On June 23, 2026, in Darius Marquise Mills-Brown v. Commonwealth of Virginia, the Court of Appeals of Virginia held (3 to 0; unpublished opinion) that trial court properly denied defendant’s motion to suppress since he was not in custody and was free to leave the Subway Restaurant when questioned by the arson investigator, and confessed, prior to being given Miranda warnings. In 2024, a jury convicted Darius Marquise Mills-Brown of arson of an occupied building. The trial court sentenced him to 20 years’ incarceration, with 10 years suspended. The Court wrote: “At no point during the conversation did Persons exert force or restrain Mills-Brown. Indeed, Persons clarified that Mills-Brown was free to leave at any time.” https://cases.justia.com/virginia/court-of-appeals-unpublished/2026-2083-24-1.pdf?ts=1782229177

FACTS:

“In December 2021, Darius Marquise Mills-Brown was housesitting for Nicole Thomas

while she was deployed with the military. Tiffany Marchman and her son lived in a townhouse

next door.

***

Chris Persons, an investigator at the Fire Marshal’s Office, had not arrived on the scene

when a dispatch officer informed him that they had received a call from a person with

information about the fire. Persons called the number associated with the tip and learned that the caller was Mills-Brown. Mills-Brown stated that he was at a nearby Subway restaurant. When Persons arrived at the Subway, he saw Mills-Brown sitting at a corner table alone. Persons approached Mills-Brown, identified himself, and asked if he was ‘ok.’ Persons did not place Mills-Brown in handcuffs and clarified that he was free to leave at any time. When Persons asked what had happened, Mills-Brown ‘tear[ed] up, appeared emotional and distraught’ and told him that he set fire to the townhome after Thomas kicked him out. Mills-Brown told Persons that he lit a blanket on fire on a wicker chair in the backyard. Mills-Brown then wrote a statement memorializing his oral account. Following the written and oral statements, Persons arrested Mills-Brown for arson of Thomas’s dwelling.

***

At the suppression hearing, he argued that his inculpatory statements from Subway were inadmissible because Persons ‘should have read [him his] rights before that.’ Mills-Brown acknowledged that he admitted to starting the fire because he was mad that Thomas had thrown him out of the townhouse. He also agreed that Persons was sitting beside him at the Subway, did not handcuff him, and never told him that he had to stay. Mills-Brown confirmed that Persons did not arrest him until after he made oral and written statements. The trial court found that Mills-Brown was not in custody when he made his voluntary statements and denied the motion to suppress.”

COURT HELD:

Mills-Brown contends that his oral and written confessions should have been suppressed

because Investigator Persons did not read him his Miranda8 rights during their conversation at Subway. As Mills-Brown was not in custody at the time of his confession, we disagree.

The ‘protection afforded by Miranda applies only when a suspect is subjected to

custodial interrogation.’ Webber v. Commonwealth, 26 Va. App. 549, 557 (1998). See, e.g., Pruett v. Commonwealth, 232 Va. 266, 272 (1986) (explaining that Miranda does not apply to a police officer’s ‘general questioning’ of citizens during a fact-finding mission). ‘Custodial interrogation is ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Keepers v. Commonwealth, 72 Va. App. 17, 34 (2020) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). ‘The ultimate inquiry into whether an individual is subject to custodial interrogation is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.’ Id. (quoting Spinner v. Commonwealth, 297 Va. 384, 392 (2019)).

***

When Persons arrived, he found Mills-Brown seated at a corner table ten feet from the exit. Persons identified himself and started the conversation checking on Mills- Brown’s well-being. At no point during the conversation did Persons exert force or restrain Mills-Brown. Indeed, Persons clarified that Mills-Brown was free to leave at any time. When Persons asked what happened, Mills-Brown teared up and appeared emotionally distraught before disclosing that he started the fire after Thomas kicked him out of the townhouse. He stated that he had gotten mad and just “snapped.” And Persons only placed Mills-Brown under arrest after he made his oral and written confession. Therefore, we find that the court did not err in determining that a reasonable person would have felt free to leave under the circumstances.”

Legal lesson learned: Miranda warnings are only required when the suspect is “in custody.”

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

CA: BRUSH FIRE - 30 BUILDINGS – MENTAL NO DEFENSE

On June 13, 2026, in The People v. Devin Lamar Johnson, the California Court of Appeals, First District, Fourth Division held (3 to 0; unpublished opinion) held that arson is a crime of general intent. Devin Lamar Johnson started a brush fire that ultimately burned 257 acres and 30 dwellings. About a month later, a psychologist diagnosed him with early stage schizophrenia. The Court wrote: “He argues that the trial court erred by instructing the jury to disregard evidence of his mental illness when deciding whether he acted with the required intent. He also argues that insufficient evidence supports the jury’s finding that he acted with the required intent. Underpinning these arguments is Johnson’s contention that we should classify arson as a specificintent crime in the context of a mental illness defense, which he acknowledges would require us to conclude that we are not bound on that point by Supreme Court cases holding that arson is a general intent crime. We cannot so conclude, and therefore affirm.”

https://www.casemine.com/judgement/us/6a2b9a31eaa021ae7251d64e

FACTS:

“Devin Lamar Johnson started a brush fire that ultimately burned 257 acres and 30 dwellings. About a month later, a psychologist diagnosed him with early stage schizophrenia.

A jury acquitted Johnson of aggravated arson (Penal Code, § 451.5, subd. (a)(3) -a count for which the trial court allowed mental-illness evidence to negate the required state of mind. The jury convicted him of arson of a dwelling (Penal Code, § 451, subd. (b))-a count for which the trial court did not allow such evidence. The jury found true that Johnson had caused multiple structures to burn within the meaning of section 451.1, subdivision (a)(4). The trial court found true prior strike and aggravation allegations.

The trial court sentenced Johnson to the midterm of 5 years, doubled under the ‘Three Strikes’ law (section 1170.12), plus a consecutive 5 years for the multiple-structures enhancement, for a total of 15 years.

***

At trial, Johnson testified that he had started the fire accidentally by dropping a lit cigarette that he had been smoking into dry grass. He said that he went to look for it but that it was buried in the grass. He said it started singeing the dead grass, and that when he tried to stomp it out it began to flame. Video showed, and Johnson conceded, that he was at the origin site for five minutes. During part of that time, he testified, he was smoking the cigarette.

The jury heard testimony that contradicted Johnson's story. A fire chief and investigator who investigated the fire testified as follows. A cigarette needs a minimum of 8 minutes to smolder before it will go to flame. The average time is 12 minutes. To remain lit, a cigarette would need to land with the tip down, facing the wind, ‘so that the wind keeps it going because no one is puffing on it . . . .’ The investigation team did not find any cigarette butts at the site. Based on this and other evidence, the investigation team concluded that ‘it just didn't add up that [accidental ignition by a dropped cigarette] could even be a possibility . . . .’

Evidence supported a different theory-that Johnson had deliberately started the fire with a cigarette lighter that was later found in his apartment. The investigation team concluded that an open flame had started the fire. In a way relevant to intent, the investigator testified that it takes a concerted effort to make a lighter work: ‘[y]ou have to take it out of your pocket or whatever it is in. You have to manipulate your lighter with your thumb to get it to work. And you have to hold that against something that would be combustible.’ It takes some time, he further testified, for the enough heat to transfer from a lighter flame to other material before it will catch on fire.”

COURT HELD:

“Courts categorize some crimes as requiring proof of general intent and others as requiring proof of specific intent. (See, e.g., People v. Atkins (2001) 25 Cal.4th 76, 81-83.) These terms have been explained as follows. ‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent.’ (People v. Hood (1969) 1 Cal.3d 444, 456-457.) On the other hand, ‘[w]hen the definition refers to [a] defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’

***

Sufficient evidence also supports a finding that Johnson was aware of facts that would lead a reasonable person to understand that the highly probable consequence of setting the fire was that it would spread to inhabited buildings. The origin site was about an eighth of a mile from Johnson's home in the town where the buildings burned. At the origin site, Johnson noticed that the nearby creek was dry. He testified that the grass was dry and that there was a layer of dead grass around the area. Another witness testified about typical September conditions in the area. He said that it was a hot, dry time of the year. A wind usually picked up at about 2 p.m., as it did on the day of the fire. In addition, the area had been in drought for a number of years. Johnson testified that he had lived in the area a while before the fire and that it was his hometown. The jury reasonably could infer that he was aware of these conditions and the proximity of the site to buildings in the town.”

Legal lesson learned: Arson is a “general intent” crime and the defendant’s specific intent to burn buildings was not relevant.

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Chap. 2 – Line Of Duty Death / Safety

U.S. SUP. CT – ROUNDUP - EPA NO CANCER WARNING - IARC

On June 25, 2026, in Monsanto Co. v. John Durnell, the United States Supreme Court held (7 to 2), the Court in opinion by Justice Brett Kavanaugh, held that the “failure to warn” jury verdict must be set aside. Monsanto followed EPA requirements on its label, and EPA concluded there is no scientific consensus that Roundup causes cancer even after the International Agency for Research on Cancer in 2017 and 2019 classified glyphosate as a probable carcinogen. The Court wrote: “EPA’s assessment of glyphosate is shared by many other regulatory bodies around the world that have likewise concluded that glyphosate is not carcinogenic, including regulators in Canada, Australia, Japan, and the European Union.”

https://www.supremecourt.gov/opinions/25pdf/24-1068_n7ip.pdf

FACTS:

“In 2019, John Durnell sued Monsanto in Missouri state court. Durnell alleged that he had used Monsanto’s Roundup products for about 20 years and that they had caused his non-Hodgkin’s lymphoma, a form of cancer. As relevant here, Durnell brought a failure-to-warn tort claim, claiming that Monsanto should have included a cancer warning on Roundup’s label. A jury agreed and awarded Durnell more than $1 million on the failure-to-warn theory.

***

Footnote 4: Monsanto has phased out residential Roundup products that contain

glyphosate.”

COURT HELD:

“But Durnell’s state tort claim would require Monsanto to add a cancer warning to Roundup’s label even though federal law requires Monsanto to use the EPA-approved label without a cancer warning. Because Durnell’s state tort claim would impose a pesticide labeling requirement ‘in addition to or different from’ the label required by EPA, FIFRA expressly preempts Durnell’s claim.

***

In 1991 and for the more than three decades since, EPA has repeatedly re-evaluated glyphosate and has repeatedly concluded that glyphosate is not likely to cause cancer…. In 2017 and 2019, after the International Agency for Research on Cancer classified glyphosate as a probable carcinogen, EPA re-examined the issue but still adhered to its longstanding position on glyphosate…. EPA’s assessment of glyphosate is shared by many other regulatory bodies around the world that have likewise concluded that glyphosate is not carcinogenic, including regulators in Canada, Australia, Japan, and the European Union.”

Legal lesson learned: Monsanto has successfully dodged not only this one jury verdict, but many similar cases.

Note: The International Agency for Research on Cancer classification of cancer-causing materials is important in fire service. For example, in Ohio and employer can challenge a firefighter’s workers comp claim. “(2) The presumption described in division (X)(1) of this section is rebuttable in any of the following situations: … (c) There is evidence that the firefighter was not exposed to an agent classified by the international agency for research on cancer as a group 1 or 2A carcinogen.” https://codes.ohio.gov/ohio-revised-code/section-4123.68

See the IARC Group 1 (carcinogenic to humans) and Group 2 A (probably carcinogenic to humans). https://monographs.iarc.who.int/agents-classified-by-the-iarc/

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Chap. 2 – Line Of Duty Death / Safety

TX: “PUBLIC SAFETY OFFICER RULE” – CAN’T SUE DRIVER

On June 18, 2026, in Richard Humphries v. TForce Freight, Inc., and Bhutta Hussein Javeed. U.S. District Court Judge Matyhew J. Kacsmaryk, United States District Court for the Northern District of Texas, held that the truck company and its truck driver cannot be sued by the police officer, who was seriously injured while aiding the truck driver after an accident. Federal judge is following the precedence of the Texas Supreme Court’s “public-safety officer’s rule.” The Court wrote: “First, the rule encourages those who need assistance from public-safety officers to call for it without fear of liability.”

https://www.casemine.com/judgement/us/6a36782a174bb89f9fdb2fa9

FACTS:

“Defendant Bhutta Hussain Javed ("Javed") is an employee truck driver for Defendant TForce Freight Inc. ("TForce"). On January 28, 2024, Javed was driving a tractor-trailer owned by TForce on I-40. The highway was covered in snow and ice, and Javed was allegedly driving too fast for the conditions. As a result, Javed's tractor-trailer ‘jackknifed’ and slid into the center median, coming to a rest after striking the cable barrier. Plaintiff Richard Humphries … is an Oldham County Sheriffs Deputy. At the time of Javed's crash, he was on duty responding to a call involving a separate crash. Humphries observed Javed's crash and stopped to render aid. Shortly thereafter, another tractor-trailer jackknifed and started sliding on the snowy and icy highway directly toward Humphries. While trying to avoid the second tractor-trailer, Humphries fell and suffered a significant head injury.”

COURT HELD:

“But Texas has adopted a common law ‘public-safety officer's rule.’ This rule precludes recovery for public- safety officers who suffer certain injuries while performing emergency activities. Because the public-safety officer's rule applies here, the Complaint fails to state a claim for which relief can be granted.

***

The Texas Supreme Court recently adopted the ‘public-safety officer's rule,’ … ‘which restricts the duties owed to responding officers.’ Seward v. Santander, 713 S.W.3d 341, 359 (Tex. 2025). Specifically, the Texas Supreme Court adopted the following rule:

An actor who innocently or negligently creates a peril that occasions the presence of a public-safety officer owes no duty to that officer when the officer is injured by the very same peril that occasioned the officer's presence, and the officer is injured while (1) on duty, (2) acting within the scope of employment, and (3) engaged in the performance of emergency activities.

