Synopses & Reviews
The legal guidance that fire service leaders have been seeking can finally be found in one book! This all-inclusive legal reference includes discussions, cases and examples that will truly speak to a variety of fire chiefs and officers, municipal officials, emergency managers, and attorneys. The book includes explanations of laws as they relate to firefighting, and covers a broad range of topics including negligence, due process and discipline, Internet privacy, civil liability, employee issues such as drug testing, rescue doctrine, fireground search and seizure, and much more. Detailed case summaries and examples from the most significant disasters in fire service history help lend a real-life aspect to the legal topics at hand. An accompanying back-of-book CD-ROM includes over 5,000 laws from all 50 states that apply to the fire service, covering topics such as line of duty injuries, residency requirements, and liability. In addition, every arson law in the United States is listed on this valuable CD, which is easily searchable and navigated.
"I found the text easy to read...this was written for the fire service by a fire service person, and it showed... I do envision using this book for training officers, as a refresher tool for current officers, and selected sections for promotional processes. It serves as a guide to ensure that we are following the law during daily operations and when we create or revise policies." - Thomas G. Weber CFO, EFO, MPA; Fire Chief, Port Orange Department of Fire and Rescue, Port Orange, FL
About the Author
J. Curtis Varone has been in the fire service for more than 33 years, with experience as a volunteer, paid on-call, and career firefighter. He also has twenty years experience as a practicing attorney representing firefighters and fire departments. Curt is currently a Deputy Assistant Chief and shift commander with the Providence Fire Department in Providence, Rhode Island. He is also an Adjunct Faculty member of the National Fire Academy, Executive Fire Officer Program and of Providence College?s Fire Science program.
Table of Contents
Table of Contents Acknowledgements Introduction Glossary Chapter 1 - Types and Sources of Laws 1.1 What is ?the law?? 1.2 Where do laws come from 1.2.1 Who or What is ?The Government?? 1.2.2 Supreme Law: The United States Constitution 1.2.3 Balance of Power 1.2.4 Congressional Organization 1.2.5 State Constitutions 1.2.6 Local Charters 1.2.7 Beyond the Constitution: Statutory law 1.2.8 Statutory Organization and Numbering 1.2.9 Ordinances 1.2.10 Beyond StatutesandOrdinances 1.2.11 Case Law 1.2.12 Common Law 1.2.13 Less Common Sources of Law 1.3 Standards and Codes 1.3.1 Where do Standards Come From 1.3.2 When Standards Become Law 1.4 Civil v. Criminal 1.5 Jurisdiction 1.5.1 Federal Jurisdiction 1.5.2 State Jurisdiction 1.5.3 Local jurisdiction 1.5.4 State Freedom to Pass Laws Chapter 2 ? Courts and court systems 2.1 Introduction 2.2 Courts in general 2.2.1 Judges and Magistrates 2.3 Jurisdiction 2.4 Trial Courts and Appellate Courts 2.5 Evidence 2.5.1 Testimony 2.5.2 Hearsay Evidence 2.5.3 Admissions and Exceptions to the Hearsay Rule 2.6 Anatomy of a Civil Suit 2.6.1 Pleadings 2.6.2 Discovery 22.214.171.124 Depositions 126.96.36.199 Interrogatories 188.8.131.52 Requests for Production 184.108.40.206 Requests for Admissions 220.127.116.11 Pre-Trial motions 2.6.3 Trial 18.104.22.168 Burden of Proof 22.214.171.124 The Merits of a Case 126.96.36.199 Juries 188.8.131.52 To jury or Not to Jury 2.6.4 Appeals 184.108.40.206 Appeals Limited to Issues Raised At Trial 220.127.116.11 Concurring and Dissenting Opinions 2.7 Federal Court System 2.8 State Courts 2.9 Stare decisis and precedence 2.10 How ?Decisis? is ?Decisis?? 2.11 Law Suits and the Media 2.12 The Role of Law Suits in American Society 2.12.1 Introduction to the McDonalds Case 2.12.2 The Facts 2.12.3 Does She Have a Case 2.12.4 The Trial 2.12.5 From the Jury?s Perspective 2.12.6 Excessive Damages 2.12.7 The End: Social Change 2.13 Legal Research 2.14 Legal Arguments Chapter 3 ? Types of Fire Departments 3.1 What is a Fire Department? 3.2 The Role of a Fire Department 3.3 Public Sector v. Private Sector 3.4 Types of Entities 3.4.1 Corporations 3.4.2 Corporate existence 3.4.3 Associations 3.4.4 The Problem with Unincorporated Associations 3.4.5 Corporate Name 3.4.6 Why Incorporate? 