The fire service is constantly finding new buzzwords and phrases to describe what we do and how we should do it. One of the newest, trendiest, phrases around is “victim survivability profiling” (VSP). The phrase was coined by Fire Department of New York Captain Stephen Marsar, who presented his view of the topic in multiple articles.,2The difficulty with buzzwords and phrases is they attempt to distill complicated ideas into nugget-sized bits of information.
The core idea of VSP is that firefighters have to conduct a thorough size-up of a structure fire and an analysis to determine the likelihood of a victim’s potential to be rescued. This is a perfectly reasonable idea. We should be conducting a dynamic, ongoing size-up regardless of our position on the fireground. If we hope to maintain situational awareness, we must constantly observe conditions. We must use our judgment to decide what we are willing to risk.
I take issue with the application of VSP as a way of approaching the fireground operation. In the 2010 article, the very first statistics that Marsar presents are correlations of civilian fire deaths with firefighter line-of-duty deaths (LODDs). For the three-year period that he discusses (2007-2009), 102 firefighter LODDs and five civilian fatalities occurred in structure fires.
The first likely place for us to jump to our conclusions is that our brothers and sisters must be taking too many risks. They are rushing headlong into “lost causes” and getting killed as a result. After all, if firefighters had conducted their survivability profiles, they would have asked themselves, “If people are suspected of being trapped or known to be trapped, is there a reasonable assumption that they may still be alive? If not, we should slow down and attack the fire first and complete the searches when it is relatively safe for our operating forces to do so.” (1)
Here is where I find fault with the correlation of these statistics: There weren’t fatalities in these fires where our members died. If we were seeing a ratio of one firefighter fatality to one civilian (or even 10 firefighter fatalities to one civilian because we operate as teams), I would say that we are being too aggressive in scenarios where civilian lives are beyond being saved. That isn’t that case. During the time period examined, 25.4 firefighters died for every civilian fire fatality. So, we aren’t necessarily doing a poor job of deciding if the occupant may or may not be alive; we are doing a terrible job of making the fireground safe for our personnel.
Marsar makes the case that once 10 minutes from the fire department’s notification have passed, any victims will have been exposed to temperatures or carbon monoxide levels that would likely be fatal. In those circumstances, we are being told that the building is both vacant and derelict or, where a significant forcible entry problem is present because of HUD windows or vacant property security systems, we should take on less risk. There is nothing to save.
However, our mission is to save lives and property. If you have a building that is still salvageable or if a victim is said to be in the building, then you should aggressively attack the fire to save the victim and the property. The National Institute for Occupational Safety and Health (NIOSH) Fire Fighter Fatality Program report 2010-10, which examines the line-of-duty death of Brian Carey of the Homewood (IL) Fire Department, states: “Ensure that a complete 360° situational size-up is conducted on dwelling fires and others where it is physically possible, and ensure that a risk-versus-gain analysis and a survivability profile for trapped occupants [are] conducted prior to committing to interior firefighting operations.”3
If we are conducting a “proper” survivability profile, should responding crews ignore the information they are receiving of trapped victims and the information from an occupant of the house who has exited the building saying, “My husband is in there”? Would the “right” answer have been to decide from the front lawn that because there was a significant volume of fire and a building charged with smoke that there was no possible chance of saving the 84-year-old homeowner reported trapped and to attack in a defensive mode? I would say no. I would say that although our objective must be to make the building behave and control the fire to create a relatively safe environment for our personnel, in the face of a believable report of a trapped occupant we must enter the building and search. That is the reason we are firefighters.
If an agency is not going to conduct primary search operations in burning buildings because there is a risk of members being hurt or killed, then we can cut staffing to two people per station and run with ARFF vehicles instead of attack engines and trucks. (Has anyone thought that some politician who doesn’t actually care if citizens live or die might use this argument to “reduce risks to firefighters” while also cutting staffing?) Anything beyond an incipient fire can be fought from the outside, and we can return to the day and age when the job of the hook and ladder company was to hook the walls down to create a fire break.
