FIRE, EMS & SAFETY LAW NEWSLETTER

[NEWSLETTER IS NOT PROVIDING LEGAL ADVICE].

Sign up at http://aerospace.ceas.uc.edu/FireScience -click ONLINE BENNETT lawrence.bennett@uc.edu

Cell 513-470-2744

Larry Bennett is an attorney and Program Chair, UC Fire Science & Emergency Management, http://aerospace.ceas.uc.edu/FireScience. He has been certified as an Ohio volunteer Firefighter I, EMT-B for over 30 years, and is the author of the textbook, FIRE SERVICE LAW, published by Prentice Hall / Brady (2008; ISBN 0-13-155288-0), for use in the National Fire Academy distant learning course, “Political & Legal Foundations of Fire Protection.” In 2012, he authored the electronic textbook, EMS LAW – LEGAL LESSONS LEARNED, published by MBS Direct (1-800-325-5108) for use in National Fire Academy’s new course, Legal, Political And Regulatory Environment of EMS.

Articles in June newsletter / posted on UC web site: • UC Fire Science – Community Paramedicine seminar Aug. 21, 2015; bill introduced;• Chapter 1 – U.S. Supreme Court – felons can lawfully dispose of firearms;• Chapter 1 - U.S. Supreme Court – detaining motorist extra 7-8 min. K-9 search illegal;• Chapter 1 – OH - 911 dispatcher’s call back; murder’s comments are public record;• Chapter 1 – OH – Good Samaritan – no liab. for civilian caused injuries helping trucker;• Chapter 3 – NY - NSA collection telephone metadata exceeds USA PATRIOT Act;• Chapter 5 – OH – City has no immunity - ambulance driver turned without due regard;• Chapter 6 – OH – Firefighter gets $251,000 back pay; fired after new residency statute;• Chapter 6 – AK – FD pay Army Reservist $75,000; failed to rehire after deployment;• Chapter 6 – IL – General Assembly reduced FF & other pensions; viol. of State Constit;• Chapter 7 – AR – Jury’s $35,000 verdict reinstated for female FF; hostile workplace;• Chapter 8 – NY – Race – FDNY - city in settlement must also pay interest on pensions;• Chapter 13 – TN – Combative patient - EMS admin. drug to paralyze; led to death;• Chapter 13 – GA – Dying declaration – EMS may testify in trial of shooter;• Chapter 16 – OH – Fire Marshall fired, plead guilty – whistleblower has qual. immunity;• Chapter 16 – PA – Sup. Ct. to decide if union Pres. prop. disciplined – two hatter letter;• Chapter 16 – IL – FF properly disciplined – not reporting off-duty fight with off-duty PD.

Lawrence T. Bennett, Esq. June, 2015

UC FIRE SCIENCE: COMMUNITY PARAMEDICINE– AUG. 21, 2015 FREE SEMINAR; BILL INTRODUCED IN OHIO

On Aug. 21, 2015, UC Fire Science is holding its 5th seminar on Community Paramedicine, with speakers focused on NEW INCOME OPPORTUNITIES, including Fire & EMS department partnerships with hospitals, retirement centers, Councils on Aging, etc. http://ceas.uc.edu/content/dam/aero/docs/fire/CP%20Seminar.pdf

If you wish to attend, simply e-mail lawrenc.bennett@uc.edu. You can also earn 1-credit hour by enrolling in 20 FST 3043 (Section 002), at UC One Stop, attending seminar and submitting a short Term Paper about how your community might implement. https://onestop.uc.edu/classes.html

On May 15, 2015, the Ohio Fire Chiefs Association sent out a “Legislative Alert – Action Required.”

“We need you to contact your Ohio Senators by May 19th about the following issue that we are working on in Substitute House Bill 64, the state biennial budget bill:

Community Paramedicine:

The proposal will fill the healthcare gaps in some communities. • It’s “permissive” and NOT required• Care is provided under the guidance of your current medical director• Does not expand the scope of practice

CP can assist hospital systems in reducing the number of readmissions through close monitoring and/or follow-up of patients.”

See the one sentence proposed change to Ohio Revised Code: http://associationdatabase.com/aws/OFCA/asset_manager/get_file/101114?ver=1

File: Chapter 1, American Legal System

U.S. SUP. CT: BORDER PATROL AGENT – PLEAD FELONY MJ – FBI TOOK HIS 15 FIREARMS – RIGHT TO SELL THEM TODEALER OR OTHER INDEPENDENT BUYER

On May 18, 2015, in Tony Henderson v. United States, the U.S. Supreme Court (9 to 0; opinion by Justice Kegan) held that Mr. Henderson’s 15 firearms, held by FBI, may be transferred to others. Federal statute prohibits “possession” of firearms by felon, not “ownership” or transfer of ownership. http://www.supremecourt.gov/opinions/14pdf/13-1487_l6gn.pdf

Facts:

“The Federal Government charged petitioner Tony Henderson, then a U. S. Border Patrol agent, with the felony offense of distributing marijuana. See 21 U. S. C. §§841(a)(1), (b)(1)(D). A Magistrate Judge required that Henderson surrender all his firearms as a condition of his release on bail. Henderson complied, and the Federal Bureau of Investigation (FBI) took custody of the guns

Soon afterward, Henderson pleaded guilty to the distribution charge; as a result of that conviction, §922(g) prevents him from legally repossessing his firearms. Following his release from prison, Henderson asked the FBI to transfer the guns to Robert Rosier, a friend who had agreed to purchase them for an unspecified price. The FBI denied the request. In a letter to Henderson, it explained that ‘the release of the firearms to [Rosier] would place you in violation of [§922(g)], as it would amount to constructive possession’ of the guns. App. 121

Henderson then returned to the court that had handled his criminal case to seek release of his firearms. Invoking the court’s equitable powers, Henderson asked for an order directing the FBI to transfer the guns either to his wife or to Rosier. The District Court denied the motion, concluding (as the FBI had) that Henderson could not ‘transfer the firearms or receive money from their sale’ without ‘constructive[ly] possessi[ng]’ them in violation of §922(g). No. 3:06–cr–211 (MD Fla., Aug. 8, 2012), App. To Pet. for Cert. 5a–6a, 12a. The Court of Appeals for the Eleventh Circuit affirmed on the same ground, reasoning that granting Henderson’s motion would amount to giving a felon constructive possession’ of his firearms. 555 Fed. Appx. 851, 853 (2014) (per curiam).”

Holding: “By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it

interferes with a single incident of ownership - one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or another person’s) guns. *** That means, as all parties agree, that §922(g) prevents a court from ordering the sale or other transfer of a felon’s guns to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use. See Brief for United States 23; Reply Brief 12. In such a case, the felon would have control over the guns, even while another person kept physical custody. The idea of constructive possession is designed to preclude just that result, ‘allow[ing] the law to reach beyond puppets to puppeteers.’ United States v. Al-Rekabi, 454 F. 3d 1113, 1118 (CA10 2006). A felon cannot evade the strictures of §922(g) by arranging a sham transfer that leaves him in effective control of his guns. And because that is so, a court may no more approve such a transfer than order the return of the firearms to the felon himself. *** Finally, the Government’s expansive idea of constructive possession fits poorly with its concession that a felon in Henderson’s position may select a firearms dealer or other third party to sell his guns and give him the proceeds.

*** Accordingly, a court facing a motion like Henderson’s may approve the transfer of guns consistently with §922(g) if, but only if, that disposition prevents the felon from later exercising control over those weapons, so that he could either use them or tell someone else how to do so.”

Legal Lesson Learned: Congress can broaden the statute and bar not only “possession” of firearms by felons, but also require they permanently surrender all firearms to FBI. Note: “THE BRADY CENTER TO PREVENT GUN VIOLENCE” filed an amicus brief asking the U.S. Supreme Court to allow FBI to keep these firearms. http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/13-1487_amicus_brady.authcheckdam.pdf Brady Center is named after Jim Brady, who was shot in the head on March 30, 1981, during the assassination attempt on President Reagan. He was confined to a wheelchair, and died Aug. 14, 2014. The Brady Center web page sets out an admirable goal: http://www.bradycampaign.org/about-brady

“Brady has announced the bold goal to cut the number of U.S. gun deaths in half by 2025, based on an innovative and exciting strategy that centers on the idea of keeping guns out of the wrong hands through three impact-driven, broadly engaging campaigns: (1) a policy focus to ‘Finish to Job’ so that life-saving Brady background checks are applied to all gun sales; (2) to ‘Stop 'Bad Apple' Gun Dealers’ – the 5 percent of gun dealers that supply 90 percent of all crime guns; and (3) to lead a new national conversation and change social norms around the real dangers of guns in the home, to prevent the homicides, suicides, and unintentional shootings that happen every day as a result.”

