. Plaintiff broadcast that he was in command without speaking to Tetreault in person …. As a result, Plaintiff was confused as to whether he or Tetreault was in command ….  Calvi heard about the fire on the radio and responded to Crystal Avenue ….  While en route, Calvi heard Plaintiff's radio announcement that he was at the scene and was taking command…. When Calvi arrived, he observed water from the mainstream being sprayed on the fire from outside ….  The mainstream water spray posed a danger to firefighters who were entering the building …. Calvi approached Plaintiff, asked why the mainstream was being used while firefighters were entering the building, and ordered the mainstream to be shut off.

***

[No Age Discrimination.] “The City argues that it did not fill the position with a younger person because two of the five candidates who were promoted are older than Plaintiff.… The City has proffered indicia of admissible evidence showing that Plaintiff's interview performance was a legitimate, nondiscriminatory reason for bypassing him for promotion to district fire chief. Plaintiff has failed to marshal evidence that would justify a reasonable jury in concluding that the City's stated reasons for bypassing him were a pretext for age discrimination.”


Legal lesson learned: The City articulated legitimate nondiscriminatory reasons for not promoting the Captain, and the Fire Commissioner documented those reasons in a timely letter to the Captain.



Chap. 5 – Emergency Vehicle Operations


TX: RED LIGHT – NO PROOF SLOWED DOWN - NO IMMUNITY

On Nov. 13, 2025, in City of Houston, Texas v. Chelsea Manning, et al., the Court of Appeals of Texas, Fourteenth District held (3 to 0) that the trial court properly refused to grant immunity; the City failed to present evidence that Opticom had turned light to green.  Also no evidence Engine slowed down at the intersection (going 45 mph in 35 mph zone). This case has previously be appealed to Texas Supreme Court which remanded it back to the Court of Appeals to reconsider the evidence. THE COURT WROTE:  “[FAO Wilhelm] Schmidt said he slowed to ‘clear the intersection,’ but, as explained, other evidence in the record indicates that he was driving 45 miles per hour ‘on some of the straightaways’ and remained driving at 45 miles per hour—10 miles per hour over the speed limit—at the ‘time of impact.’ which is evidence from which a reasonable juror could infer that Schmidt either did not slow the vehicle at all or did not slow it as necessary for safe operation…. We conclude that the City did not meet its initial burden to prove conclusively Schmidt's good faith.” https://caselaw.findlaw.com/court/tx-court-of-appeals/117928954.html 

 

THE COURT HELD:

“The relevant facts are familiar to both the parties and to this court, so we summarize them only briefly. A Houston Fire Department (‘HFD’) truck driven by Engineer/Operator Wilhelm Schmidt responded to a dispatch for a dumpster fire at an apartment complex. En route, the fire truck collided with a car driven by Chelsea Manning at the intersection of Ludington Drive and Fondren Road. Also in Manning's car were three minor passengers.

***

Under section 546.001, the operator of an emergency vehicle may proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation. Id. § 546.001(2). Such an operator may also exceed a maximum speed limit, except as provided by an ordinance adopted under section 545.365, as long as the operator does not endanger life or property. Id. § 546.001(3)….

It is also evidence from which a reasonable juror could infer that Schmidt's excessive speed endangered life or property. Based on this evidence, a factfinder could reasonably conclude that Schmidt (1) drove above the speed limit endangering life or property, (2) did not slow his speed as necessary for safe operation of the vehicle, and (3) proceeded against a red light.

***

Captain Hill introduced a new fact with the City's second summary-judgment motion that was not presented in the first appeal. He explained that the fire truck was fitted with an ‘Opticom transmitter’ that automatically activated when the emergency lights were turned on.  An Opticom transmitter ‘grants the apparatus a temporary right of way by turning their traffic light green, and the others red.’ Captain Hill could tell that the Opticom transmitter was working because traffic lights in their path changed to green as they drove to the scene. Based on the Opticom transmitter's operation, Captain Hill opined that, even if Schmidt did not slow down as he approached the intersection, he still acted in good faith because ‘the Opticom transmitter was operating and turned our light green as we approached, so we did not have to slow down for a red traffic signal.’ Captain Hill added that the fire truck's emergency lights were activated the entire time, and they blew the airhorn as they approached each intersection, including the one at Fondren and Ludington. There is no evidence, however, that the traffic signals for Schmidt and Manning could have been green at the same time. Captain Hill testified that, when the Opticom transmitter activates a green signal for an approaching fire truck, the signals for other traffic are changed to red.”

 

Legal lesson learned: The trial court judge was not presented with proof that FAO slowed down entering the intersection, or that the Opticom had timely operated to give FAO a green light. 



File: Chap. 5 – Emergency Vehicle Operations

        

TX: ENGINE – HIT CAR PULLING TO RIGHT – NO IMMUNITY

On November 4, 2025, in City of Houston, et al. v. Myauna Wright, the Court of Appeals of Texas, Houston (1st Dist.) held (3 to 0) that trial court judge properly denied the City’s motion to dismiss under the Texas doctrine of official immunity.  The plaintiff’s vehicle was struck by the engine on August 25, 2022.   THE COURT WROTE: “Wright sued the City and … [FAO] S. Obando, for damages arising from a collision between a City of Houston fire engine and her vehicle…. Wright’s pleading does not establish that Obando is entitled to official immunity because she alleged that he acted with reckless disregard, which would negate good faith.” https://cases.justia.com/texas/first-court-of-appeals/2025-01-24-00936-cv.pdf?ts=1762265344


THE COURT HELD:

“Wright’s pleading does not establish that Obando is entitled to official immunity because she alleged that he acted with reckless disregard, which would  negate good faith. Moreover, in its reply brief, the City conceded that Wright had no burden to plead facts to overcome the driver’s assertion of official immunity. Because Wright’s pleading alleges that the fire engine driver’s breach of a duty of care caused her damages, we conclude that she alleged a waiver of immunity under the TTCA [Texas Tort Claims Act], subject to the statutory exceptions, which we consider next. See TEX. CIV. PRAC. & REM. CODE § 101.021(1).