This is not a safe job. If your primary concern is not getting hurt, you may have chosen the wrong career. I am not saying that Marsar is advocating a position of “zero risk”; I have not spoken with him. As we can see from the Homewood LODD NIOSH report, there are attempts to advocate a risk-adverse agenda when dealing with a dynamic high-risk environment. Firefighters unwilling to risk their lives to save the lives and property of the community they have sworn to protect are of no more value than police officers who will not use their weapon to stop a crime.
I am afraid that if the risk-adverse mentality that has slowly and insidiously taken hold in the fire service continues, we will be pitted against the communities we are there to serve. We will find ourselves not fulfilling the expectations of our citizens or will see increased litigation and discipline for incident commanders, company officers, and firefighters who make a decision literally in the heat of battle that results in an LODD or injury.
While egregious errors in decision making must be dealt with through discipline, the fact remains that we do not have perfect knowledge on the fireground. We do not have a Google Earth™ view of the fireground with built-in thermal imaging and ultrasound technology. We must make decisions rapidly, using a proven system of size-up and in accord with our department (and community) values. We must make sure that every member on the fireground is trained to operate there and make life-and-death decisions in a timely manner. Then when injuries and fatalities occur, and they will, we must learn from them and do what we can to decrease the avoidable errors.
We must also recognize the times we get it right, like in Oak Park, Illinois, where a teenage boy was rescued from a reportedly “vacant” building on October 10, 2010, or the Gilmore Street fire in Baltimore, Maryland, where crews rescued a homeless man who had taken shelter inside a row house. He was burned, but he was rescued and transported. Would these fire departments have been blasted for “mistakes” had a firefighter been seriously injured or killed? Is it only a “mistake” if no victim is saved?
We are really talking about defining the virtues and values of the American fire service. Although fires happen locally, movements like survivability profiling become the cause célèbre on a national level. The time has come for this debate to extend beyond the firehouse kitchen table or the bay floor. We must decide at a national level as well as at a local level how much risk we will accept. We must decide what value we place on protecting both the lives and the property of the communities we serve. We must train our members to be Fire Service Warriors, consummate professionals, who are able to thrive in the dynamic and high-risk environment of the modern fireground.
Harvey (IL) Fire Department
1. http://www.fireengineering.com/index/articles/display/5854199752/articles/fire-engineering/survival-zone/2010/07/Survivability_Profiling_How_Long_Can_Victims_Survive_in_a_Fire.html accessed October 20, 2010/.
2. http://www.fireengineering.com/index/articles/display/1153940879/articles/fire-engineering/survival-zone/2009/12/survivability-profiling.html accessed October 20, 2010/.
3. National Institute for Occupational Safety and Health Report 2010-10, 2.
Anti-Fire Photography/Social Media SOP
I am a retired volunteer firefighter. My volunteer fire department recently came up with an extremely strong, anti-photography/anti-social media standard operating procedure (SOP). The policy includes the following:
- No cameras or cell phone cameras are allowed on the firegrounds, on- or off duty.
- Taking of pictures on or off duty (as a civilian) on the company’s firegrounds is not allowed.
- There is to be no posting of fire photos on social media Web sites, including fire magazines, or any fire related media; newspapers are also included.
- There is to be no taking of photos with any type of current or future electronic device on firegrounds.
- Violators of this policy are subject to expulsion.
I am seeking court cases on the above issue, including federal court and federal appellate court cases, and magazine articles.
My issues are the following:
- Do firefighters have any legal remedies or rights on this issue?
- Can a fire department create a policy that affects on- or off-duty activity?
- Can firefighters be penalized for taking photos of firegrounds while off duty? Can a firefighter be penalized for sending photos to social media, newspapers, or magazines?
This has upset me so much that I am ready to complain to the American Civil Liberties Union. I need background information.
John K. Murphy, JD, PA-C, Attorney and Counselor at Law; Deputy Chief (Ret), Sammamish, WA, responds: Your employer has the right to create policy guiding on-duty activity and in certain cases off-duty activity. The fire department also has the unrestricted right to protect its reputation and the privacy of patients, and firefighters should not use their privilege of responding to an emergency for their personal use. In this case, the employer went to the extreme in banning any type of picture taking by any means of anything related to the fire department activities, equipment, and buildings both on and off duty.
