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JAN. 2025 – FIRE & EMS LAW NEWSLETTER

Writer's picture: IPSLEI AdminIPSLEI Admin

Updated: Feb 3

IPSLEI Board Member, Lawrence Bennett, Esq., publishes a monthly, open access FIRE & EMS LAW Newsletter.  Legal issues and lawsuits frequently highlight ethical lapses and ethical dilemmas, and IPSLEI posts the newsletter each month for our members and visitors to review the most current examples of real-life ethical challenges facing public safety professionals.


JAN. 2025 – FIRE & EMS LAW NEWSLETTER

[NEWSLETTER IS NOT PROVIDING LEGAL ADVICE.]



Lawrence T. Bennett, Esq.

Professor-Educator Emeritus

Cell 513-470-2744

Prof. Bennett (former vol. firefighter / EMT-B at 3 FDs) with his Pet Therapy dog, FRYE.


24 CASES – SEE CASE SUMMARIES: https://doi.org/10.7945/j6c2-q930


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

PA:  Admin. Search Warrant – Sewer Gas Home

WA: Removal Homeless – Personal Property

KY: Vol. FFs Arson - Church – Not Fed. Case


Chap. 2 – Line Of Duty Death / Safety                

PA: Fleeing Driver Almost Hit EMS – 5-10 Yrs

PA: 2 LODD – Condemned Bldg - City Dismissed


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

CA: Started Fires – CA Emergency – 200 Bldgs


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


Chap. 5 – Emergency Vehicle Operations            ***


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

PA: Lung Cancer – City Pay Wife 10% Penalty


Chap. 7 – Sexual Harassment, incl. Preg. Discrimination, Gay Rights           

MD: Fired – Vote 2-2, New Hearing - No Pension

US Sup Ct: –“Straight” Clams Disc By Gay Mgr


Chap. 8 – Race / National Origin Discrimination           

LA:  Two Capts Discip. - Claim Disparate Treat

MO: Chief Fired – Secret Camera – Bd Animus


Chap. 9 – Americans With Disabilities Act          

TX: Hostile Work Claim – Age, Weight, PTSD

NJ: Broke Foot - Promotion To Capt. Delayed


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

TN: No FMLA  Viol. - Alcohol - Resigned


Chap. 11 – Fair Labor Standards Act          

MA: Settled – Drop Claim DCs Non-Exempt


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

MT: New Random Policy – Must Bargain


Chap. 13 – EMS, incl. Comm. Param., Corona Virus            

CA: COVID-19 – BC - Due Process Given

U.S.: VA  Ambul. Lower Travel Rate Set Aide


Chap. 14 – Physical Fitness, incl. Heart Health             

AR: Working Out –  Lumbar - Work Comp


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

TX: Suicide Att. – Dorm Fire – AirForce Dischar


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

PA: Dispatchers Fired – New Year Alcohol Toast

MI: Whistleblower, Ropt Bad Tires – Later Fired


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

OH: Fire Engine Mfg – Delay – Arbitration


Chap. 18 – Legislation, incl. Public Records            

NM: Forest Fire Act – Prop. & Emotional Dam.


ONLINE RESOURCES – EDUCATION / TRAINING



Updating 18 chapters of my textbook, FIRE SERVICE LAW (Second Edition; 2017): http://www.waveland.com/browse.php?t=708




Chap. 1, American Legal System; Code Enforcement


PA: ADMIN. SEARCH WARRANT – SEWER GAS HOME


On Dec. 17. 2024, in Karimu Hamilton v. Christopher B. Flannigan; Bryan Mawr Fire Company, et al., the United States Court of Appeals for the 3rd Circuit (Philadelphia) held 3 to 0 (not precedential decision) that U.S. District Court judge for Eastern District of Pennsylvania properly dismissed the lawsuit against the firefighters and police officers who entered her home with her consent. https://cases.justia.com/federal/appellate-courts/ca3/24-1567/24-1567-2024-12-17.pdf?ts=1734458412