***

A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith.”

 

Legal lesson learned: Texas has a “good faith” exception to official immunity; many states use a “willful or wanton misconduct” or similar standard. 

 

Note: See Ohio Revised Code, Section 2744.02 | Governmental functions and proprietary functions of political subdivisions https://codes.ohio.gov/ohio-revised-code/section-2744.02 

 

(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. The following are full defenses to that liability:

(a) A member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct;

(b) A member of a municipal corporation fire department or any other firefighting agency was operating a motor vehicle while engaged in duty at a fire, proceeding toward a place where a fire is in progress or is believed to be in progress, or answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct….



Chap. 6 – Employment Litigation, incl. Work Comp., Age Discrim., Vet Rights


MD: EMT HEAD INJURY– JURY - TT 47 DAYS OFF IN 5 YRS

On November 19, 2025, in Montgomery County, Maryland v. Patricia Taylor, the Court of Special Appeals of Maryland held (4 to 0; unreported decision) that a jury properly awarded a volunteer Medic (and College instructor) temporary total disability for 47 days missed from work because of migraine headaches between 2017-2021.  THE COURT WROTE: “On August 15, 2016, Appellee Patricia Taylor, a Montgomery County EMT, sustained a head injury after she was struck by a heavy backboard during a training exercise…. [She] appealed the denial of her claim for temporary total disability benefits by the Maryland Workers' Compensation Commission to the Circuit Court for Montgomery County. Appellee elected a jury trial, and following the presentation of evidence and deliberations, the jury determined that she was temporarily totally disabled on the dates specified in her claim….  Dr. Jeffrey Gaber, a board-certified internal medicine doctor … testified that based on his own evaluation and in part, on a review of medical records from Appellee's internal neurologist and the county's independent medical examiner, that the accident that Appellee suffered can ‘absolutely’ cause the ‘severe’ post-concussive headaches that Appellee experienced.”

 

THE COURT HELD: 

“Appellee presented two witnesses, Dr. Jeffrey Gaber, a board-certified internal medicine doctor, who testified by video deposition and herself. Dr. Gaber opined that, based on his training, experience, medical evaluation, and review of Appellee's medical records, Appellee sustained a concussion as a result of a work injury on August 15, 2016. Dr. Gaber further opined that Appellee suffers from post-concussive syndrome because of the accident and that she was unable to work on days when the symptoms were severe….

Dr. Gaber explained the significance of EMT Taylor's post concussive headaches and their impact on her ability to serve as a paramedic and as a full-time teacher in the education and training department at Johns Hopkins University.”

 

Legal lesson learned:  Maryland has jury trials on worker’s comp claims.



Chap. 6 – Employment Litigation, incl. Work Comp., Age Discrim., Vet Rights


CA: PENSION “SPIKING” – STANDBY PAY NOT COUNTED

On November 13, 2025, in Ventura County Professional Firefighters’ Association, et al. v. Ventura County Employees’ Retirement Association, et al., the California Court of Appeals, Second District, Sixth Division held (3 to 0; unpublished opinion) that pension Board since 2021 stop considering “standby pay” (where they may be called back work in an emergency) in employee pension calculation of their “annual average compensation.”  The state pension law was amended in 2013 to prevent “spiking” – “additional services rendered outside of normal working hours” no longer in pension calculation.  Three firefighter Heavy Equipment Operators, and two firefighter Aviation Managers were hired prior to the 2021 change, and these “legacy” personnel and their union petitioned for a writ of mandamus in the trial court. THE COURT WROTE:  “PEPRA revised laws governing pension plans and amended provisions of CERL in response to a rise in ‘spiking’ and other practices used to increase retirement benefits during the representative period…. Among the types of compensation excluded are ‘[p]ayments for additional services rendered outside of normal working hours, whether paid in a lump sum or otherwise.’ (§ 31461, subd. (b)(3).) … Time on standby, it must follow, is not time appellants are ‘actually’ working under Article 10, but time they agree the District may call them back to work an unspecified number of overtime hours under Article 11…. Employees are paid one quarter of their hourly wage if placed on standby status by their Duty Chief. If called back to work, they are paid at a predetermined hourly overtime rate…. The [Pension] Board ratified revised pay codes in May of 2021…. The discretionary nature of standby hours is what requires us to conclude they are not hours ‘ordinarily performed…. We read these provisions as requiring appellants to accept standby if assigned and not as expanding their normal work hours. VCERA and the trial court correctly considered standby—at least as defined in the MOA and Side Letter—as ‘additional services rendered outside of normal working hours.’ (§ 31461, subd. (b)(3).) “ https://www4.courts.ca.gov/opinions/nonpub/B338919.PDF

 

THE COURT HELD:

“VCPFA’s co-appellants are five employees of the District: aviation managers Melvin Lovo and Jeffrey Seabrook, and heavy equipment operators Scott Price, Christopher Beery, and Ryan Winchester. They contribute a portion of every paycheck to VCERA to fund their pension benefits. CERL governs the calculation of VCERA members’ retirement allowances based on a formula comprised of an employee’s: (1) age at retirement; (2) years of service; and (3) final compensation.

***

Appellants are ‘legacy’ members of VCERA because they were employed by the county prior to the enactment of PEPRA in 2013…. EPRA revised laws governing pension plans and amended provisions of CERL in response to a rise in ‘spiking’ and other practices used to increase retirement benefits during the representative period.