The court grounded the rule in public policy considerations, finding three policy arguments ‘especially compelling.’ … First, the rule encourages those who need assistance from public-safety officers to call for it without fear of liability…. Second, the rule minimizes the ‘specter of invidious discrimination'—that public-safety officers will be more eager to assist and risk injury when they are more likely to recover in a tort action…. And third, the rule spreads the risk and cost of injuries to the public rather than solely to the individuals who require public-safety officer assistance.”

Legal lesson learned: About 18 states have abolished or significantly modified the “Public-Safety Officer Rule” or “Fireman’s Rule” to allow an injured police officer or firefighter to sue for damages; but not Texas.

Note: See this article. “Notably, a sizable minority of states (18) do not currently apply the Fireman’s Rule and have either explicitly declined to adopt, rejected, limited, or failed to address it. The remaining jurisdictions still invoke the Fireman’s Rule as a bar to recovery for negligence in association with the cause of a fire. The reasoning behind this bar, however, varies from jurisdiction to jurisdiction.” file:///C:/Users/lawre/Downloads/0182139.PDF

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

U.S. SUP. CT – HAITI / SYRIA – TEMP STATUS REVOKED

On June 25, 2026, in Mullin, Secretary, Department of Homeland Security, et al. v. Doe, et al., the United States Supreme Court held (6 to 3) that Congress has empowered the President and Secretary of State to end “Temporary Protected Status” (thereby revoking work permits) for Haiti (2010 TPS due to earthquake) and Syrians (2012 TPS due to violence) and others. Justice Samuel Alito, writing for the Majority, wrote that Trump’s anti-Haitian comments were not “overtly racial” and plaintiffs failed to prove the TPS revocation was because of race. The Court reversed injunctions issues by U.S. District Court judges in D.C. (Haiti case) and in Southern District of New York (Syria case). The Court wrote: “In support of their claim that the termination of Haiti’s TPS designation was based on race, respondents cite statements made by the President and former Secretary Noem…. None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.”

https://www.supremecourt.gov/opinions/25pdf/25-1083_f204.pdf

FACTS:

“Congress created TPS [Temporary Protected Status] in 1990 to provide short-term humanitarian relief for aliens who cannot safely return to their home countries due to events such as armed conflict or natural disaster…. The Secretary [of State] is instructed to review each TPS designation at least every 18 months. §§1254a(b)(2)–(3)…. Although designed to afford ‘temporary’ relief, TPS designations in practice have often lasted for decades. For example, the Secretary designated Somalia in 1991, and that designation remains in effect 35 years later.

***

Haiti received a TPS designation in 2010 after a devastating earthquake killed or injured hundreds of thousands of residents, caused massive property damage, and severely

worsened living conditions. 75 Fed. Reg. 3477 (2010). The Government re-designated Haiti for TPS and extended that designation several times.

***

The current administration objects to lengthy TPS designations and adopted a new, restricted approach shortly after the beginning of President Trump’s second term in office….Under this approach, the Secretary of Homeland Security has terminated every TPS designation that has come up for renewal, 13 in all.

Included are nations in East Asia (Nepal and Burma), Central Asia (Afghanistan), the Middle East (Syria and Yemen), Africa (Somalia, Ethiopia, South Sudan, and Cameroon), Central America (Nicaragua and Honduras), South America (Venezuela), and the Caribbean (Haiti)…. Only one European nation—Ukraine—had a TPS designation when the President began his second term, and that country’s TPS designation has not yet come up for review. See 90 Fed. Reg. 5936 (2025) (extending Ukraine TPS designation through October 19, 2026).

COURT HELD:

“In these cases, we consider whether respondents, who challenge the termination of Temporary Protected Status (TPS) for aliens from Syria and Haiti, are entitled to orders postponing the terminations during litigation. We hold that they are not. The TPS statute plainly bars consideration of respondents’ non-constitutional claims. It allows “no judicial review of any determination . . . with respect to the . . . termination” of a TPS designation. 8 U. S. C. §1254a(b)(5)(A).

***

Footnote 3: 3 Not all TPS designations have lasted so long. Presidents Clinton, George W. Bush, and Obama terminated some TPS designations much more promptly. See, e.g., 58 Fed. Reg. 7582 (1993) (Lebanon, terminated two years after initial designation); 62 Fed. Reg. 33442 (1997) (Rwanda, terminated three years after initial designation); 69 Fed. Reg. 40643 (2004) (Montserrat, terminated less than eight years after initial designation); 81 Fed. Reg. 66064 (2016) (Guinea, terminated less than three years after initial designation). None of these terminations were challenged in court.

***

In support of their claim that the termination of Haiti’s TPS designation was based on race, respondents cite statements made by the President and former Secretary Noem…. None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications. For example, one may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race. And a person without racial bias can provide a harshly unfavorable description of living conditions in some of the countries with TPS designations. The criteria for TPS designations guarantee that many, if not most, designated countries have such characteristics.

***

In offering the cited statements as proof that the termination of Haiti’s TPS termination was motivated by race, Miot respondents seek to capitalize on the statements’ heated language. Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago, and the statements cited by Miot respondents—especially those concerning Haiti and Haitian immigrants to this country—exemplify this development. But whatever one may think of the cited statements, they are insufficient to show that the termination of Haiti’s TPS designation was based on the race of the Haitian people.

***

The judgments of the United States District Courts for the Southern District of New York and the District of Columbia are reversed. The cases are remanded for further proceedings consistent with this opinion.”

Legal lesson learned: Congress enacted a statute that prohibits judicial review of revocation of TPS status. Racial comments, including from President, must be avoided in modern society.

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File: Chap. 4, Incident Command

WA: 911 DISPATCH – DELAYED NOTIFYING PD / VICTIM DIED

On June 1, 2026, in Tricia Keith Bartlett, as the Personal Representative of the Estate of Amber Mary Keith Tricia v. Valley Communications Center, the Court of Appeals of Washington, Division 1 held (3 to 0) that trial court improperly dismissed the estate’s lawsuit. The Court wrote: “Because the allegations in the complaint are legally sufficient to establish that the special relationship exception to the public duty doctrine applied, the trial court erred in dismissing the Estate's negligence claim.” https://cases.justia.com/washington/court-of-appeals-division-i/2026-87600-7.pdf?ts=1780339477

FACTS:

“Tricia Keith Bartlett, individually and as the personal representative of Amber Keith's estate, Dean Bartlett, and Jesse Keith (collectively, the Estate) sued Valley Communications Center (VCC) alleging that VCC employees negligently classified the 911 calls from the Ramada Inn, which reported sounds of murder and a violent struggle as a lower priority, placing the call into a ‘hold’ status and resulting in a delayed emergency response and Keith's death. The Estate asserted a negligence claim and a negligent supervision and training claim. The trial court dismissed the complaint under CR 12(b)(6), and the Estate appeals.

***

On June 14, 2021, Keith was the sole registered occupant in room 214 at the Ramada Inn in Kent, Washington. At around 10:30 a.m., the hotel's housekeeper Rosa Yolanda Diaz Pacheco was cleaning room 212 when she heard sounds of a violent struggle from room 214. Other occupants on the floor also heard disturbing and violent sounds coming from room 214.

Pacheco ran to the front desk to alert security officer Phillip Eugene Roush. Roush's job was to provide security services for the employees and guests at the Ramada Inn. The area had been plagued with violence and crime.

Roush arrived at room 214 and heard screaming and things breaking. Roush heard a female in the room screaming ‘stop choking me,’ ‘stop pushing me,’ and ‘leave me alone.

After a few minutes, at 10:56 a.m., Roush called the Kent police nonemergency phone number. This connected him with an employee of VCC (VCC Employee 1). Roush told VCC Employee 1 that it sounded like someone was getting murdered in room 214, and he provided the address. Roush said it was violent, like a 911 situation, and said, ‘ASAP. ASAP. Cause somebody's getting murdered over here.’ Roush stated that he did not know who was in the room, but there had been a ‘bunch of transients’ coming into the hotel.

VCC Employee 1 said that they were dispatching help and that they would get there as quickly as they can. VCC Employee 1 entered into CAD that Roush reported sounds of domestic violence, assigned it a priority level 2, and noted that Roush thinks transients are in the room and that there were no weapons. Unknown to Roush, the call was placed into a ‘hold’ status.

At 11:16 a.m., Roush called the nonemergency line once again, but it never connected, so he hung up. At 11:26 a.m., Roush heard more concerning noises and called the nonemergency line for a third time.

The third call was answered by another employee (VCC Employee 2). Roush referred to the incident as domestic violence and said he heard heavy breathing and that it was very bad and that he never heard anything like it. VCC Employee 2 said she would let them know that he called back about the time delay and provide an update.

A VCC employee then contacted the Kent police over radio requesting that they look into the holding calls to see if they could provide an anticipated reporting time. This employee told the officer that Roush reported domestic violence among transients in the room. The officer asked if the room was vacant, and the employee said it sounds like it. Meanwhile, Roush heard shallow breathing and then silence.

At 11:43 a.m., Philip Lopez placed a call to 911 and was connected to VCC. Lopez was the one in the room with Keith. Lopez stated that he needed an ambulance because his fiancé overdosed on drugs and was not breathing. VCC placed this call into CAD as priority 1.

Within minutes, emergency personnel and officers arrived on the scene and began life saving measures. Keith was pronounced dead. Lopez was arrested and charged with the assault and murder of Keith.”

COURT HELD:

“The Estate argues that it pleaded sufficient facts to establish that the special relationship exception is applicable and met. We agree.

The special relationship exception allows tort actions for the negligent performance of public duties if the plaintiff can prove that there are circumstances setting their relationship with the government apart from the general public. Cummins v. Lewis County, 156 Wn.2d 844, 854, 133 P.3d 458 (2006). A special relationship imposing an actionable duty to perform arises between the plaintiff and a government entity when "'(1) there is a direct contact or privity between the public official and the injured plaintiff which sets the latter apart from the general public, and (2) there are express assurances given by a public official, which (3) gives rise to justifiable reliance on the part of the plaintiff.'" Cummins, 156 Wn.2d at 854 (internal quotation marks omitted) (quoting Beal v. City of Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998)).

***

Here, Roush called VCC two times after the first call when police still had not arrived and he still heard violent sounds from the room. Roush kept his ear up against the door because ‘he was trying to save Ms. Keith's life.’ It is also hypothetically conceivable that Roush did not take other action because he believed that emergency assistance was on the way or that Roush informed Keith that help was coming or induced other people not to call 911 because they were on the way. We hold that a plaintiff must prove that justifiable reliance existed by the person to whom the express assurance was given. Therefore, in this case, it was sufficient for the Estate to demonstrate that Roush relied on VCC's express assurance.

For these reasons, we reverse the trial court's dismissal of the Estate's negligence claim.”

Legal lesson learned: The case will now proceed; unfortunate dispatch error.

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Chap. 5 – Emergency Vehicle Operations

TX: DRUNK RUNS INTO FIRETRUCK – 3^rd CONV. – 50 YEARS

On June 24, 2026, in Dennis Lee Giddings v. The State of Texas, the Court of Appeals of Texas, Fourth District, San Antonio held (3 to 0; unpublished) that jury properly convicted the defendant for driving while intoxicated, two prior felony convictions, and it assessed his punishment at 50 years' confinement. The trial court subsequently signed a judgment of conviction that was consistent with the jury's verdict. The defendant on appeal argued that the firefighter testified not only what was in his accident report, but also that the defendant was combative – Court rejected this defense. The Court wrote: “But the record does not contain any evidence that the State knew Gregory planned to testify about the distance between the two vehicles or that Giddings swatted his hand away when he offered assistance. To the contrary, the State affirmatively represented below that it, like Giddings, was hearing those details “for the first time.” Under these circumstances, the trial court did not abuse its discretion by overruling Giddings’s Article 39.14 objection.”https://cases.justia.com/texas/fourth-court-of-appeals/2026-04-25-00487-cr.pdf?ts=1782304969

FACTS:

“On July 4, 2024, Giddings was involved in an automobile collision with a City of Boerne firetruck. Giddings maintained that the firetruck hit him, while the truck's driver testified that Giddings entered his lane and collided with the back of the truck. The police officers who responded to the collision believed Giddings was intoxicated, and they arrested him. A Kendall County grand jury indicted him for driving while intoxicated, third or more.

***

Gregory testified without objection that after the collision, he noticed that Giddings's vehicle came to rest ‘a substantial distance,’ which he estimated to be 1,180 feet, away from the fire truck and the collision site. He explained that the distance between the two vehicles led him to believe ‘[t]hat there was a high rate of speed involved from [Giddings's] vehicle to have slid that far or there was just complete lack of control of the vehicle.’ He further testified that as he was trying to assess Giddings's physical condition after the collision, Giddings swore at him, ignored his instructions to stay seated until further assistance arrived, and ‘swatted [his hand] away’ when he tried to help Giddings out of his crashed vehicle. Gregory also testified that he noticed ‘a strong smell of alcohol coming from the vehicle.’”

COURT HELD:

“ In his first issue, Giddings argues the State violated its discovery obligations regarding testimony from Matthew Gregory, the firefighter and EMT who was driving the firetruck and who tried to assess Giddings at the scene. Giddings contends that the State had an obligation to disclose that Gregory's trial testimony would include details not recited in his written EMT report.

***

Here, Gregory's testimony about the post-collision distance between the firetruck and Giddings's vehicle was corroborated by Trooper Robert Pennington, who testified that he personally observed both vehicles' positions at the scene. Like Gregory, he explained why the distance stood out to him: The firetruck remained relatively close to the area of impact, which indicated to me a normal reaction. They experienced the impact and brought the vehicle to a stop. And the red sedan [Giddings's vehicle] was a significant distance away from [sic] further down continuing in the direction it was coming from the point of impact, which told me there was either a delayed response to the impact or a failed response to the impact, that the vehicle was not intended to stop.”

