Firefighter Training, Firefighting, Legal

Burning Issues: Play Nice in the Sandbox

By: Lauren Keyson

An Interview with Jerry Naylis, member of the New Jersey Fire Safety Commission and has served as the president of the International Association of Arson Investigators, Inc.

There has been a major shift in how evidence can be introduced in a fire investigation case, due in large part to the Merrill-Dow Pharmaceuticals, Inc. vs. Daubert Supreme Court decision. While expert witness testimony has always been a crucial factor in the majority of fire investigations, this decision forced scrutiny of the qualifications, methodology, and findings of fire investigators. Now investigators must establish reliability of their testimony that takes into consideration factors of technique testing, peer review, error potential, and general acceptance in the discipline. Because of this, it is important that evidence not be changed or moved and that rigorous documentation be maintained.

What all this boils down to is that an investigator has to be able to validate his testimony and that it has to be reliable in the scientific sense. He has to be able to rely on testing, including the ability to replicate that particular thing that occurred. So if the investigator said that he was able to ignite a liquid, then he would have to show that he either ignited the liquid or has a test that shows that that liquid was ignitable. His past experience and training are no longer keys to providing expert testimony.

A fire investigator now has to accomplish his mission of finding the truth under these constraints, as well as other factors that could hinder the investigation-including having evidence moved or changed, having agencies working in parallel instead of in conjunction with each other, and having a low priority put on fire investigation by various agencies including the fire department and law enforcement. Jerry Naylis believes that the best way to meet the reliability terms outlined by the Daubert decision is by cooperation-within the fire service, in conjunction with other agencies, and by firefighters working outside the confines of their duties. The net result of this type of cooperation would be the sharing of tools, information, and data.

But Naylis is aware of a reluctance within the fire service when it comes to documentation: “Many firefighters don’t want to share their observations at a fire scene,” he says. “They want to go in, put out the fire, and go home. They don’t want to be called in to testify. A firefighter would rather crawl over glass in bare skin than do the paperwork.”

LAUREN KEYSON, FIRE ENGINEERING: So why does the fire service need to put more of a priority on fire investigation?

JERRY NAYLIS, deputy chief, Bergenfield (NJ) Fire Department: It starts out with fire departments actually identifying that a fire was in fact unintentional or intentionally set and starting to do investigations. If no investigation is done, and then a pattern of fires develops, it is difficult to go back and try to identify that, in fact, a particular individual was responsible for all the previous fires. If those fires were never investigated, then you have no determination. If you have no determination, then you have no case.

I had a case when I was working in Atlantic City where three of the firefighters stepped forward and identified an individual they had seen at previous fires. What we ended up doing was apprehending that individual, and he ended up pleading to setting that particular fire. Subsequently, we learned that he had set 27 other fires, including one that caused a firefighter to go off on a line-of-duty injury. If we had not investigated those fires or, even worse, if we had just made some false assumptions and incorrectly identified those fires, we never would have been able to tie that together and convict him of those particular arsons. So you need to start at the very beginning by doing the job and by doing a correct analysis and identification of a fire. If you are not really sure, it’s okay to say, “I don’t know.”

LK: Do you feel it is important that someone who starts a fire go to jail-even if that individual is a juvenile and no injuries result?

JN: If an individual is responsible, societal laws say that he should be apprehended, prosecuted, and made to pay penalties for what he’s done. In some cases, that means incarceration; at other times, there are monetary penalties.

LK: Why do you think the fire service puts such a low priority on fire investigation?

JN: I think there are multiple demands placed on the fire service today and, unfortunately, we are dealing with dwindling resources. The fire service is constantly told to do more with less, which is difficult at best. You don’t do more with less; you do less with less. You might see some economies of scale in efficiencies in the short run-and I don’t think it’s bad to try and challenge ourselves and find out how we can better our work product and create better efficiencies. But ultimately, if you reduce resources, you are going to reduce the ability of an agency to conduct investigations or to do the other mission-critical types of things they do.

LK: According to the Essentials of Fire Training, there are 12 typical duties a Firefighter I and a Firefighter II are expected to perform. These include responding to fire alarms, removing people from danger, performing salvage operations, relaying instructions, and ensuring safekeeping of fire department property. But fire investigation is not listed. Why do you think this should be listed as a mission-critical task to perform?

JN: I’m not just looking at firefighters; I’m looking at the fire service. And I would say that one of the most important jobs a fire department can do is prevent fires. How do you prevent fires? By identifying those things that cause fires to happen. In fact, in a landmark Supreme Court decision in 1978, Justice Blackmun said that the reason we conduct fire investigations is to prevent future fires from occurring. That is the first item that he pointed to. So I think it’s absolutely critical that a fire department investigate every fire to the best extent possible.

