In the aftermath of Hurricane Sandy, a volunteer firefighter on Long Island, New York, has been charged in connection with a fire involving two vehicles at his fire station.
Firefighter Steven Pena of the Freeport Fire Department was arrested and charged with fourth-degree arson after he accidently ignited a blaze at the fire station when transferring gasoline from a fire department vehicle to his car using a wet/dry electric vacuum. The gasoline caught fire when the machine tipped over and the cars were completely destroyed in the fire. Two firefighters who responded sustained minor injuries.
The incident occurred yesterday at 1:40 pm. Pena’s attorney said that “the department vehicle destroyed in the incident was not being used for emergency response and had a broken transmission”. Hurricane Sandy has left thousands of residents homeless, stranded and facing severe gasoline shortages.
The fourth-degree arson charge may seem a bit odd to some given that the fire occurred accidentally. Here is the NY statute:
NY Penal Law S 150.05 Arson in the fourth degree.
1. A person is guilty of arson in the fourth degree when he recklessly damages a building or motor vehicle by intentionally starting a fire or causing an explosion.
2. In any prosecution under this section, it is an affirmative defense that no person other than the defendant had a possessory or proprietary interest in the building or motor vehicle.
Arson in the fourth degree is a class E felony.
It would appear this statute is aimed at someone who intentionally starts a fire that then recklessly damages a building or vehicle. Arguably Pena “recklessly” damaged the vehicles, but he would appear to have a defense in that the fire/explosion was not “intentionally” caused. Any NY criminal lawyers out there care to comment?
I would think that petty larceny might be a more appropriate charge, assuming he was siphoning the gas without permission.
Three volunteer firefighters in three different states are in the news today for misconduct, and the charges are no surprise: arson and theft from a volunteer fire department.
In Idaho, an 18-year-old volunteer firefighter has been arrested for setting a wildfire fire that has already claimed one home and burned over 250 acres. Nathaniel Bartholomew, a firefighter with the Clear Creek Fire Department, was arrested Monday evening while he was actively fighting the Karney Fire that at the time was only 15% contained.
In North Carolina, a deputy chief and treasurer of a volunteer department has been charged with embezzling $300,000 from the department. Joey Burgette was arrested last week on eight felony counts. According to police, the 42-year-old deputy chief from the Warsaw Fire Department also served as department treasurer.
And in Defiance, Ohio, a volunteer firefighter was arrested for setting a riding lawnmower inside his garage on fire last June. Mark Paul Seibert, 29, is facing two aggravated arson counts in Defiance County Common Pleas Court. The fire occurred on June 18, 2012. According to news reports, the offenses were considered aggravated because someone was sleeping inside the house at the time. Seibert was affiliated with several area fire departments, including Defiance City Fire Department, South Richland and Highland Township fire departments. He also volunteered with the Defiance County Sheriff’s Office.
An assistant fire chief from a small town in Montana has been charged with negligent arson, official misconduct, and operating on a suspended license following a fire last April that damaged several vehicles, storage sheds, timbers, plywood, flooring, windows, and a hay barn.
Assistant Chief Kasey Doto of the Centerville Volunteer Fire Department was reportedly tending to a small outdoor scrap fire a relative’s house in Butte when it got out of control. When career firefighters from the Butte Silver Fire Department arrived a Centerville VFD truck was already at the scene.
Chief Doto’s driver’s license had previously been suspended for DUI citations and he was prohibited from driving the apparatus. According to KTVQ.com, Centerville VFD had gone so far as to set up a video camera to ease the public’s concern that Chief Doto was disobeying the DUI suspension. Ironically, the camera caught Chief Doto driving his own vehicle and another fire department vehicle.
Firefighters remained on the scene of the fire for eight hours controlling the blaze, overhauling and investigating. When asked how the Centerville fire truck got on scene, Chief Doto allegedly claimed it was at a nearby trucking facility for repairs. He was arrested last Thursday and released on his own recognizance, and is due back in court for arraignment on September 6, 2012.
An upstate New York firefighter has been charged in connection with a series of fires set in his own fire station. William L. Smith, 22, of the West Glen Falls Volunteer Fire Company was arrested by state police and investigators from the state fire marshals office last Friday.