Legal lesson learned: Firefighter properly testified about conduct of the drunk driver. Also in Texas the jury imposes the sentence – in this case, 50 years – confirmed by trial court judge.

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Chap. 5 – Emergency Vehicle Operations

OH: AMBUL RUNS OVER / KILLS REFUSING PT – CASE GO

On June 11, 2026, in Jessica Formoso v. City of Parma Heights, et al., the Court of Appeals of Ohio, Eighth District, Cuyahoga held (3 to 0) the trial court properly denied the City’s motion to dismiss based on immunity. The Court wrote: “We find that Formoso has sufficiently pled facts that, if true, could entitle her to relief regarding whether the Emergency Medical Personnel’s actions were negligent as well as whether they rise to the level of willful or wanton misconduct.” https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2026/2026-Ohio-2189.pdf

FACTS:

“Formoso filed this action individually and as administrator of the estate of Gwen Laverne Guerrero, deceased … arising out of the death of her mother Gwen Laverne Guerrero (“Guerrero”). Formoso claimed that Guerrero died after she was run over by an ambulance operated by the City.

***

On June 17, 2023, Parma Heights Police responded to a request for a welfare check of

Guerrero by a resident of her apartment complex over concerns of a possible head injury. Parma Heights police officers Percun and Smith (collectively, the “Officers”) responded to Guerrero’s apartment, ultimately kicked down her door to gain entry, and observed her lying on her bed with a large bruise on her face. Based on Guerrero’s behavior, the Officers contacted the Fire Department to request that ‘medical personnel provide care’ to Guerrero. When they arrived on scene, Hanzel and Lane … advised the Officers that they were familiar with Guerrero and had responded to her apartment in the past. They also told the Officers that ‘it was extremely difficult to establish a baseline with her because her behavior is always different.’

The Emergency Medical Personnel examined and questioned Guerrero. They found her unstable on her feet, confused, evasive, and irritated. Hanzel ‘had to catch [Guerrero] as [she] was falling’ and noted that ‘she has a history of falls.’ The Emergency Medical Personnel advised Guerrero to go to the hospital with them, ‘as they were concerned with her status and head injury.’ Guerrero refused.

After Guerrero refused treatment, both the Officers and the Emergency Medical Personnel left her residence and provided no additional care. The Emergency Medical Personnel indicated that when they left, Guerrero was outside the door to her apartment, complaining about her door being broken and fixing her rug.

While the Emergency Medical Personnel were still on the property of the apartment complex, but preparing to leave, Guerrero came out of the front entrance of her apartment and went to speak with the Emergency Medical Personnel. Despite Guerrero attempting to get the attention of the Emergency Medical Personnel by ‘pounding on the side of the ambulance,’ the ambulance, driven by Hanzel, ‘rapidly drove off . . . causing Guerrero to fall” and be run over by the ambulance, instantly killing her.”

COURT HELD:

“We find that Formoso has sufficiently pled facts that, if true, could entitle her to relief regarding whether the Emergency Medical Personnel’s actions were negligent as well as whether they rise to the level of willful or wanton misconduct. Specifically, Formoso alleged that Guerrero was ‘pounding on the side of the ambulance” when the Emergency Medical Personnel, who had previously observed her to be confused and unstable, caused her to fall and then ran her over while rapidly driving away. We, therefore, overrule the appellants’ assignment of error with respect to the City’s liability for damages relating to the ambulance running over Guerrero.”

Legal lesson learned: Tragic set of facts; City should consider a for settlement.

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

NY: FDNY 9/11 – FINALLY GETS 100% DISAB - SINUS / PTSD

On June 24, 2026, In the Matter of Gary Smiley v. Melanie Whinnery, et al. the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, held that the paramedic is entitled to 100% performance of duty disability retirement. The Court rejected the Medical Board’s assertion that a medic was not physically disabled, and could control his sinus condition with the use of rinses and with the use of a dosing nebulizer several times per day. The Court wrote: “The Medical Board failed to consider how the petitioner could have managed this treatment when FDNY paramedics are required to, among other things, work for extended periods during the night or day in ambulances and to perform tasks in confined spaces.” https://www.nycourts.gov/reporter/current/3dseries/2026/2026_03970.shtml

FACTS:

“The petitioner, who was a New York City Fire Department (hereinafter FDNY) paramedic, was a first responder at the World Trade Center site following the attack on September 11, 2001. In September 2013, the petitioner applied for performance of duty disability retirement pursuant to Retirement and Social Security Law § 607-b based on injuries he suffered at the World Trade Center site (hereinafter the petitioner's application). He alleged, among other things, that he suffered from asthma, chronic sinusitis and rhinitis, prolonged post-traumatic stress disorder (hereinafter PTSD), gastroesophageal reflux disease (hereinafter GERD), and chronic dizziness and headaches.

***

In February 2014, the Medical Board of the New York City Employees' Retirement System (hereinafter the Medical Board) determined that the petitioner's chronic sinus disease, asthma, and GERD were not of such severity as to preclude him from performing the duties of an FDNY paramedic, and in March 2014, the Medical Board found that the documentary and clinical evidence failed to substantiate that the petitioner was disabled on mental health grounds.

***

In January 2017, after the petitioner commenced a proceeding pursuant to CPLR article 78 challenging the Board of Trustees's determination, the Supreme Court annulled the denial of the petitioner's application and remanded the matter for the Medical Board to set forth an adequate statement of the factual basis for its determination and a new determination by the Board of Trustees.

In October 2017, after remand, the Medical Board determined that the petitioner was disabled due to PTSD and depression and recommended approval of the petitioner's application on those grounds. However, the Medical Board did not find that the petitioner's sinus condition, GERD, and asthma were of such severity as to preclude the work of an FDNY paramedic.

In November 2017, the Board of Trustees approved the Medical Board's recommendation and awarded the petitioner a ¾ disability retirement benefit for depression and PTSD under Retirement and Social Security Law § 607-b.

***

November 30, 2020, the Board of Trustees adopted the Medical Board's recommendation and denied the petitioner's application to the extent that it was based on physical disability…. In a judgment dated December 13, 2021, the Supreme Court granted the petition and annulled the November 30, 2020 determination. Whinnery, the Medical Board, and the Board of Trustees (hereinafter collectively the appellants) appeal.”

COURT HELD:

“Specifically, one of the petitioner's doctors determined that the petitioner's sinus condition would be exacerbated by exposure to smoke and other irritants. The Medical Board's ear, nose, and throat examination of the petitioner and medical reports did not address this conclusion, even though, as an FDNY paramedic, the petitioner could be required to perform tasks at hazardous material scenes such as a chemical spill, an industrial fire, or another accident where smoke and other environmental irritants would be present. Additionally, the Medical Board determined that the petitioner was not disabled because his sinus conditions could be controlled with the use of rinses and with the use of a dosing nebulizer several times per day. The Medical Board failed to consider how the petitioner could have managed this treatment when FDNY paramedics are required to, among other things, work for extended periods during the night or day in ambulances and to perform tasks in confined spaces.

Accordingly, the Supreme Court properly granted that branch of the petition which was to annul the Board of Trustees's determination dated November 30, 2020, and to direct the NYCERS to retire him with performance of duty disability benefits based on his World Trade Center-related qualifying physical condition.

However, the appellants correctly contend that there was no basis for the Supreme Court to award the petitioner attorneys' fees, a contention that the petitioner did not oppose in his submission to this Court.”

Legal lesson learned: This was a long fight for the retired medic; fortunately the Court recognized using a nebulizer several time a day was not realistic.

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

OR: MYELOMA – RET FF / INDEP. CONT. – NO STAT PRESUMP

On June 10, 2026, In the Matter of the Compensation of Bradley Kastner v. City of Hillsboro, the Court of Appeals of Oregon held (3 to 0) that the firefighter (retired in 2010), now training fire and EMS, is an “independent contractor” and not entitled to the statutory presumption that his cancer was caused by his fire service. The Court wrote: “As substantial evidence supports the board's determination that claimant was an independent contractor during the 84 months prior to his claim, he was not entitled to the firefighter's presumption of compensability.” https://www.casemine.com/judgement/us/6a2a2b87eaa021ae7251d39f

FACTS:

“Claimant worked as a firefighter for the City of Hillsboro from 1978 until 2010, when he retired. After his retirement, claimant provided fire and emergency medical training for city employees through a series of contractual arrangements with the City of Hillsboro until 2020. Each contract described claimant as an ‘independent contractor,’ specified the class to be taught, and stated that claimant would provide the curriculum and materials. Despite those contractual provisions, the city provided the equipment and training materials, although claimant adjusted the materials as he saw fit.

Claimant filed a workers' compensation claim in 2023, seeking compensability for his myeloma through the firefighter's presumption, ORS 656.802(5Xb). The board denied the claim, determining that claimant was an independent contractor and not an employee within the 84 months prior to filing his claim, as required to obtain compensability under the firefighter's presumption. ORS 656.802(5)(e). Thus, as both parties acknowledge, the key question is whether claimant was a city employee when he was performing the contractual training services during the 84 months leading up to his claim. That question, in turn, requires us to determine whether claimant was acting as an employee, and thus subject to workers' compensation coverage, or as an independent contractor under ORS 670.600(2). Although the parties' contractual designation of claimant as an independent contractor "is not controlling, it is not to be disregarded, and 'in a close case, it may swing the balance.'" McQuiggin v. Burr, 119 Or.App. 202, 207, 850 P.2d 385 (1993) [350 Or.App. 541] (quoting Henri v. SAIF, 60 Or.App. 587, 592, 654 P.2d 1129, rev den 294 Or. 536 (1983)).”

COURT HELD:

“As to the element of freedom from direction or control, also known as the ‘right to control’ element, the key question is whether the city could direct and control the means and the manner of claimant's services as opposed to simply specifying the desired result. ORS 670.600(2)(a). The ‘principal factors showing right of control are: (1) direct evidence of the right to or the exercise of control; (2) the method of payment; (3) the furnishing of equipment; and (4) the right to fire.’ National Maintenance Contractors v. Employment Dept, 288 Or.App. 347, 353, 406 P.3d 133 (2017), rev den, 362 Or. 508 (2018) (internal quotation marks omitted). Applying those factors, we conclude that the board's determination that the city exercised control over the result rather than the means and manner of claimant's performance is supported by substantial evidence.

Starting with the first factor, direct evidence of the right to control, the record of any direct evidence is limited. Although the city provided the curriculum and schedule for the training of its employees, claimant could adjust that curriculum or hire a substitute if he was unavailable for the scheduled training. Thus, the board's determination that this factor is inconclusive is supported by substantial evidence. Second, as to the method of payment, claimant was not salaried but rather submitted invoices up to an amount capped by the contract. Taxes and union dues were not deducted. When claimant hired a substitute to teach in his stead, the city paid claimant, who then paid the substitute. That evidence supports the board's conclusion that that factor supports an independent contractor relationship.”

Legal lesson learned: The firefighters’ statutory presumption only applies to employees, and claim is filed within 84 months of retirement.

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Chap. 7 – Sexual Harassment, incl. Pregnancy Discrimination

IL: ONLY FEM - PORN MAG – SEX TALK - “SHEENA BUCKS”

On June 26, 2026, in Sheena Amble v. City of Rockford Fire Department, U.S. District Court Judge Iain D. Johnston, United States District Court for Northern District of Illinois, Western Division, held that her sexual harassment claim may proceed. However, conditions were not so severe that jury will not be asked if she was constructively forced to retire. The Court wrote: “Within a few months [of being transferred to Fire Station #4 in January 2019; only female at that station], pornographic magazines depicting nude females were left in a restroom, at least one crude conversation regarding oral sex occurred in Amble's presence, and play money depicting Amble's image was left on at least two occasions on a fire station bulletin board. This is sufficiently related to Amble's sex to survive summary judgment.” https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNm4EknQ9bna34cDUqwi843otGfsnh4A%2FeYA9Hr6KrteFypi4%2BJsSKfbktA3m%2FwjVXVmU7hL2EQjK1ikmyt15wjVE%3D?utm_medium=email&_hsenc=p2ANqtz--0s-Gqa1uWmBF4bwmJiG-zFePE1DiZBvElWG9MDL4AExGpxO5pGHEbiE5NOgiOIpfGRDMDibK3WS6s5HJa2qaBlry6oQ&_hsmi=226712652&utm_content=226712652&utm_source=hs_email

FACTS:

“Amble was hired by RFD on March 29, 2004. Other than a short stint of employment with the Madison, Wisconsin Fire Department in 2006-2007, Amble remained employed by RFD until her resignation in May 2019.

***

Notwithstanding the denied station transfer in 2011, Amble was transferred to Fire Station #4 in January 2019…. While at Fire Station #4, Amble was present or subject to at least one conversation of a sexual nature, including two male firefighters crudely conversing in Amble's presence, questioning how vegans would ‘suck dick,’ with one of them also stating that he would ‘suck your dick so good.’

***

Next, Amble found pornographic magazines in the restroom of another station…. And Amble reported finding play money photoshopped with her image on it- apparently dubbed ‘Sheena Bucks’- on two separate occasions. Amble was the only female assigned to Fire Station #4.

Paragraph 6: As to this last point, a disputed fact remains why another RFD employee made and published this image. Amble uses it as evidence of further sexual harassment, describing it as a “humiliating display[]... contributing] to a hostile environment.” …RFD argues that the money was actually posted in response to Amble's reputation for paying other RFD employees to take shifts for her…. To the extent RFD uses an unproduced document detailing time trades that was sprung on Amble mid-deposition, Amble's objection is sustained for the purpose of summary judgment. In any event, there being an imbalance in time trades doesn't foreclose the possibility that the play money still constituted sexual harassment. That's a question for a jury.

