Baltimore LODD Suit Dismissed

A lawsuit brought by the families of three Baltimore firefighters who died in a 2022 building fire has been dismissed. The January 24, 2022 fire claimed the lives of Lieutenant Paul Butrim, FF Kenneth Lacayo, and FF Kelsey Sadler, and seriously injured FF John McMaster.

The lawsuit claimed the city’s failure to catalog and mark structurally compromised buildings, violated the constitutional due process rights of the dead and injured firefighters. More specifically, they claim the city’s conduct was “deliberately indifferent” to the point that it “shocks the conscience.” Here is earlier coverage including a copy of the complaint.

Judge Matthew J. Maddox disagreed. For those looking for a quick bottom line: The court held that in an employment context, for a tortious injury to arise to the level of being a due process violation, “deliberate indifference” and “shocks the conscience” requires an “intent to cause harm”. The court distinguished the more common type of due process violation, in-custody deaths and injuries resulting from law enforcement, from employment related deaths and injuries. For in-custody deaths and injuries to violate due process, deliberate indifference that shocks the conscience need not be intentional. However, to apply that approach in employment situations would interject constitutional law into what should be a state law tort analysis. Thus, there must be an intent to cause harm for claims arising out of an employment context.

Now for the details. The following is pulled from the decision, with citations, quotation marks, brackets, or other distractions having been removed to make reading easier.

• On the morning of January 24, 2022, firefighters … responded to a fire at 205 South Stricker Street, a condemned rowhome in the Mount Clare neighborhood.
• Six firefighters were ordered to enter the structure, and the house collapsed moments later. There were no markings or placards placed outside the Property indicating that it was structurally compromised.
• After the collapse, a rescue team removed two firefighters from the home; three of the others—Paul Butrim, Kelsey Sadler, and Kenneth Lacayo—died; and the sixth firefighter—John McMaster—sustained serious permanent injuries.
• Plaintiffs allege… that in 2010, to comply with federal regulators and industry standards, the City implemented a program called Code X-Ray to ensure that firefighters would never be ordered into a structurally unsafe condemned property.
• Under Code X-Ray, the City marked structurally unsafe buildings with reflective placards or a painted red X, warning firefighters not to enter.
• Plaintiffs allege that the City promised its firefighters, including Plaintiff Firefighters, that it would maintain a database of all unsafe condemned structures under Code X-Ray, syncing that database to the computer-aided fire dispatch system.
• However, shortly after starting Code X-Ray, the City discontinued the program or limited its application to a few, select neighborhoods.
• The City deliberately withheld this information from its… firefighters.
• Plaintiffs allege that the City maintained this policy of deception for more than ten years before the incident at issue here, and as a result of this policy, at least one other Baltimore firefighter was killed in 2014 and three others injured in 2015.
• After the 2014 death, NIOSH explicitly told the City to begin marking unsafe vacant properties to avoid another tragedy.
• Plaintiffs allege that the City never corrected these deficiencies and instead, continued lying to firefighters about the existence of Code X-Ray.
• Plaintiffs filed their Complaint against Defendant alleging Monell liability for an unconstitutional state-created danger under 42 U.S.C. § 1983.
• To sustain an action under § 1983, a plaintiff must demonstrate that: (1) he suffered a deprivation of rights, privileges, or immunities secured by the Constitution and laws of the United States; and (2) the act or omission causing the deprivation was committed by a person acting under color of law.
• A viable § 1983 Monell claim consists of two components: (1) the municipality had an unconstitutional policy or custom; and (2) the unconstitutional policy or custom caused a violation of the plaintiff’s constitutional rights.
• To establish a substantive due process violation based on executive action, the challenged conduct must be so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.
• The Supreme Court has, for half a century now, marked out executive conduct wrong enough to register on a due process scale as conduct that shocks the conscience, and nothing less.
• To be conscience shocking, a defendant’s behavior must lack any reasonable justification in the service of a legitimate governmental objective.
• Due process does not impose a duty on municipalities to provide their employees with a safe workplace or warn them against risks of harm (though state tort law may).
• Applying the state-created danger doctrine in cases… would risk displacing state tort law with federal constitutional law whenever an accident happens during activities sponsored by the state.
• The Fourth Circuit… held… that the fire department’s constitutional liability turned on whether it intended to harm.
• This intent-to-harm standard has been consistently applied by district courts in the Fourth Circuit.
• While the facts alleged in the Complaint are tragic and alarming, this Court is constrained… to find them insufficient to state a plausible claim under § 1983 for a violation of the Due Process Clause.
• Although Plaintiffs allege that the City acted deliberately and intended to harm firefighters… through its egregious affirmative acts, they fail to allege sufficient facts to support these conclusory and formulaic allegations.
• Plainly, Plaintiffs do not allege that the City sent Plaintiff Firefighters into the Property on January 24, 2022, with the intent to injure them.
• The only plausible purpose for sending Plaintiff Firefighters into the Property supported by the facts in the Complaint was to fight the fire that engulfed the building.
• Because Plaintiffs fail to allege a plausible constitutional violation, their Monell claim cannot survive Defendant’s motion to dismiss.

Here is a copy of the decision.