Smith is believed to be responsible for a series of small fires set in various electrical outlets in the station, including one on July 31, 2012 that damaged a cable TV modem. He has not been charged in connection with a more serious fire on July 31, 2012 that damaged the station’s kitchen.
Apparently critical to the solving the case was a computerized security system that tracks members entering the building. The Poststar.com is reporting that authorities say Smith admitted to his involvement in the smaller fires, but not the most serious one.
Smith was a member of the department’s board of directors and was responsible for station maintenance.
A Sacramento homeowner whose vacant rental property was destroyed in a natural gas explosion in 2010, is suing the Sacramento City Fire Department for over $1 million.
Christopher Liu’s property was destroyed on July 5, 2010 in an explosion that occurred as firefighters were entering the structure to investigate the source of a gas leak. Four firefighters were injured in the blast, three seriously.
The leak was caused by a disgruntled neighbor, Robert W. Durst, who had previously done plumbing work for Liu. Drust was allegedly upset with Liu because Liu stiffed him $750 for the work.
According to police, Drust admitted that he broke into the house, opened the gas valve in the kitchen, and left a candle burning in the living room distant from the gas leak. When firefighters arrived to investigate a strong gas smell coming from the house, Drust merely watched as the firefighters forced open the door of the house prompting the explosion. Witnesses said Drust acted disinterested as the event played itself out.
For his part, Liu was compensated by his insurance company $150,000 for the damage to his vacant structure. His suit, which he filed without the aid of an attorney, claims the firefighters were “irresponsible, negligent, and/or criminal” in the manner in which they responded to the incident. The guy who stiffed the plumber $750, and refused to hire a lawyer, is seeking $1,008,000 in damages, including $500,000 for “for personal distress for being implicated in the media as an arson suspect.”
Earlier this week, Drust was sentenced to 17 years in prison. Outside the courtroom, Lui was asked about why he filed his suit. His heartless reply: “They should have been more careful. .. There was no fire going on… there was no reason for them to open the door. … I want them to realize they didn’t handle the situation properly.” What a peach.
The lawsuit alleges the fire department should have secured the scene and waited for “experts” from Pacific Gas & Electric to respond because they were better equipped to handle gas leaks. The lawsuit hypothesizes that the firefighters somehow created a spark that prompted the explosion.
While most states have taken an aggressive approach to frivolous lawsuits, California is one state that appears to have lagged behind the rest of the country. Check out this article on the problem.
In most states, a Rule 11 sanction would likely await Mr. Liu. In states that follow the Federal Rules of Civil Procedures, Rule 11 reads as follows:
b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. …
Mr. Liu would have a very difficult time showing he had a good faith basis to support his allegations in a state that adopts Rule 11. Speculation would not cut it. He would need to have an expert witness willing to testify that it is more likely than not that the source of the spark that caused the explosion was something that the firefighters did rather than the candle or some other factor. He would also require expert testimony to show that the reasonably prudent fire department would have waited for PG&E to arrive on scene. I’m doubting as a pro se litigant he has experts lined up for either.
However, in California it looks to be just another frivolous suit tying up the legal system.
A volunteer firefighter suspected in a series of fires in Maine last summer, accepted a plea agreement last week and began serving a prison term.
Timothy Tiess, 37, of the Pleasant Point Fire Department, was charged with five counts of arson and one charge of aggravated criminal mischief related to a series of fires in July 2010. He was suspected of setting both wildland and structure fires but was only charged for the wildland fires.
This was apparently not Tiess’s first go-round with setting fires. The Bangor Daily News is reporting that Tiess had three prior convictions for fire-related incidents back in the 1990s involving structures in southern Maine. No word on how he was able to continue as a firefighter… but don’t discount a good attorney. Despite the five arson charges, Tiess only pled guilty to a single count of aggravated criminal mischief. He is serving an 18 month sentence.
The city of Erie, Pennsylvania is asking a Federal court judge to reverse a jury verdict in the wrongful termination/discrimination case of female firefighter Mary Wolski. Recall two weeks ago the jury granted Wolski $206,000 in back pay and reinstatement finding her termination to violate the Americans with Disabilities Act.
Wolski was terminated in 2007 following her attempted suicide in December, 2006 by setting a fire. The city’s motion asks the court to find as a matter of law that the evidence was insufficient for a jury to rule in Wolski’s favor.