***

The MOA does not differentiate between different types of standby. Appellants assert that in practice there are two types: (1) ‘ad hoc’ standby worked at the Duty Chief’s discretion when emergency conditions were forecasted; and (2) ‘scheduled’ standby that is ‘assigned, regular, and reoccurring, mandatory, and part of an employee’s normal working hours.” They allege the District requires them ‘to be on standby for a certain number of days each month as part of their normal schedules’ because they have specialized skills. ‘Heavy Equipment Operator[s]’ work ‘a minimum’ of two days per week and seven days per three-week period. ‘ Aviation Manager[s]/ work an additional eight hours of standby after each shift.”

 

Legal lesson learned: California law was amended because of pension “spiking” – “additional services rendered outside of normal working hours” not in calculation of average annual compensation.

 

  

File: Chap. 7 – Sexual Harassment, incl. Pregnancy Discrimination, Gay Rights

 

DE: EMT / VOL. FD – “OFFENSIVE JOKES” – FIRING UPHELD

On November 25, 2025, in Steven Germain v. Cara Viera, et al., Mill Creek Board of Directors, Judge Sonia Augusthy, Superior Court of Delaware, granted the defendants’ motion to dismiss.  The Fire Department is a non-profit, non-governmental entity.  The plaintiff claimed [pro se – not represented by an attorney] was not granted due process; fired by the Board of Directors without a hearing five days after sending an e-mail to female that he claimed was merely an “offensive joke.” THE COURT WROTE: “Steven Germain, a longtime volunteer of a non-profit private entity, admittedly sent a text message to a female associate, indicating he ‘had a mental thought of slapping her on the butt. She responded that would be inappropriate. He acknowledged she was correct and apologized. This incident was reported.*** Plaintiff was notified of the issue and given an opportunity to respond. In a written response he admitted to ‘offensive jokes,’ which expressly violates the policy he cites. The ‘government’ interest of Mill Creek is to ensure a safe and respectful environment for members and the community they serve. Even under the facts as alleged by Plaintiff, he received sufficient due process…. As for defamation, Defendants argue Plaintiff failed to identify a defamatory statement within the Complaint. Further, they argue because Plaintiff admitted making the comment, and acknowledged it as an offensive joke.” https://cases.justia.com/delaware/superior-court/2025-n25c-08-098-ssa.pdf?ts=1764099129 


THE COURT HELD:

“Plaintiff was a volunteer with the Fire Department for over 14 years.

***

After the text exchange outlined above, Plaintiff was notified by letter that Fire Department leadership received a formal complaint, alleging a violation of the sexual harassment and conduct policies. The letter notified Plaintiff an investigation had been initiated. He was suspended. He was instructed not to have contact with the Fire Department while the investigation was pending. The letter from leadership did not specify the conduct at issue.

The same day, Plaintiff replied via email. Within, he provided the factual background for the incident outlined above and attached to the Complaint. Specifically, the email advised Plaintiff engaged a female colleague in a text exchange wherein he stated he had ‘a funny thing to share, but don't get mad or something like that.’ This responsive email from Plaintiff went on to describe his next text to his female colleague as, ‘I said it was funny when I was coming into the meeting hall, and everyone was there she was reaching over the table to Andrew, and I said it was funny because I had a mental thought of slapping her on the butt.’ This email from Plaintiff described the exchange as ‘common silly banter.’ Plaintiff stated he ‘will take 100% responsibility for my comment.’”


Legal lesson learned: Sexual comments are not “common silly banter.” 


  

File: Chap. 7 – Sexual Harassment, incl. Pregnancy Discrimination, Gay Rights


TX: CHIEF 30 DAY SUSP. – THEN FEMALE B/C & CAPT FIRED

On October 29, 2025, in Brittany Garner and David Daigle v. Travis County Emergency Services District No. 1, U.S. District Court Judge Robert Pitman, United States District Court, Western District, Austin Division, held that Battalion Chief Brittany Garner (fired Dec. 23, 2023), and Captain David Daigle (fired Dec. 15, 2023) may proceed together in a joint trial for alleged retaliation.  The Fire Chief was suspended for one month in May 2023 after Brittany Garner made allegations sexual harassment by the Chief. She is the only woman in upper management within TCESD1, and her EEOC charge alleges that Chief Norman criticized her for “mothering” her crew. David made other complaints about the Fire Chief.  THE COURT WROTE: “Plaintiffs plead that they worked for the same entity at the same location, worked under the same chief, both reported the chief for sexual harassment, were both terminated within one week of each other in December 2023, and were terminated based upon fabricated allegations without the opportunity to meaningfully defend themselves. Their retaliation claims are therefore logically related and do arise out of the same series of transactions or occurrences.”

 

THE COURT HELD:

“Garner was employed as a Battalion Chief; she alleges that she was the highest-ranking woman within TCESD1 and the only woman in upper management…. Daigle was employed as a Captain…. Both had worked at TCESD1 since 2008.

***

The timeline of Garner's protected activities and the alleged adverse actions taken against  harassment and gender discrimination in February 2023; (2) she subsequently repeated these complaints to Borchardt, who was ‘a friend’ of Chief Norman's and ‘re-surveyed’ the TCESD1 employees in approximately April 2023; (3) in May 2023, which was approximately one month after she made complaints to Borchardt, Chief Norman ‘blamed’ schedule changes on Garner, such that she was ‘ostracized . . . by the other male officers and firefighters,’ and Chief Norman allegedly asked one of Garner's subordinates to report to him any information he could use to justify terminating Garner; (4) on October 4, 2023, Garner was placed on leave pending an investigation into her conversation with FF Colunga; (5) on October 26, 2023, Garner filed a written complaint of retaliation against ESD1 and Chief Norman; and (6) on December 23, 2023, Garner was terminated.

