Ethics and Arson Investigation
CHARLES G. KING
Although incidents of arson have increased drastically over the past 20 years, personnel to investigate these fires have remained disproportionately few. In order to minimize this imbalance, more and more professionals in related fields are being trained in the art and science of fire investigation as a supplement to their primary responsibilities.
Short, intense courses are being given to firefighters, prosecutors, and police officers on subjects such as flammable liquid burn patterns, electrical fires, V-patterns, and charring. Unfortunately, the limited time and training provided by these often excellent courses prohibits an equal and equally valuable emphasis on accidental or nonincendiary fires.
The result of the uneven thrust of these courses is to give authority to a number of not-fully-trained individuals who may arrest Aunt Mabel if her dog was “suspiciously” removed from her home for an overnight stay at the vet prior to a fire. Or they might pursue a criminal investigation against Joe the barber if low burn is observed along the baseboards of his poorly flourishing store.
How can we use the valuable new knowledge obtained about incendiary fires without jeopardizing the innocent in the process? The best way is to keep the following rules in mind:
- In visiting a fire scene, your first responsibility is to determine where the fire originated. Although the work performed by arson investigators is usually called “cause and origin,” the order of investigation should, in fact, be referred to as “origin and cause.” Before you can figure out how a fire started, you must determine where it started.
- Once you have determined where the fire started, it is time to decide how the fire began. Don’t waste your time now in trying to decide if the fire was incendiary or accidental. That conclusion will follow, logically, after you have determined the cause.
Think about each burned building you encounter as a dead on arrival (DOA). Is it an accidental death or a homicide? Well, before you decide upon the cause of a victim’s death, you’d better look for the bullet wound or the broken neck or the ruptured appendix. This also holds true for a building. Where did the fire start? At the socket of a lamp? In a pool under a door? In the cushions of a sofa?
The “where” is your first clue as to the “how.” Here you put into use all of those fascinating facts you learned at the arson seminar about separate and unconnected fires, abnormal alligator patterns on wood, and spalling of concrete. This is also where you must remember that there have been arson investigators in the business much longer than you; who know much more about the patterns of a fire than you do; but who have had to look back over the charred remains of a building, shake their heads, and answer “I don’t know” when asked where the fire started.
Be particularly careful in identifying the origin of a fire when you deal with building collapses. If you can’t decide where the fire started, don’t hesitate to consult with someone who may be more knowledgeable than yourself. Sometimes, just a description of a fire scene to an expert over the telephone can result in a perspective different enough to put you on the right track.
Photo by Charles G. King
Here is where a fire investigator really gets to play detective, and where it is of utmost importance that he maintain his objectivity and marshal his facts.
Take this case, for example: The point of fire origin is between the wall and the bed in the master bedroom of a small house. There are no electrical sockets at the point of origin, but a clear “V” pattern emanates from a low point on the wall. The building’s owner is heavily in debt, he has removed most of his clothing from his closets and also removed his dog from the premises prior to the fire. He is unemployed and has a prison record. How did the fire start?
If you think it was an incendiary fire, not only are you wrong, you may be going about your business irresponsibly. We had just such a case in a small beach community, and local authorities who investigated the scene prior to our arrival were eager to either arrest this individual or deny his insurance claim. They had allowed themselves to become so distracted by the unfavorable facts of the victim’s life that they failed to focus their attention on what they should be doing first as fire investigators— establishing the cause of the fire.
Had they torn open the wall at the area of greatest burning, these investigators would have seen a pronounced “V” pattern on the wood sheathing inside the wall. This pointed directly to a dead short in the electrical wiring. Further investigation would have revealed that the wire had been pierced by a roofing nail at some point during the building’s construction.
Unfortunately, it is easy in a case like this to get so caught up in issues such as motive, opportunity, and modus operandi that the obvious can get lost in the shuffle. And what is the obvious? That if there is no crime committed, there can be no criminal arrested. It doesn’t matter if he abandoned his wife and children, has halitosis, and a criminal record as long as your arm. If the fire started in the electrical wiring, the fire is non-incendiary, or, to rephrase it, you cannot have case development until you have a case.
After you have decided where and how the fire began, then you can proceed to who or what caused the fire. Only then can you consider the relevance of such interesting evidence as prior fire history, attempted removal of valuables prior to the fire, recent renovation or installation of appliances, and so on. Here is where we enter into the realm of case development.
There are, of course, two types of case development (civil and criminal), and these can be categorized by the motives of the investigator.
When the cause of a fire is mechanical or accidental, it’s of little interest to law enforcement agencies. The enormous increase of subrogation lawsuits, however, makes this type of fire very interesting to attorneys, insurance investigators, property owners, etc. An instance of this type of case development might arise as follows:
A fire started in the Smith’s white frame house at No. 2 Grove Street and spread to the Jones’ Cape Cod Cottage next door. Your fire investigation determines that the cause of the fire was a defective toaster in the Smith’s kitchen. The Smith’s are insured by Mutual of Everywhere Insurance Company, who pay off the claim. The Jones’ are insured by Providential Insurance Company, who pay for the fire damage incurred in the Jones’ cottage.
