BY KENT COLLINS
It is not news that firefighters like to share stories. The dinner table has long been a place for sharing the strange and interesting stories of rides in which you responded. The stories are sometimes both funny and cathartic, almost acting as a stress debriefing among friends. Occasionally in the past, there have been firefighters who threw a camera on the rig to catch an interesting sight. The pictures were few and far between mainly because of the nuisance of getting film developed, but that has since changed with the advent of digital cameras. Because almost every firefighter carries a mobile phone and almost every mobile phone has a camera, it has become easy to take pictures, and they don’t need to be developed. Smartphones, which record high-quality video, now have still cameras that rival expensive digital cameras. This relatively new technology and the unanticipated consequences that have resulted from its use have caught many fire departments off guard, and they are now struggling to catch up in developing and implementing policies regulating their members’ use of these technologies. They are trying to keep up so that the departments will not be subject to litigation and other public and internal problems. Even state and federal lawmakers have not been able to fully understand the implications of digital media and how to properly contain the spread of digital information and pictures. Fire departments, police departments, ambulances, and hospitals all are racing to manage digital media use. There is always the possibility that a seemingly innocent or questionable image, video, or piece of information could be spread around the Internet and across the world within hours or even minutes.
The biggest problem with digital media, especially mobile phones, is their ubiquitous nature. Studies suggest that right now 82 percent1 of Americans have a mobile phone. On a rig, two or three firefighters may have cell phones in their pockets. Often, the phones have been very helpful in providing customer service. Conversely, they also provide the opportunity to snap a quick picture.
THE ADVENT OF PROBLEMS
It is possible that the habit of snapping a quick picture first posed a problem for fire departments on July 17, 2010. On that day, a 23-year-old woman named Dayna Kempson-Schacht ran off the road in a single-car accident.2 When the fire department arrived, the victim was already dead. Firefighter Terrance Reid took out his phone and shot a video of the victim, complete with graphic commentary, while she was still in the vehicle. At first, Reid shared the video only with firefighters with whom he worked, but the situation quickly spiraled out of his control. The next night, a firefighter who had received the video went out to a bar and began sending the video to the phones of other patrons at the bar. One of those patrons then put the video online; from there, it went worldwide and was posted on as many as 800 Web sites at one point. The video made it back to the parents of the 23-year-old woman. The pain of seeing their daughter mutilated and lifeless was almost too much for them to bear. Then, all eyes turned toward the fire department and others responsible for putting the video out there for all the world to see.
Reid did not break any laws or violate any department policies or even state laws. There were no department standard operating procedures (SOPs) or any laws specifically addressing the use of this technology. Although what he did may have been morally or ethically wrong, it wasn’t illegal: The car was in public view, accessible to the general public, and legally could be recorded. Since the fire department did not have any SOPs prohibiting the use of digital images, ownership of the picture was in dispute. Under normal circumstances, pictures belong to the photographer, as is the case of a private citizen or a newspaper. This is a basic tenet of copyright law.3 The general rule is that the person who takes a picture owns the copyright to the photo, unless it was taken under a “work made for hire” agreement—taking the photo while performing within the scope of your employment. In that case, the photo would belong to the employer. But that relationship can be challenged as well.
The courts generally resolve disputes over a photograph’s ownership. This was the case for the photographer who took the famous picture of Oklahoma City (OK) Fire Department’s Captain Chris Fields carrying Baylee Almon during the initial moments after the Alfred P. Murrah Building bombing in 1995.
Had Reid been a private citizen, the video or pictures would have been his property, and he would not have been under obligation to preserve them. But because he was on duty as a firefighter, he is considered an official of the fire department, and those pictures or the video can be used as evidence in a criminal or civil case. If another vehicle had been involved in the accident or had another death occurred, the video images taken by Reid would have had to be properly preserved as evidence. If any part of the photographic evidence were deleted, changed, or misplaced, Reid could have been charged with “spoliation,”4 the misappropriation or destruction of evidence. Because spoliation can change the course of a criminal or civil case, the individual deleting such imagery could be sentenced to a term of imprisonment. In cases using spoliation as a defense, the defense attorney can argue that the missing images raise reasonable doubt, preserving his client’s innocence. In a civil case, a judge can easily rule against one side for not properly preserving evidence.
