The days of believing that NFPA standards, textbooks and articles in magazines have no effect on fire departments and fire chiefs are over.

Take, for example, the 1999 townhouse fire in the District of Columbia that resulted in two line-of-duty deaths and two other severe injuries.

Firefighter Anthony Sean Phillips Sr. entered the first floor of the residence with his officer, Lt. Frederick Cooper. After entering the structure, Cooper and Phillips became separated. Cooper exited the building and subsequently determined that Phillips had not.

Meanwhile firefighters Louis J. Matthews and Joseph Morgan, and Lt. Charles Redding also entered the burning building, unaware that Phillips and Cooper were inside. When Redding entered the townhouse, he was informed that the fire was on the first floor. As the firefighters were inside the home, a truck company arrived on the scene and began ventilating the front of the townhouse. A second truck then arrived and ventilated by breaking the rear basement sliding glass door.

While the firefighters were inside the house, Bttn. Chief Damian Wilk radioed Redding twice to determine his position. Redding did not receive these transmissions. Communications were impaired and visibility was poor. Redding did not have a hand light with him. The ventilation efforts of the truck companies resulted in super-heated gases from the fire shooting up the basement stairway to the first floor.

Redding ran from the townhouse, with his face and back burning. He informed Wilk that Matthews was still in the townhouse. Redding was unaware that Morgan and Phillips also were inside. Wilk did not order a rescue effort until approximately 90 seconds later, when Morgan exited the house suffering from severe burns.

Phillips and Matthews were found unconscious and severely burned. Phillips died of his injuries on the scene, while Matthews died of his injuries the following day. Morgan and Redding survived but suffered severe burn injuries.

NIOSH investigation

The National Institute for Occupational Health and Safety conducted an investigation into the facts and circumstances of the LODDs and concluded that the fire department did not follow standard operating procedures, in that there was a failure to properly ventilate the building and to coordinate personnel activities on the scene; that there was a failure to use the communications system effectively; and that there was a continuing failure surrounding the maintenance of SCBAs, as well as the need to provide all firefighters with PASS devices. The fire department's own internal investigation reached similar conclusions, and restated criticisms articulated in a report following the 1997 LODD of firefighter John Carter in a grocery-store fire.

One year later Morgan, Redding, and the families of Phillips and Matthews families filed separate civil rights actions under 42 U.S.C. Section 1983 against the district, Chief Donald Edwards, and three other district officials, including Wilk and Cooper.

In a Section 1983 action against a municipality, the plaintiffs must demonstrate that they were deprived of an actual constitutional right by a pattern or practice of the defendant municipality. A local government may not be sued under Section 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose actions can be said to represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983.

In Section 1983 cases involving due-process challenges to executive action, the threshold question is whether the behavior of the officials is so egregious or so outrageous that it may fairly be said to “shock the contemporary conscious.” Generally, the conscious-shocking conduct required to hold the municipality liable must arise from intentional conduct. However, there are exceptions to this rule. One exception may occur where the state has affirmatively created a dangerous condition. A municipality's failure to adequately train employees may, in some circumstances, rise to the level of “a deliberate indifference.”

It may seem contrary to common sense to assert that a municipality actually would have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees, the need for more or different training is so obvious — and the inadequacies so likely to result in the violation of constitutional rights — that the policy makers of the city can reasonably said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.

Lawsuits also may impose individual liability on government officers for actions taken under color of state law. Plaintiffs need not establish a connection to government “policy or custom.” However, in defending these cases, individual officers may assert personal immunity defenses such as “objectively reasonable reliance on existing law.” To raise such a defense, the governmental officer must claim that at the time he acted, the constitutional right allegedly violated was not “clearly established.”

Chief defendant

In the Edwards case, plaintiffs claimed that the defendants knew of the critical need to institute necessary training and enforce mandatory operating procedures. They also claimed that the defendants “knew of the dangers” if they did not provide the necessary training or enforce mandatory operating procedures. The plaintiffs claimed that because of the mandatory nature of the SOPs, the implementation of the policies or procedures by the supervisory officers was not discretionary.

In addition to the Section 1983 claims, the plaintiffs also raised state law-based intentional-tort claims. The firefighters alleged that the fourth-due engine company failed to back-up the second-due engine company in the rear of the structure; that the officer in charge failed to maintain required contact with a member of his crew on the fireground; that the officer in charge failed to immediately account for, report the fact of and locate a missing firefighter; that the fire department failed to have sufficient personnel on the scene to perform effectively; that the first-arriving unit in the rear failed to provide a size-up of the rear conditions; and that the fire department failed to have an available back-up unit in service to replace a truck, which delayed ventilation procedures. The plaintiffs claimed that these failures were product of a conscious and deliberate decision and not a simple or negligent oversight made under emergency, spur-of-the-moment conditions.

The court noted that the fire department had been put on notice of the serious consequences that could result from its failure to train, equip, and staff appropriately. In light of the events surrounding and resulting from the 1997 grocery-store fire, as well as a NIOSH report and deficient implementation of the district's SOPs, the court found that the story the plaintiffs painted shocked the conscious sufficiently to withstand the district's motion to dismiss the complaints.

The court also found that, in light of the supervisory and decision-making capacities of the individual defendants, and their ongoing failure to institute corrective training or to follow the district's own rules even after the scathing reports were issued, it could not dismiss the claims against the district.