London Chiefs Under Investigation For Shelter In Place Decision

Today’s burning question: Could London’s fire chief and other senior fire officials be prosecuted over their decision to advise residents of the Grenfell Tower to shelter-in-place?

Answer: According to the Telegraph, police officials are investigating whether senior fire officials should be charged in regards to their role in the deaths of residents in Grenfell Tower high rise fire.  Seventy-two people died in the fire that engulfed the 23-story building on June 14, 2017.

At issue is whether the decision to tell residents to shelter in place rises to the level of being a criminal offense. The possibility of criminal charges being brought against firefighters following multi-fatality incidents is not a new phenomenon. Here in the US, the Iroquois Theater Fire in Chicago in 1903; the Cocoanut Grove Fire in Boston in 1942; and the Station Nightclub Fire in West Warwick, Rhode Island in 2003 are but a few examples where firefighters faced the prospect of homicide charges. The UK has seen its share of homicide cases against firefighters as well.

Since our legal system has its origins in the English system, there are some commonalities particularly when it comes to homicide. When a person’s conduct results in the death of another and the actor had a criminal mental state relative to that death, homicide charges are possible. The Model Penal Code recognizes four criminal mental states: purposeful, knowingly, reckless and negligent.

• Purposeful means that the person intended or desired to engage in certain conduct or cause a certain outcome.
• Knowingly means that the person knew to a substantial certainty that a particular outcome would follow from his or her act, even if the person did not intend or desire it.
• Reckless is the mental state in which a person consciously disregards a known and substantial risk of harm involving a gross deviation from the standard of care of the law-abiding citizen.
• Negligent is a criminal mental state in which the perpetrator should have been aware that a substantial and unjustifiable risk of harm would result from his or her conduct. The criminal mental state of negligence involves a gross deviation from what the reasonably prudent person would have done under the circumstances.

Not all states follow the Model Penal Code, but the law in most states is surprisingly similar to it.

As a general rule, a death where the actor had a mental state of purposeful or knowingly can result in a murder charge. A death where the actor had a mental state of recklessness can result in involuntary manslaughter charges, although if truly outrageous a reckless act that causes a death could potentially be charged as murder. Deaths associated with criminal negligence can generally result in negligent homicide charges at most.

In the Grenfell Tower case, the determination will come down to an application of the mental state definitions to the facts in terms of what the senior fire officials knew at the time they ordered residents to shelter in place. Murder charges would appear to be off the table, since it is inconceivable that fireground commanders acted purposefully or knowingly to kill any of the victims. Even recklessness would appear to be a stretch in this case as the prosecution would have to prove the fire ground commanders consciously disregarded a known and substantial risk of harm by advising them to remain in their rooms. The problem with the Grenfell Tower fire was that no one apparently knew of the risk posed by the building’s flammable exterior. As such, it would be difficult to establish that commanders consciously disregard a known risk since it was unknown to anyone.

That leaves the question of negligent homicide. Should the commanders have been aware that advising residents to remain in their rooms created a substantial and unjustifiable risk of harm to them? In doing so did the commanders’ decisions constitute a “gross deviation” from what the reasonably prudent fireground commander would have done?

In uncommon solidarity, both the London Fire Brigade and the London Fire Brigade Union have publicly said that based on what was known at the time, there was “no obvious and safe alternative strategy” to shelter in place.  If that is indeed factually the case, no charges would be warranted. Even if it is not, it seems like a stretch to say the shelter in place decision was a “gross deviation” from what the reasonably prudent fireground commander would have done.

If we assume the fire ground commanders were criminally negligent (which is a stretch), the case is not over. Perhaps the biggest obstacle to criminal prosecution is a thing we call “causation.”  Was the negligent act the proximate cause of any of the deaths. The prosecution would have to show that had an evacuation order been given it is beyond a reasonable doubt one or more of the victims would have survived.

For now we will have to wait and see what the arm-chair commanders at Scotland Yard say. More on the story.