Other legal implications can be very expensive, as the entire department becomes a target for a lawyer retained by an offended family member. In Reid’s case, the family could sue the department and the firefighter for taking and distributing images of their daughter. Remember, in civil litigation, money is the remedy and the general public thinks that fire departments have deep pockets and they can win large awards. At times, the action is so egregious the jury awards punitive damages as well. Departments that do not have proper SOPs in place regarding digital images and social media are at great risk of incurring large monetary judgments. The actions of a single firefighter can affect the entire department.
Reid was terminated by the fire department under a catchall policy of “conduct unbecoming.” His actions also affected other firefighters in his department: Six firefighters were reprimanded for the video. Others were cited for helping to distribute the footage and for being aware of Reid’s actions and not reporting them. The small fire department for which Reid worked is being sued in civil court.
The victim was not just a daughter but also a mother of two young children. One wonders what their reaction would be if (possibly when) they saw one of the thousands of copies of the video of their dead mother. When common sense does not work, direct and well-written SOPs have to be put in place. Social media has made the world a very small place—people from all over the world are able to share information, opinions, and experiences as well as other mediums like pictures, video, and music.
Case Involving Off-Duty Firefighter
However, public employees do not own all the information and visuals they share. In another case, an off-duty South Carolina firefighter posted a cartoon video on his Facebook page. The video was a parody set in a local hospital’s emergency room involving a firefighter and a doctor; it portrayed the doctor in a less than flattering light. Thousands saw the video, which embarrassed not only the fire department but also the doctor and the hospital. The incident created unnecessary tension between the fire department and the hospital.
What makes this case unique is that the firefighter was off duty when he produced the video and posted it on his personal Facebook page. Many would assume that the firefighter had the right to post the video and that he would be protected by the First Amendment,5 the right to free speech. But free speech has its limitations. First, to be protected by free speech, the matter has to be of a public nature and not a petty grievance. This did not apply here. The dialog between the firefighter and the doctor could have been known only by the persons in that private setting, and the information of the conversation could be known only by the firefighter because of his employment.
Moreover, the firefighter had on his Facebook page (as do many of us) many references to his employment as a firefighter and his department. This information linked his video to his workplace. When a person’s employment becomes publicly known and that person is speaking from a place of knowledge gained only from that employment, that person becomes a representative of that department. It is enough that a “reasonable citizen”6 can assume the information is coming from a position of knowledge or expertise.
In 2006, the Supreme Court held that public employees are not entitled to First Amendment protection for speech arising from their official duties.7 It is akin to an off-duty firefighter’s speaking to a reporter about a fire and giving specifics of the incident; that firefighter is speaking as a fire department representative. This information can turn up anywhere, including a news broadcast. Any statements made by an “official” or a representative of the department can also come back to haunt in a civil or criminal case. In a very recent Facebook post, an ambulance paramedic posted that his medical kit did not have the required medications for a full cardiac arrest incident. If the family were to discover this, or if a civil case were ever filed, that post could possibly be used as evidence of negligence.
The South Carolina firefighter was fired for “conduct unbecoming” after posting the video because, as a de facto representative of the fire department, the video embarrassed the department and did not reflect its values. Whether on or off duty, firefighters must still maintain privacy standards regarding information obtained as part of the job. Any knowledge or information gained as part of employment is privileged and protected from disclosure. In these issues, the department has a vested interest in how that information is used. The firefighter is attempting to get his job back through a civil action.