File: Chapter 1, American Legal System U.S. SUP. CT: K-9 SEARCH OF VEHICLE AFTER WARNING TICKET ILLEGAL – MOTORIST HAD TO WAIT 7-8 MINUTES On April 21, 2015, in Rodriquez v. United States, the U.S. Supreme Court (6 to 3) held that the methamphetamines found in the car should have been suppressed, since the motorist had received a warning, and was unlawfully detained when he refused officer’s request to search the vehicle. The entire traffic stop took 29 minutes; it took 7 to 8 minutes after the warning was issued, waiting for back up officer to arrive, and K-9 dog to complete the walk around the vehicle. “We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” http://www.supremecourt.gov/opinions/14pdf/13-9972_p8k0.pdf

Facts:

“Just after midnight on March 27, 2012, police officer Morgan Struble [a K-9 officer] observed a Mercury Mountaineer veer slowly onto the shoulder of Nebraska State Highway 275 for one or two seconds and then jerk back onto the road. *** Struble approached the Mountaineer on the passenger’s side. After Rodriguez identified himself, Struble asked him why he had driven onto the shoulder. Rodriguez replied that he had swerved to avoid a pothole. Struble then gathered Rodriguez’s license, registration, and proofof insurance, and asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to doso, and Struble answered that he was not. Rodriguez decided to wait in his own vehicle. After running a records check on Rodriguez, Struble returned to the Mountaineer. Struble asked passenger Pollman for his driver’s license and began to question him about where the two men were coming from and where they were going. Pollman replied that they had traveled to Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they were returning to Norfolk, Nebraska. Struble returned again to his patrol car, where he completed a records check on Pollman, and called for a second officer. Struble then began writing a warning ticket for Rodriguez for driving on the shoulder of the road. Struble returned to Rodriguez’s vehicle a third time to issue the written warning. By 12:27 or 12:28 a.m., Struble had finished explaining the warning to Rodriguez, and had given back to Rodriguez and Pollman the documents obtained from them. As Struble ater testified, at that point, Rodriguez and Pollman ‘had all their documents back and a copy of the written warning. I got all the reason[s] for the stop out of the way[,] . . . took care of all the business.’ App. 70.

Nevertheless, Struble did not consider Rodriguez ‘free to leave.” Id.,at 69–70. Although justification for the traffic stop was ‘out of the way,’ id., at 70, Struble asked for permission to walk his dog around Rodriguez’s vehicle. Rodriguez said no. Struble then instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the patrol car to wait for the second officer. Rodriguez complied. At 12:33 a.m., a deputy sheriff arrived. Struble retrieved his dog and led him twice around the Mountaineer. The dog alerted to the presence of drugs halfway through Struble’s second pass. All told, seven or eightminutes had elapsed from the time Struble issued the written warning until the dog indicated the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine.”

Held (Justice Ginsburg writing majority decision):

“A seizure for a traffic violation justifies a police investigation of that violation. ‘[A] relatively brief encounter,’ a routine traffic stop is ‘more analogous to a so-called ‘ Terry stop’ . . . than to a formal arrest.’ Knowles v. Iowa, 525 U. S. 113, 117 (1998) (quoting Berkemer v. McCarty, 468 U. S. 420, 439 (1984), in turn citing Terry v. Ohio, 392 U. S. 1 (1968)). See also Arizona v. Johnson, 555 U. S. 323, 330 (2009). Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the

stop, Caballes, 543 U. S., at 407, and attend to related safety concerns, infra, at 6–7. See also United States v. Sharpe, 470 U. S. 675, 685 (1985); Florida v. Royer, 460 U. S. 491, 500 (1983) (plurality opinion) ‘The scope of the detention must be carefully tailored to its underlying justification.’). Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ Ibid. See also Caballes , 543 U. S., at 407. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” [Case remanded to determine if officer had reasonable suspicious that drugs were in the vehicle.]

Dissent [Justice Thomas]:

“Approximately 29 minutes passed from the time Officer Struble stopped Rodriguez until his narcotics-detection dog alerted to the presence of drugs. That amount of time is hardly out of the ordinary for a traffic stop by a single officer of a vehicle containing multiple occupants even when no dog sniff is involved. ***

Today’s revision of our Fourth Amendment jurisprudence was also entirely unnecessary. Rodriguez suffered no Fourth Amendment violation here for an entirely independent reason: Officer Struble had reasonable suspicion to continue to hold him for investigative purposes…. Officer Struble testified that he first became suspicious that Rodriguez was engaged in criminal activity for a number of reasons. When he approached the vehicle, he smelled an ‘overwhelming odor of air freshener coming from the vehicle,’ which is, in his experience, ‘a common attempt to conceal an odor that [people] don’t want . . . to be smelled by the police.’ App. 20–21. He also observed, upon approaching the front window on the passenger side of the vehicle, that Rodriguez’s passenger, Scott Pollman, appeared nervous. Pollman pulled his hat down low, puffed nervously on a cigarette, and refused to make eye contact with him. The officer thought he was ‘more nervous than your typical passenger’ who ‘do[esn’t] have anything to worry about because [t]hey didn’t commit a [traffic] violation.’ Id., at 34.”

Legal Lessons Learned: Arson investigators using K-9 dogs should carefully read this decision, and the 2013 decision in Florida v. Jardines, which held that detective improperly brought a K-9 dog onto front porch of a residence to smell for marijuana without probable cause. http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf

File: Chapter 1, American Legal System OH: 911 DISPATCHER’S CALL BACK IS PUBLIC RECORD – SON ADMITTED HE JUST STABBED FATHER TO DEATH On March 19, 2015, in The State Ex Rel. The Cincinnati Enquirer v. Sage, Slip Opinion No. 2015-Ohio-974, the Ohio Supreme Court (6 to 1) held that the Ohio Court of Appeals correctly concluded that the return call by a Butler County 911 dispatcher, where the son admitted, “I am a murder, and you need to arrest me,” is a public record under Ohio public records act, ORC 149.43. The Supreme Court found there was no evidence that the public release of the recording prior to the defendant’s trial would jeopardize his 6th Amendment right to selecting a fair jury of 12 impartial jurors. http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-974.pdf Facts:

“On June 17, 2012, Debra Rednour, a 9-1-1 operator for the Butler County Sheriff’s Office, answered an incoming 9-1-1 call. An unidentified female caller stated that there had been an accident, that her husband was not breathing, and that she needed an ambulance. Rednour dispatched the St. Clair Township Fire Department and a sheriff’s deputy to the address. Rednour also asked the caller several questions, but the caller abruptly hung up the phone without providing further information.

Rednour immediately attempted a callback to the original number. The first call resulted in no answer, so Rednour tried again. This time, a man identifying himself as ‘Michael Ray’ answered the phone. Rednour told Ray that she was with the Butler County heriff’s Office and that help was on the way. Ray replied, ‘I’m a murderer, and you need to arrest me.’ Rednour asked him what had happened. Ray stated, ‘I was caught drinking my dad’s ‘alcohol’ and “He came in and got mad at me, and I just snapped and stabbed him.’ Rednour then proceeded to ask Ray a series of questions, including ‘where did you stab him?’; ‘[w]here is the knife?’; ‘was this just a regular kitchen knife[?]’; ‘[i]s your dad breathing?’; ‘[w]here is your dad right now?’; ‘[c]an you see if he’s breathing?’; and ‘is the knife still in his chest?’ *** Prosecuting Attorney Michael Gmoser responded [to Cincinnati Enquirer’s request for recording of telephone call] denying McLaughlin’s request. Gmoser claimed that the return calls were both trial-preparation records under R.C. 149.43(A)(1)(g) and confidential law-enforcement investigatory records under R.C. 143.43(A)(1)(h) and thus were exempt from the public-records laws. *** Gmoser then filed a motion for a protective order with appellant/cross-appellee Judge Michael J. Sage, who had just been assigned to handle Ray’s then-pending murder trial.

In the motion, Gmoser asked the trial court to issue an order precluding dissemination of the second return call. [After a hearing, and listening to the recording in chambers, Judge Sage issued the protective order – tape recording will only be released on day of trial, immediately before it is introduced in evidence.]