***

Amble complained to Captain Willie Brown and Human Resources Director Shaurice Hunter about this conduct and an investigation was conducted…. This wasn't a formal disciplinary investigation, but rather an ‘informal fact-finding process.’ … Hunter found violations of rules and regulations but recommended only additional training be provided in sexual harassment, diversity, and business etiquette and professionalism…^. Brown held meetings to try to resolve the conflict, but after these were unsuccessful, Amble insisted on escalating the issues.”

COURT HELD:

“In a single paragraph, RFD claims that the harassment suffered by Amble was not sexual harassment, in that it was not “based on” her sex. RFD Memorandum [64] at 15. Amble responds by pointing toward the record indicating sexually inappropriate conversations in the workplace and the presence of pornography- specifically Playboy and Penthouse magazines-in a setting where she was the only female employee. Amble Response Brief [73] at 4-5…. Looking specifically to the conduct occurring at RFD though, a reasonable jury could find that the harassment was related to Amble's sex sufficient to constitute sexual harassment.”

Legal lesson learned: Captain tried to informally handle; best to promptly inform Chief and conduct formal investigation.

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Chap. 8 – Race / National Origin Discrimination

MD: BLACK – LATE FOR WORK / RACIAL TEXTS – NO CASE

On June 24, 2026, in Mitchell Waters v. The Mayor and City Council of Baltimore, the United States Court of Appeal for Fourth Circuit (Baltimore) held (3 to 0; unpublished decision) that trial court properly granted summary judgment to the City. The City adequately investigated anonymous racial messages and found no proof they were sent by fellow firefighters. The Court wrote: “The text messages were sent anonymously, and BCFD did undertake an investigation to attempt to identify the sender. Therefore, the district court did not err in granting judgment on the hostile work environment claim.” https://cases.justia.com/federal/appellate-courts/ca4/25-1440/25-1440-2026-06-24.pdf?ts=1782325881

FACTS:

“Waters is a Black man employed by the Baltimore City Fire Department (BCFD).

The thrust of Waters’s complaint is that he was treated less favorably than non-Black peers when he was subject to BCFD’s disciplinary process…. Waters lists five examples of disparate treatment concerning himself and a comparator and four additional examples concerning other Black employees and non-Black comparators.

***

Waters’s last example concerns ‘anonymous, racist, and threatening messages’ he

received. Opening Br. at 33. Waters claims ‘no investigation or intervention was

conducted,’ and again points to complaints by Lt. Cole and Lt. DiRusso which he says

‘were investigated immediately.’ Id. Although these anonymous racist messages are

disturbing, the anonymity renders this conduct incomparable to the other complaints.

Waters characterizes BCFD’s actions in response to the anonymous messages as ‘Smoke and Mirrors,’ ‘half-hearted,’ and ‘inauthentic.’ Id. at 34. But Waters does not identify any other instance where BCFD undertook a more serious or rigorous investigation after a peer was subject to anonymous harassment. We cannot find that BCFD’s prompt investigation of a complaint identifying a specific employee is comparable to its response to a complaint regarding anonymous conduct.”

COURT HELD:

“Only the anonymous racist text messages Waters received are related to his race, but as the district court correctly noted, Waters was ‘unable to link [the messages] to any of his coworkers,’ J.A. 1257, and he does not establish how the messages are imputable to BCFD. ‘An employer may be held liable for a hostile work environment if it knew or should have known about the harassment and failed to take effective action to stop it by responding with remedial action reasonably calculated to end the harassment.’ Webster, 38 F.4th at 415 (citation modified). The text messages were sent anonymously, and BCFD did undertake an investigation to attempt to identify the sender. Therefore, the district court did not err in granting judgment on the hostile work environment claim.”

Legal lesson learned: Anonymous racial text messages were investigated; no proof sent by fellow firefighters.

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Chap. 8 – Race / National Origin Discrimination

OH: BLACK CAPT – EXAM SOFTWARE ISSUES – NOT RACE

On June 15, 2026, in Janos Roper v. City of Cincinnati Fire Department, the United States Court of Appeals for the Sixth Circuit held (3 to 0) that trial court properly granted summary judgment to the City. Race was not a factor in the formatting of answers on the promotion exam for District Chief. The software company found it to be “user error” – but in any event the issue was “race neutral.” He wound up 16^th on the list; 11 promoted. The Court wrote: “But Title VII provides a remedy for racial discrimination, not for defective tests.” https://cases.justia.com/federal/appellate-courts/ca6/25-3700/25-3700-2026-06-15.pdf?ts=1781553648

FACTS:

“In 2019, Roper—a longtime Cincinnati firefighter—sat for a test to be promoted to district

chief. During one typewritten section, Roper and several other candidates experienced a problem with the testing software, which upset the formatting of their answers. According to Roper, this problem cost him time during the test and was “very damaging” to his performance. Roper reported the problem to one of the Department’s human-resources employees, whorelayed Roper’s complaint to the company that had created the test.

The company investigated and said the problem had been the result of user error. The company scored the test, however, without regard to any formatting errors. The Department then promoted candidates (or not) based solely on their test scores. Roper’s score placed him 16th among the candidates eligible for 11 vacant positions, so the Department did not promote him to district chief.”

COURT HELD:

“Roper responds that his claim (in part) is that the test itself was defective, and so its results should not render him dissimilar to the promoted candidates. But Title VII provides a remedy for racial discrimination, not for defective tests. Here, the test results were undisputedly the sole criterion on which candidates were promoted; and the Department’s application of that criterion was undisputedly race neutral. To make out a prima facie case of discrimination, therefore, Roper must present evidence that the formatting problem (which he says impaired his test performance) was itself the result of racial discrimination. And Roper has developed no argument to that effect in the district court or this court. The district court was therefore correct to grant summary judgment to the Department.”

Legal lesson learned: Computer software issues can be very frustrating – particularly in a promotion exam – but no evidence of racial discrimination.

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Chap. 8 – Race / National Origin Discrimination

ID: HISPANIC / CATHOLIC - ASSESSMENT CTR WAS FAIR

On June 3, 2026, in Henry Munoz v. City of Burley, U.S. District Court Judge Amanda K. Brailsford, United States District Court for District of Idaho, granted the city’s motion for summary judgment; lack of proof of discrimination against Hispanics or Catholics (many officers are members of Church of Jesus Christ of Latter-day Saints). The City held an assessment center, including outside graders, and promoted the lieutenant with highest score (957 out of 1,200; compared to plaintiff’s 760). The Court wrote: “Defendant has articulated a legitimate, nondiscriminatory reason for promoting Boden instead of Plaintiff: they selected Boden because he received the highest total score in the assessment center.” https://www.govinfo.gov/content/pkg/USCOURTS-idd-4_24-cv-00303/pdf/USCOURTS-idd-4_24-cv-00303-0.pdf

FACTS:

“Plaintiff is Hispanic and Catholic …. He began working for the BFD as a volunteer firefighter in March 2001, became a full-time firefighter in November 2003, and was promoted to Lieutenant in 2013 …. Plaintiff remained a Lieutenant when he applied for the Captain position at issue in this case ….Plaintiff declares that he has served BFD for more than twenty-four years and has never been disciplined for misconduct.

***

BFD used an ‘assessment center’ to evaluate the three candidates. The assessment center used five evaluators: Chief Shannon Tolman; Deputy Chief Harman; Human Resources (HR) Director, Carol Anderson; Cassia Regional Hospital ambulance department manager, Keisha Hendrickson; and College of Southern Idaho Lead Fire Science Instructor, Brad Buehler …. Deputy Chief Harman selected the internal evaluators and Buehler and Hendrickson as outside evaluators ….Of those evaluators, Plaintiffs identifies only Chief Tolman as having LDS involvement. [LDS - shorthand reference for the Church of Jesus Christ of Latter-day Saints].

The assessment center has three components: an incident-scenario exercise, an oral presentation exercise, and an oral interview …. Each component's individual score sheets included job-related scoring dimensions such as scene size-up, leadership/organization, communication, problem analysis and decision-making, time management, strategy and tactics, command presence/ICS, safety, presentation-related criteria, accountability, and interview performance ….The score sheets used an unevenly-banded numerical scale: 1 through 4 meant ‘Not Qualified,’ 5 meant ‘Minimally Qualified,’ 6 meant ‘Qualified,’ and 7 through 10 meant ‘Especially Qualified’ …. Hypothetically applied, a ‘4’ means the evaluator found the applicant not qualified in that dimension of that component, whereas a ‘7’ means the applicant was especially qualified. The scoring draws no distinction between a 1 and a 4 (both ‘not qualified’) or a 7 and a 10 (both ‘especially qualified’).

***

After the assessment, Chief Tolman and Deputy Chief Harman totaled the evaluators' scores. The completed score sheets reflect that Plaintiff received a total score of 760 out of 1,200, while Boden received the highest total score, 957 out of 1,200…. According to Defendant, the promotion was offered to the candidate who received the highest score, and Deputy Chief Harman testified that ‘the past processes since ‘21 have all gone based off of the score’ ….

COURT HELD:

“Plaintiff testified that religion did not come up during the interview or testing process; no panelist raised religion during the process; Chief Tolman and Deputy Chief Harman never talked with him about his religion; he never raised religion with them; and he did not know whether Chief Tolman or Deputy Chief Harman knew his religion …. Buehler testified that he was not aware of any applicant's religious affiliation or whether one applicant was affiliated religiously differently from the others, and that the scores he gave Plaintiff were not motivated by Plaintiff's religion or national origin …. Hendrickson likewise testified she was not aware of the religion of any applicant and that the scores she gave Plaintiff were not motivated by Plaintiff's religion or national origin ….

***

For these reasons, the scoring evidence does not create a triable issue of discriminatory pretext. Even if a reasonable jury could find that subjective judgment, evaluator harshness, or favoritism influenced the process, Plaintiff has not identified evidence permitting a reasonable jury to find that race, religion, Catholic status, or non-LDS status was one of the motivating factors. On this record, Plaintiff has not identified sufficient admissible evidence from which a reasonable jury could infer Defendant's stated explanation is false or motivated by a discriminatory purpose.

***

Considered cumulatively, Plaintiff's evidence shows a discretionary process, a small leadership pool with limited Hispanic and non-LDS representation, sharp evaluator disparities, and Plaintiff's perception that Hispanic firefighters received less recognition. That evidence is sufficient to require careful review, but it remains insufficient to permit a reasonable jury to find that Defendant's score-based explanation was false or that the June 2022 decision was motivated by race or religion.

Legal lesson learned: Assessment Centers are an excellent tool in the promotion process.

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Chap. 8 – Race / National Origin Discrimination

IL: BLACK – FIRED – DROP STATE CASE / CAN PROCEED FED

On June 8, 2026, in Vairrun Strickland v. City of Markham, et al., the United States Court of Appeals for the Seventh District (Chicago) held (3 to 0) that trial court improperly dismissed his federal Title VII case alleging retaliation - singling him out for minor disciplinary issues and denying him a promotion when he supported another FF’s EEOC case. Case to continue in federal court even though voluntarily dismissed his lawsuit in state court. The Court wrote: “The district court thus erred in dismissing Strickland’s Title VII claims on claim preclusion grounds.” https://cases.justia.com/federal/appellate-courts/ca7/24-3262/24-3262-2026-06-08.pdf?ts=1780948846

FACTS:

“Strickland worked as a firefighter for the City of Markham Fire Department for over a decade. In 2020, the Equal Employment Opportunity Commission interviewed Strickland during an investigation into discrimination claims brought by a former firefighter. In the interview, Strickland described race-based discrimination he had witnessed against the former firefighter and how Chief Mazziotta had failed to address it. Strickland alleged that after the interview, Chief Mazziotta and the Department retaliated against him by singling him out for minor disciplinary issues and denying him a promotion. In January 2021, the Department brought administrative charges against Strickland. After hearings on the charges, the Board of Fire and Police Commissioners terminated his employment in April 2021, finding that Strickland had lied to detectives during an arson investigation and had put Department employees at risk by coming to work while infected with COVID-19. The next month, Strickland filed a lawsuit in state court challenging the Board’s decision. The court remanded while retaining jurisdiction over the case and instructed the Board to enter an amended decision with additional information. The Board did so and again discharged Strickland. After the Board issued its amended decision in April 2022, Strickland voluntarily dismissed his state-court lawsuit. He did not otherwise seek direct review of the amended decision in state court.”

COURT HELD:

“Strickland argues that the court improperly rested the first element on the Board’s decision and resolved the other questions based on the state suit. He maintains that administrative proceedings and state-court judgments should be evaluated differently for purposes of claim preclusion. Strickland is partially correct that the administrative proceedings and state litigation cannot be treated as equivalents. The Supreme Court’s decisions on the federal law of preclusion distinguish between state-court judgments and administrative decisions, particularly as applied to Title VII claims…. The district court thus erred in dismissing Strickland’s Title VII claims on claim preclusion grounds.”

Legal lesson learned: Title VII claims may proceed in federal court, even if firefighter voluntarily dropped his state court case.