Chap. 1, American Legal System


WA: REMOVAL HOMELESS – PERSONAL PROPERTY


On Dec. 9, 2024, in Bobby Kitcheon, Candance Ream, et al.  v. City of Seattle, the Court of Appeals, Division 1, State of Washington, held (3 to 0) that the city ordinance allowing destruction of property of homeless on city property, without prior notice, must be revised. https://www.courts.wa.gov/opinions/pdf/855832.pdf


Chap. 1, Amer. Legal System, Arson


KY: VOL. FFs ARSON – CHURCH – NOT FEDERAL CASE


On Dec. 3, 2024, in United States of America v. Brendan J. Gibson and Robert J. Hughes, United States District Court Judge David L. Bunning, U.S. District Court for the Eastern District of Kentucky, granted the defendant’s motion to dismiss the federal indictment because the church building located at 10950 Dixie Highway, Corinth, KY is not used in interstate commerce,  nor used in any activity affecting interstate commerce. https://casetext.com/case/united-states-v-gibson-453


Chap. 2, Safety


PA: FLEEING DRIVER ALMOST HIT EMS – 5-10 YRS


On Dec. 23, 2024, in Commonwealth of Pennsylvania v. Marisa Nicole Liddington, the Superior Court of Pennsylvania held (3 to 0; non-precedential decision) that the sentence of 5 – 10 years in prison was appropriate for aggravate assault on two EMS and for DUI. https://www.pacourts.us/assets/opinions/Superior/out/J-A11020-24m%20-%20106209941292398313.pdf?cb=1


Chap. 2, Firefighter Safety


PA: 2 LODD – CONDEMNED BLDG – CITY DISMISSED


On Dec. 9, 2024, in Rachel Butrim, et al. v. Maor and City Council of Baltimore, United States District Court Judge Matthew J. Maddox, U.S. District Court for the District of Maryland, granted the city’s motion to dismiss.  Even though the building was condemned, and not marked to warn firefighters, there was no proof the city intended to harm the firefighters. https://storage.courtlistener.com/recap/gov.uscourts.mdd.559142/gov.uscourts.mdd.559142.21.0.pdf


Chap. 3, Homeland Security


CA:  STARTED FIRES DURING STATE EMERGENCY


On Dec. 9, 2024, in Alexandria A. Souverneva v. The Superior Court of California, the California Court of Appeals, Third Circuit, Shasta, held (3 to 0; unpublished decision) that the trial court, upon being informed she was competent to stand trial, revoked her bond (after two years being out on bond) given risk of further fires.  She started six fires in rural area on September 22, 2021, burning 200 structures and nearly 9,000 acres; she told a CAL FIRE Captain that she had bombs – they were actually  CO2 cartridges. The Court of Appeals reviewed her history of drug abuse and mental illness, and upheld the trial court. https://casetext.com/case/souverneva-v-the-superior-court


Chap. 7, Sexual Harassment


MD: FIRED – VOTE 2-2, NEW HEARING – NO PENSION


On Dec. 17, 2024, in Baltimore County, Maryland v. Theodore C. Priester, Jr., the Appellate Court of Maryland held (3 to 0; unreported decision) that the now retired Captain is entitled to a new decision (instead of a tie vote of 2 to 2) before the Baltimore County Personnel and Salary Advisory Board  (“PSAB”).  While he is no longer entitled to reinstatement, the Board could decide to award him back pay for time from his termination (May 16, 2013) until he applied for retirement (July 31, 2014).  The case has been through numerous appeals and remands, including prior decision denying him a pension.  https://www.mdcourts.gov/sites/default/files/unreported-opinions/1316s22.pdf


Chap. 7, Sexual Harassment

           