Holding:

[Not 6th Amendment violation.] “All we have before us is the recording itself. And while we can certainly agree that the recording contains prejudicial information, that fact alone is insufficient for us to predict a Sixth Amendment violation. We still need to know whether this prejudicial information would create extensive publicity and whether this publicity would be so pervasive and negative that it would prevent Ray from finding 12 impartial jurors. See id. We cannot assume or speculate our way to these necessary findings; there must be some evidence in the record that speaks to the possible publicity and its effect on the jury pool.

***

[Not a trial-preparation record.] [t]he recording of the phone call is not a trial-preparation record. R.C. 149.43(A)(4) defines ‘trial preparation record’ as ‘any record that contains information that is pecifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.’ The recorded call does not meet this definition because it was not ‘specifically compiled in reasonable anticipation of * * * [a] criminal action or proceeding.’ R.C. 149.43(A)(4). Rednour testified that when she placed the return call, she had no reason to believe that a crime had taken place. Indeed, the caller had described the incident as an accident. Rednour further testified that the entire purpose of the callback and her questions to Ray was to assist the first responders and the victim, not to investigate a potential crime. *** [Not a confidential law enforcement record.] We similarly reject appellants’ argument that the return call qualifies as an exempt ‘[c]onfidential law enforcement investigatory record.’ R.C. 149.43(A)(1)(h). A ‘confidential law enforcement investigatory record’ is any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following: (a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised; (b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source’s or witness’s identity; (c) Specific confidential investigatory techniques or procedures or specific investigatory work product; (d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source. R.C. 149.43(A)(2). Appellants claim that disclosure of the recording would mean disclosure of ‘specific investigatory work product’ under subsection (A)(2)(c) of the statute. Beyond this bare assertion, though, appellants make no attempt to explain how the recording at issue actually constitutes law-enforcement investigatory work product. And we can find no justification ourselves.

[Enquirer awarded $1000 statutory damages, and attorney fees.] The protective order had no place in this public-records dispute. Mandamus actions resolve public-records matters; criminal trial motions do not. See Bond , 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, at ¶ 49-50. Thus, the protective order only served to saddle the Enquirer with more litigation and more attorney fees. These tactics do not demonstrate good faith by the prosecutor’s office, and the court of appeals was unreasonable in concluding otherwise. The office forced the Enquirer to incur additional legal fees. It should be responsible, in some measure, for the extra costs that it created.”

Legal Lessons Learned: Ohio has a broad public records statute, and this Ohio Supreme Court decision reflects the Court’s enforcement of this statute. Note: Some states have amended their public records statute so that recording of victims who call 911 are not released. http://www.ncsl.org/research/telecommunications-and-information-technology/confidentiality-of-911-call-recordings.aspx The Ohio General Assembly should consider such an amendment. For example, dissenting Justice Pfeiffer wrote in this case, “A person should be able to summon the help of police officers or firefighters without having his plea broadcast on the evening news. *** This case required no expert testimony. It required only a prosecutor trying to do the right thing and a trial judge who was willing, if necessary to preserve the Sixth Amendment rights of the defendant, to make a decision that would be unpopular with the local media. I would find that the trial judge appropriately attempted to preserve the defendant’s Sixth Amendment right to a fair trial in this case, and I accordingly dissent.” File: Chapter 3, Homeland Security NY: 2nd CIRCUIT – NSA COLLECTION OF TELEPHONE METADATA NOT AUTHORIZED BY USA PATRIOT ACT On May 7, 2015, in ACLU v. James Clapper, Director of National Intelligence, the U.S. Court of Appeals for the 2nd Circuit, located in New York City, held 3 to 0 that “the bulk telephone metadata program is not authorized by §215” of the USA PATRIOT Act of 2001. “This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation – a job in which, as the President has stated, “actions are second-guessed, success is unreported, and failure can be catastrophic” - with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance mechanisms.” http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf The Court described the metadata program:

“[T]he National Security Agency (‘NSA’) collects in bulk ‘on an ongoing daily basis’ the metadata associated with telephone calls made by and to Americans, and aggregates those metadata into a repository or data bank that can later be queried. ***

It is now undisputed that the government has been collecting telephone metadata information in bulk under §215 since at least May 2006, when the FISC [Foreign Intelligence Surveillance Court] first authorized it to do so…. *** Unlike what is gleaned from the more traditional investigative practice of wiretapping, telephone metadata do not include the voice content of telephone conversations. Rather, they include details about telephone calls, including, for example, the length of a call, the phone number from which the call was made, and the phone number called. Metadata can also reveal the user or device making or receiving a call through unique ‘identity numbers’ associated with the equipment (although the government maintains that the information collected does not include information about the identities or names of individuals), and provide information about the routing of a call through the telephone network, which can sometimes (although not always) convey information about a caller’s general location. According to the government, the metadata it collects do not include cell site locational information, which provides a more precise indication of a caller’s location than call‐routing information does. *** Americans first learned about the telephone metadata program that appellants now challenge on June 5,2013, when the British newspaper The Guardian published a FISC order leaked by former government contractor Edward Snowden. The order directed Verizon Business Network Services, Inc. (‘Verizon’), a telephone company, to produce to the NSA ‘on an ongoing daily basis . . . all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.’ ’’

Court’s holding:

“Thus, the government takes the position that the metadata collected – a vast amount of which does not contain directly ‘relevant’ information, as the government concedes – are nevertheless ‘relevant’ because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of ‘relevance’ is unprecedented and unwarranted

Legal Lessons Learned: The Court did not issue an immediate injunction, so metadata collections can continue. Note: Congress has renewed Sec. 215 seven times since it was established in 1978, and it will likely be renewed again prior to the June 1, 2015 expiration. Court referenced a bill pending before Congress, “USA FREEDOM ACT of 2015,” that would have telephone companies keep the metadata, and only disclose it when government obtains a specific FISC order. https://www.congress.gov/bill/113th-congress/house-bill/3361

File: Chapter 1 – American Legal System OH: GOOD SAMARITAN – NO LIABILITY UNLESS WILLFUL OR WANTON MISCONDUCT On Dec. 8, 2014, in Dennis Carter v. Larry Reese, Jr., the Ohio Court of Appeals for Twelfth Appellate District (Butler County), 2014-Ohio-5395, affirmed (2 to 1) the trial court’s grant of summary judgment for the Good Samaritan who tried to help truck driver whose right leg was wedged between loading dock and the semi-trailer. The citizen created more injuries by mistakenly backing up the truck, but no proof of willful or wanton misconduct. http://www.sc.ohio.gov/rod/docs/pdf/12/2014/2014-ohio-5395.pdf Facts:

“Appellant was employed as a truck driver for S&S Transfer, Inc. On April 24, 2012, appellant delivered an empty trailer to AIC Contracting, Inc., in Fairfield, Ohio. After unhooking the empty trailer, he pulled his tractor into AIC's loading dock area and hooked up another trailer. He drove the rig forward approximately four to six inches so he could close the roll-down back door to the trailer. He locked the tractor brake but left the trailer brake ‘open’ or disengaged. When he grabbed the trailer to pull himself up on the loading dock, his right leg slipped down between the loading dock and the trailer and he became stuck. He started beating on the doors of the loading dock and screaming for help, in order to get someone's attention. However, he would later testify at his deposition that he was not in pain at this time.

Approximately ten minutes after he started screaming for help, appellant saw a pick-up truck pull into a company across the street. He kept screaming to get the driver's attention. He then saw the pick-up truck come back out. The next thing he heard was the voice of a young man asking, ‘Can I help you?’ Appellant could not see the man because of the way in which his leg was pinned between the loading dock and the trailer, but he believed the man to be ‘young’ due to the sound of his voice. When the man asked appellant ‘what can I do?,’ appellant said to him, ‘get in my truck, move it forward about a foot, * * * but whatever you do, don't put it in reverse.’ Appellant heard the man say ‘no problem.’

The next thing appellant heard was his truck being ‘revved up.’ He then heard his truck being revved up again for a little bit longer, which began to cause him concern. He then heard his truck being revved up for a third time, and in between that revving, he heard the sound ‘psssssh,’ which signaled that the truck's air brake had been released. Within five seconds of that sound, the truck started rolling backwards. Appellant put both hands against the back of the truck, trying in vain to stop it. Appellant heard his leg break in three places, ‘pop, pop, pop,’ and then felt ‘sheer pain.’ Appellant ‘screamed [his] head off.’ He looked down and saw blood ‘just squirt everywhere down [his] leg.’ Thirty seconds later, he heard a man say, ‘Oh, I'm sorry, Bud. I can't get it in gear.’ Appellant told him, ‘It's too damn late now. You've done crushed my leg.’ The man, whom appellant did not see, replied ‘Oh, my God. Oh, my God. Oh, my God.’ Appellant

told the man to call 911. Appellant never saw the man who tried to help him and never heard from that man again.