***

Finally, many of the same witnesses would be expected to testify regarding each Plaintiffs' claims, and it would be burdensome for those witnesses to be required to testify on a similar issue- retaliation at TCESD1 for reporting sexual harassment-twice. This factor therefore weighs against severance. For the reasons stated above, the Court finds that Plaintiffs' claims should not be severed.”

 

Legal lesson learned: Case will now proceed to trial with both plaintiffs.

 

 

Chap. 8 – Race / National Origin Discrimination     


MD: BLACK FF – NO PROMOTION – JURY AWARDS $311K

On November 4, 2025, in Anne Arundel County, Maryland v. Bradley Willis, the Court of Special Appeals of Maryland, held (3 to 0) that trial court was well within its discretion to find a reasonable jury intended to award Willis $173,000.00 in backpay.  THE COURT WROTE: “Bradley Willis was a Captain in the Anne Arundel County Fire Department until he

was demoted to Firefighter II, suspended temporarily, and prohibited from a promotion for

three years after he was found guilty of misconduct. Willis unsuccessfully sued the County

claiming his demotion was racially motivated…. Allan Graves (“Chief Graves”) was the Fire Chief of Anne Arundel County when Willis sued. Some time after his unsuccessful lawsuit, Willis became eligible for a promotion to the rank of Lieutenant. Willis scored second out of 100 candidates on the Lieutenant’s examination. When a vacancy became available, Chief Graves appointed the first ranked candidate; however, when a second vacancy opened, Chief Graves passed over Willis [on September 20, 2018] and promoted the third ranked candidate. Willis became a Lieutenant [on September 5, 2019] only after Chief Trisha Wolford succeeded Chief Graves…. The trial eventually took place over four days in April 2024…. The jury ultimately ruled in Willis’ favor, finding that Chief’s Graves’ decision not to promote Willis was retaliatory. After reaching that conclusion, the jury calculated Willis’ damages…. The jury awarded Willis $311,000.00 in total, with the verdict sheet detailing their award of $173,000.00 for ‘Back Pay’ and $138,000.00 for ‘Other Damages.’ Following the court’s entry of final judgment, the County filed a Motion for Judgment Notwithstanding the Verdict, which the court denied.”

 

THE COURT HELD:

“Willis contends the jury’s verdict was supported by ample facts and expert opinion

evidence. Specifically, he argues his expert economist, Rosenberg, provided several

scenarios to guide the jury’s assessment of a damages award. Willis further maintains the

County did not rebut Rosenberg’s calculations with its own economist’s opinion or other

contrary evidence. Willis argues his being passed over for the promotion had a cascading effect on his career because it caused him to not be able to apply for further promotions, such as to Captain, for several years. Finally, Willis contends the jury’s verdict was not based on speculation. Indeed, the jury’s award of $173,000.00 reflected almost precisely the amount of total economic damages Rosenberg projected, assuming Willis would have re-obtained rank of Captain during the remainder of his career.

***

Here, as discussed, Rosenberg [Joseph Rosenberg, a forensic economist] went further than flatly saying what he believed the damages were. He presented the jury with four possible scenarios to guide their calculations. These scenarios were backed with data such as salary projections and excerpts from the firefighter’s handbook. The four forecasts were adjusted for multiple factors such as taxes, mortality rates over the years, and cost of living.

 

What is telling, however, is that the jury’s award for backpay of $173,000.00 matched, almost precisely, the total award suggested by Rosenberg ($173,077.00) in one of his four possible scenarios. This suggests the jury considered the evidence and testimony presented, and their verdict reflected their understanding and intent to award Willis total economic damages. Thus, the evidence produced at trial rose above speculation, hypothesis, or conjecture, and it supported the jury’s verdict with reasonable certainty. Therefore, we affirm”

 

Legal lesson learned: The plaintiff won back pay from the jury, and the trial court judge awarded $317,016.28 in attorneys’ fees and costs of $19,942.84.

 

 

File: Chap. 11 – Fair Labor Standards Act and Military Leave


MA: FF / NAT. GUARD – CITY PAY 40 DAYS / FOR 40 SHIFTS

On November 21, 2025, in Robert Driscoll v. City of Melrose, the Appeals Court of Massachusetts, Middlesex held (3 to 0) that Firefighter / Colonel in the U.S. Air Force - Air National Guard is entitled under Massachusetts law to full fire department of pay when on active duty for "the first 40 consecutive calendar days of an annual tour of duty" and a calendar day must be calculated as each of his missed 24-hour shifts.  The city was calculating that each 24-shift was same a two calendar days, and only pay him for 20 consecutive calendar days.  THE COURT WROTE: “General Laws c. 33, § 59 (a), requires participating government entities to pay the full salary of an employee performing certain military service for "40 days in any federal fiscal year," and states that a day "shall mean any 24-hour period regardless of calendar day."  Applying the plain meaning of these words, we conclude that the firefighter is entitled to pay for up to forty twenty-four hour shifts missed during his military service in each Federal fiscal year, and not (as the city claims) up to twenty such shifts in a consecutive period of forty days.  Accordingly, we reverse.” https://www.mass.gov/doc/driscoll-v-city-of-melrose-ac-s24p1114/download

 

THE COURT HELD:

“Each twenty-four hour shift began at 7 A.M. and concluded the following calendar day at the same time.  Pursuant to the CBA, the twenty-four hour shift consisted of two separate shifts:  a ten-hour day shift followed by a fourteen-hour night shift.  For purposes of vacation or sick leave, the ten-hour and fourteen-hour shifts were considered separate days, amounting to two total days for one twenty-four hour shift.  Accordingly, a firefighter who missed a twenty-four hour shift because of a vacation or illness would expend two days of vacation time or sick time.