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Chap. 9 – Americans With Disabilities Act

IL: FF STROKE – GIVEN DESK JOB / NO LT. PROM “IN PLACE”

On June 24, 2026, in Michael Jezior v. City of Chicago, the United States Court of Appeals for Seventh Circuit (Chicago) held (3 to 0) that trial court properly dismissed the lawsuit; FD had no obligation to promote disabled firefighter to Lieutenant and keep him in his non-firefighting current desk job. Engineer-paramedic suffered a stroke in 2021, and FD transferred him to a procurement desk job at O’Hara Airport; almost 8 years later he became eligible for promotion on to Lieutenant. The Court wrote: “Jezior effectively requests a rule that an employee is entitled to the accommodation of his choice or, alternatively, a promotion in place. But the ADA requires neither.” https://cases.justia.com/federal/appellate-courts/ca7/25-1546/25-1546-2026-06-24.pdf?ts=1782336647

FACTS:

“Michael Jezior served as an engineer-paramedic in the Chicago Fire Department before suffering a stroke that limited his mobility. Because he could no longer perform his duties, the Department placed him in a procurement position at O’Hare Airport. Nearly eight years later,

when Jezior became eligible for a promotion to lieutenant, the Department offered him options to pursue the promotion, but none of the available promotions allowed him to remain working at the airport.

***

In 2013, Jezior suffered a stroke and lost mobility on the left side of his body. Through physical therapy, his condition improved, but he still lacked fine motor skills, needed a leg brace to walk, and had difficulty standing for longer than 10 minutes.

***

One of the targeted positions was a lieutenant-rank procurement role at O’Hare held by Leslie Muse, who happened to be Fire Department Commissioner Richard Ford’s sister. Muse left the airport for a different lieutenant position, and Jezior took over at least some of her procurement responsibilities. By March 2021, the Department reached Jezior’s name on the eligibility list for lieutenant promotions. Jezior and his supervisor, John Gies, initially expected Jezior to receive the promotion while staying in his procurement position at the airport. But Deputy Fire Commissioner Brian Helmold disagreed. Helmold arranged a meeting with Jezior, Gies, and Jezior’s union representative, during which Helmold informed Jezior that he could not receive an in-place promotion because all available lieutenant positions at the airport required firefighting. Instead, Jezior could either accept the promotion and go through the Department’s accommodation process to find a suitable position or waive it and remain in his current position.”

COURT HELD:

“Jezior argues that he was qualified for an in-place promotion because he had performed his role at the airport for many years without issue. But this reasoning presupposes that a lieutenant position involving no changes to his duties in fact existed—it did not.

Here, the essential duties of the lieutenant positions at the airport included firefighting, a task that Jezior admits he cannot perform. And on this record, we cannot find that such a

requirement was illusory, especially where the position implicates public-safety concerns. Jezior therefore was not qualified for an in-place promotion.

Even if he were qualified, Jezior’s claim fails for another reason: his requested accommodation is not reasonable. He contends that an in-place promotion was a reasonable request because it would not have caused the Department undue hardship to keep him in the same position with a higher rank. Jezior effectively requests a rule that an employee is entitled to the accommodation of his choice or, alternatively, a promotion in place. But the ADA requires neither.”

Legal lesson learned: A disabled firefighter, given a desk job, is not entitled to promotion to Lieutenant since cannot perform firefighting duties.

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Chap. 11 – Fair Labor Standards Act, and Military Leave

IL: CITY’S CHANGE 24/48 SHIFT - CLASS ACTION DAMAGES

On May 26, 2026, in East Chicago Professional Firefighters Local 365, et al. v. City of East Chicago, et al., the Court of Appeals of Indiana held (3 to 0; unpublished decision) that the Indiana State Court Judge failed to send notice to all firefighters in a class action lawsuit for money damages. The state case is remanded to set damage award for 84 current and former firefighters who had their shift unilaterally changed on December 7, 2019 from 24/48 to rotating 8-hour days (off 24) and 8-hour nights (off 24 hours). This unilateral change was spearheaded by Anthony Copeland, a former firefighter of twenty-six years, who was elected mayor of the City of East Chicago in 2010. The union had previously won a federal injunction setting aside the shift change on March 28, 2022, which was upheld by United States Seventh Circuit on Dec. 21, 2022. The Court wrote: “We conclude that the trial court erred as a matter of law by not directing the notice procedure to the members of the class who could be identified through reasonable effort.” https://cases.justia.com/indiana/court-of-appeals/2026-25a-pl-01609.pdf?ts=1779819186

FACTS:

“The Firefighters, who are eighty-four current and former East Chicago firefighters, moved for class certification on June 23, 2022…. The trial court, in its July 29 [2022] Order, found that Trial Rule 23(B)(3) applied to the case and certified two damages classes: (1) firefighters employed by East Chicago from December 7, 2019 to present; and (2) firefighters employed by East Chicago in the year 2021.

***

However, the court did not direct that formal notice of the class action and the options available to the purported class be given…. The Firefighters argued against East Chicago’s suggestion of equitable relief, stating that there was a legal remedy in the form of money damages.

***

The court held a hearing to address The Firefighters’ Section 8 Petition , which sought further relief based on the court’s declaratory judgment entered on November 29, 2023 as to the statutory claim, in the form of compensatory damages, and explicitly stating injunctive relief was not being sought.”

COURT HELD:

“The Firefighters could not have anticipated that the trial court would proceed to final judgment prior to following the procedure for class actions, taking evidence or swearing in witnesses…. We conclude that the trial court erred as a matter of law by not directing the notice procedure to the members of the class who could be identified through reasonable effort. And because The Firefighters could not have anticipated the trial court would enter a final judgment without a trial or evidentiary hearing where witnesses were sworn and evidence was heard, they correctly brought the issue of lack of class notification to the trial court’s attention as soon as it was identifiable. Therefore, we remand this matter to the trial court for further proceedings.”

Legal lesson learned: City failed to collectively bargain the change in shift.

Note: See comments of the United States Seventh Circuit on Dec. 21, 2022.

“No other fire department in the country has adopted the 8/24 schedule. Unlike the 24/48 system, where the firefighters are on-duty the same hours every day that they work, the 8/24 schedule assigns the firefighters to different shifts every day. A firefighter could, for example, work the day shift on one day, the night shift the next day, and the graveyard shift the day after. This rotating schedule wreaked havoc on the personal lives and wellbeing of the firefighters, making it difficult—if not impossible—for the firefighters to manage their children's regular schedules and establish consistent sleep schedules. As a result, the firefighters experienced weight gain, lack of sleep, irritability, and trouble concentrating.” https://caselaw.findlaw.com/court/us-7th-circuit/2104932.html

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

U.S. SUP. CT. – MARIJUANA LEGAL 40 STATES – OWN GUN

On June 18, 2026, in United States v. Ali Hemani, the United States Supreme Court held (9 to 0) that federal law banning possession of a firearm for someone who regularly smokes marijuana is violation of Second Amendment; recognizing that millions of Americans now regularly use marijuana. The opinion by Justice Neil, the Court held unconstitutional a provision in the federal Gun Control Act, §922(g)(3): anyone who is an “unlawful user of ” or “addicted to” a “controlled substance” is automatically banned from possessing a gun. In future litigation, this case may impact Fire Departments that seek to prohibit (rather than impose restrictions) the use of proscribed marijuana. The Court wrote: “Whatever one thinks of these developments, the federal government has not just tolerated them; it helped fuel them. All of which leaves it awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.”

https://www.supremecourt.gov/opinions/25pdf/24-1234_g2bh.pdf

FACTS:

“Ali Hemani uses marijuana a few times a week. That fact alone, the government says, means he is automatically banned from possessing a firearm under federal law. And because Mr. Hemani admits he owns a gun despite this ban, the government now seeks to prosecute him, imprison him for up to 15 years, and disarm him for life. This case poses the question whether the government’s prosecution of Mr. Hemani is consistent with the Second Amendment.

***

Mr. Hemani is a dual citizen of the United States and Pakistan who was born in Texas and has spent most of his life there. In recent years, he has lived in the Dallas area with his parents and worked a stable job. But, suspecting Mr. Hemani and his family members of terrorism-related activities, the government conducted a search of the family home in 2022. Throughout the process, Mr. Hemani proved cooperative. He surrendered a gun he kept in the house and pointed agents to some marijuana on the property. He also consented to an interview, telling law enforcement agents that he used marijuana ‘about every other day.”’ … After the agents found cocaine in his parents’ closet, Mr. Hemani claimed ownership of that as well, though he maintained that his mother had hidden it from him and that he had not used any recently.

More than six months after the search, the government brought a single-charge indictment against Mr. Hemani. The charge had nothing to do with terrorism—the reason for the search in the first place. Nor did the charge involve possession of cocaine, drug trafficking, or anything like that. Instead, relying solely on his admitted use of marijuana about every other day, the government prosecuted Mr. Hemani for knowingly possessing a gun in his home while being an ‘unlawful user’ of a controlled substance…. For that alone, the government claimed, Mr. Hemani faced up to 15 years in prison and disarmament for life.

***

Mr. Hemani moved to dismiss the indictment, arguing that the government’s effort to enforce §922(g)(3) against him violated the Second Amendment. The district court granted the motion and, after an unsuccessful appeal to the Fifth Circuit, the government asked us to review the case. We agreed to do so.

COURT HELD:

“The law, says the government, doesn’t require anything more. It doesn’t matter what controlled substance an individual uses, in what amounts he does so, or whether his drug use has ever made him a danger to himself or others. It doesn’t even matter why he keeps a gun or how safely he does so. And for violating this automatic ban, the government insists, an individual like Mr. Hemani may be sent to prison for up to 15 years and disarmed for life.

***

The second reason has to do with the government’s approach to the drug at issue here. As this case came to us, marijuana was listed on Schedule I—a schedule reserved for drugs with ‘a high potential for abuse’ with ‘no currently accepted medical use.’ 21 U. S. C. §812(b)(1). But after we heard oral argument, the government moved some marijuana products to Schedule III, 91 Fed. Reg. 22714 (2026), a schedule that applies to drugs with a lower potential for dependence and abuse and for which a ‘currently accepted medical use’ exists, §812(b)(3).

Years before that, too, the Department of Justice issued a memorandum directing federal prosecutors nationwide to curtail their enforcement efforts against marijuana users even while all marijuana products remained on Schedule I. Attorney General Memo (Aug. 29, 2013).

Seismic changes followed that memorandum. While marijuana use largely remained unlawful under federal law, the number of federal offenders sentenced for possession of marijuana dwindled. See United States Sentencing Commission, Interactive Data Analyzer. And most States responded by legalizing marijuana use to one degree or another as a matter of state law. See Nat. Conf. of State Legislatures, State Medical Cannabis Laws (June 27, 2025)(‘Forty states, three territories and the District of Columbia’ have legalized some marijuana use). As a result, some surveys suggest there now may be more adults in this country who regularly use marijuana than consume alcohol. See, e.g., J. Caulkins, Changes in Self-Reported Cannabis Use in the United States from 1979 to 2022, 119 Addiction 1648 (2024) (finding, for the first time in 2022, more individuals who self-report daily or near-daily marijuana use than alcohol use). Whatever one thinks of these developments, the federal government has not just tolerated them; it helped fuel them. All of which leaves it awkwardly positioned to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.”

Legal lesson learned: The unanimous decision may be cited in future litigation against fire departments that prohibit use of proscribed marijuana.

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Chap. 13 – EMS, incl. Community Paramedicine, COVID-1

NJ: HOSP. MD OK’D DRUG / INTUBATION – EMS IMMUNITY

On June 25, 2026, in Jari Almonte and Yahaira Almanzar, individually and as parents and

natural guardians of Jeremy Almonte, an infant v. Township of Union, Township of Union Fire Department, et al., the Supreme Court of New Jersey held (7 to 0) that trial court judge, and the Appellate Court properly held that the paramedics and their employer have immunity under NJ statute, failed intubations, but made two calls to hospital doctor and there is no requirement they have “constant, live stream” with the physician. The version of the EMSA that controls this appeal was adopted in 1984. At that time, N.J.S.A. 26:2K-14 immunized paramedics who perform advanced life support services ‘in good faith’ and ‘in accordance with [the EMSA].” The Court wrote: “The latter requirement, which is at issue in plaintiffs’ challenge, is fulfilled if paramedics (1) ‘maintain direct voice communication with’ and (2) ‘are taking orders from a licensed physician’ while providing ALS.” https://www.njcourts.gov/system/files/court-opinions/2026/a_73_24.pdf

FACTS:

“8:56 p.m. Jeremy Almonte’s mother called 9-1-1 immediately after observing her twenty-one-month-old son fall and strike his head on a hardwood floor while running and playing in their Vauxhall home. After the fall, Almonte’s face and neck began ‘twitching,’ ‘which rapidly progressed into full body convulsions.’

9:00 p.m. Basic life support (BLS) Emergency Medical Technicians (EMTs) arrived at the Almonte home. They found Almonte with a fist-sized lump on the rear of his head and reported that he was actively seizing and ‘unresponsive’ but breathing on his own. Almonte was ‘vomiting large amounts of fluid from his oral and nasal airway.’ The BLS EMTs administered oxygen, suctioned fluid from Almonte’s airway, and loaded him into an ambulance.

9:10 p.m. Advanced life support (ALS) paramedics employed by the Atlantic Ambulance Corporation, David Pernell and Denyel Cusimano (the paramedics), arrived and assumed care of Almonte. Almonte remained ‘unresponsive,’ with his lips blue, extremities cool to the touch, and jaw clenched shut; his breathing became ‘labored’ and he continued to actively seize.

9:17 p.m. Pernell placed the first cellular phone call to Dr. Sharma [Dr. Niti Sharma, M.D., a licensed physician working in the Emergency Department at Overlook Medical Center]…. DR. SHARMA: You can give him . . . one milligram [of Valium]….

9:29 p.m. Almonte’s ‘respiratory drive had decreased’ and his heart rate declined to 158 beats per minute (bpm). The paramedics suctioned ‘large amount[s] of fluid’ from Almonte’s ‘oral and nasal airways. Cusimano was able to open Almonte’s airway enough to insert a device to perform ventilation through a bag-valve-mask.