When the ambulance arrived approximately four minutes later, another man, who was later identified as Jason Burnett, told the paramedics he could move the truck, which he then did, thereby freeing appellant. By this time, however, appellant had suffered considerable blood loss. Appellant was transported by helicopter to University Hospital where his right leg had to be amputated above the knee.

The man who tried unsuccessfully to help appellant was later identified as appellee. Appellee testified in his deposition that appellant was already injured when he arrived. Appellee acknowledged that he climbed into the cab of the semi-truck but decided not to try to drive it upon realizing that he did not know how to drive such a vehicle. Appellee testified that he went back to comfort appellant and called 911.”

Held: The Ohio Good Samaritan statute provides in Ohio Rev. Code 2305.23: “No person shall be liable in civil damages for administering

emergency care or treatment at the scene of an emergency outside of a hospital, doctor's office, or other place having proper medical equipment, for acts performed at the scene of such emergency, unless such acts constitute willful or want misconduct.

Nothing in this section applies to the administering of such care or treatment where the same is rendered for remuneration, or with the expectation of remuneration, from the recipient of such care or treatment or someone on his behalf. The administering of such care or treatment by one as a part of his duties as a paid member of any organization of law enforcement officers or fire fighters does not cause such to be a rendering for remuneration or expectation of remuneration. *** The Good Samaritan statutes in a substantial majority of jurisdictions (38) protect any layperson who can meet the statutory requirements. Id. However, a sizeable minority of jurisdictions (14) excludes laypersons from the class of persons protected under their Good Samaritan statutes and extends immunity protection only to certain classes of professionals, including physicians, nurses and emergency medical professionals. Ohio is not listed as one of the 14 jurisdictions whose statutes protect only specified professionals. Id., fn. 106. *** An emergency clearly exists where a man's leg is pinned between his semi- truck and a loading dock, yelling so loud for help he is heard across the street. Appellee's actions in trying to move the semi-truck constituted ‘emergency care’ as defined in R.C. 2305.23, because he was trying to resolve the emergency created by appellant. See Held v. City of Rocky River, 34 Ohio App.3d 35, 36, 38-39 (8th Dist.1986) (emergency situation clearly existed where firefighter had

been knocked down and pinned by a continuous stream of rushing water and off-duty firefighter came upon the scene and dragged the pinned firefighter out of the stream to safety, allegedly injuring him in the process; the off-duty firefighter thus rendered ‘emergency care’ to the allegedly injured firefighter for purposes of the Good Samaritan statute).”

Dissent: “Here, appellee clearly was not providing any care or treatment, let alone emergency medical care or treatment, to appellant when he attempted to drive appellant's semi-truck forward to free appellant's pinned leg, and therefore appellee should not be here.”

Legal Lessons Learned: Good Samaritan statutes generally protect those who seek to help others in emergency situations. In this case, another lesson – don’t try to operate a truck or other equipment unless you have experience. File: Chapter 5, Emergency Vehicle Operations; Chapter 13, EMS

OH: AMBULANCE DRIVER TURNED INTO SIDE OF VEHICLE – NON-EMERGENCY TRANSP - NO IMMUNITY FOR CITY On March 26, 2015, in Mary Dorsey v. City of Cleveland, the Ohio Court of Appeals for 8th District (Cuyahoga County) held (3 to 0) that the trial judge properly denied the city’s motion for summary judgment. The Ohio Revised Code requires ambulance drivers to “proceed with caution” and in this case, the ambulance driver came to a complete stop, but then turned left into the side of the motorist because he apparently didn’t see her. The personal injury lawsuit filed by the injured motorist against the City may proceed to a jury trial for damages. http://www.ethics.ohio.gov/education/factsheets/model_ethics_policy_for_local_agencies.pdf Facts: “On the afternoon of September 23, 2012, while traveling on Cedar Avenue near

East 33rd Street in Cleveland, Dorsey’s vehicle was struck by an ambulance driven by James Lang, an employee of the city. Dorsey sustained injuries from the incident. *** It is undisputed that the incident occurred while Lang’s ambulance was transporting Tashell Higgins to MetroHealth Hospital. The ambulance stopped at a stop sign before attempting to turn left onto Cedar Avenue. It collided with Dorsey’s vehicle in the intersection. According to the deposition of Jacklin Vannoy, Lang’s partner, the ambulance did not have its sirens or lights on because the patient was being transported in a manner commonly known as ‘routine.’

Dorsey gave a similar account of the incident. She was traveling at between 20 and 35 miles per hour westbound in the curb lane on Cedar near E. 33rd Street. As she approached the intersection of Cedar and E. 33rd Street, she saw an ambulance in a stopped position with no flashing lights or sirens activated. A few seconds later, when she ‘had already begun to enter the intersection,’ she looked to her left and saw the ambulance driver ‘intentionally accelerating across Cedar Avenue into the curb lane where [she] was driving.’ Dorsey alleged that in order to avoid being crushed by the large ambulance, she tried to speed up to get out of the way. The ambulance smashed in to the left side of her vehicle and pushed her vehicle onto the sidewalk. The ambulance driver, Lang, exited his vehicle and said to her ‘I didn’t see you.’ Lang repeated the statement to the paramedic in the back of the ambulance and also to the patient’s mother, who was driving her own vehicle and following the ambulance to the hospital.”

Holding:

“Here, however, the ambulance came to a complete stop before a stop sign. That stop might well have signaled to others on the road that the ambulance was not on an emergency run. After coming to a complete stop, Lang then accelerated and pulled into the intersection, apparently failing to see Dorsey’s vehicle, which had the right of way. These circumstances, coupled with the fact that Lang did not sound the horn to alert other drivers of the presence of the ambulance, raised an issue of material fact whether Lane ‘proceeded cautiously’ past the stop sign ‘with due regard for the safety of’ others on the road in compliance with R.C. 4511.03.

***

R.C. 4511.03 (‘Emergency vehicles to proceed cautiously past red or stop signal’) state (A) The driver of any emergency vehicle or public safety vehicle, when responding to an emergency call, upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety to traffic, but may proceed cautiously past such red or stop sign or signal with due regard for the safety of all persons using the street or highway. (Emphasis added.)

***

Under R.C. 2744.02(B)(1), although a political subdivision generally enjoys immunity from civil tort liability, the political subdivision is nonetheless liable for its employees’ negligent operation of a vehicle. The statute, however, provides three full defenses to this liability: (1) when the vehicle is operated by a police officer responding to an emergency call (R.C. 2744.02(B)(1)(a)); (2) when a firefighter proceeds to a fire in progress (R.C. 2744.02(B)(1)(b)); and (3) when emergency medical service personnel respond to a call for emergency medical care (R.C. 2744.02(B)(1)(c)). *** The defense regarding the emergency medical service (‘EMS’) has an additional requirement: the operation of the EMS vehicle must also comply with R.C. 4511.03, a statute that governs the operation of emergency vehicles. Schwarzbek v. Wauseon, 125 Ohio App.3d 736, 740, 709 N.E.2d 570 (8th Dist.1998). R.C. 2744.02(B)(1)(c) states:

(c) A member of an emergency medical service owned or operated by a political subdivision was operating a motor vehicle while responding to or completing a call for emergency medical care or treatment, the member was holding a valid commercial driver’s license issued pursuant to Chapter 4506. or a driver’s license issued pursuant to Chapter 4507. of the Revised Code, the operation of the vehicle did not constitute willful or wanton misconduct, and the operation complies with the precautions of section 4511.03 of the Revised Code. (Emphasis added.)

Legal Lessons Learned: drivers of emergency vehicles must drive with “due regard” and cities and other political subdivisions are not protected by sovereign immunity during non-emergency transports. File: Chapter 6, Employment Litigation; Chapter 17, Arbitration OH: RESIDENCY – AKRON TERMINATED FF AFTER NEW STATUTE – ARBITRATOR UPHELD - $251,000 BACK PAY On March 18, 2015 in City of Akron c. Akron Firefighters Association, the Ohio Court of Appeals for Ninth District (Summit County), held (3 to 0) that the trial judge properly upheld the arbitrator’s award of back pay. The City twice terminated firefighter Timothy Semelsberg for not residing in the City; the second termination was after the effective date of Ohio Revised Code 9.481, where Ohio General Assembly struck down residency requirements for charter and non-charter municipalities throughout Ohio. The Arbitrator had authority to award back pay for the second period of termination, even if the firefighter’s EMT certification had lapsed during this period. http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2015/2015-Ohio-994.pdf Facts: “In 2006, the Ohio Legislature enacted R.C. 9.481, which prohibits political

subdivisions in the State of Ohio from establishing residency requirements. The statute became effective May 1, 2006. *** Almost six months after the effective date of R.C. 9.481, the City of Akron terminated the employment of firefighter Timothy Semelsberger for a violation of the residency requirement within the City’s Charter. Shortly thereafter, the City reinstated his employment subject to a last chance agreement that provided, in part:

‘D. Mr. Timothy Semelsberger agrees that, by signing this Agreement, he acknowledges the fact that as a City employee, he is required to establish

residence in the City of Akron and maintain residency during his employment with the City as provided for in Akron City Charter, Section 106(5b).