***

During the entire time that the firefighter worked for the city, he served as an officer in the United States Air Force, reaching the rank of colonel in the Air National Guard.  This role required the firefighter to take occasional leave for military service, both for training and after being called up for active duty.  Relevant here, between October 2019 and March 2020, the firefighter missed six twenty-four hour shifts for military training.  On April 10, 2020, he went on active military leave and missed thirty-two twenty-four hour shifts between that date and August 14, 2020.  In August and September 2020, the firefighter missed another four twenty-four hour shifts for military training.

 

The next Federal fiscal year began on October 1, 2020.  See 31 U.S.C. § 1102.  In October 2020, the firefighter missed one twenty-four shift and one fourteen-hour night shift for military training.  On November 28, 2020, the firefighter was again deployed for active military service, which lasted until September 5, 2021.  During that time, he missed seventy twenty-four hour shifts.

***

[Footnote 2.]As stated, the city actually paid the firefighter in full for twenty twenty-four hour shifts in each Federal fiscal year, regardless of whether that service occurred within a consecutive forty-day period.  Of course, G. L. c. 33, § 59 (a), provides a floor, not a ceiling.  The city was free to pay the firefighter more than its interpretation of G. L. c. 33, § 59 (a), required.”

 

Legal lesson learned: The firefighter’s position was supported by the Massachusetts Attorney General; hopefully the AG will send out communication to municipalities so other firefighter / military personnel don’t need to litigate similar claims.

 

Note: See the Federal Uniformed Services Employment and Reemployment Rights Act.   “Your USERRA Rights as an Employee.” https://osc.gov/Services/Pages/USERRA-Employee.aspx

 

“Returning service members are also entitled to receive benefits and seniority as ​though they had remained continuously employed. For instance, if an employee works at a company for two years and then completes one year of military service before returning, her employer must treat her as though she had worked continuously for three years when calculating the following benefits:

  • Paid leave (although no leave is accrued while the employee is absent)

  • Salary

  • Credit toward completing probationary periods

  • Eligibility for promotions

  • Anything else that is tied to the employee’s longevity at the workplace.”

 


File: Chap. 11 – Fair Labor Standards Act    

 

DC: FLSA - BONUS PAY / EMERG – “REGULAR RATE OF PAY”

On September 30, 2025, the U.S. Department of Labor / Wage & Hour Division issued Opinion Letter 2025-04, which concluded that the “emergency pay” bonus of one half the employee’s regular hourly rate of pay for every hour worked during an “emergency period” is not a discretionary payment by the employer.  Since it must be paid, then employer must include the payments when calculating the firefighter’s “regular rate of pay” when working normal overtimes. https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/FLSA-2025-04.pdf 

 

THE OPINION CONCLUDED:

“It is our opinion that, under the circumstances presented and limited to the specific facts set forth in the request, the “emergency pay” is not excludable from the regular rate of pay because the fact and amount of the payment are not within the sole discretion of the employer at or near the end of the work period, and the pay does not otherwise fit within a statutory exclusion. Accordingly, the employer at issue should include ‘emergency pay’ earned for hours worked within the regular rate for purposes of overtime premium calculations using the method described below.

***

The FLSA requires that three conditions be satisfied for a payment to qualify as an excludable discretionary bonus: (1) the fact and amount of the payment must be ‘determined at the sole discretion of the employer’; (2) the employer’s determination must occur ‘at or near the end of the period’ when the employee’s work was performed; and (3) the payment must not be made pursuant to ‘any prior contract, agreement, or promise’ causing employees to expect such payments regularly. 29 U.S.C. § 207(e)(3). Here, regardless of whether the city’s policy would constitute a prior contract, agreement, or promise, the first two conditions are not satisfied.”

 

Legal lesson learned: Consult with legal counsel prior to treating any bonus payments as “excludable discretionary bonuses. ”


Note: See FLSA Fact Sheet #56C, December 2019 for examples of bonuses thar may be excludable discretionary bonus. https://www.dol.gov/agencies/whd/fact-sheets/56c-bonuses

“Examples of some common bonuses that may be excludable discretionary bonuses if they meet the statutory requirements include:

  • Bonuses for overcoming a challenging or stressful situation;

  • Bonuses to employees who made unique or extraordinary efforts not awarded according to pre-established criteria;

  • Employee-of-the-month bonuses;

  • Severance bonuses.”



Chap. 13 – EMS, incl. Community Paramedicine, COVID-19


CA: HANCUFFED PRONE PT – VERSED / DIED – LIAB CAP

On November 25, 2025, in Ivan Gutzalenko, et al. v. City of Richmond, et al., U.S. District Court Judge Edward M. Chen, United States District Court for Northern District of California, held that the $500,000 caps on medical negligence claims under California state law applies to this medical negligence claim.  A paramedic injected the handcuffed prone patient with versed, and allegedly did not “aspirate” the syringe when he administered the versed to ensure it was not in the vein.  The Court rejected plaintiff’s attempt to recover more than the medical negligence caps by claiming “assault” and “battery.” THE COURT WROTE: “Although intentional torts are generally not subject to the section 3333.2 cap on noneconomic damages, see Perry, 88 Cal. App. 4th at 662, the gravamen of Plaintiffs’ assault and battery claim is essentially a claim of medical negligence such that MICRA applies….  Further, the MICRA cap on noneconomic damages does not apply to settlement awards. Finally, if Plaintiffs establish wrongful death and survival claims that include noneconomic damages, they are entitled to separate MICRA noneconomic damages caps for the wrongful death and survival claims.” https://cases.justia.com/federal/district-courts/california/candce/3:2022cv02130/394009/131/0.pdf

 

THE COURT HELD:

“On March 10, 2021, a Richmond police officer responded to a call for service about a man causing a disturbance in a furniture store on San Pablo Avenue in Richmond, California….  When the police officer arrived at the scene, he encountered Mr. Gutzalenko, the decedent. Id. Mr. Gutzalenko needed medical aid and was  ‘possibly intoxicated or experiencing a medical emergency.’ … Specifically, Mr. Gutzalenko

had a dark purple mark on his forehead, was bleeding profusely from one of his hands, and had difficulty focusing on and communicating with the police officer…. Mr. Gutzalenko was also having a hard time breathing.