Posting pictures and video has other repercussions. John Snow of the Clinton-Hickman Ambulance Service in Kentucky responded to a car accident in which a local teenager was killed. This was a very small ambulance service, and the director of the ambulance service said several other agencies were taking photos of the scene. Although Snow was asked to take photos of the entire scene,8 he erred when he posted the photos on his personal blog along with his chronicle of the incident. None of the relatives of the victim saw the pictures, but on hearing of Snow’s blog, four of the victims’ relatives, including the victim’s mother, father, and uncle, showed up at the medic’s place of employment and assaulted him, causing serious injuries. All four family members were arrested and charged with assault. Despite the attack, the ambulance board met and decided that Snow’s continued employment would weaken the confidence of the whole ambulance service. He was fired while 100 people waited outside in support of his termination.
In another extreme case, a paramedic lost his license because of a Facebook posting. In New York, a former police officer working as a paramedic for a local fire department took pictures of a murder victim. He then posted the pictures on one of the many gore sites on the Internet. This fire department had policies in place prior to the incident. The paramedic was terminated based on these policies. He was also charged with “Official Misconduct,”9 a misdemeanor in the state of New York. He pleaded this charge down to “Disorderly Conduct” and was sentenced to 200 hours of community service, and he had to surrender his emergency medical technician (EMT) license. He cannot reapply to get his license back; his career as a paramedic/EMT is over.
Digital and social media technologies are moving fast, and some legislators are trying to stop the unauthorized posting of digital media. New York is among the states looking at this type of legislation. Under current New York law, the maximum charge for posting photos such as those by the former police officer is a misdemeanor. Legislation under consideration by the New York legislature would make it a felony for on-duty public servants to take pictures or videos of a crime scene for private use.10
There have also been changes in the privacy laws regarding the victim’s family. The common law right of privacy does not survive an individual’s death,11 and the courts do not universally agree on the existence of a relational right of privacy in most circumstances. In the 2004 Supreme Court decision on Favish,12 the court recognized “the right of family members to direct and control disposition of the body of the deceased and to limit attempts to exploit pictures of the deceased.” This ruling will have quite a legal impact on public employees, both criminally and civilly, by limiting access to images. It could possibly set a precedent in the illegal distribution of images acquired by members of the public safety services.
California has a law in place that addresses intentional infliction of emotional distress. In cases where it is proven that the picture or video was posted with “reckless disregard” and that it could cause emotional distress to surviving family members, a first responder could be held liable. This law was enacted after an incident in which a member of the California Highway Patrol took pictures of Nikki Catsouras after her fatal accident and the pictures of her dead body ended up online. The more incidents involving taking pictures and video at the scene of an accident and distributing them over the Internet that occur, the more likely lawmakers will set harsher penalties.
Other technologies, such as photo “geotagging,” may increase the possibilities for violations of law as it relates to the distribution of patient information under the Health Insurance Portability and Accountability Act (HIPAA) of 1996, which controls the distribution of health information to certain qualified individuals like physicians, other health care practitioners, hospitals, or insurance companies. In photos taken with a mobile phone, the location of where that photo was taken is embedded within the photo’s data. Anyone can download the photo and get the coordinates of that location. This could potentially give people a patient’s address and medical condition.
Digital media use could violate certain aspects of HIPAA, which protects five essential pieces of information; three affect first responders. They are information entered into medical records, conversations with a medical doctor (or first responder), and information entered into a computer. One current case involves an EMT lieutenant in the Fire Department of New York who released photos taken off his computer screen to record a patient’s unusual medical symptoms. After the photo was posted on his Facebook page, it was noted that the patient’s name and address were in the picture. The fire officer was terminated and may have to pay fines or be subjected to civil litigation.
It is clear that digital and social media will continue to be a part of everyday life and that it will become easier to distribute information through these outlets. What used to be a top-of-the-line desktop computer has become a handheld device you can slip in your pocket. The world is getting smaller and smaller with every leap in technology, and it is important that the fire service be prepared to deal with these changes. Departments need to have a definitive and effective SOP in place before the digital issue comes up, and all department members must become familiar with the issue, especially understanding that the misuse of social media is serious and can have far-reaching effects for the individual and the department.