E. Mr. Semelsberger is hereby warned that if he violates the provisions of Akron City Charter, Section 106(5b), he will be subject to discharge.’

In 2008, the Akron Fire Department ordered another investigation into Mr. Semelsberger’s residency, determined that he did not have a permanent residence within the City of Akron, and terminated his employment. Semelsberger grieved the termination unsuccessfully, and the Akron Firefighters Association advanced the grievance to arbitration on his behalf. After the Ohio Supreme Court upheld R.C. 9.481 [Lima v. State, Jan. 20, 2009; https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-2597.pdf ] – effectively invalidating Akron City Charter Section 106(5b) – the City offered to reinstate Mr. Semelsberger, but without any back pay. Mr. Semelsberger and the Union rejected the offer, and the arbitration proceeded. *** On May 17, 2012, after a second hearing, the arbitrator awarded Mr. Semelsberger $251,421.01 in back pay [for weeks of Jan. 30 – June 10, 2012] and ordered the City to ‘make the matching 25% contribution to the Grievant’s pension.’

Holding:

“Ohio’s public policy strongly favors arbitration, as expressed in the Ohio Arbitration Act codified in R.C. Chapter 2711. Taylor v. Ernst & Young, L.L.P., 130 Ohio St.3d 411, 2011-Ohio-5262, ¶ 18. Consistent with this policy, R.C. Chapter 2711 limits the jurisdiction of trial courts once arbitration has been conducted. *** The City and the Union agreed to binding arbitration as a dispute resolution mechanism when it agreed to the collective bargaining agreement. In doing so, ‘they agree[d] to accept the result and may not relitigate the facts as found by the arbitrator.” See Lauro [, 2007-Ohio-661] at ¶ 5.

*** It is true that Mr. Semelsberger allowed his [EMT] certification to lapse during a portion

of this timeframe. This Court must emphasize two things, however. First, there is no documented and well-defined public policy that prohibits the payment of back pay to a wrongfully terminated firefighter whose certification lapsed during his unemployment. Second, and of equal significance in the context of this case, is the fact that the City cannot use the cloak of public policy to seek a review of the merits of the arbitration award. ***

As noted in the award, the arbitrator considered this information in the context of the City’s determination to terminate Semelsberger despite what the arbitrator characterized as its questionable legality at the time. The arbitrator determined that when these circumstances were viewed together, the back pay award was warranted.”

Legal Lessons Learned: Ohio’s public policy strongly favors arbitrations. The arbitrator properly characterized the City’s decision to terminate the firefighter, despite the new Ohio statute setting aside residencies, as “questionable legality.” File: Chapter 6, Employment Litigation AR: FD FAILED TO REHIRE ARMY RESERVIST AFTER DEPLOYMENT - $75,000 SETTLEMENT WITH U.S. DOJ On May 5, 2015, the Civil Rights Division of the U.S. Department of Justice issued a Press Release announcing that the Bullhead City Fire Department has agreed to pay $75,000 as back pay and front pay damages to U.S. Army Reserve member Brett Guinan, under the Uniformed Services Employment and Reemployment Rights Act of 1964 (USERRA). http://www.justice.gov/opa/pr/justice-department-settles-lawsuit-against-bullhead-city-fire-district-arizona-enforce

Facts:

“In June 2013, while Guinan was serving his third deployment, BCFD eliminated Guinan’s Fire Inspector position and terminated his employment, claiming to have undergone a ‘reduction in workforce.’ Guinan’s Fire Inspector position, however, was the only job position eliminated in 2013. After Guinan’s position was eliminated, BCFD also continued to pay other people to perform Guinan’s Fire Inspector duties and continued to post new job openings on its website. The complaint further alleges that after Guinan returned from his third deployment, he notified BCFD that he was seeking reemployment. Despite Guinan’s efforts to be reemployed, BCFD refused to reemploy him as required by USERRA.”

Settlement:

“’The men and women who wear our nation’s uniform need to know that they will be protected from the types of injustice experienced by Mr. Guinan,’ said Principal Deputy Assistant Attorney General Vanita Gupta of the Civil Rights Division. ‘The Department of Justice, through its enforcement of USERRA, strongly supports the right of service members to retain their rightful positions in the workforce both while they serve and after they complete their military service to our country.”

Legal Lessons Learned: Congress enacted USERRA to protect reservists from discrimination; see http://www.dol.gov/vets/programs/userra/index.htm; and http://www.justice.gov/crt/spec_topics/military/and http://www.justice.gov/crt/about/emp/.

File: Chapter 6 – Employment Litigation

IL: LEGISLATURE VIOLATED STATE CONSTITUTION WHEN CUT RETIREMENT BENEFITS FOR FIREFIGHTERS On May 8, 2015, in In re PENSION REFORM LITIGATION v. Pat Quinn, Governor, State of Illinois, the Supreme Court of Illinois (7 to 0) struck down the 2014 statute that reduced benefits in four State pension plans. State Constitution restricted power of General Assembly to cut public pensions, in recognition by citizens that “when it came to retirement benefits for public employees, the legislature could not be trusted with more.” http://www.illinoiscourts.gov/Opinions/SupremeCourt/2015/118585.pd The Court held:

“Retirement annuity benefits are unquestionably a ‘benefit of contractually - enforceable relationship resulting from membership’ in the four State funded retirement systems. Indeed, they are among the most important benefits provided by those systems. If allowed to take effect, Public Act 98-599, would clearly result in a diminishment of the retirement annuities to which Tier 1 members of GRS, SRS, SURS and TRS became entitled when they joined those systems. As described earlier in this opinion, the new legislation directly reduces the value of retirement annuities for those members in no fewer than five different ways. While we presume statutes to be constitutional and must construe enactments by the legislature so as to uphold their validity whenever it is reasonably proper to do so (Wilson v. Department of Revenue, 169 Ill.2d 306, 310 (1996)), there is simply no way that the annuity reduction provisions in Public Act 98- 599 can be reconciled with the rights and protections established by the people of Illinois when they ratified the Illinois Constitution of 1970 and its pension protection clause. Those provisions contravene the clear requirements of article XIII, section 5, as set forth in the provision’s plain and unambiguous language and construed by the legion of cases we have just discussed. In enacting the provisions, the General Assembly overstepped the scope of its legislative power. This court is therefore obligated to declare those provisions invalid. *** Article XIII, section 5, of the Illinois Constitution (Ill.Const. 1970, art. XIII, § 5) expressly provides that the benefits of membership in a public retirement system ‘shall not be diminished or impaired.’ Through this provision, the people of Illinois yielded none of their sovereign authority. They simply withheld an important part of it from the legislature because they believed, based on historical experience, that when it came to retirement benefits for public employees, the legislature could not be trusted with more. *** For the foregoing reasons, the judgment of the circuit court declaring Public

Act 98-599 to be unconstitutional and permanently enjoining its enforcement is affirmed.”

Legal Lesson Learned: This decision may be helpful guidance in other States, particularly where there is a state Constitution protecting public pensions. File: Chapter 7, Sexual Harassment AR: SEXUAL HARASSMENT - $35,000 VERDICT REINSTATED AGAINST FD – SIGNS ON FIRE TRUCK AND IN BATHROOM On April 9, 2015, in Michelle J. Maliniak v. City of Tucson, the U.S. Court of Appeals for the Ninth Circuit (2 to 1; unpublished decision) held that the trial judge improperly granted judgment for the city, despite a jury verdict awarding her $35,000 for hostile work environment. http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/04/09/12-17763.pdf Facts:

“Maliniak was an engineer in the Tucson fire department. She filed her charge with the Equal Employment Opportunity Commission [within required] 300 days after finding a sign on a fire department Hazmat truck, as described below. At Maliniak’s assigned station, male firefighters repeatedly used the women’s bathroom, leaving it dirty and walking in on Maliniak. After Maliniak brought the issue to her supervisor’s attention, a captain put a sign on the women’s bathroom door that said ‘No Men.’ The next day, Maliniak found someone had written ‘for me’ next to ‘No Men.’ After finding the writing on the sign, Maliniak discussed the issue with the chief of the fire department, who circulated a memorandum reinforcing that the women’s bathroom is exclusively for women. Problems with the bathroom continued. *** Four months after the bathroom sign incident, Maliniak found a sign on a Hazmat truck in the course of her routine chores that said, ‘FU@# You Use Reverse B!*tch.’ A firefighter from a different shift had put the sign on the truck as a practical joke intended for another firefighter on his shift four days before Maliniak found it. The firefighters involved and their supervisors knew about the bathroom sign incident before the truck sign incident.”