9:30 p.m. Pernell made the second cellular phone call to Dr. Sharma, during which the following exchange occurred:

PERNELL: This kid needs to be intubated. I need to get some orders for Succ and Etomidate. . . .

DR. SHARMA: Etomidate . . . would be around four milligrams . . . And Succinylcholine . . . you can give him about [twenty-four] milligrams…..

***

9:37 p.m. The ambulance arrived at University Hospital. The paramedics remained with Almonte in the ambulance to continue their attempts to intubate him.

9:42 p.m. Pernell began the third intubation attempt. Almonte’s ‘airway [was] cleared via suction while intubating.’ The ‘[p]lacement of [the] tube [was] successful’ and was ‘verified by’ measuring Almonte’s breathing and through ‘[d]irect [v]isualization.’ At this point, Almonte’s heart rate decreased to 71 bpm.

9:47 p.m. Almonte was transferred to the Trauma Center by stretcher. When Almonte arrived, he was in cardiac arrest. The trauma physician found that the endotracheal tube was not in Almonte’s trachea. Almonte was then reintubated and resuscitated.

9:57 p.m. Almonte’s breathing returned.”

COURT HELD:

“We conclude that the paramedics who provided care to Jeremy Almonte acted under the ‘orders’ of Dr. Niti Sharma, M.D., a licensed physician working in the Emergency Department at Overlook Medical Center in Summit, to intubate Almonte in an effort to open his airway; we also have determined that those orders were conveyed during ‘direct voice communication[s]’ with Dr. Sharma. Accordingly, we hold that defendants are entitled to immunity. We reach this holding based on N.J.S.A. 26:2K-10’s plain language, aided by legislative intent.

***

The appellate court noted that the statute itself does not define ‘maintain direct voice communication’ and credited the testimony of plaintiffs’ expert, Dr. Brown, that such communication need not be a ‘constant, live stream.’”

Legal lesson learned: Medics have immunity under the NJ law (now broadened) since they called hospital physician before intubation and administration of meds; check the law and your protocol in your state on when must contact Medical Control.

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

TX: AMBUL OUT 02 TRANSP – P’s EXPERT RPT TOSSED

On June 25, 2026, in Chester Powell v. Jimmy Cruz Sanchez, the Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg held (3 to 0) that case was properly dismissed; trial court had discretion to either allow or prohibit plaintiff to file new report about EMT duties instead of paramedic duties. The EMT employed by Sacred Heart EMS was driving a patient from DeTar Hospital in Victoria, Texas to Methodist Hospital in San Antonio. During the transport, the oxygen supply ran out, and the ambulance diverted to the nearest hospital, where patient was admitted to intensive care. In a TX health care liability case, the plaintiff must submit expert report with the lawsuit setting out breach of duty – in this case the MDs report was about paramedic duties. Trial court dismissed the lawsuit, instead of granting 30 days to for plaintiff to file revised report; Court of Appeals upheld the dismissal. The Court wrote: “Accordingly, the trial court did not abuse its discretion in granting Cruz's motion to dismiss with prejudice based on an inadequate report.”

https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNmxd3J8jpmxXxyeidb6WXrTEciJVACoDQGCX04YyoIKQxWs5hBfmCFqjSsPik5w4la1NJYiz6fo5tDOdYnNwjoT0%3D?utm_medium=email&_hsenc=p2ANqtz-9LzrN1R9Pgrlzgu6Bjb006a7Y-7J4xKc7rzHzZp95cTtgFvjhjxyCpE0IXkHF1YdLpVWdu75zDjIRZyumRHM8CB80GGw&_hsmi=226712652&utm_content=226712652&utm_source=hs_email

FACTS:

“Powell asserted that he was transported in an ambulance "manned by" Cruz [Jimmy Cruz Sanchez] from DeTar Hospital in Victoria to Methodist Hospital in San Antonio. During the transport, the oxygen supply ran out, and the ambulance diverted to the nearest hospital. Powell was admitted to the Intensive Care Unit, and he was placed on ‘veno-venous Extra Corporal Membrane Oxygenation’ for eighty-two days and suffered from adult respiratory distress syndrome. Powell stated that he could not recover from this incident and remains on a portable oxygen ventilator. Powell alleged that Cruz's conduct was a proximate cause of his resulting injuries.

***

On September 17, 2024, Cruz objected to the expert report, asserting Dr. Bedolla based his expert report on the roles and duties of a paramedic, which Cruz is not. In his motion, Cruz stated that he is merely an EMT, and he explained the difference between the two roles. Cruz moved to dismiss contending the expert report did not constitute a ‘good faith’ effort to comply with section 74.351 because Dr. Bedolla only addressed the standard of care, breach, roles and duties of a paramedic and failed to address the appropriate standard of an EMT.”

COURT HELD:

“Dr. Bedolla prefaced his expert report with the following: ‘Thank you for the opportunity to review this case. It is a case of negligence involving EMS transport by Mr. [Cruz], a paramedic with Sacred Heart EMS.’ The report then details a paramedic's duties and roles and further opines how Cruz failed to adhere to a paramedic's standard of care and how he breached that standard.

***

We recognize that ‘even when a report is deemed not served because it is deficient, the trial court retains discretion to grant a thirty[-]day extension.’ Ogletree, 262 S.W.3d at 320-321. ‘Although the distinction between 'no report' and a deficient-but-potentially curable report can be elusive,’ we conclude that the expert report as to Cruz is "no report," as it does not address an applicable standard of care, such that a dismissal of the actions against him was required without an opportunity to cure the report…. Accordingly, the trial court did not abuse its discretion in granting Cruz's motion to dismiss with prejudice based on an inadequate report. We overrule Powell's issue.”

Legal lesson learned: Expert reports are required in healthcare liability cases when case is filed; expert must carefully describe duties that were allegedly breached. Check your ambulance O2 should be checked every shift and prior to patient transports.

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

IL: COVID-19 – RELIGION – CITY PROH. FETUS CELL MEDS

On June 22, 2026, in Robert Morris v. The City of Chicago, U.S. District Court Judge Joan H. Lefkow, United States District Court, Northern District of Illinois, Eastern Division, held that the fighter’s claim of religious discrimination may proceed – during COVID-19 vaccination period only firefighters seeking religious discrimination were required to sign a form certifying they would forgo certain medications that city claims were developed using cells obtained from aborted fetuses. The Court wrote: “Further, Morris alleges that no parallel requirement existed for individuals requesting non-religious accommodations—only those, like him, who opposed the use of fetal cell lines in the development of vaccines on religious grounds.”

https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNm00La4tSCrrnQj5Y3npvm8fdoq4TeulewGlEW3bFFA7N?utm_medium=email&_hsenc=p2ANqtz-8ThEk2xAXh6kES_woWZ5vNzcOTlPOgA5SAfsmD2YLCJ8ZqGGe3eNs5iYP9SOCvDgMCA2VIbcxNqC2sINqsn3X7XvkFGA&_hsmi=226712652&utm_content=226712652&utm_source=hs_email

FACTS:

“In August 2021, the City implemented a COVID-19 vaccination policy that required its employees to be vaccinated against the COVID-19 virus. Morris, a firefighter for the City and a devout Catholic deacon, refused to take the COVID-19 vaccine due to his religious beliefs. Morris opposes, on religious grounds, the use of vaccines derived from fetal cell lines. So, on October 13, 2021, he submitted a religious accommodation request, seeking an exemption from the COVID-19 vaccine requirement. His request included a multi-page explanation of his religious beliefs that addressed each of the questions outlined in the City's form. He had, however, deliberately omitted from the request the signature of a spiritual advisor, since he believed that requiring such a signature was unnecessary and illegal. As a Catholic deacon, he deemed his signature to be sufficient…. Eventually, on January 26, 2022, Morris signed the Attestation Form, since he feared repercussions from the City if he refused to do so. One day later, the City granted his accommodations request…. The City also introduced additional requirements for Morris to seek an exemption, including a new condition that he sign a medication follow-up attestation (the Attestation Form), which required Morris to agree that he would forgo using certain medications. Individuals who sought medical exemptions were not required to sign the Attestation Form or a comparable form. Only individuals seeking a religious exemption were required to sign this form.”

COURT HELD:

“Religious Discrimination (Count II)…. Moreover, following the Supreme Court's decision in Muldrow v. City of St. Louis, Missouri, it is clear that a relatively minor adverse action suffices for pleading a Title VII disparate treatment claim: A plaintiff need only allege “some harm respecting an identifiable term or condition of employment.” 601 U.S. 346, 355 (2024) (emphasis added). There is no need to allege that the harm a plaintiff suffered is “serious, or substantial, or any similar adjective” for a such a claim to be well-pleaded. Id…. Morris has met the low threshold requirements for pleading disparate treatment and religious discrimination. The City argues that Morris has failed to allege an adverse action, but Morris alleges that as a precondition for receiving his vaccine exemption, the City required him to complete the Attestation Form, which prohibited him from taking a range of common medications or potentially face discipline. Since many of these were medications he did not have any religious opposition to, this not only changed the terms and conditions of Morris's employment but also required him to misrepresent his religious views in order to be exempt from the City's vaccination requirement. Accordingly, Morris has shown at least ‘some harm’ for purposes of stating an adverse action. Muldrow, 601 U.S. at 355. Further, Morris alleges that no parallel requirement existed for individuals requesting non-religious accommodations—only those, like him, who opposed the use of fetal cell lines in the development of vaccines on religious grounds. In other words, Morris alleges that the changes to the terms and conditions of his employment were made on account of his religious beliefs. Under Title VII's generous pleading standards for disparate treatment claims, this is sufficient.”

Legal lesson learned: To avoid religious discrimination lawsuits, do not impose unique requirements on only those firefighters seeking religious accommodations.

Note: See this Feb. 19, 2024 article:

“Chicago firefighter says city forced him to refuse all other meds before granting Covid vax religious exemption. A Chicago firefighter has filed suit against the city, claiming his rights were violated when the city of Chicago forced him to sign a form agreeing not to take even the most basic of medications before granting him a religious exemption from the city's Covid vaccine mandate. On Feb. 5, plaintiff Daniel Baumgartner filed suit in Chicago federal court against the city, accusing the city of religious discrimination.... The lawsuit asserts the form would all but bar Baumgartner from taking even basic over the counter medications, including Benadryl, ibuprofen and aspirin, because the city claims all of those medications were developed using cells obtained from aborted fetuses. Baumgartner's complaint asserts the forms are ‘riddled with inaccurate and flatly erroneous information about the listed medications and their connections to fetal cells.’”

https://www.legalnewsline.com/cook-county-record/chicago-firefighter-says-city-forced-him-to-refuse-all-other-meds-before-granting-covid-vax/article_68ad87a4-9b1a-50d4-8779-f38508fd4aad.html

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

CO: MEDIC – CONV. REV. KETAMINE DEATH – NEW TRIAL

On June 4. 2026, in The People of the State of Colorado v. Jeremy Cooper, the Court of Appeals of Colorado, First Division held (3 to 0) that the trial court judge gave jury an improperly jury instruction on when a medic could be guilty of “criminally negligent homicide.” The trial judge should have instructed the jury in 2023 trial that a paramedic isonly guilty of “criminally negligent homicide” only when his conduct in 2019 was a gross violation of the protocols to be followed by a reasonable medic in that community. The Court wrote: The Court wrote: “A person acts 'with criminal negligence' when, through a gross deviation from the standard of care that a reasonable paramedic in Aurora, Colorado would exercise in the same circumstance, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.’ https://www.coloradojudicial.gov/system/files/opinions-2026-06/24CA1002.pdf

FACTS:

“This case arises out of the tragic death of Elijah McClain following an interaction with Aurora police officers and fire rescue paramedics. Defendant, Jeremy Cooper, is the paramedic who injected Mr. McClain with ketamine, which, the People contend, contributed to his death. Cooper appeals the district court's judgment of conviction entered on a jury's verdict finding him guilty of criminally negligent homicide. We conclude that the district court erred by failing to properly instruct the jury on the standard of care applicable to the criminally negligent homicide charge and that the error wasn't harmless. Accordingly, we reverse the judgment and remand the case for a new trial.

***

One summer evening, Mr. McClain walked to a convenience store and bought a few cans of iced tea. The store's security cameras showed him wearing a black ski mask and headphones, paying for his tea, and dancing with his arms raised in the parking lot.

Soon after Mr. McClain left the store, a 911 caller reported a "sketchy" looking black male ‘walking fast’ down the street wearing a black ski mask and "moving his arms."

Aurora police officers saw Mr. McClain. Police body-worn cameras recorded the interaction. When the officers asked Mr. McClain to stop, he said he had a right to walk where he was going and continued walking. Three officers then tried to physically restrain Mr. McClain. One repeatedly told him to ‘stop tensing up,’ and one told him to ‘relax or I'm going to have to change this situation.’ Mr. McClain objected to being stopped, and the officers began to struggle with him.

As the officers continued to struggle with Mr. McClain, one of them said, ‘He just grabbed your gun,’ to one of the other officers. The officers pushed Mr. McClain to the ground. An officer tried to put Mr. McClain in a carotid control hold, whereby a person applies pressure on someone's neck with his bicep and forearm. When that effort failed, another officer put Mr. McClain in a carotid control hold. The second hold cut off blood flow to Mr. McClain's brain, causing him to temporarily lose consciousness. When Mr. McClain regained consciousness, he told the officers that he couldn't breathe. He later vomited. An officer asked a dispatcher to send paramedics to treat Mr. McClain because he had temporarily lost consciousness.