US SUP CT: “STRAIGHT” CLAIMS DISC BY GAY MGR


On Dec. 16, 2024, in Marlean A. Ames, Petitioner v. Ohio Department of Youth Services, the U.S. Department of Justice, Solicitor General, filed an amicus brief with the U.S. Supreme Court that Title VII prohibits racial discrimination against both minorities and those who are in majority (including white and heterosexual plaintiffs), with same standards of proof.  The  6th Circuit had upheld the dismissal of the lawsuit by Ms. Ames (heterosexual) since she did show “background circumstances” to support her claim; such as statistical evidence showing a pattern of discrimination at her workplace in favor of gays.  The U.S. Supreme Court on Oct. 4, 2024 agreed to hear Ms. Ames’ appeal; a decision in this case could have significant impact on “reverse discrimination” cases, including fire & EMS. https://www.supremecourt.gov/DocketPDF/23/23-1039/335322/20241216192608136_23-1039_Ames_Amicus_Brief_iso_Vacatur.pdf


Chap. 8, Race Discrimination 


LA: TWO CAPTS DISCIP. – CLAIM DISPARATE TREAT


On Dec. 20, 2024 in Varrick Dyer v. City of New Orleans, et al., United States Magistrate Judge Janis Van Meerveld, U.S. District Court for Eastern District of Louisiana, held that city’s motion for summary judgment will be denied in part.  Black Captain was on the 4th engine to fire – later had verbal dispute with white Captain who criticized him for not getting off engine with his crew.  The lawsuit will continue on two claims -  “disparate treatment” (white charged with “hazing” – letter of reprimand;  black charged with “threats” – possible suspension or termination) and subsequent failure to be promoted. https://casetext.com/case/dyer-v-city-of-new-orleans-2

Chap. 8, Race Discrimination


MO: CHIEF FIRED – SECRET CAMERA – BD ANIMUS


On Dec. 18, 2024, in Ankeneth Corbin v. Black Jack Fire Protection District, et al., United States District Court Judge John A. Ross, U.S. District Court for Eastern District of Missouri, held that the former Fire Chief (African American), who was fired on Jan. 17, 2023 for secretly installing a camera and a sound recording device in his office, may proceed with his lawsuit for retaliation. https://casetext.com/case/corbin-v-black-jack-fire-prot-dist


Chap. 9, Americans With Disabilities Act


TX: HOSTILE WORK CLAIM - AGE, WEIGHT, PTSD


On Dec. 17, 2024, in Timothy B. Hauptrief v. Denver Teleford, Fire Lieutenant, City of Converse, Texas, United States District Court Judge Fred Biery, U.S. District Court for Western District, San Antonio Division, held that lawsuit should proceed by the firefighter / paramedic’s claims under ADA and ADEA [Age Discrimination in Employment].  Plaintiff alleges that he suffered a hostile work environment due to his age, weight, and PTSD,  and also retaliation for complaining about lack of training.  https://casetext.com/case/hauptrief-v-telford-1


Chap. 9, ADA


NJ: BROKE FOOT – PROMOTION TO CAPT. DELAYED


On Dec. 10, 2024, in Jersey City IAFF Local 1066 v. City of Jersey City, the Superior Court of New Jersey, Appellate Division, held (3 to 0; unpublished decision) that trial court improperly dismissed the lawsuit.  The city delayed the promotion of a Captain, who broke his foot on duty, until he could return to work. https://www.njcourts.gov/system/files/court-opinions/2024/a0448-23.pdf


Chap. 10, FMLA


TN: NO FMLA VIOL – ALCOHOL - RESIGNED


On Dec. 9, 2024, in Justin Gilbert v. City of Newport, United States District  Court Judge Thomas A. Varlan, U.S. District Court for Eastern District of Tennessee, held that the firefighter’s lawsuit is dismissed.  On June 11, 2021, plaintiff removed items belonging to Eric Herndon, a NFD battalion chief from a workplace locker and placed them on the tailboard of a fire truck; he received a written reprimand.   He took FMLA for alcohol treatment, and then returned to duty. On September 21, 2021, NFD received a call for a structure fire while plaintiff was experiencing alcohol withdrawal symptoms, plaintiff missed the fire truck pulling out of the station. He drove a secondary truck to the scene of the fire where he confronted a coworker, using aggressive and demeaning language.  https://casetext.com/case/gilbert-v-city-of-newport


