Legislative and judicial decisions eroding sovereign immunity
Attorney at Law
Oklahoma City, Oklahoma
Peter Lynch`s article “After the Fire`s Out: Spoliation of Evidence and the Line Firefighter” (January 1998) is timely. It illustrates another symptom of the underlying legal disease threatening fire service operations nationwide. The steady erosion of the doctrine of sovereign immunity in many states is leaving the fire service open to Monday morning quarterbacking by the legal system. Historically, the fire service and law enforcement have been protected from civil lawsuits related to the providing of police or fire services. Over the past 25 years, states have increasingly narrowed the protection of governmental entities by legislative and judicial decisions.
More recently, a growing number of states have severely limited the protection of sovereign immunity. Recent decisions have been construed to allow lawsuits against police and fire departments for the manner in which they carry out their operations. For example, a 1996 appellate decision in Oklahoma has limited the protection of the codified version of sovereign immunity (the governmental Tort Claims Act) to only those actions directly related to a “governmental decision”–such as where to build a fire station or how many firefighters to hire.
Negligence causes of action appear to be the next major area of civil litigation for the fire service, as departments are scrutinized for the manner in which operations are conducted. I have long been a proponent of proactive defense of the fire service. During Fire-Rescue `96, I delivered a paper to the International Fire Photographers Association on the proactive or offensive use of photography as the best defense of a department. As Lynch has suggested, the fire service needs to be vigilant in all phases of operations. Photographs and videos of the active fireground, salvage, overhaul, and all other operations are two of the best ways to document, explain, and prove that the operation was conducted properly.
Trained photographers and videographers are needed for an aggressive defense against civil litigation, more successful criminal prosecutions, and the recovery of lost departmental assets due to the actions of civilians. Skilled photographers, trained in the fire service and photography, can also enhance firefighter training, public education, and public relations. Finally, a skilled forensic fire photographer can give a department those “thousand words” with a picture when it comes to ensuring that the bureaucrats understand all of the missions of a department and the needed funding.
We cannot rely on the fire service lobbyists within each state to preserve the doctrine of sovereign immunity as the courts and legislatures continue to limit the scope of protection. As with funding, departments must put themselves (at a minimal cost) on the leading edge of technology to document operations to enhance safety, operational efficiency, and postincident analysis, including protection from civil and criminal actions.
Please continue to raise our awareness with such thought-provoking articles.