Cooper; his supervisor, Lieutenant Peter Cichuniec; and two nonmedical fire department personnel (an ‘engineer’ and a firefighter) arrived a few minutes later. They saw two officers restraining Mr. McClain on the ground. The police officers told Cooper and Cichuniec that Mr. McClain had ‘passed out,’ was ‘definitely on something,’ and was ‘acting crazy.’ One of the officers said that the officers had tried to ‘put a carotid on the guy’ and had done so, which ‘put [Mr. McClain] out.’ Officers also said Mr. McClain had shown ‘incredible’ and ‘crazy’ strength from ‘whatever he's on’ and ‘almost did a pushup with all three of us on his back.’

Based on the information the officers had told them and their visual assessment of Mr. McClain, Cooper and Cichuniec concluded that Mr. McClain showed symptoms of a condition called ‘excited delirium.’ They agreed they would inject Mr. McClain with ketamine. Cooper told the officers that the paramedics would inject Mr. McClain with ketamine once the ambulance arrived with the drug. (An ambulance with two emergency medical technicians (EMTs) had also been dispatched to the scene.)

Once the ambulance arrived, Cooper and Cichuniec determined that 500 mg of ketamine was the correct dosage to give to Mr. McClain based on his weight (which Cooper estimated at about 220 pounds (100 kg) and Cichuniec estimated at 187 pounds (85 kg)) and his degree of agitation. (In fact, Mr. McClain weighed only 143 pounds.) Either Cooper or Cichuniec told an EMT to prepare it. Once the EMT did so, Cooper injected it into Mr. McClain.

Sometime after Mr. McClain was placed in the ambulance, Cichuniec noticed that he had stopped breathing. He told an EMT to check Mr. McClain's pulse. When the EMT couldn't find one, the EMTs began CPR. Mr. McClain was subsequently admitted to a hospital. Doctors declared him brain dead a few days later.

***

A state grand jury subsequently indicted Cooper and Cichuniec on one count each of reckless manslaughter and criminally negligent homicide and three counts each of second degree assault. They were tried together. The prosecution's theory was that Cooper and Cichuniec had acted contrary to their medical training and proper protocols. And the prosecution charged that each could be found guilty of all the charges as either a principal or a complicitor.

A jury found Cooper guilty of criminally negligent homicide but acquitted him of all other charges. The same jury found Cichuniec guilty of criminally negligent homicide and one count of second degree assault (unlawful administration of drugs) but acquitted him of reckless manslaughter and the remaining count of second degree assault (causing serious bodily injury with intent to cause bodily injury). Cooper and Cichuniec separately appealed their convictions. This appeal is Cooper's.”

COURT HELD:

“Cooper contends that the district court erred by refusing his counsel's tendered instruction specifying the standard of care applicable to the charge of criminally negligent homicide and by refusing to adequately and accurately define that standard after the jurors affirmatively indicated that they didn't understand what standard to apply. We agree with Cooper. We also conclude that the errors weren't harmless.

***

Before closing arguments, based on the prosecution's theory of culpability, Cooper's counsel tendered a jury instruction that read, ‘A person acts 'with criminal negligence' when, through a gross deviation from the standard of care that a reasonable paramedic in Aurora, Colorado would exercise in the same circumstance, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.’ (Emphasis added.)

***

After the jurors began deliberating, the court received the following question from the jurors: ‘May we have a definition of the standard of care? Or a description of it?’ Cooper's counsel reiterated the defense's position that ‘the professional standard of care . . . in this case . . . would be reasonable paramedics in Aurora, Colorado." The prosecutor asked the court to just refer the jury back to the instructions as given.

***

The relevant circumstances in this case were that a medical professional provided medical treatment to a person needing medical attention while under law enforcement's physical restraint. The standard of care was therefore that which would apply in a civil case involving such a situation - one applicable to a reasonable paramedic in Aurora, Colorado, in 2019 treating a person in Mr. McClain's condition…. It follows, then, that the district court erred by refusing defense counsel's tendered instruction and by refusing to clarify the standard of care in response to the jurors' question.

***

Under the facts of this case, the definitional instruction didn't adequately articulate the applicable standard of care but rather left the jury in the dark…. Also, the jurors' question told the court that they didn't know what standard to apply. By telling the jurors to apply the "common and ordinary meanings" of the words in the instruction, the court failed to shine any light on the issue and in fact misled the jurors as to the applicable standard of care….”

Legal lesson learned: The jury instructions were clearly wrong; but since . Since the

Note: Cooper was sentenced to 14 months work release and probation, so doubtful he will be retired. In a separate Court of Appeals decision (3 to 0), the lead medic, Peter Cichuniec, co-tried with Cooper also had his conviction for criminally negligent homicide reversed but his assault conviction was affirmed. https://www.coloradojudicial.gov/system/files/opinions-2026-06/24CA0675.pdf It is doubtful he will be retried; he received a sentence of five years in prison, but was released early from prison in 2024 after a judge reduced his sentence to four years of probation. The city of Aurora in 2021 agreed to pay $15 million to settle a federal civil rights lawsuit brought by McClain's parents.

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

CO: LEAD MEDIC – NEW TRIAL KETAMINE - GUITY ASSAULT

On June 4, 2026, in The People of the State of Colorado v. Peter Cichuniec, the Court of Appeals of Colorado, First Division held (3 to 0) that Peter Cichuniec, the lead Medic, had authorized Medic Jeremy Cooper to administer the ketamine that killed the patient, Elijah McClain. Cichuniec received five years in prison and was released early from prison in 2024 after a judge reduced his sentence to four years of probation; his partner Jeremy Cooper avoided prison and was sentenced to 14 months work release and probation. The city of Aurora in 2021 agreed to pay $15 million to settle a federal civil rights lawsuit brought by McClain's parents. The Court wrote: The judgment of conviction on the charge of criminally negligent homicide is reversed, and the case is remanded for a new trial on that charge. The judgment of conviction on the charge of second degree assault is affirmed.” https://www.coloradojudicial.gov/system/files/opinions-2026-06/24CA0675.pdf

FACTS:

“Based on the information the officers had told them and their visual assessment of Mr. McClain, Cichuniec and Cooper concluded that Mr. McClain showed symptoms of a condition called ‘excited delirium.’ They agreed they would inject Mr. McClain with ketamine. Cooper told the officers that the paramedics would inject Mr. McClain with ketamine once the ambulance arrived with the drug. (An ambulance with two emergency medical technicians (EMTs) had also been dispatched to the scene.)

Once the ambulance arrived, Cichuniec and Cooper determined that 500 mg of ketamine was the correct dosage to give to Mr. McClain based on his weight (which Cichuniec estimated at 187 pounds (85 kg) and Cooper estimated at about 220 pounds (100 kg)) and his degree of agitation. (In fact, Mr. McClain weighed only 143 pounds.) Either Cichuniec or Cooper told an EMT to prepare it. Once the EMT did so, Cooper injected it into Mr. McClain.

Sometime after Mr. McClain was placed in the ambulance, Cichuniec noticed that he had stopped breathing. He told an EMT to check Mr. McClain’s pulse. When the EMT couldn’t find one, the EMTs began CPR. Mr. McClain was subsequently admitted to a hospital. Doctors declared him brain dead a few days later.”

COURT HELD:

“Defendant, Peter Cichuniec, appeals the district court’s judgment of conviction entered after a jury found him guilty of criminally negligent homicide and second degree assault. The People charged Cichuniec, a paramedic, and his codefendant, Jeremy Cooper, also a paramedic, with various offenses arising out their medical treatment of Elijah McClain based on a theory that Cooper’s injection of Mr. McClain with ketamine contributed to Mr. McClain’s tragic death. A jury found Cichuniec guilty of both criminally negligent homicide and second degree assault. That same jury found Cooper guilty of criminally negligent homicide but not guilty of second degree assault. Cooper separately appealed, and this division (with Judge Berger substituting for Judge Lum) reversed Cooper’s conviction for criminally negligent homicide and remanded for a new trial on that charge. People v. Cooper, 2026 COA 44. We now also reverse Cichuniec’s conviction for criminally negligent homicide and remand for a new trial on that charge. But we affirm Cichuniec’s conviction for second degree assault.

***

We therefore reverse Cichuniec’s conviction for criminally negligent homicide and remand the case for a new trial on that charge (should the People so elect).”

Legal lesson learned: The medic was never sentenced to prison for the assault conviction, so hopefully he will not be re-tried for that offense

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

MT: VOL. FIRED / CRIM CHARGE - DUE PROCESS RIGHTS

On June 25, 2026, in Andrew Hoel v. Lake County, et al., U.S. District Court Judge Dana L. Christensen, United States District Court for Montana, Missoula Division, denied the motion to dismiss by the five members of the Board of Polson Rural Fire District, and the lawsuit by the 16-year volunteer may continue. The judge held that while there is no state statute on whether a volunteer in a rural fire district has a “property interest” in the position, and no Montana Supreme Court opinion on the issue, the plaintiff has alleged a plausible claim that a protected property interest exists. The Court wrote: “Viewing Hoel's allegations in the light most favorable to him, as required at this stage of the proceeding, he has alleged a plausible claim that a protected property interest exists.”

https://public.fastcase.com/Jhe1Qn%2BmJndQYQU6z%2FeNm8xp5bcQpM0LeCpj95rZ5gNEdVG1ibFcIduRcZ%2B3IipaZYnYIym7VYjtpqKVlaUqasfnn8Tz1CVmcjSIlOE%2BPZg%3D?utm_medium=email&_hsenc=p2ANqtz-9jjfQQEOm_2mMKI3z_PNL0spa8WgXuU5UtiIChSVPrFWGJFWa_yPhDa2X3hbtFntOPOz5eOn48J2_-s790WqIcSfBsuw&_hsmi=226712652&utm_content=226712652&utm_source=hs_email

FACTS:

“Andrew Hoel was a member of the Polson Rural Fire District for 16 years. In 2023, Hoel settled a dispute involving a jointly owned LLC with Defendants Matthew Dougherty and Nancy Dougherty. Following the settlement, the Doughertys made a series of defamatory statements and allegations of criminal conduct against Hoel, prompting Lake County to charge him with two felony counts of exploitation of older person, incapacitated person, or person with developmental disability, Mont. Code Ann. § 45-6-333.

Board Members, acting as Trustees of the Polson Rural Fire District, revoked Hoel's membership based on these criminal charges. Hoel appealed, and Board Members responded by notifying Hoel that ‘[t]he Board will take no action on the appeal until a future appropriate time when your situation has stabilized. It will be in touch at that time.’ After criminal charges against Hoel were dismissed, he wrote to the Polson Rural Fire District to renew his appeal. Board Members responded that his appeal had already been denied. In terminating Hoel, Board Members failed to comply with the Polson Rural Fire District's disciplinary policies.”

COURT HELD:

“Montana statutes are silent on whether volunteer members of rural fire districts enjoy any removal protections. Paid municipal firefighters enjoy for-cause termination protections, see Mont. Code Ann. § 7-33-4123, and mandatory suspension procedures, see Mont. Code Ann. § 7-33-4124, while city ‘volunteer fire departments,’ established under Part 41 are explicitly exempted from these provisions. Mont. Code Ann. § 7-33-4110. Rural fire districts like Polson, meanwhile, are legally distinct from volunteer fire departments even if they are composed entirely of volunteers. Highlighting this distinction, Montana Code Annotated § 7-33-4510(c) clarifies that ‘a member of a volunteer fire department provided for in [§] 7-33-4109’ does not fall within the definition of a “volunteer firefighter,” and is therefore ineligible for worker's compensation. Therefore, no statute addresses whether volunteer members of a rural fire district are subject to removal protections or not.

Nor has the Montana Supreme Court directly addressed whether volunteer members of a rural fire district have a property interest in their volunteer status. In State v. Robertson, however, the Court held that a rural fire district board could not suspend volunteers because their bylaws did not ‘authorize’ them to do so. 336 P.3d 367, 371-72 (Mont. 2014) (‘[T]he by-laws are altogether silent on the suspension of [fire district] members.’). Although Robertson was decided in the context of a criminal trespass charge, see id, the Court's reasoning indicates that, depending on the precise language in their bylaws, Board Members may not have had the authority to terminate Hoel at will. If the bylaws contain for-cause protections or specific removal criteria, they could create a reasonable expectation of continued volunteer status. Viewing Hoel's allegations in the light most favorable to him, as required at this stage of the proceeding, he has alleged a plausible claim that a protected property interest exists.”

Legal lesson learned: State laws control whether volunteer firefighters have a right to due process hearing before Fire Board; providing such a hearing can help avoid litigation such as this case.

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

CO: FIRE CHIEF – IMMUNITY – FIRED IAFF PRES. PER CBA

On June 22, 2026, in Benjamin Carter v. David Beebe, the United States Court of Appeals for the Tenth Circuit (Denver) held (3 to 0) that trial court should have dismissed this lawsuit against Fire Chief David Meebe; the Chief followed the collective bargaining agreement, investigated “confrontational” conduct of Union President who was upset that a new recruit (Jehovah’s Witness) received a uniform without the American flag as a religious accommodation, and fired the firefighter without a hearing. The CBA did not require the FD to provide a Loudermill hearing [Cleveland Board of Education v. James Loudremill, March 19, 1985], and therefore the Fire Chief enjoys qualified immunity. The Court wrote: “And because he has not met his burden of establishing that Chief Beebe violated clearly established constitutional law, Chief Beebe is entitled to qualified immunity on Mr. Carter’s procedural due process claim.”

https://cases.justia.com/federal/appellate-courts/ca10/25-1424/25-1424-2026-06-22.pdf?ts=1782145915

FACTS:

“Mr. Carter began working for MVFPD in 2009….Since then, he has been a member of Mountain View Professional Firefighters, Local 3214, International Association of Firefighters (the ‘Union’)…. He has served on the Union’s executive board since 2012 and was elected Union President on January 1, 2023…. ‘Mr. Carter was the Union’s lead negotiator’ and a signatory ‘on the CBA that governed’ his termination.