I’ll go back to that case in Atlantic City. It wasn’t in those three firefighters’ job titles to step forward and say, “I saw this guy at another fire.” But in their basic training program they were told that if they ever saw anything they should bring it to the attention of the fire investigator, because that is a critical piece of information. They said, “We remembered what we were taught in the training academy-that’s why we brought it forward.”

And that goes back to that whole issue of cooperation. You have to break down those barriers where people think, “That’s not my job; that’s somebody else’s job.” Actually, all of this is all our jobs, and we have an opportunity to impact each other’s jobs all the time. So if a firefighter can give me a piece of data that is going to help my investigation, that’s great. And if during the course of my investigation I find a prevention strategy that will be enhanced by doing something differently, I owe it to the people in prevention to let them know that this is what they can do to enhance their particular operation.

LK: Can’t cooperation sometimes be seen as stepping on someone’s toes?

JN: Some people who are protective of their kingdoms and fiefdoms might feel that way. I don’t share that viewpoint, because I think that we are all in this together. We have to cooperate because, again, we have shrinking resources and we have to find ways to make better use of what we have.

LK: How does the idea of juvenile firesetters work into the theme of cooperation?

JN: If you look at the data compiled by the U.S. Fire Administration, you’ll find that most intentional fires are set by juveniles. And if you look at what fire departments are doing in the area of juvenile firesetter intervention, what you’ll find is that most departments are doing little or nothing. What you find is, if a juvenile who sets one fire doesn’t have any intervention occur, he is very likely to set more fires. And there’s a natural progression where he will set more and more fires. And if this is not dealt with, ultimately he will start setting structures on fire. Then firefighters and civilians get hurt and killed, as well as his own family members. So we have to address the issue of juvenile firesetting. We must implement intervention strategies. First we have to identify the problem, then we have to identify the individual, and then we have to implement an intervention strategy. If we don’t, what’s going to happen is we’re going to have more fires started by those juveniles.

This goes to the issue of cooperation. In the juvenile programs to which I have been exposed, you have cooperation between not only the fire service but also law enforcement-and, in particular, juvenile officers who have developed a specific interest in this area-and those groups that reach out to the mental health community for assessment, intake, and intervention programs. Groups come together to work for the good of the child. Where you don’t see this happening is where you see problems occurring in more and more fires. Again, it’s a question of how much in the way of resources are we going to dedicate to address this particular issue?

LK: Why do you think juveniles start fires?

JN: Actually, there are some well-documented reasons. You have one group of curiosity firesetters. Quite honestly, most people are curious about fire. Fire is all around us throughout our lives, even very early on. You think about when we celebrate our first birthday we light a candle on the cake and everybody looks at it. That’s often the first exposure we have. And we have fire all around us-stoves, fireplaces, candles, cigarettes. And juveniles get curious and they experiment, and that’s not a bad thing. Parents should show them the right way to use fire and also how bad fires can be.

You also have juveniles who use fires to express frustration-they are looking for help, and the fire is the call for help. You also have kids with urges and impulses they can’t control. And they use fire as a mechanism to release that frustration.

LK: How do you trace a fire back to a juvenile?

JN: You have to read the fire scene, and you can identify certain aspects that lead you back to a juvenile. This could be anywhere from two to three years old to 17. To give you an example, there have been fire situations where a child would play with a lighter, turn it upside down, and roll it as if it were a sparking toy. This is one of the reasons the CPSC went to the child resistant lighters, where it takes two actions to light. That helps to eliminate that particular type of issue.

You also have some cases where you see fires lit in a child’s room. Or you find a small burn mark in a closet or on a piece of clothing, a doll, or a toy. When a parent sees that, he should question it. If parents see more of this, they should be even more aware. They shouldn’t just say, “Oh there’s a burn mark on the couch. I wonder how that got there.” You should ask the juvenile how that happened.

LK: In the case of these juvenile firesetters, do you feel law enforcement, as well as the fire service, puts a lack of priority on the investigations?

JN: Yes, in the case of juveniles and arsonists, often law enforcement entities feel that if nobody got hurt, it’s not a big deal-so why make a big fuss? A large portion of the law enforcement agencies feel that arson is not as important or critical to what they do as other crimes, such as murder or rape. Some agencies dismiss arson altogether and say that it’s really a fire department issue, and, “We don’t get involved in that unless somebody gets killed by the fire.” So they find reasons to say it’s someone else’s issue and that they shouldn’t have to put their resources to bear on it.

LK: How can that be changed?

JN: We have to constantly educate people in law enforcement as to the issues surrounding arson and how we can prevent fires-that fire investigation is in fact part of their mission, as well as a critical aspect of their job, despite what the myths from years past might be. The fact is, arson is a legal problem and rightly deserves a place in the criminal justice system.