***

Medical Defendants, AMR West and the paramedic Mr. Richardson, arrived in an ambulance and attempted to bandage Mr. Gutzalenko's hands…. Mr. Gutzalenko became agitated and tried to keep his hands away…. After Mr. Gutzalenko began to resist, the police officers attempted to handcuff him…. During this struggle, Plaintiffs allege that Officer Tran applied his knee to Mr. Gutzalenko's back while he was in a prone position…. By the time the handcuffs were placed on Mr. Gutzalenko, Plaintiffs claim that he had become non-responsive and no longer resistive. 

 

After Mr. Gutzalenko was handcuffed on the ground, Defendant Mr. Richardson injected Mr. Gutzalenko with Versed, a chemical restraint…. At this juncture, there is no dispute that Mr. Richardson administered the chemical restraint for safety reasons, rather than to restrain Mr. Gutzalenko in a law enforcement capacity; he injected Mr. Gutzalenko to protect himself and others in the ambulance during transport of Mr. Gutzalenko to the hospital….

 

Plaintiffs claim that Mr. Richardson did not ‘aspirate’ the syringe when he administered the Versed to ensure it was not in the vein…. Plaintiffs allege that Mr. Gutzalenko stopped breathing within 90 seconds of the Versed administration… Mr. Gutzalenko was pronounced dead after he was taken to Summit Hospital in Oakland….  An autopsy determined the cause of death was prone restraint asphyxia and cardiac arrest while under the influence of methamphetamine.”

 

Legal lesson learned: Follow your protocol on administering versed to a handcuffed prone patient.



File: Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing


OH: FF ARRESTED CHILD PORN – IN JAIL UNTIL TRIAL

On November 18, 2025 in United States of America v. Carson A. Bigham, U.S. District Court Judge Algenon L. Marbley, United States District Court for Southern District of Ohio, Eastern Division, denied the firefighter’s Motion for the Revocation of Detention; he was arrested on May 22, 2025, and denied release by U.S. Magistrate Judge Kimberly A. Jolson. The Government advised the Court that Bigham, using an alias starting n August 2024, began communicating with a one Mr. Richard Tyler Campbell over Snapchat, where they discussed having sex with minors.  THE COURT WROTE: “Here, the weight of evidence of Bigham's dangerousness is apparent. Carson Bigham is a firefighter entrusted with public safety. *** He even left his underwear and a used condom for Campbell outside the Columbus fire station he worked at as a “show of good faith.” (Id. at 12-13). Bigham used his own fire station as a personal playground for his fetishes and took brazen, public steps to view and obtain more child pornography. This demonstrates the danger that he would pose to minors and the public if released. This factor also weighs in favor of detention.”

 

THE COURT HELD:

“ Mr. Bigham is a firefighter in the Columbus area who is charged with possession of child pornography…. The Government alleges that in August 2024, Bigham, using an alias, began communicating with a one Mr. Richard Tyler Campbell over Snapchat, where they discussed having sex with minors…. Campbell sent Bigham a video of an adult man engaging in sex acts prepubescent minor who appeared to be 6 or 7 years old. Bigham expressed gratitude and requested specific child pornography from Campbell, including pornography that would depict the minor child ‘bent over’ in the way that Bigham ‘[would] want her.’ …  The two met at a restaurant for lunch, where they watched child pornography on Campbell's phone-including videos of a minor victim being sexually assaulted. Campbell told Bigham that this video showing sexual assault of a minor depicted Campbell….

 

Law enforcement executed a search warrant of Campbell's residence in February 2025, and after reviewing Campbell's devices, discovered the correspondence with Bigham. Campbell was arrested in March 2025, and Bigham was arrested and ordered temporarily detained on May 22, 2025…. The Magistrate Judge held a detention hearing on May 27 where the Government proffered Bigham's full confession to law enforcement; Bigham was ordered detained pending trial… Law enforcement completed its forensic review of Bigham's cellular phone following his detention, locating his correspondence with Campbell, along with ‘one other file of child pornography.’ … Bigham moved to revoke his detention pursuant to 18 U.S.C. § 3145(b) on September 19, 2025, arguing that no substantial ‘trove’ of child pornography had materialized….  The Government opposed revocation of his pre-trial detention, and on October 31, this Court heard argument on the issue.

***

Yet, according to the Government, Bigham requested child pornography from Campbell. Bigham did not notify authorities when he was under the impression that Campbell was abusing a minor; instead, he plotted with Campbell to have sexual relations with a minor he believed to be Campbell's niece…. Bigham was excited and sexually stimulated by minors being abused, failed to report this abuse, and allegedly stated that his sexual interest in 12-to-15-year-old minors presented challenges because they could ‘remember faces, tattle, whatever….”

 

Legal lesson learned:  Child pornography is a very serious offense.

 

Note: See May 22, 2025 article: “Columbus firefighter living in Lancaster accused of receiving child pornography.  A Fairfield County man who works as a Columbus firefighter was arrested on Wednesday, May 21, on federal child pornography charges, the U.S. Attorney's Office for the Southern District of Ohio has announced…. Steven Stein, president of the Columbus Firefighters Union IAFF Local No. 67, is aware of Bigham's arrest and said the union is taking the charges ‘very seriously.’ ‘As Fire Fighters and members of this community we want to provide the best possible service to the citizens of Columbus— that means holding our members to the highest standards of trust and responsibility,’ Stein said in a prepared statement.”