As a good example, the Oklahoma City Fire Department has two separate SOPs on this issue. The first is in the Administration Manual (ADN/058); it defines the issue of ownership of electronic images. Whether on or off duty, any images taken with fire department equipment belong to the fire department and have to be turned into the proper department authority. This SOP covers all images taken except station duties, training, or nonemergency documentation. The second SOP is found in the Communication Manual (OPS/201). It states that no unauthorized electronic equipment can be used during emergency rides. These two policies provide protection for the department by stopping the tide of images and information from getting out of control. Like many good policies, they were enacted after an unfortunate incident involving social media.
Technology is changing, the laws are changing, and the fire department and all of its employees need to change to keep up.
1. Stevens, Tim. “82% of Americans Own Cell Phones,” Nov. 14.-1997. http://www.switched.com/2007/11/14/82-of-americans-own-cell-phones.
2.”Firefighter Dismissed Over Car Crash Video,” CBSnews.com. 02, May, 2011. http://www.cbsnews.com/stories/2010/10/28/national/main7001931.shtml.
3. “Works made for hire under the Copyright Act of 1976.” U.S. Copyright Office, Library of Congress, Washington, DC. 04 June 2011 http://firelawblog.com/files/2011/02/copyrightcirc09.pdf.
4. Varone, Curt. “Fireground Photos, Facebook, and Discipline.” Firewebblog.com <http://firelawblog.com >Path: social media.
5. Varone, Curt. “Fireground Photos, Facebook, and Discipline” Firewebblog.com <http://firelawblog.com >Path: social media; comments.
6. Calvert, Clay. “Salvaging Privacy & Tranquility from the Wreckage: Images of Death, Emotions of Distress & Remedies of Tort in the Age of the Internet.” Heinonline, Michigan. 07, June, 2011. http://Heinonline.com.
7. Darryn, Cathryn Beckstrom. “Reconciling the Public Employee Speech Doctrine and Academic Speech after Garcetti v. Ceballos.” Heinonline, Michigan. 07, June 2011. http://heinonline.com/. In a 5-to-4 decision authored by Justice Anthony Kennedy, the Supreme Court held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties. Ceballos’s employers were justified in taking action against him based on his testimony and cooperation with the defense, therefore, because it happened as part of his official duties. “”The fact that his duties sometimes required him to speak or write,” Justice Kennedy wrote, “does not mean his supervisors were prohibited from evaluating his performance.”
8. “Paramedic Fired for Posting Pictures Online,” Firefightingnews.com 03, June 2011. <http://www.firefightingnews/article-US.cfm?articleID=31716>;.
9. “EMT’s Rap for Ghoul ‘Net Pic,” NYPost.com 23, May 2011. http://www.nypost.com/p/news/regional/item_0F1q9xCRCOq59oI1O8gajO.
10. “NY Facebook Murder Photo Inspires Bill,” EMS1.com. 20, May 2011. http://www.ems1.com Path: Ems; social media; Facebook.
11. Calvert, Clay. “The privacy of death: An Emergent Jurisprudence and Legal Rebuke to Media Exploitation and a Voyeuristic Culture,” Heinonline, Michigan, 07, June 2011. http://heinonline.com.
12. Calvert, Clay. “Salvaging Privacy & Tranquility from the Wreckage: Images of Death, Emotions of Distress & Remedies of Tort in the Age of the Internet,” Heinonline, Michigan. 07, June, 2011. <http://Heinonline.com>.
KENT COLLINS is a 19-year veteran of the Oklahoma City (OK) Fire Department and has been an EMT for 21 years. He is on the board of directors for Heartline Okc and 211, the suicide/compassionatecare hotline and the emergency information hotline, respectively, serving 76 of the 77 counties of Oklahoma. He has a bachelor’s degree in microbiology and an associate degree in psychology. He has spent several years working with Web design and using social media to connect Web sites with users.
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