Chap. 11, FLSA


MA: SETTLED – DROP CLAIM DCs NON-EXEMPT


On Nov. 18, 2024, in Brian Bergeron, et al. v. Town of Brookline and Brookline Fire Department, Unites States District Court for the District of Massachusetts, the City filed settlement agreement.  The lawsuit was filed December 1, 2023 by two Lieutenants on behalf of a class of 119 current and former firefighters and officers. The original complaint included a claim that Deputy Chiefs were improperly classified as exempt.  That claim was dropped in the settlement. https://brookline.news/wp-content/uploads/2024/12/jointsettlementfiling.pdf


Chap. 12, Drug Free Workplace


MT: NEW RANDOM POLICY – MUST BARGAIN


On Dec. 10, 2024, in City of Great Falls v. Int'l Ass'n of Fire Fighters, Local #8, the Supreme Court of Montana held (5 to 0) that the city failed to collectively bargain the new policy and failed to exhaust its administrative remedies. The pre-2019 collectively bargained random drug testing policy applied only to employees with CDLs [commercial driver licenses] and specific “safety-sensitive positions.”   The new policy included all city drivers of city vehicles, including firefighters. Multiple city unions filed unfair labor practice charges with the Montana Board of Personnel Appeals (MBPA), and on October 22, 2020 the hearing officer found for the unions. The city did not appeal to the MBPA, but instead on November 20, 2020, petitioned for district court judicial review. The District Court judge denied the petition since the city failed to exhaust administrative rights. https://casetext.com/case/city-of-great-falls-v-intl-assn-of-fire-fighters-loca


Chap. 13


CA: COVID-19 – BC – DUE PROCESS GIVEN


On Dec. 10, 2024, in Robert L. Kilpatrick v. City of Los Angeles, the Court of Appeals, Second District, Third Division, held that the Battalion Chief with 34 years of service was not entitled to a pre-disciplinary hearing prior to suspension, thereby overturning a Superior Court judge that held the City Charter required a hearing and decision by the City Board of Rights.  On Nov. 9, 2021 he was given Notice of  Charges for not getting a COVID vaccination; the Notice provided Kilpatrick at least 48 hours to either confirm he had complied with the vaccine mandate, or agreed that he would comply by December 18, 2021, and signing an agreement.  Kilpatrick did not sign. On November 12, 2021, the City placed him off duty without pay . A virtual hearing took place on December 21, 2021, and Kilpatrick left the hearing after the City refused to produce materials he requested. https://casetext.com/case/kilpatrick-v-city-of-l-a


Chap. 13, EMS


US: VA AMBUL. LOWER TRAVEL RATE SET ASIDE


On Dec. 9, 2024, in Metropolitan Area EMS Authority, et al. v. Secretary of Veteran Affairs, the United States Court of Appeals for the Federal Circuit (D.C.) held (3 to 0) that Congress did not authorize VA to implement reduced ambulance travel reimbursement using Medicare rate for transports that are to “other places” instead of to or from a VA facility (for example, to a nursing home).  The Court relied on U.S. Supreme Court’s landmark June 28, 2024 decision, setting aside the “Chevron doctrine” where federal courts normally followed Agency interpretation of Congressional statutes. https://cafc.uscourts.gov/opinions-orders/24-1104.OPINION.12-9-2024_2432337.pdf


Chap. 14, Physical Fitness


AR:  WORKING OUT – LUMBAR - WORK COMP


On Dec. 13, 2024, in City of Tucson v. The Indus. Comm'n of Ariz., Court of Appeals of Arizona, Second Division held (3 to 0) that ALJ properly found Spitzer's lumbar surgery claim compensable.  The Court held: “The City contends Dr. Jeong's testimony was ‘foundationally deficient’ and should not have been used as competent medical evidence to support the ALJ's award of a compensable claim. We conclude otherwise. Jeong, Spitzer's surgeon, testified that the ‘deadlift episode’ was ‘more likely than not’ the cause of Spitzer's lumbar disk herniation. Dr. Eskay-Auerbach, the City's expert, opined that Spitzer's workout resulted in a 'lumbar sprain’ and noted that deadlifting is ‘not an activity that causes disk herniations.’ Eskay-Auerbach attributed Spitzer's disk herniation to ‘age related degenerative changes.’"  https://casetext.com/case/city-of-tucson-v-the-indus-commn-of-ariz