The Erie firefighter who was terminated from the department after she tried to commit suicide by setting fire to clothes in a bathtub, has won her job back. Mary Wolski, 45, the department’s first female firefighter, set the fire hoping that the smoke would kill her.
Wolski was suffering from severe depression and was under medical treatment at the time of the blaze. On December 28, 2006 she attempted suicide in her father’s vacant home by putting cloths into a bath tub and setting it on fire. She then tried to douse the fire with water and went on to cut her wrist. Meanwhile her family members found her and called for help.
Wolski underwent medical treatment, was able to recoup, and was later found fit for duty. In 2007 the district attorney opted not to press criminal arson charges against her. Wolski then sought to return back to duty, but instead the department terminated her.
She appealed her termination to the Civil Service Commission, which upheld the city’s decision. Wolski then filed suit under the American with Disabilities Act (ADA) claiming stating that she was actually terminated by the city on account of her depression, and the city’s ungrounded fears that she might relapse into depression again.
Yesterday, an eight member Federal jury decided that that the city violated the ADA and Wolski’s rights. The city was ordered to pay back wages to Wolski and reinstate her with her seniority intact.
Assistant City Solicitor Gerald Villella said afterward that the city feared rehiring Wolski would impact the morale of the Fire Department, and that the City would consider filing an appeal.
Earlier this week, we covered the case of US Forest Service firefighter Daniel Mariano Madrigal, who was charged in state court with arson for setting a wildland fire on July 25, 2010.
Madrigal’s attorney, Salvador Silva, admitted that his client set the fire but claimed it occurred accidentally when he discarded a cigarette that had burned him. The case was scheduled to go on trial this week in Rancho Cucamonga, California.
The case concluded Monday with Madrigal pleading no contest to the charges and accepting a two year prison term. Prosecutor Karen Khim was seeking a four year sentence, but was persuaded to take the two years provided Madrigal was not given credit for time already served. With good behavior credit Madrigal is expected to be released in roughly nine months.
Today’s burning question: I’m a wildland firefighter and I accidentally started a fire when the cigarette I was smoking burned me and I tossed it. Can I be charged with arson?
Firefighter Daniel Mariano Madrigal goes on trial today in Superior Court in Rancho Cucamonga, California on arson charges related to a July 25, 2010 blaze (I am not making up the Cucamonga part either). He is a US Forest Service firefighter.
According to his lawyer, Madrigal drove out to a remote area to make a cellphone call, when his cigarette burned him. He tossed it away, but immediately began searching for it. Shortly thereafter he discovered the fire and returned to his station. He and his captain then responded to extinguish the fire which was contained to a small area.
Can he be charged? Obviously. Can he be convicted? That will depend on whether the jury believes his story. Madrigal is charged with “willfully, unlawfully and maliciously” causing the wildland fire. Some states have a lesser charge of negligently causing a wildland fire. The state would have an easier case if he was charged with negligently causing the fire… but in either event it will come down to believability.
A volunteer firefighter in Osage County, Oklahoma has been charged with setting an August 3, 2011 fire that damaged several structures and consumed 300 acres. What has investigators puzzled was the discovery of human remains inside a school bus that was damaged in the blaze.
Dustin William Koelliker, 39, a member of the Sand Creek Fire Department, is accused of setting the fire and endangering human life. He is being held on $100,000 bond.
The fire is reported to have destroyed one house, damaged another, and damaged several mobile homes, outbuildings, tractor trailers, a boat, a motorcycle, a greenhouse, and approximately 300 acres.
The body was found in a bus that belongs to Koelliker’s stepfather, Daniel Glenn Clark, who is serving time for child molestation. The bus was apparently being used for storage. Police have not identified the remains, which are being sent for DNA testing. Koelliler has not been accused of any offenses related to the body. He was terminated by the fire department.
Four Tennessee volunteer firefighters have been charged with arson in connection with a series of recent fires, including one that destroyed a fire station.
The suspects are all members of the Houston County Fire Department, and according to local officials all have longstanding connections with area firefighters. The firefighters include Jeremy Mackens, 19, and Daryl Buttons, Michael Brooks and Robert Taylor Richardson, all of whom are 20 years old. The fire station that was destroyed was in McKinnon, Tennessee. Two engines were destroyed.
No injuries were reported in any of the fires, and all four members have been suspended from the department. Here is more on the story.