Holding:

“Construing the evidence in the light most favorable to Maliniak, it was not unreasonable for the jury to conclude that the truck sign incident was related to the earlier bathroom sign incidents, and that all incidents were therefore part of the same actionable hostile work environment claim. *** [W]e reverse the [trial judge’s] grant of judgment as a matter of law and reinstate the verdict.”

Legal Lessons Learned: Jury’s will award damages when there is evidence of hostile work atmosphere. In addition to the $35,000 in damages, the City of Tucson will likely now be ordered to pay substantial attorney’s fees to plaintiff’s attorney. Note: See article by the organization, “Support Women In Uniform,” describing incidents the plaintiff allegedly faced in her 22 years in the fire service: http://supportwomeninuniform.vpweb.com/Maliniak-vs--City-of-Tucson.html

File: Chapter 8, Race Discrimination NY: FDNY RACIAL DISCRIM. IN HIRING –CITY MUST PAY INTEREST ON PENSIONS – “MAKE WHOLE” THE NEW HIRES On April 16, 2015, in United of America & Vulcan Society v. The City of New York, U.S. District Court Judge Nicholas G. Garaufis, Eastern District of New York, granted the U.S.’s motion for an order requiring the city to pay interest due on the claimant’s minimum employee pension contributions. http://nylawyer.nylj.com/adgifs/decisions15/050115garaufis.pdf On March 18, 2014, the city settled the lawsuit for about $98 million. Now the city will pay interest on pension contributions.

“Under the agreement, which must be approved by a federal judge, the city will pay about $98 million in back pay and benefits to black and Hispanic people who took civil service exams to become firefighters in 1999 and 2002, de Blasio's office said in a statement. The city will also implement reforms to the Fire Department of New York's recruiting policies to increase the number of minority firefighters.” http://www.reuters.com/article/2014/03/18/us-usa-new-york-fire-lawsuit-idUSBREA2H1QZ20140318

Facts: “In 2007, the United States brought suit against the City, alleging that certain

aspects of the City's policies for selecting entry-level firefighters for the New York City Fire Department (‘FDNY’) violated Title VII of the Civil Rights Act of 1964 (‘Title VII’), 42 U.S.C. §§ 2000e, et seq., as amended. (Comp!. (Dkt. 1).) Specifically, the United States alleged that the City's pass-fail and rank-order use of Written Exams 7029 and 2043 had an unlawful disparate impact on black

and Hispanic candidates for entry-level firefighter positions. The Vulcan Society, Inc. and several individuals intervened as plaintiffs …. *** In July 2009, the court granted summary judgment in favor of the United States's and [Vulcan Society], Plaintiff-Intervenors' (collectively, ‘Plaintiffs’) Title VII disparate impact claims, finding the City liable. (July 22, 2009, Mem. & Order (Dkt. 294).)

*** Over the City's objection, the court held that individual ‘make whole’ relief

would include - in addition to monetary (backpay and fringe benefits) relief and priority hiring relief - retroactive seniority for individual delayed-hire victims and non-hire victims granted priority hiring relief. (Id. at 22-31.)

*** The City also seeks to withhold interest on the claimants' minimum employee

pension contributions; meanwhile, the United States and Plaintiff-Intervernors take the position that the City should be responsible for these back interest payments. This constitutes the dispute currently before the court.”

Holding:

[City must pay interest]. “[I]n the court's view, claimants receiving retroactive seniority have neither failed to make payment nor delayed payment of their required contributions … since they were never given the opportunity to make such payments, having not been hired by the City due to the discriminatory exams. As the United States correctly explains, ‘[t]he cause of the “deficiency” is key. Here, it is the City, not the claimant, who caused the ‘deficiency'’ in the claimant's pension." (United States's Reply at 6 (internal scare quotes added).) Accordingly, the court will look to Title VII to determine where to place the responsibility for payment of back interest on claimants' pension contributions. *** Once this principle is taken into consideration, the proper resolution of the instant dispute is clear. If claimants had been hired as of their presumptive hire dates, they would have made their minimum employee contributions on the required dates, and those contributions would have accrued statutory interest as part of the Fund. The employees would have had no financial responsibility with respect to the 8.25% annually-compounding interest on their contributions. The City's discrimination is the cause of the delay in the contributions, and therefore also the resulting lack of accrued interest thereon, not any actions by claimants. Accordingly, to place claimants in the position they would have occupied but for the City's discrimination, they must be provided retroactive pension benefits, and they must be required to pay into their pensions only the same payments that they would have made had they been hired earlier-in other words, only the minimum employee contributions. The City must cover the unaccrued interest.”

Legal Lessons Learned: FD entrance examinations must be carefully drafted. It can be very expensive to “make whole” applicants who are later hired as firefighters. File: Chapter 13, EMS TN: COMBATIVE PATIENT – EMS USE SUCCINYLCHOLINE TO PARALYZE – DIES – EMS & PD REMAIN DEFENDANTS On April 9, 2015, in Estate of Dustin Barnwell v. Roane County, Tennessee, et al., a U.S. District Court judge for Eastern District of Tennessee, Knoxville, granted summary judgment for the County from this lawsuit under 42 USC 1983, but EMS and police officers are not dismissed. “The core of the plaintiff's claims are based on the defendants' decision to administer a paralytic drug to Mr. Barnwell despite the plaintiff's contention that there was no medical reason for doing so.” While EMS and police officers enjoy “qualified immunity” they will not be dismissed from the case since the complaint alleges they committed intentional tort of “battery.” Pre-trial discovery, including depositions may therefore proceed. http://leagle.com/decision/In%20FDCO%2020150410E41/ESTATE%20OF%20BARNWELL%20v.%20ROANE%20COUNTY Facts:

“In November 2011, Dustin Barnwell took eight Flexeril tablets and passed out on his couch at home. Concerned that he was overdosing, Mr. Barnwell's fiancée, Shashta Gilmore, called 911. Roane County police officers Richard Stooksbury and Mitch Grigsby were the first to respond. When they arrived, they found Mr. Barnwell unconscious on the couch in the living room. Ms. Gilmore warned them that when she had been able to wake Mr. Barnwell he was ‘very combative.’

The officers approached Mr. Barnwell and tried to wake him up by speaking to him and by shaking his feet. It worked. Mr. Barnwell woke up and became very combative, yelling and kicking at Officer Stooksbury. The officers attempted to restrain Mr. Barnwell by holding his arms, but they had difficulty calming him down. When the officers asked Mr. Barnwell what he had taken, he would not respond other than to shout and yell. Mr. Barnwell repeatedly fell in and out of consciousness throughout this process. Eventually, the officers "took Barnwell to the ground and controlled both of his arms" in an attempt to control his combative behavior.

Around this time, the first EMS paramedics, defendants Randle and Myers, arrived. The medics asked the officers to handcuff Mr. Barnwell so they could treat him. Still, after being handcuffed, Mr. Barnwell remained combative and would not calm down. Two more paramedics, defendants Cooker and Carter, arrived at Mr. Barnwell's house. Mr. Barnwell was still combative despite being restrained. He would not speak to the paramedics, he had highly elevated blood pressure, and his pupils were not reactive. The medics determined that Mr. Barnwell was possibly overdosing.

At this point, the medics inserted an IV and administered a drug called Succinylcholine to paralyze Mr. Barnwell. According to the defendants, this was a medical decision made by the medics. The plaintiff, on the other hand, asserts that the officers conferred with the medics and jointly decided to paralyze Mr. Barnwell.

The plaintiff contends that the drugs were administered at the urging of the officers, particularly Officer Stooksbury, and that the drug-induced paralysis was not based on any patient-oriented rational theory of medicine, but was punitive in nature or, at best, a dangerous method of dealing with unruly patients.