There are many uses for fire department photography, but it has become an unmanageable situation in many incidents where photographs of fires or patients find their way to the Internet. At times, they have embarrassed the department, compromised patients’ rights to privacy, and gotten firefighters terminated. Much of your department’s radical policy appears to have been created as a result of the numerous examples of bad behavior by firefighters and the lack of a department policy that guides the taking and approved use of photographs obtained on and off the job.
This policy appears to be narrowly restricted to the fire department if the department is a subject or focus of these photographs. It does not appear to restrict other types of photographic activity on any other type of subject matter, understanding that posting of photographs can be viewed by the community as disrespectful and insensitive.
Some arguments made by firefighters indicate that incidents we respond to are in the public’s view, so they should not be excluded from photography. This is not entirely correct, as we may be intruding on the patient’s right to privacy.
This question begs the analysis of the rights of the employees to take pictures of anything they choose and to have those pictures disseminated in the media. Does this question require a First Amendment or constitutional analysis? If you work for a private fire company, you may or may not be protected under a First Amendment protection, as we find ourselves on a slippery slope of constitutional law protections for employees of private companies. Government employees have more protections under these federal laws, but, in any employment situation, your employer has the right and obligation to create policy.
In general, the Constitution affects and governs the actions of government entities and the protections afforded government employees. There are very few, if any, First Amendment protections in the area of photography, especially where legitimate policy or restrictions are involved. In a 1958 U.S. Court of Appeals Third Circuit Court decision involving a Pennsylvania Court’s posted rules prohibiting the taking of pictures in a courthouse, the court ruled in favor of the courthouse rule and against the photographer.1 In the decision, the court stated the following:
- Realizing that we are not dealing with freedom of expression at all but with rules having to do with gaining access to information on matters of public interest, can it be argued that here there is some constitutional right for everybody not to be interfered with in finding out things about everybody else? We suppose it would not be contended that a newspaper reporter or any other citizen could insist upon entering another’s land without permission to find out something he wanted to know. Could an interested observer insist on the constitutional right to take motion pictures of a private family in and about its household contrary to that family’s wishes? We think that this question of getting at what one wants to know, either to inform the public or to satisfy one’s individual curiosity, is a far cry from the type of freedom of expression, comment, criticism so fully protected by the first and fourteenth amendments of the Constitution.
In this old case, the U.S. Court of Appeals declared that the rules in this court are a reasonable exercise of judicial authority in this state—in other words, the judges can create a policy against photography in the courthouse and have that policy upheld.
As far as this policy’s extending to an off-duty situation is concerned, the employer has the right to provide guidelines for off-duty behavior, and if the policy is explicit and does not violate the law, it is acceptable. In general, the courts will not second-guess polices created by elected or appointed fire department officials, and restrictive policies are becoming more commonplace in private and public employment.
For example, a soda pop company fired an employee for drinking its competitor’s beverage; a private ambulance employee was recently fired for saying negative things about her company and supervisor on her Facebook page, and many companies have no-smoking policies containing termination clauses for employees who smoke outside of work. Employment policies guiding on- and off-duty conduct are nothing new to athletes, police officers, teachers, firefighters, and others who may have enforceable public morals clauses, and it is becoming more commonplace that employees find themselves subject to certain codes of behavior or restrictions in their personal life.
Can you be fired for violating policies set by your fire department? The Wyoming Supreme Court2concluded that terminating an at-will employee for exercising his right to free speech by refusing to follow a legal directive of an employer on the employer’s premises during working hours does not violate public policy.
Does the employer have the right to create restrictive policies guiding the actions of employees? Is this fire department’s policy legal? The short and long answer is yes, although your employer must be able to justify the policy either by citing health or public image concerns; the policy cannot be overly restrictive and must be enforced evenly without bias.
In essence, your employer has the right to create policy that affects your on-duty and off-duty activities and especially this issue of photography. The use of cell phone cameras and other types of recording devices are within the purview of the employer to dictate use of the device and distribution of those images through policy.
I suggest that your department look to many available and solid resources to create an acceptable policy related to this issue that balances the needs of the department, the firefighter, and the community.
1. The Tribune Review Publishing Company, et. al v. Howard Bud Thomas, 254 F.2d 883 (1958).
2. Drake v. Cheyenne Newspapers, Inc., 891 P.2d 80 (1995).
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