 

 

File: Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing


CA: MECHANIC’S THREAT – “TARONE” - KILLED FF STAT. 81

On October 31, 2025, in County of Los Angeles v. Neill Francis Niblett, the California Court of Appeals, Second District, First Division held (3 to 0) that trial court judge properly issued a three-year workplace violence restraining order on January 18, 2023, on the petition filed by the LA County Fire Department on behalf of an Assistant Fire Chief.  Neill Niblett is barred until Jan. 18, 2026 from harassing the Assistant Fire Chief or entering his workplace, and prohibits Niblett from possessing firearms or ammunition. THE COURT WROTE:  “In sum, the trial court reasonably could have found it highly probable that by telling Hughes, ‘If they don’t change things in this department, they’re going to have another situation like they had with Tatone,’ [who shot and killed another firefighter in Station 81 on June 1, 2021] Niblett made a knowing and willful statement that would place a reasonable person in fear for his or her safety.”  https://cases.justia.com/california/court-of-appeal/2025-b327744.pdf?ts=1764194477

 

THE COURT HELD:

“Prior to the commencement of the instant action, Niblett was employed as a senior mechanic at the County’s fire department and Assistant Chief [A/C - Court did not use his last name] was Niblett’s supervisor.  

***

According to the County, on October 5, 2022, Niblett acted in a ‘verbally abusive’ manner toward [A/C] after [A/C] asked Niblett to pick up parts Niblett had left on the floor of a fire department facility. The County further avers that on October 11, 2022, Niblett made the following statement to Cari Hughes, a secretary for the fire department: ‘If they don’t change things in this department, they’re going to have another situation like they had with Tatone.’ There is no dispute that in June 2021, a firefighter named ‘Tatone’ fatally shot another firefighter at Station 81.

***

Footnote 5: [A/C] testified that the County ‘placed [Niblett] off of work’ because of his threatening conduct….

***

Niblett insists he was not threatening to shoot department management, but instead made ‘a hypothetical warning about potential consequences of poor management . . . .’  As

explained above, the trial court rationally could have inferred it is highly probable that a reasonable person hearing this statement would have feared for his or her safety.”

 

Legal Lesson Learned:  Threats of workplace violence must be taken very seriously; immediate suspension from duty, notify police and conduct prompt investigation.

 

Note: See this September 11, 2024 article.   “L.A. County pays $7.2M to family of firefighter killed in firehouse shooting. A station captain later told investigators that Firefighter Carlon had voiced concerns his harasser would one day shoot and kill him. More than three years after a firefighter was shot and killed by a co-worker at a remote station in Agua Dulce, the Los Angeles County Board of Supervisors agreed Tuesday to pay his family $7.2 million. Tory Carlon was fatally shot while on duty at L.A. County Fire Station 81 on June 1, 2021. The following year, Carlon’s widow, Heidi, and the couple’s three children filed a wrongful-death lawsuit against L.A. County, alleging fire officials had known about the shooter’s ‘dangerous conduct’ for years. The gunman, Jonathan Tatone, also shot and injured Fire Capt. Arnoldo Sandoval, before later killing himself. Last year, the board agreed to pay Sandoval nearly $2.6 million.” https://www.firerescue1.com/legal/l-a-county-pays-7-2m-to-family-of-firefighter-killed-in-firehouse-shooting

 

 

File: Chap. 16 – Discipline, incl. Code of Ethics, Social Media, Hazing

 

AR: FACEBOOK - FIRED – “BALANCING” - CASE TO TRIAL

On Aug. 13, 2025, in Steven Melton v. City of Forrest City, the United States Court of Appeals for the 8th Circuit (St. Louis) held (3 to 0) that the trial court improperly granted summary judgement to the city’ the pro-life firefighter is entitled to a jury trial.  Under the U.S. Supreme Court’s Pickering “balancing” decision, the Facebook posting caused little disruption to the fire department during the two weeks it was posted, but the Mayor feared great community outrage. THE COURT WROTE: “Does a Forrest City fireman who lost his job because he posted a provocative image on his personal Facebook page have a First Amendment retaliation claim that can get to a jury? We conclude that he does…. Steven Melton is a pro-life, evangelical Christian. In June 2020, he reposted a black-and-white image on Facebook [see posting in this decision] that depicted a silhouette of a baby in the womb with a rope around its neck. His intent was to convey that he was ‘anti-abortion.’  … The problem is that there was no showing that Melton’s post had an impact  on the fire department itself. No current firefighter complained or confronted him about it. Nor did any co-worker or supervisor refuse to work with him.” https://cases.justia.com/federal/appellate-courts/ca8/23-3398/23-3398-2025-08-13.pdf?ts=1755099027

 

THE COURT HELD:

“Two weeks after he posted it, a retired fire-department supervisor complained to Melton that he thought it looked like a noose around the neck of a black child. It upset him because the caption of the image, ‘I can’t breathe!,’ was associated with the protests surrounding George Floyd’s death. Melton agreed to delete it immediately.

 

Deleting it was not enough for Mayor Cedric Williams, who called him into his office the next day. Although Melton was ‘apologetic,’ the mayor placed him on administrative leave pending an investigation. After a single day reviewing Melton’s Facebook page and discussing the post with the current fire chief, two retired firefighters, several attorneys, and a human-resources officer, the mayor decided to fire Melton over the image’s ‘egregious nature.’

 

He was concerned about the ‘huge firestorm’ it had created. Among other things, the fire chief’s phone had been ‘blowing up,’ ‘several’ police officers had become ‘very upset,’ and the ‘phone lines’ were jammed with calls from angry city-council members and citizens. Some said that Melton ‘should not be a part of the . . . fire department responding to calls.’  A few even said that they did not want ‘him coming to their house . . . for a medical call or fire emergency.”’ According to the mayor, these complaints ‘threaten[ed] the City’s ability to administer public services.’