The paralysis prevented Mr. Barnwell from breathing on his own, so the medics inserted a tracheal tube to keep Mr. Barnwell from asphyxiating. According to the plaintiffs and their expert, it appears that, rather than correctly inserting the tube down Mr. Barnwell's trachea, the medics inserted it down his esophagus and into his stomach—where, for obvious reasons, it could not help Mr. Barnwell breathe. Mr. Barnwell then began suffering "cardiac issues" and the medics administered additional medications and began CPR. When brown fluid appeared in the tracheal tube, the medics removed the tube and placed it correctly down Mr. Barnwell's airway. Mr. Barnwell died shortly after arriving at the hospital. The parties dispute the actual cause of his death.”

Holding:

“According to Dr. Steven Perlaky's affidavit, submitted by the plaintiff, there is ‘no rational theory in the health sciences for paralyzing the lungs in [Mr. Barnwell's] situation.’ [R. 34, Page ID 208]. The defendants, however, argue that they ‘needed to cause paralysis . . . so that [they] could place a tracheal tube to assist with breathing and heart function.’ On its face, this argument makes little sense—the defendants appear to be claiming that they paralyzed Mr. Barnwell's functioning lungs so they could insert a tube to help his lungs function. At this stage in the case, the Court has no way of determining whether administering a paralytic to an individual in this type of situation is reasonable, or whether it constitutes excessive force. The medical necessity of such a procedure and the defendants' intent in performing it present material questions of fact central to the plaintiff's case. Summary judgment on the plaintiff's excessive force claim is therefore inappropriate. The defendants contend they cannot be held liable under the state-created danger doctrine because they did not "affirmatively act to create or increase the risk of injury" to Barnwell. They contend that they were simply providing him with medical care, which, regardless of how inept, cannot amount to a constitutional claim. In making this argument, the defendants miss the point of the plaintiff's claim. The defendants created a danger by allegedly paralyzing an individual and rendering him unable to breathe on his own despite there allegedly being no medical reason for such a procedure. Under the facts pled, viewed in a light most favorable to the plaintiffs, the defendants' affirmative act of paralyzing Mr. Barnwell placed him in danger. Again, this case revolves around the medics' and officers' intent—whether they paralyzed him in an effort to provide medical care, or whether they paralyzed him with punitive intent. This cannot be resolved at the summary judgment stage. Accordingly, the defendants' motion for summary judgment will be denied with respect to this claim. *** The defendants' qualified immunity defense is unavailing. Qualified immunity analysis is a two-step process, where the court considers (1) whether the defendant's action violated a constitutional right; and (2) whether that right was clearly established such that a

reasonable officer would understand that he is violating it. Grawey v. Drury, 567 F.3d 302, 309 (6th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). There is little question that administering paralytic drugs to an individual for no medical reason other than to punish or stop an annoyance (as alleged by the plaintiffs) could be found by a jury to be an excessive use of force in violation of the Fourth Amendment. Moreover, the Sixth Circuit has repeatedly stated that "the right to be free from excessive force is a clearly established Fourth Amendment right." Champion v. Outlook Nashville, Inc., 380 F.3d at 902 (quoting Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001)).”

Legal Lessons Learned: Use restraints whenever possible. When thinking about paralyzing the patient, consider calling Medical Control for advice. EMS drug protocols will be a critical part of the pre-trial discovery in this case. File: Chapter 13, EMS

GA: DYING DECLARATION – PARAMEDICS CAN TESTIFY ABOUT VICTIM’S COMMENTS IN MURDER TRIAL On May 11, 2015, in Hager v. The State, the Georgia Supreme Court (7 to 0) upheld the murder conviction of Kelvin Hager, holding that the trial judge correctly authorized paramedics to testify about the victim’s dying comments that his friend, Kelvin, shot him. Hager is now serving life in prison. http://www.gasupreme.us/sc-op/pdf/s15a0450.pdf Facts: The deceased, Rashad Sampson, worked at a Target store in Atlanta with Kelvin Hager. On Dec. 28, 2009, Sampson told his mother he was getting a ride home by Hager. He was shot four times and thrown out the vehicle. A responding police officer testified that Sampson “had a great sense of dying and kept asking is he going to die.” At the trial, paramedics also testified.

“The paramedics testified that they understood Sampson to identify the shooter as someone named either Kelvin or Calvin. He told them he was shot with a .45 caliber weapon and that he could not believe ‘that his friend shot him.’ He further told him that he and his friend or co-worker were riding in a car and that his friend or co-worker shot him and threw him out of the vehicle. One of the paramedics testified that Sampson was absolutely certain who shot him and by what type of gun.”

Holding:

The Georgia code, OCGA 24-3-6, provides:

“ ‘Declarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide.’ ***

It is well-settle that a statement which qualifies as a dying declaration pursuant to the parameters set forth in OCGA §24-3-6 is admissible as an exception to hearsay.”

Legal Lessons Learned: Dying declarations are admissible in evidence. A best practice is to document the dying declarations in the run report, “quoting” the actual words of the victim. File: Chapter 16, Discipline OH: STATE FIRE MARSHALL FIRED – PLEAD GUILTY AFTER ANONYMOUS PHONE CALL TO OIG – CAN’T SUE WHISTLEBLOWER On April 28, 2015, in Anthony Castelvetere v. Phil Messer & City of Mansfield, the U.S. Court of Appeals for 6th Circuit (3 to 0; unpublished decision) affirmed the dismissal of the lawsuit by U.S. District Court. The plaintiff, while off duty, sold uniforms to police and fire departments, and complained to City Council of Mansfield that their Police Chief was buying uniforms from a competitor. Court of Appeals held that even if it was the Police Chief who made the anonymous phone call to the OIG, he enjoys “qualified immunity” from liability. http://www.ca6.uscourts.gov/opinions.pdf/15a0306n-06.pdf Facts:

“After plaintiff Anthony Castelvetere was terminated and pleaded guilty to several misdemeanors arising from his official misconduct while employed by the State of Ohio, he, his wife Kim Castelvetere, and their business, Safety Service Attire, filed this claim, alleging that defendant Phil Messer’s actions [Police Chief of City of Mansfield] caused the investigation leading to Anthony’s termination and conviction. Plaintiffs claimed that Messer placed an anonymous phone call alerting officials to Anthony’s misconduct in retaliation for Anthony exercising his free speech rights. Plaintiffs asserted that Messer’s alleged actions resulted in a violation of Anthony’s free speech and due process rights.

***

From 2003 until 2011, Anthony was employed by the State of Ohio as a Fire Marshal. In this role, Anthony was required to inspect buildings and enforce fire codes across several Ohio counties. In 2005, Anthony and Kim founded a business in Mansfield called Safety

Service Attire (‘SSA’), which sold uniforms and equipment used by local police and fire departments. One of SSA’s clients was the Mansfield fire department; however, SSA did very little business with the Mansfield police department. *** On August 4, 2008, Anthony and Kim attended a Mansfield City Council meeting, at which Messer was present. There, they publicly complained that they believed Messer was ‘pushing business away’ from SSA to Richland Uniform. On August 7, 2008, someone anonymously called the office of the Ohio Inspector General (‘OIG’). The anonymous call was received by defendant James Wernecke, a captain with the Ohio Highway Patrol who was working for the OIG at the time. According to Wernecke, the caller accused Anthony of conducting private business on state time using state equipment; specifically, the caller accused Anthony of soliciting business for SSA while visiting local fire departments in his role as a fire inspector. The caller also accused Anthony of doing work for his second job at Mansfield Motor Speedway while on state time.

The identity of the anonymous caller has not been established. However, Anthony believes that it was Messer retaliating against Anthony and Kim for their complaints at the city council meeting. The basis for this belief is that, according to Anthony, Wernecke and Messer are friends, and the timing of the anonymous phone call was mere days after his complaint at the city council meeting. In any event, the anonymous phone call prompted Wernecke to begin a criminal investigation into Anthony’s activities by emailing a report of the anonymous phone call to others in the OIG. The investigation resulted in criminal charges; on October 21, 2010, an Ohio grand jury indicted Anthony with multiple felony offenses, including theft in office, records tampering, and theft of a motor vehicle. Ultimately, Anthony pleaded guilty to misdemeanor offenses, including dereliction of duty and unauthorized use of a motor vehicle. On August 12, 2011, Anthony was terminated from the State Fire Marshal’s office.”