At the present time, the fire litigation database contains a total of 91 criminal cases of arson by firefighters involving 161 defendants. 63 cases (69.2%) involve volunteer fire departments, 12 involve combination departments and 16 involve career departments.
28 of the volunteer cases (44.4%) involve conspiracies among multiple volunteer firefighter-defendants. This should be contrasted with arson in the career service. In 15 of the 16 cases involving career departments the defendant arsonist acted alone, and in the other case two firefighters conspired to set a small fire outside another company’s station as a prank. In 7 of the 12 cases involving combination departments, the arsonist acted alone and while 5 cases involved conspiracies.
Based on this limited data, it would appear that volunteer firefighter arsonists are might more likely to engage in arson conspiracies than career firefighter arsonists. The motive in the vast majority of these cases appears to be to gain experience in fighting the fires. This may offer an opportunity for volunteer fire service leaders to intervene – by being watchful for individuals or groups of individuals who may be contemplating such activities out of boredom or a need to prove themselves. On the other hand, the data shows that career firefighter arsonists are more likely to act alone and burn for profit. That problem may prove more difficult to predict.
A Westmoreland County, Pennsylvania volunteer firefighter was sentenced yesterday to 1 ½ to 3 years in prison for setting a fire last August. Brandon Cooper, 19, was with the Arnold Volunteer Fire Department when he set a fire in a garage that led to the destruction of two garages, seven houses and a parked car.
He pled guilty to the charges, and will have to serve probation and pay restitution upon his release.
Asked to comment on the sentence, Pennsylvania State Fire Commissioner Edward A. Mann gave the quote of the week:
“A firefighter accused and convicted of arson should have the entire bookcase thrown at them. Not just the book.”
A wildland firefighter with the Oklahoma Forestry Services has been arrested and charged in conjunction with up to 60 fires set over the past two years. Mike Malenski, 38, has been employed by OFS for the past 7 years. He has been placed on administrative leave pending termination proceedings. Click here for video coverage.
The verdict is in, in the arson and murder case against 27 year old Christopher Benitez, accused of setting the fire that claimed the life of Phoenix firefighter Brett Tarver in March 2001.
Benitez was acquited of murder, but convicted of negligent homicide and two counts of arson.
A severely injured firefighter from Warrior Run Area Fire Department in Pennsylvania received a $10 million verdict last Friday against the arsonist who set the fire that caused the injury. The arsonist was also a firefighter.
Wayne E. Hawley Jr., 54, was paralyzed in 2007 while battling a fire that was set by former firefighter Chester A. Cyphers, 55. Cyphers is believed to have set as many as 60 fires between 2004 and 2008.
The case was tried before Judge Charles H. Saylor, who awarded Hawley $7.54 million, and $2.5 million to his wife.
The reality is that the Hawleys’ are unlikely to see any of the $10 million. Cyphers is serving a 12 to 25-year prison sentence at the State Correctional Institution, and will likely be in his 70s before he is released. He had been a firefighter in Washingtonville, PA.
A Wichita firefighter has been terminated for setting a small fire in the fire station that he intended as a practical joke. Jarrod Womack has been terminated for the January 12, 2011 prank. Five other firefighters also received discipline ranging from reprimands to suspensions.
Womack was quoted by KSN as saying “I was wrongfully terminated. Some guys in upper management have done the same kind of thing more than once.” He vowed to grieve the termination.
This is the second recent practical joke fire that cost a firefighter his job. The other case made news in January in Apopka, Florida over a fire that occured in December, 2010.
A Colorado homeowner who was charged and convicted of arson has filed a notice of intent to sue the fire departments that fought the fire he set.
Termed the Reservoir Road fire, the fire in Loveland, Colorado began September 12, 2010 when Joel Ledermann was burning brush on his property without a permit. The fire burned 750 acres and destroyed two homes.
According to District Attorney Larry Abrahamson “a person commits fourth degree arson if they recklessly start a fire which places other people or property in danger.”
We do not normally associate a “reckless” state of mind with the crime of arson. More commonly, arson requires “intent”. However in Colorado as in many other states there are degrees of arson, particularly when it comes to wildland fires, that recklessness or even gross negligence is enough.
Recklessness is commonly defined as consciously disregarding and known and substantial risk of harm. Abrahamson further described it under Colorado law: “reckless behavior is when a person actually perceives, or should perceive, the result that occurs and disregards it.” Gross negligence is defined as a gross deviation from the reasonably prudent person standard.