LK: You also said that the fire service itself does not think that fire investigation is a priority. How can you get law enforcement to change if the fire service doesn’t believe there is a need for it?

JN: We must train our firefighters as well. Many fire departments are now incorporating some basics of fire investigation into the Firefighter I and basic fire training programs. And departments are encouraged to have officers who have taken fire cause determination classes so that they can do an adequate job of initially assessing a fire. Unfortunately, not all fires are investigated the way they should be because there is inadequate predetermination made on the case, which again leads to problems with evidence and, downstream, with collecting insurance proceeds. It all comes back to the issue of cooperation.

LK: What about various agencies that might thwart a fire investigation by going to a fire scene with their own agenda?

JN: The problem that I’ve seen is that agencies will go in and conduct an investigation, and they will break apart a scene and they will take certain parts of the scene. It makes it next to impossible for subsequent investigators to come in after the fact and do their analyses or come to a determination as to how the fire occurred. Sometimes, the destruction of evidence is done innocently-someone will see an outlet or an appliance that may have been involved in a fire and thinks it would be nice for a fire prevention display. The homeowner has no idea of why it should not be removed and says, “Sure, take it.” Subsequently, the insurance investigator comes in after the fact, looks for it, and says, “Where is it? I can’t find it. How can I determine if it was the outlet, the extension cord, or the appliance that was the cause?” And no one can tell you, because the evidence is sitting in a fire prevention display! Or it may not even make it to the display, because someone decides to throw it out. Then the evidence is gone for good.

LK: So you believe cooperation is the key to successful fire investigation?
JN: If you think about things in a perfect world, we would all cooperate with everyone. We were told when we were little kids, “When you go in the sandbox, you play nice.” You share your toys-in this case, you share your equipment, information, and data. In the world of fire investigation, people should be willing to share data and information-what they know or don’t know. I’m not trying to make it difficult for people. Ultimately, what we are looking for here is the truth-what really happened. What is the problem? Is it an individual who is responsible? It could be a criminal act, or it could be a harmless mistake. But we should know that a person is responsible.

On the other hand, if it’s a mechanical or product problem, we need to know that. If it’s an act of nature, then let’s find out. Was it a lightning strike? But there are other issues that impact us-not just how the fire was set. There may be other tangential issues that impact us because of the investigation. For example, if the building was sprinklered, and the sprinklers didn’t work, was it because of bad design or water supply? Was there a change of occupancy? Is there a problem with what’s being put in the building? Is it the furniture or the building products? Is it the construction material? Unless you do a complete analysis, you’ll never know; that’s why people have to start working together and identify ways to help each other.

For example, you go in and do an investigation. You need to go in and adequately document everything you found on that scene. Unfortunately, sometimes people don’t take the right measurements or tell you the right things. They don’t support how they came to a particular conclusion. So people at the next level are left to ask you how you could come to this conclusion when you don’t have the connection you need.

LK: How does the issue of safety work into the idea of cooperation?

JN: Safety is another emerging issue. We’re seeing investigators starting to exhibit some health problems. And we believe intuitively that it’s the result of being exposed to combustion products or other things at a fire scene. This goes back to documenting what was there and the need for cooperation. We need to make sure we are identifying the steps that need to be taken. We need to break down some traditions and barriers that have been there for years, such as wearing respiratory protection and abating hazardous materials conditions that might present themselves.

Case in point: A good friend of mine, who is an arson investigator, went to a fire two days after the fire was extinguished. It was a wood deck. We now know that those decks are treated with arsenic. Back in those days, people weren’t really sharing that type of information–it was just a wood deck. Nobody thought it was a big deal, and he got arsenic poisoning. He can’t work anymore, and that will be with him the rest of his life. We need to share that type of information with one another.

LK: You say that fire investigators go after the truth. What is the truth, and is there a different version of the truth?

JN: There really is only one version of the truth. I’m sure people look at it and have their own particular take on what it means to them. But I think if I had to say one thing to everybody, it’s that for fire and arson investigation to be truly effective in helping to reduce the fire problem and better protect people, we need to foster cooperation.

Jerry Naylis is the deputy chief of the Bergenfield (NJ) Fire Department and past president of the International Association of Arson Investigators. He is a member of the New Jersey Fire Safety Commission. He has a B.S. in fire science from Jersey City (NJ) State College and a master’s degree in administrative science from Fairleigh Dickinson University in New Jersey.

Lauren Keyson is executive editor of Fire Engineering and conference manager for the Fire Department Instructors Conference. Previously, she
directed digital and print publishing in high tech and finance. She has a bachelor’s degree in political science from UC Berkeley and a publishing certificate from Stanford University. She is a volunteer firefighter for the Greenville (NY) Fire Dept. If you have a burning issue to discuss, please e-mail her at [email protected].