Then, the Jones’ insurer, Providential, sues the Smith’s insurer, Mutual of Everywhere, for reimbursement of the damages, alleging that the Smith’s, because they owned the defective toaster, were liable for the fire damages to the Jones’ house.
This can be carried to a dizzying degree further if either or both insurers then decide to sue the manufacturer of the toaster.
This type of litigation is extremely costly and can drag on for years. Also, the practicality of subrogation is coming into question by the insurance industry, and there is the possibility that one day all parties involved may decide that subrogation is more trouble than it’s worth.
Fire investigators rarely get deeply involved in these types of cases. However, they may inadvertently initiate or affect such a case from the very beginning through the fire or police department fire incident reports. Fire or police agencies are usually required to indicate the cause of fire on these incident reports. If the firefighter or police officer knows that the fire was not arson, he might quite thoughtlessly indicate a cause as “electrical” or “defective refrigerator” or “oil burner” or “electrical power surge,” etc. It is vital that fire investigators realize that they can set in motion litigation costing millions of dollars by casually attributing an incident to a mechanical or accidental cause of which they are not certain, and which properly might require engineering analysis and sophisticated laboratory tests to prove.
Photo bv Charles G. King
Although the work performed by arson investigators is usually called “cause and origin,” the order of investigation should, in fact, be referred to as “origin and cause.” Before you can figure out how a fire started, you must determine where it started.
Sad to say, many times a major corporation has had to spend a small fortune defending their products against lawsuits resulting from a carelessly considered fire incident report.
It is necessary to be as scrupulous in attributing a fire cause to an object as it is to a person. When you have decided that Mr. Peterson did not intentionally set fire to his barn, this does not mean that you list the cause as “electrical power surge during a storm” because the fire occurred when it was raining and there was low burning in the general area of an electrical socket. If you aren’t certain, list the cause as “unknown.” Why should the electric company be sued if your search wasn’t thorough enough to reveal one of Mr. Peterson’s discarded cigarettes?
Far more interesting to the fire investigator than subrogation and product liability is the case development engendered when a fire is determined to have been set by an individual. Here, a fire marshal or an arson investigator can spend many productive hours in classic detective work.
Any textbook on arson will describe the same general types of arsonists:
- A pyromaniac or compulsive fire setter.
- A revenge fire setter.
- An arson-for-profit fire setter.
- A “fun” fire setter.
- An extortion or coercion fire setter.
In determining who set the fire, the arson investigator must remember that, just as in determining the cause and origin of a fire, a hunch or a gut instinct is not evidence. People’s lives and property are at stake. Don’t deny a claim or make an arrest unless you are sure.
The International Association of Arson Investigators’ code of ethics states, “I will bear in mind always that I am a truth seeker, not a case maker ….” As a truth seeker, the case will or will not evolve, depending on what evidence there is, and your ability as an investigator to uncover, integrate, and make this evidence meaningful.
- Arson is proved when the fact of incendiarism has been established beyond question.
- An arsonist is arrested when his motives and opportunity are correlated with the arson itself.
How do you develop a case?
The tried and true investigative methods and procedures taught by any good police science or fire investigation course are usually more than adequate to give you a solid background in how to go about your case development. The problem, when dealing with arson, is the emotional impact of a “dead building” on the investigator. To explain this, I’ll give you an example from a recent experience:
A restaurant burned down in an expensive resort community. The scene was a disaster; the building was completely destroyed. The owner of the restaurant was an unpopular and extremely successful newcomer to the area. In effect, he was an upstart.
Upon arrival, a firefighter looked around at the devastation and declared for all to hear that the fire was arson and that the restaurant owner set the fire. From that point on, the domino effect took place. Before the interior of the building was even examined, the fire had already been declared incendiary. This accommodated the prejudices of all the people in the community who disliked the restaurant owner. By the time the fire investigators got inside, they weren’t looking for the cause of the fire, they were looking only for arson evidence.
And so it went. Every finding reaffirmed the initial suspicion, and anything that didn’t serve to confirm a theory of arson was overlooked or deliberately dismissed. The case development for this fire proceeded with a frightening determination reminiscent of an old fashioned lynch mob. The lesson to be learned from this fire was that you can, indeed, develop motive and opportunity to “prove” arson. However, if you haven’t first meticulously, professionally, and fairly investigated the fire scene to determine whether the cause was or was not arson, then you have no case.
The sequence of an arson investigation is always the same:
- Establish that the fire was incendiary.
- Establish opportunity. This includes access to the fire scene; exclusive opportunity; distribution of keys; patterns of behavior; witnesses’ accounts of what happened prior to, during, and after the fire; etc.
- Establish motive.
When all three of these variables are fully investigated, developed, studied, integrated, and documented, then you’ve got a case.
Fire analysis and case development is probably the most challenging of all criminal investigative work. The reasoning involved is always methodical and logical.
At no time in history has the arson investigator had more tools of knowledge available to him in terms of books, seminars, and articles with which he can constantly improve his capabilities. The resources are there. Use them.
“I will bear in mind always that I am a truth seeker, not a case maker_” As a truth seeker, the case will or will not evolve, depending on what evidence there is and your ability to make this evidence meaningful.