10:00 PM PDT on Friday, May 25, 2007
Some state and federal fire officials are worried about criminal or civil liability as the U.S. Agriculture Department's inspector general's office begins its investigation into the Esperanza Fire that killed five U.S. Forest Service firefighters in October.
Firefighters across the country say they are less likely to accept fire assignments and more likely to avoid supervisory roles because of the possibility of criminal charges being filed against fire-incident commanders. Meanwhile, fire supervisors have been encouraged to buy professional liability insurance to protect themselves if prosecuted.
"Fear of prosecution is frightening to everybody," said Chuck Bushey, president of the International Association of Wildland Fire, a nonprofit professional firefighting organization. "A lot of them are thinking about not going out on fires for which they're qualified. Some of them are thinking about getting out of fire altogether. We deserve to have some immunity."
By law, the inspector general must investigate deaths of federal firefighters who are killed in burnovers or entrapments.
This week, a joint Forest Service and Cal Fire investigation report showed that mistakes made during the fire led to the firefighters' deaths.
Previously, two fire commanders were charged in the deaths of federal firefighters in Washington and Idaho.
'Our Complete Attention'
Terry McHale, public policy director for CDF Firefighters, a state firefighter union, said concerns about potential lawsuits or criminal prosecution of firefighters who made decisions battling the deadly blaze has "our complete attention."
"These people work under extreme duress in the worst of conditions. Then, to suddenly say you are subject to civil or criminal liability is the most severe and perverse case of Monday-morning quarterbacking," McHale said.
Laurie Levenson, a professor at Loyola Law School in Los Angeles, said she doesn't believe firefighters will be charged.
Prosecutors are seeking the death penalty against Raymond Lee Oyler, who faces five counts of murder in the arson that killed the Engine 57 crew.
"They've already got their bad guy," Levenson said. "He's the key."
Prosecutors would undermine their case against Oyler if they blamed someone else for the firefighters' deaths, Levenson said. Firefighters would more likely face disciplinary action, she said.
Cal Fire officials want to keep firefighters from jeopardizing the case against Oyler. As an example, Cal Fire Southern Region Chief Candace Gregory last month issued an e-mail memo suggesting that employees avoid talking about the Esperanza Fire.
Giny Chandler, Cal Fire's chief attorney, refused to provide a copy of the memo, calling it privileged legal advice.
The Press-Enterprise obtained it this week from an outside source.
Call for Safeguards
McHale said lawmakers must create safeguards for firefighters, who don't have time to second-guess themselves while trying to protect people and their homes.
Bushey said he plans to make lawmakers aware of the anxiety created when firefighters have to worry about choices they make while doing their jobs.
Earlier this year, Bushey's organization conducted a survey that indicated firefighters nationwide fear decisions they make while battling blazes could put them at risk of criminal prosecution.
The survey was done after former U.S. Forest Service supervisor Ellreese N. Daniels was indicted on charges of involuntary manslaughter and lying to investigators following firefighter deaths in the 2001 Thirtymile Fire in Washington.
The charges came in December, five years after the blaze trapped Daniels, 13 other firefighters and two campers. All but four firefighters survived.
The deaths in the Thirtymile blaze prompted Congress to pass a law in 2002 requiring the U.S. Department of Agriculture's inspector general to investigate all entrapments and burnovers involving federal firefighters.
More than a quarter of the 3,083 full-time firefighters who responded to the survey said Daniels' prosecution would not affect their careers. A little more than a quarter of them said they would respond to fewer wildland blazes.
About 17 percent said they would change their qualification documents to prevent being assigned to some fires. Another 16 percent said they would not take an incident-command assignment.
The inspector general's office pursued involuntary manslaughter charges against the incident commander after a fatal 2003 Idaho blaze, known as the Cramer Fire, in which two Forest Service firefighters died.
It was the first fatal blaze to be investigated by the inspector general. The U.S. attorney's office filed charges against the fire's incident commander, Alan Hackett, who was found to have been negligent in his management of the blaze. Hackett wouldn't comment Friday.
He agreed to 18 months of federal probation to avoid possible indictment and conviction. Hackett successfully completed his probation last year.
Federal fire officials say they understand prosecution fears threaten firefighter morale, recruitment, retention and safety.
Officials from several federal firefighting agencies issued a memo last month saying they were considering providing firefighters with more liability information and loosening rules to give them more freedom to assess a fire's risk and make decisions accordingly.
Dick Mangan, who served four decades as a Forest Service firefighter, said the threat of criminal repercussions could leave supervisors looking for reasons not to attack a blaze. He has conducted numerous studies on wildland fire deaths.
Mangan and others said many firefighters in supervisory roles are buying professional liability insurance to protect themselves in the event their decisions come under scrutiny.
The policies cost just under $300 a year and cover up to $100,000 in legal fees, along with $1 million in liability coverage.
Results from the fire association's survey shows that 85 percent of respondents didn't have professional liability insurance. Twenty-one percent said they would buy it this year.
San Bernardino National Forest Fire Chief Mike Dietrich said he has attended two presentations given by federal attorneys recommending that officials get the insurance.
"You respond to an incident in the middle of the night or whenever with good-faith interests and then, poof, something happens . . . and you find yourself under investigation -- criminal investigation," he said.
Reach Lora Hines at 951-398-9444 or lhines@PE.com"