 

Melton found out about the decision to fire him from the local news. In response to a ‘media request,’ Mayor Williams had issued a press release stating that ‘[q]uestionable social[-]media posts’ had led to his termination. It marked the end of his ‘four and a half years’ of ‘unblemished’ service.”

 

Legal lesson learned: Emergency responders must be extremely careful in their social media posts; we are living in a hyper-sensitive age.

 

Note: See Nov. 12, 2025 article: Toledo fire lieutenant fired after investigation into social media post about Charlie Kirk. https://www.wtol.com/article/news/local/toledo-fire-lieutenant-fired-investigation-social-media-post-about-charlie-kirk/512-599961fb-9233-4ebc-8628-cfa2b96c7722

 


File: Chap. 18 – Legislation, incl. Public Records

 

OH: PUBLIC REC. - MARCY’S LAW / VICTIM ID - INCLUDES PD  

On Nov. 25, 2025, in State ex rel. GateHouse Media Ohio Holdings II, Inc. v. Columbus Police Dept., Slip Opinion No. 2025-Ohio-5243, the Ohio Supreme Court held (5 to 2) that Columbus Dispatch newspaper is not entitled to unredacted video of shootout (Summer 2023) between two Columbus police officers and three armed robbers. The Columbus Police Department (“the CPD”) properly redacted the footage to conceal the identities of the officers. It did so based on a statutory provision that prohibits the disclosure of identifying information of a “victim,” as that term is defined under Marsy’s Law. THE COURT WROTE:  “The two officers were victims of a crime under the plain terms of the constitutional definition [Marcy’s Law]. They were persons against whom a  ‘criminal offense . . . [was] committed,’ Ohio Const., art. I, § 10a(D). Therefore, we deny the Dispatch’s request for a writ of mandamus ordering the CPD to produce unredacted copies of the shootout footage.” https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2025/2025-Ohio-5243.pdf

 

THE COURT HELD:

“In the summer of 2023, armed men robbed a Columbus Porsche dealership. Two officers—who have been identified in this litigation as Officer John Doe 1 and Officer John Doe 2—responded to a radio call and joined in the pursuit of the fleeing robbers.

The officers spotted the suspects’ car on I-70 and gave chase. A few minutes later, the suspects stopped their car in the middle of the highway and the officers saw two men jump out and run away. Officer Doe 1 left his police cruiser and began chasing after them. Suddenly, a hidden third suspect emerged and fired his gun at Officer Doe 1, shooting him five times at close range. Officer Doe 1 returned fire while bleeding on the ground. Officer Doe 2 took cover behind a car and returned fire as well. During the exchange, the third suspect began walking directly towards Officer Doe 2. According to Officer Doe 2, the suspect appeared to be aiming his gun at him. Ultimately, the suspect was shot and killed by a barrage of gunfire directed at him by Officer Doe 1, Officer Doe 2, and other officers who had arrived on the scene.

 

Officer Doe 1 was immediately transported to the hospital, where he remained for three weeks. He underwent at least seven surgeries and a stint in a long-term rehabilitation center. Fortunately, he survived.

***

Several weeks later, the CPD released portions of the requested bodycam footage. It redacted the footage to conceal the identities of the two police officers and ended the video before the shooting starts.

***

Marsy’s Law guarantees crime victims a right to be treated with ‘fairness and respect for the victim’s safety, dignity and privacy.’ Ohio Const., art. I, § 10a. To implement this constitutional privacy protection, the legislature has enacted R.C. 2930.07 (‘the Victim Privacy Law’), which mandates the privacy of certain information relating to crime victims. On the request of a crime victim, ‘case documents . . . shall be redacted prior to public release pursuant to [the Public Records Act] to remove the name, address, or other identifying information of the victim.’ R.C. 2930.07(D)(1)(a)(i). ‘Case document[s]’ include ‘audio or video recording[s] of a victim of . . . an offense of violence . . . regarding a case that is submitted to a court, a law enforcement agency or officer, or a prosecutor or filed with a clerk of court.’ R.C. 2930.07(A)(1)(a).

***

Police officers can be victims under Marsy’s Law. Because Officer Doe 1 and Officer Doe 2 were victims of offenses of violence, the Victim Privacy Law requires redaction of their identifying information from the bodycam and dashcam footage that the Dispatch seeks. Thus, the unredacted videos are exempt from disclosure under the Public Records Act, and the Dispatch has not demonstrated its entitlement to a writ of mandamus.”

 

CONCURRING / DISSENTING OPINION (Justice Pat Fisher): 

“The great debate in this case is whether on-duty officers can be victims under Marsy’s Law. I wholly agree with the majority opinion that officers can be victims under the definition of “victim” in Marsy’s Law and R.C. 2930.01(H). Therefore, based on CPD’s concession and the record before this court, the other officers [total 8 officers at the scene]  are not victims and thus the victims’ rights exception cannot apply to them…. For those reasons, I must respectfully concur in part and dissent in part.”

 

Legal lesson learned: Excellent decision expanding protection of victims to include identification of police officers in gun fire video; will also protect Fire & EMS if assaulted.

 

Note: “Marsy’s Law is named after a California college student [Marsy Nicholas] who was stalked and killed by her ex-boyfriend in 1983. A week after Marsy’s death, her mother encountered the ex-boyfriend in public after having received no notification from the justice system that he had been released on bail. This prompted the family to establish

the Marsy’s Law Initiative which sought comprehensive victims’ rights laws in

California. To date, 17 states have constitutionally guaranteed rights for victims of



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