Chap. 15 – Mental Health


TX: SUICIDE ATT. –DORM FIRE – AIR FORCE DISCHARGE


On Dec. 23, 2024, in United States v. Randy B. Giles, Jr., Airman Basic (E-1), U.S. Air Force, the United States Air Force Court of Criminal Appeals, held (3 to 0) that the bad-conduct discharge, confinement for 30 days, and forfeiture of $1,917.00 pay for one month was appropriate penalty, given the attempted suicide by starting a fire on Aug. 16, 2022 in his dormitory room at Sheppard Air Force Base (AFB), Wichita Falls, Texas.  Instructors had sent him to be evaluated by Air Force mental, which allowed him to return to his dorm. https://afcca.law.af.mil/afcca_opinions/cp/giles_-_40482_u_2091447.pdf


Chap. 16, Discipline


PA: DISPATCHERS FIRED – NEW YEAR’S ALCOHOL TOAST


On Dec. 27, 2024, in Justin K. Zucak, et al. v. County of Lehigh, United States District Court Judge John M. Gallagher, U.S. District Court, Eastern District of Pennsylvania, granted summary judgment to the County.  The dispatchers, including two Supervisors, were fired after participating in a New Year’s Eve toast on December 31, 2019 of “Coquito”- a mixed drink which according to plaintiffs only “contained a negligible amount of alcohol” served in a “mouthwash size cup.” https://casetext.com/case/zucal-v-cnty-of-lehigh-5


Chap. 16, Discipline


MI: WHISTLEBLOWER, REPT BAD TIRES – LATER FIRED


On Dec. 19, 2024, in Dale Gorm v. Northern Bay Ambulance & Rescue, the Michigan Court of Appeals held (3 to 0; unpublished decision) that the trial court improperly granted summary judgment to the ambulance company.  In 2022, Paramedic Gorm complained twice to Chairman of Board about poor tires on the ambulances and also complained that the Operations Manager, Ms. Jones, was doing poor job and should be fired.  The complaint was about two months prior to being fired.  On July 1, 2022, he inadvertently found on the common-use copier a document with EMS salary info and social security numbers, and he showed it two other EMS on duty.  He was fired July 14 for “privacy breach.” https://cases.justia.com/michigan/court-of-appeals-unpublished/2024-368783.pdf?ts=1734703212


Chap. 17, Arbitration


OH: FIRE ENGINE MFG – DELAY – ARBITRATION


On Dec. 23, 2024, in Dorset Township Board of Trustees v. T-Line EV, LLC, the Ohio Court of Appeals for 11th Appellate District (Ashtabula County), held (3 to 0) that trial court improperly set aside the arbitrator’s decision that found in favor of the Township.  The arbitrator awarded a “Delay Penalty” under the contract 0.5% per week (80 weeks; $7,500 based on $150,000 contract) and ordered T-Line to return their down payment ($75,000), pay for the 2007 Ferrar chassis supplied by the Township ($35000), and reimburse the Township $1,925 filing fee for the American Arbitration Association.  https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2024/2024-Ohio-6002.pdf


Chap. 18, Legislation


NM: FOREST FIRE ACT – PROP. & EMOTIONAL DAM.


On Dec. 17, 2024, in Tobin Dolan, et al. v. FEMA, United States District Court Judge James O. Browning, U.S. District Court for District of New Mexico, held that when Congress in 2022 passed the Hermit's Peak Fire Assistance Act, and directed FEMA to disburse $3.95 billion in compensation for property owners damaged by the Hermit’s Peak/Calf Canyon Fire, that compensation can include noneconomic damages, including damages for emotional distress.  https://casetext.com/case/dolan-v-fed-emergency-mgmt-agency

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Jan 24
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This is a new, monthly blog feature! Thank you, Larry Bennet, for providing a great service to leaders in the public safety professions with summaries of significant legal decisions that have impact in the sector!

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