Ledermann’s legal theory against the fire departments is unclear. He pled guilty last December, sparing himself any risk of jail time. He has been sued for negligence by homeowners whose property was damaged. According to his defense attorney in that case, Ledermann needed to file the notice of claim or risk losing the ability to ever sue the fire departments due to a time limitation.
Certainly a case we will be watching.
A combination fire department in Louisiana has filed suit against one of its former call firefighters who set fire to a building owned by the department. The Little Caillou Fire Department filed suit in state court against Jesse Patrick Marcel, 22, who recently pled guilty to setting four fires between 2009 and 2010.
One of the fires that Marcel set was on March 15, 2010 in a house owned by the department and occupied by another member of the department. Damages to the building were estimated at $55,000. The fire department’s insurer, American Alternative Insurance Corp., was also a named plaintiff in the suit under its right of subrogation to recoup $50,000 they paid the fire department.
Marcel was sentenced to one year in prison, and ordered to pay restitution of $10,700 to the house’s tenant, firefighter Whyley Pellegrin.
Incidentally, out of 2,134 lawsuits in my fire litigation database… this is a first: a firefighter sued by the fire department for arson!
A third volunteer firefighter has been charged with arson in Cleburne County, Alabama, following the arrests of two firefighters for arson earlier this month.
Adrian Campbell, 19, was arrested on January 21, 2011 for setting a fire vacant home on fire on November 17, 2010. The other two firefighters, Tyler Moore and Kevin Johnson, both 18, were arrested two weeks ago in connection with a January 6, 2011 fire. Moore was also charged in connection with the November 17th fire. All were members of the Hollis Crossroads Volunteer Fire Department.
The Fire Litigation Database currently has 268 criminal cases against firefighters for duty related offenses, 67 of which are arson cases (25%). Fifty-three of those cases (79.1%) involve volunteer or call firefighters. While 13 of the 14 career firefighter arson cases (92.3%) involve firefighters acting alone, 24 out of 52 of the volunteer cases (46.2%) involved multiple defendants and/or conspiracies to set fires.
The numbers present a stark difference between career and volunteer fire setters, and indicate that arson in the volunteer service is much more likely to occur among groups of firefighters, as appears to have been the case in Cleburne County. One would hope that the social nature of these arson groups might offer an opportunity for fire department leadership to intervene and prevent fires from occurring. At a minimum volunteer fire officers need to be attentive to clues indicating that some in the organization may be contemplating or involved in such actions.
Apopka firefighter Jason Leblanc, 44, has resigned following the disclosure that he set another firefighter, 25-year-old Jack Shumate, on fire at a holiday party on December 18, 2010. Shumate sustained second degree burns and has not returned to work since the incident.
Leblanc allegedly used lighter fluid to set Shumate’s pants on fire as a joke. Despite his injuries, Shumate has asked that charges not be brought against Leblanc. That appears to be out of his control as Leblanc faces two felony arson charges stemming from the incident. The Apopka Fire Department has launched an internal investigation.
A volunteer firefighter in Lafayette, Georgia has been arrested and charged with one count of arson. However, Marvin Chase, 32, is a suspect in over 20 fires and is being referred to as a serial arsonist. According to one news report he admitted to setting over 30 different vacant structure fires.
The USFA produced a special report on volunteer arson that has some excellent information – particularly about the profile of volunteers who set fires. Click here. Definitely worth reading.
A former Whites Crossing, PA volunteer firefighter was sentenced on November 17, 2009 for his role in a number of arson fires that caused over $3 million in damages. Benjamin B. Christensen was sentenced to serve between 10 to 20 years in prison after pleading no contest to charges related to a string of seven fires that occurred between February 2007 and March 2008.
Christensen allegedly set five fires in 2007 and 2008 and conspired to set two others. Co-defendant Robert Woolaver Jr. is serving a 4 to 16 year sentence. Both were well known volunteer firefighters in the area. The fires occurred between February 2007 and March 2008. At one of the fires on March 31, 2008, a responding firefighter suffered a heart attack. The firefighter survived but continues to suffer from medical issues associated with the incident.
Christensen will also have to serve 20 years probation upon his release and pay $3 million is restitution.