***

The CBA provides that Union members may be discharged only for ‘just cause.’ … It outlines the process MVFPD officials must follow to terminate an employee….It ‘does not include a right to a post-termination hearing’ and says that the Fire Chief is the final decisionmaker on all disciplinary matters.

In January 2023, Mr. Carter was upset to learn that a new MVFPD recruit asked not to have an American flag on his gear…. He expressed frustration to higher-ranking MVFPD employees and Human Resources…. One Human Resources employee described Mr. Carter’s comments as ‘unnecessarily confrontational, dismissive, and belittling.’ … After learning that the recruit’s request was for a religious accommodation, Mr. Carter shared that information with 14 other MVFPD employees and made ‘negative and potentially harassing’ comments.

In February 2023, Chief Beebe placed Mr. Carter on administrative leave and initiated an investigation into his conduct…. After following the CBA’s disciplinary procedures, Chief Beebe fired Mr. Carter…. He did not give Mr. Carter a post-termination hearing.”

COURT HELD:

“Fire Chief David Beebe fired Benjamin Carter from his position as a firefighter with the Mountain View Fire Protection District (‘MVFPD’). In doing so, he followed the disciplinary process in the collective bargaining agreement (‘CBA’) between Mr. Carter’s union and the MVFPD. Mr. Carter sued Chief Beebe under 42 U.S.C. § 1983 for violating his Fourteenth Amendment right to procedural due process. The district court denied Chief Beebe qualified immunity and granted Mr. Carter summary judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

***

Mr. Carter has not cited a Supreme Court, Tenth Circuit, or other circuit case that has applied Loudermill to a CBA. He instead relies on general statements of procedural due process law rather than cases that establish ‘the violative nature of particular conduct’ at issue here. Mullenix, 577 U.S. at 12. A contract between the union and the public employer is not the same as a state statute. Mr. Carter therefore has not shown that ‘every reasonable official would have understood’ that the CBA, a contractually bargained-for disciplinary procedure, violated the Constitution. Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir. 2018) (quotations omitted).5 And because he has not met his burden of establishing that Chief Beebe violated clearly established constitutional law, Chief Beebe is entitled to qualified immunity on Mr. Carter’s procedural due process claim.”

Legal lesson learned: CBA did not require Loudermill pre-termination or pos-termination hearing. However, providing a “due process” hearing can avoid unnecessary litigation.

Note: See this June 22, 2026 article: “10th Circuit grants Boulder-Weld district’s fire chief immunity for firing union leader.” The events that triggered Carter’s termination began on Jan. 30, 2023. At the time, Carter was the newly elected president of the union. Although he was not on duty that day, he went to the station to handle gear for new employees. A supplier was making a delivery and mentioned he received a request to remove the American flag from a specific new hire’s protective equipment. While multiple people noted in statements that the gear did not have the American flag on it to begin with, Carter reportedly became upset and raised the issue with a captain. He learned that the new employee had requested a religious accommodation as a Jehovah’s Witness, and that Beebe approved it. Carter, who was under the impression he could speak with others about the issue, discussed the religious accommodation with around 14 other employees. Leadership met on Feb. 6 and decided to investigate Carter’s conduct. The district then placed Carter on administrative leave. The deputy chief spent the month of February investigating and concluded that Carter should be charged with insubordination, the dissemination of confidential information and other misconduct.” https://www.coloradopolitics.com/2026/06/22/10th-circuit-grants-boulder-weld-districts-fire-chief-immunity-for-firing-union-leader/#google_vignette

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

NC: UNION PRES. – RETAL – COUNCIL / PUBLIC CONCERN

On June 18, 2026, in Robert Tempeton v. City of High Point, U.S. District Court Judge Thomas D. Schroeder, United States District Court for Middle District of North Carolina, denied the motion for summary judgment on the basis of qualified immunity of two members of City Council: Brian Evans, and Thomas Reid. There is evidence of retaliation against the President of IAFF Local 673 for addressing City Council on matters of public concern. The retaliation includes transferring Tempeton, a 25-year member of the FD to a slower station, and numerous “counseling forms.” The Court wrote: “For the reasons expressed at the hearing, however, Templeton has offered sufficient evidence to establish a genuine dispute of material fact as to whether HPFD took adverse employment actions against him linked to his First Amendment expression.” https://www.casemine.com/judgement/us/6a367934174bb89f9fdb2ff2

FACTS:

“Plaintiff Robert Templeton began his employment with the High Point Fire Department (‘HPFD’) in June 2000…. He currently holds the rank of Fire Captain II…. Templeton

became President of Local 673 of the International Association of Fire Fighters (‘IAFF’) in January 2023…. The IAFF is a labor union which represents more than 360,000 firefighters, paramedics, and emergency responders in the United States and Canada…. IAFF Local 673 had fewer than ten members at the beginning of Templeton's tenure as President, despite there being approximately 240 HPFD employees….

Shortly after starting as President, Templeton reached out to the High Point Mayor, High Point City Council, and the High Point City Manager to express his views on what he considered ‘matters of public concern,’ ‘includ[ing] staffing shortages and pay-related issues.’ ….On February 6, 2023, he addressed the High Point City Council about such concerns….

In the fall of that year he met with Cyril Jefferson, then a candidate for Mayor of High Point; news of that meeting spread throughout HPFD, and HPFD leadership, according to Templeton, backed Jefferson's opponent…. Several weeks after this meeting, on October 24, Templeton received the lowest performance review of his career…. Local 673 nevertheless endorsed Jefferson for mayor on October 30. (Id.) Templeton posted on social media about Local 673's support for Jefferson, both before and after Jefferson won the mayorship in November….

***

On March 6, 2023 … Templeton received a counseling form for his decision to execute a “suicide run” - deliberately driving on the left (wrong) side of the road to arrive more quickly at the scene of an emergency….

***

On September 7, 2023, Templeton received a counseling form for his objection to carrying out a training exercise during high temperatures…. Templeton declares that he has never heard of an HPFD employee being disciplined for deciding to carry out a suicide run or objecting to training exercises during high temperatures.

***

Templeton was involuntarily transferred to Station 11 from Station 4 on November 27, 2023; he had not requested a transfer…. Station 11 is a ‘punishment station’ because, Templeton declares, higher call volume is correlated with higher performance reviews, which in turn corresponds to higher compensation…. Station 11 is one of the slowest stations in High Point, while Station 4 is one of the busiest….

***

On March 29, 2024, Defendant Reid, the fire chief, retired, and Defendant Evans was named interim fire chief…. In April, Evans met with Templeton about his union speaking and told him that fire department concerns needed to be raised through the chain of command….Templeton filed a grievance thereafter….

***

On April 8, 2024, Templeton received a counseling form signed by Evans, advising him that his ‘conversations with members of City Council in reference to Fire Department concerns . . . violate[] departmental policy (chain of command)….

***

On May 28, Templeton met with High Point officials to discuss his grievance; present at the meeting were High Point Human Resources Director Scherrie Lowery, Angela Kirkwood, and HPFD leadership, including Evans…. At this meeting, Kirkwood repeatedly told Templeton that he was not prohibited from speaking as a citizen on matters of public concern. (See generally Audio Recording of Plaintiff's May 28, 2024 Meeting (Exhibit C to Doc. 26).) But Kirkwood and others repeatedly expressed their view that ‘fire department concerns’ should be brought up through HPFD's chain of command, rather than directly to members of High Point's governance…. A member of HPFD leadership, possibly Evans, also expressed a narrow view of what constituted a matter of public concern. He stated as an example that the closure of six fire stations would be a matter of public concern, but that the issues Templeton had been raising were specific to HPFD - and these were ‘two different things.’

***

Templeton filed this lawsuit on August 9, 2024.”

***

On September 6, 2024, Templeton was involved in a ‘verbal altercation’ with a community member while he responded to an emergency call; HPFD ordered him ‘to undergo mandatory EAP sessions’ after the incident.

***

Finally, on December 30, 2024, Templeton was disciplined for failing to timely respond to an emergency call notification.”

COURT HELD:

“Templeton has offered evidence that he spoke to mayoral candidates, city council members, fire department employees, and the public at large about ‘pay compression issues, recruitment and retention issues, safety-related issues, [and] staffing shortages.’ … These issues concern the ability of the HPFD to carry out its vital work protecting life and property; indeed, Templeton's concerns go to the safety of the community. Speech on these matters has been clearly established as a matter of public concern within the Fourth Circuit at least as far back as 2002. See, e.g., Lilienthal, 275 F.Supp.2d at 691, 694 (first concluding that ‘fire department issues such as safety, equipment, staffing, and response time are subjects in which ‘the public or the community is likely to be truly concerned' and ‘interested,’ and then concluding that ‘in September 2002, it was clearly established that a fire chief's disagreement with a firefighter's views on fire department safety issues and the firefighter's manner of expressing those views is insufficient to justify conditioning continued employment upon the cessation of the protected expression based on a perceived threat of disruption’).

***

Because Templeton has shown that his right to speak about the ability of HPFD to carry out its mission was clearly established as a matter of public concern, any retaliation by reducing the speaker's income would constitute a clearly established violation of that right.”

Legal lesson learned: Union President has 1^st Amendment right to address City Council on matters of public concern; case will now proceed.

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Chap. 18 – Legislation, incl. Public Records

CO: BABY “SAFE HAVEN LAW” – MOM STAYS “ANONYMOUS”

On June 8, 2026, In Re The People of the State of Colorado, In The Interest of Minor Child: G.D.M. v. Morgan County Department of Human Services, the Supreme Court of Colorado, En Banc (6 to 1) held that with baby born in ambulance in hospital parking lot, and mother told EMS she wanted to give the baby up for adoption, the County Department of Human Services had no right to know mother’s or father’s identity. The Court wrote: “Together, these tools of construction speak in a quiet but unmistakable voice, leading us to infer that parents who avail themselves of this law are entitled to anonymity and confidentiality.” https://caselaw.findlaw.com/court/co-supreme-court/111256.html

FACTS:

“In this case, M.O.M. (‘Birth Mother’) gave birth to G.D.M. in the back of an ambulance in the parking lot of a hospital. She immediately told medical staff that she neither wanted nor had the means to care for G.D.M. She added that the baby's father was not in the picture, so she wanted to give the baby up for adoption.

The Morgan County Department of Human Services (‘MCDHS’) promptly initiated this dependency or neglect proceeding. Treating this case like any other abandonment matter, MCDHS conducted an investigation and, after discovering Birth Mother's identity, undertook ‘due diligence’ efforts by contacting her family members in search of appropriate placement options. When the juvenile court realized what was occurring, it intervened to course correct by written order. The court halted MCDHS's efforts, concluding that Birth Mother had a right to anonymity and confidentiality under the Safe Haven Law.

MCDHS disagreed. It filed a C.A.R. 21 petition asking us to shed light on the question, and we issued an order to show cause. MCDHS contends that the juvenile court went astray in determining that Birth Mother is entitled to anonymity and confidentiality under the Safe Haven Law. As a result, MCDHS asserts, the court improperly blocked its efforts to identify appropriate placement options for G.D.M. among Birth Mother's family members.”

COURT HELD:

“Colorado's Safe Haven Law, section 19-3-304.5(1)(b), C.R.S. (2025), affords parents of newborns a vital refuge: It allows them to voluntarily relinquish a child who is seventy-two hours old or younger into the protective hands of either a firefighter (when the firefighter is at a fire station) or certain hospital or clinic staff members (when they are at a hospital or community clinic emergency center), as long as the parent does ‘not express an intent to return for the child.’ In extending this lifeline, the legislature also provided an assurance: Any parent who takes advantage of the Safe Haven Law’ shall not, for that reason alone, be found to be responsible in a confirmed report of abuse or neglect.’ § 19-3-304.5(8).

***

In short, the statute's broader provisions and the architecture they blueprint signal that the legislature meant to bestow a parent who properly invokes the Safe Haven Law with anonymity and confidentiality.”

Legal lesson learned: Excellent decision; helpful if statutes are explicit that mother can remain anonymous.

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________________________________________________________________________

PROF. BENNETT

Textbooks / Other Publications

2026: FIRE & EMS LAW – LIBRARY OF RECENT CASE SUMMARIES: Over 1,684 case summaries since 2018 from monthly newsletters (supplement my 2017 Textbook, Fire Service Law): https://doi.org/10.7945/j6c2-q930
2026: FIRE & EMS - CURRENT EVENTS: https://doi.org/10.7945/0dwx-fc52
2026: EMS LAW – LEGAL LESSONS LEARNED (3^rd Edition) – case summaries 2018 - present: https://scholar.uc.edu/show/dn39x307g
2026: POLITICAL & LEGAL APPLICATIONS FOR EMERGENCY SERVICES (3 Author text for National Fire Academy / FESHE online course): https://doi.org/10.7945/av8d-c920
2026: EMS POLITICAL & LEGAL APPLICATIONS FOR EMERGENCY MEDICAL SERVICES (4 Author text for National Fire Academy / FESHE online course): https://scholar.uc.edu/concern/documents/ht24wm15r?locale=en
2026: AMERICAN HISTORY – FOR FIRE & EMS (including U.S. Supreme Court decisions, and Major Fires) https://scholar.uc.edu/show/ks65hd707
2017: TEXTBOOK: FIRE SERVICE LAW (Second Edition) (ISBN 978-1-4786-3397-6); Waveland Press: http://www.waveland.com/browse.php?t=708 (First Edition – Prentice Hall, 2008).
2006: CHIEF FIRE OFFICER’S DESK REFERENCE: Jones & Bartlett, Chap. 4: U.S. Legal System.
2005: FIRE & EMS LAW FOR OFFICERS: Fire Protection Publications, Okla. State: Employment Best Practices (2005); Safety (2004).

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