Holding:

“Regardless, we agree with the district court that Messer is entitled to qualified immunity. The doctrine of qualified immunity ‘protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal citation and quotation marks omitted). *** The fact that Anthony was ultimately charged and convicted of crimes arising from the allegations contained in the anonymous phone call is fatal to his § 1983 claim. That is because the existence of probable cause supporting the indictment in his criminal case makes it impossible for him to establish that his prosecution was caused by the anonymous phone call. Therefore, because Anthony has failed to establish an essential element of a retaliation claim, see Sowards, 203 F.3d at 431, we cannot conclude that a constitutional violation occurred for purposes of our qualified immunity analysis. See

Gaspers, 648 F.3d at 412. In other words, because Anthony’s retaliation claim fails as a matter of law, Messer is entitled to qualified immunity.

*** Finally, we address Anthony’s claims against the City itself. A municipality, as opposed

to an individual government official, can be liable under § 1983 ‘only if the plaintiff can demonstrate that his civil rights have been violated as a direct result of that municipality’s policy or custom.’ Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 900 (6th Cir. 2004) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978))(emphasis added). Although the City of Mansfield was named as a defendant, Anthony failed to identify in the district court any policy or custom of the City that resulted in a violation of his rights.”

Legal Lesson Learned: Off-duty business interests, closely related to a fire marshal’s “day job” can lead to conflicts of interest and criminal misconduct. Note: FDs should consider adopting an ethics policy concerning reporting of outside business interests that may be a conflict of interest. See, for example, the Ohio Ethics Commission’s “Model Policy.” http://www.ethics.ohio.gov/education/factsheets/model_ethics_policy_for_local_agencies.pdf File: Chapter 16, Discipline PA: TWO HATTER – STATE SUPREME COURT TO HEAR IAFF APPEAL AFTER UNION OFFICER DISCIPLINED On May 5, 2015, the Pennsylvania Supreme Court agreed to hear the IAFF’s appeal in Chambersburg Borough v. PA Labor Relations Board. The union is appealing from the Dec. 4, 2014 decision by the PA Commonwealth Court (3 to 0), which held that the IAFF had committed an “unfair labor practice” under PA laws when IAFF Local’s President (Captain) sent letter to 200 IAFF members to not respond mutual aid into the Borough, and that FD had properly suspended the Captain for 240 hours. http://www.pacourts.us/assets/opinions/Commonwealth/out/2008CD13_12-4-14.pdf Facts:

[The Borough had informed IAFF President (Captain) Patrick Martin they may be laying off career FF because of financial problems. On Oct. 26, 2011, Patrick Martin sent a letter to about 200 career FF / IAFF members who also volunteer in the area to “refraining from providing volunteer fire fighting services to the Borough of Chambersburg.”] The Borough relies on heavy rescue mutual aid coverage from Franklin FD.

“Of those fourteen volunteers who respond to Borough emergencies, twelve of them are IAFF members. (Final Order at 2.) Martin’s Letter was received by all of the Franklin members who are also IAFF members. (Final Order at 2.) Therefore, twelve of the fourteen Franklin volunteers who respond to calls within the Borough were affected by Martin’s Letter, leaving only two members able to continue to provide volunteer fire fighting services within the Borough.”

Holding By Commonwealth Court (3 to 0)

[The IAFF and Captain Martin filed charges with State Labor Relations Board, which ruled in their favor. The Borough appealed to Commonwealth Court, which reversed the Board.]

“The foregoing supports the conclusion that Martin’s Letter induced the Franklin volunteer firefighters to withhold essential firefighting services in order to force Franklin to abandon its obligations under the mutual aid agreement between the Borough and Franklin. In other words, the objective of the Letter was to force Franklin to refrain from dealing with the Borough in accordance with the mutual aid agreement so that the Borough would no longer have the equipment and manpower necessary to protect its citizenry. This reduction in equipment and manpower would force the Borough not to furlough paid firefighters. As such, the Union engaged in a secondary boycott when it sent the Letter to the Franklin volunteer firefighters, who are members of the IAFF, inducing them to refrain from responding to fires in the Borough.”

Legal Lessons Learned: The PA Supreme Court may provide helpful guidance on controversial issue of asking career FF not to respond to a certain jurisdiction on mutual aid while serving as volunteer FF. [Note: See IAFC’s 2008 position statement on “Two Hatter” and IAFF’s Response: http://www.firerescue1.com/official-announcements/437344-IAFC-Releases-Statement-on-Individuals-Rights-to-Serve-Their-Communities-in-Multiple-Capacities/.] File: Chapter 16 - Discipline IL: DISCIPLINED FOR NOT REPORTING OFF-DUTY FIGHT IN BAR BY FF WITH OFF-DUTY PD – NO VIOL. CONSTITUTION On April 23, 2015, in Thomas Bensfield, William Ruska, A.J. Ruska and Ray Williamson v. Village of Riverside & Fire Chief Spencer Kimura, U.S. District Court Judge Robert Gettleman, Northern District of Illinois, No. 14 C 5329, dismissed the final claim in the firefighters’ lawsuit seeking administrative review of their discipline. Firefighter A.J. Ruska received 21 day suspension for not reporting the fight. The Court found that the FD’s Code of Conduct, and the FD’s SOP which prohibit conduct “tending to bring discredit” on FD, did not violate the U.S. Constitution for being overbroad and vague. Facts:

“Plaintiff [A.J. Ruska] is a firefighter for the Riverside Fire Department (‘RFD’). Kimura is the chief of that department. On December 14, 2013, plaintiff was at a North Riverside

bar with several other firefighters. On that night, one of the other firefighters got into an altercation with off-duty Cicero police officers. Plaintiff failed to report the incident and was suspended for twenty-one days for having violated Section 500.2.2 of the Code and Section 510103.001 of the SOP. The relevant portion of the Code provides: "Always conduct myself, on and off duty, in a manner that reflects positively on myself, my department and the fire services in general. Accept responsibility for my actions and for the consequences of my actions." The relevant portion of the SOP provides "Members of the Fire Department shall be strictly accountable for disorderly, disgraceful, or unlawful conduct or for the commission of any act tending to bring discredit or reflection upon the department while on or off duty. Additionally, no member shall engage in any conduct, on or off duty, which might adversely affect the morale or efficiency of the Fire Department."

Holding:

“Plaintiff first argues that the Code and SOP are overly broad. ‘The overbreadth doctrine is strong medicine that should be employed with hesitation, and then only as a last resort.’ Ctr. for Individual Freedom, 697 F.3d at 476 (7th Cir. 2012) (internal quotation marks omitted). *** ‘[T]he government has greater latitude in formulating personnel regulations governing police and fire departments than it might otherwise have.’ Waters v. Chaffin, 684 F.2d 833, 840 n.14 (11th Cir. 1982). In the instant case, the Code prohibits conduct that negatively reflects on individual firefighters or on the department and fire services. The Code then requires that firefighters take responsibility for and face the consequences of their actions. Similarly, the SOP ensures that firefighters not engage in ‘disorderly, disgraceful, or unlawful conduct’ or conduct that tends to ‘discredit’ or bring ‘reflection upon’ the RFD. The SOP also prohibits firefighters from engaging in conduct that may harm the RFD's morale or efficiency. These admonitions serve to retain public trust in, ensure the efficiency of, and maintain the discipline of the RFD, all of which are ‘particular concerns’ of fire departments. See Aiello v. City of Wilmington, Del., 623 F.2d 845, 855 (3d Cir. 1980). Because the Code's and SOP's provisions bar a significant range of conduct that could harm these legitimate interests, their permissible sweep is broad. *** Plaintiff's last argument is that the Code and SOP are unconstitutionally vague. *** Plaintiff argues that the Code and SOP are vague because they do not detail the prohibited conduct as much as he would like. But government regulations need ‘not spell out in detail the conduct that is proscribed.’ Everly, 456 N.E.2d at 997. Indeed, ‘[i]t is not feasible or necessary for the Government’ to do so. Bence v. Breier, 501 F.2d 1185, 1195 (7th Cir. 1974). Plaintiff also contends that the Code and the SOP are vague because they rely on general categories. Again, he is wrong. ‘The most conscientious of codes that define prohibitive conduct of employees includes “catchall” clauses prohibiting employee “misconduct,” “immorality,” or “conduct unbecoming.” Id. Finally, plaintiff asserts that

the Code and SOP cannot use phrases that require a firefighter to consider how others perceive him or have ‘some sort of existential understanding . . . .’ However, many of the words and phrases used in the above examples — such as disrepute, discredit, or good of the department — have just such characteristics. Neither the Code nor the SOP is vague.”

Legal Lessons Learned: Catchall clauses like “conduct unbecoming” are enforceable.

Lawrence T. Bennett, Esq. Program Chair Fire Science Department College of Applied Science 2220 Victory parkway Cincinnati, OH 45206

Tel 513-556-6583 Cell 513-470-2744

lawrence.bennett@uc.edu