3.4.7 Limitations on Liability Protection 3.5 Public Sector Fire Organizations 3.5.1 Municipal Fire Departments 3.5.2 County Fire Departments 18.104.22.168 Transitional Situations 3.5.3 Fire Districts or Fire Protection Districts 3.5.4 Regional Fire Departments 3.5.5 Public Safety Departments 3.5.6 State and Federal Fire Departments and Related Entities 3.6 Private Sector Fire Organizations 3.6.1 Volunteer Fire Companies 22.214.171.124 Agreements between Volunteer Fire Companies and Jurisdictions Protected 126.96.36.199 Volunteer Fire Company Oversight Boards 188.8.131.52 Volunteer Firefighter Rights 3.6.2 Subscription Fire Departments 3.6.3 For-Profit Corporations 3.6.4 Industrial Fire Departments 3.6.5 Fire Brigades 3.7 Conclusions on Fire Department Authority 3.8 Volunteer Fire Company Authority Chapter 4 ? Administrative Agencies 4.1 Introduction 4.2 Occupational Safety and Health Administration 4.3 Getting the Job Done 4.4 OSHA Inspections 4.5 Occupational Safety and Health Administration Review Commission 4.6 OSHRC and OSHA 4.7 OSHA Violations and Sanctions 4.8 Administrative Agencies and Separation of Powers 4.9 Exhaustion of Remedies 4.10 OSHA Jurisdiction \ 4.11 State and Local Agencies 4.12 Administrative Law Making 4.12.1 Rulemaking 4.12.2 Judicial Review 4.13 OSHA and the NFPA Standard 4.14 Application of OSHA to Volunteers and Part-Time Personnel. 4.14.1 Volunteers in General 4.14.2 State and Municipal Employee Exception 4.14.3 Private Volunteer Fire Companies Chapter 5 Criminal Law 5.1 Introduction 5.2 Statutory and Common law Crimes 5.3 Federal versus State Jurisdiction 5.4 Crimes Must be Specifically Declared to be Criminal 5.5 Felonies and Misdemeanors 5.6 Elements 5.6.1 Act 184.108.40.206 Omissions and the Duty to Act 220.127.116.11 Causation 18.104.22.168 Year and a Day Rule 5.6.2 Mental State 22.214.171.124 Which Mental state is Required 126.96.36.199 Concurrence of the Act and the mental state 188.8.131.52 Transferred Intent 184.108.40.206 Strict Liability Crimes. 5.6.3 Attendant Circumstance 5.7 Criminal Offenses 5.7.1 Homicide 5.7.2 Battery 5.7.3 Assault 5.7.4 False Imprisonment 5.7.5 Kidnapping 5.7.6 Assault, Battery, False Imprisonment, Kidnapping and Consent 5.7.7 Rape 5.7.8 Larceny 5.7.9 Embezzlement 5.7.10 Obtaining Money Under False Pretenses 5.7.11 Robbery 5.7.12 Extortion 5.7.13 Burglary 5.7.14 Arson 220.127.116.11 Act Requirement for Arson 18.104.22.168 Mental State Requirements for Arson 22.214.171.124 Attendant Circumstances for Arson 126.96.36.199 Building and Prosecuting Arson cases 5.7.15 Racketeer Influenced and Corrupt Organizations Act 188.8.131.52ABC Management Company Example Chapter 6 ? Criminal Procedure 6.1 Introduction to Criminal Procedure 6.1.1 What is an Arrest? 6.1.2 Authority to Make an Arrest 6.1.3 Jurisdictional Authority to Make Arrests 6.1.4 Asserting the Authority 6.1.5 False Arrest 6.1.6 Firefighters and Arrest Powers 6.1.7 Arrest Warrants 6.2 Criminal Procedure 6.2.1 Formal Charges 6.2.2 Grand Jury Proceedings 6.2.3 Arraignments and Bail 6.3 Search and Seizure 6.3.1 Search Warrant Requirement 6.3.2 Exceptions to the warrant requirement 6.3.3 Search and Seizure After Tyler 6.3.4 Securing the Scene 6.3.5 Fire Scene Evidence Issues 6.3.6 Standing 6.3.7 State Law Searches 6.4 Chain of Custody 6.5 Custodial Interrogations and Miranda Warnings 6.6 Accomplice Liability: Parties to a Crime 6.7 Conspiracy 6.8 Attempts 6.9 Criminal Defenses 6.9.1 Self-defense 6.9.2 Defense of others 6.9.3 Defense of Property 6.9.4 Insanity 6.9.5 Entrapment 6.9.6 Statute of Limitations 6.9.7 Necessity Chapter 7 - Civil Liability Issues 7.1 Introduction 7.2 Intentional torts 7.3 Battery 7.3.1 Battery: Permitted Contact and Consent 7.3.2 Battery: Consent and Patient Treatment 7.3.3 Capacity to Consent 7.3.4 Implied Consent 7.3.5 Treatment of Minors 7.3.6 Ability to Consent for Others 7.3.7 Powers of Attorney 7.3.8 Consent Through Fraud or Duress 7.3.9 Obtaining Consent 7.3.10 Refusal of Consent and Competency 7.3.11 Patient Abandonment 7.3.12 Documentation of Refusal of Treatment 7.3.13 Scope of consent 7.4 Assault 7.5 False imprisonment 7.5.1 Consent and False Imprisonment 7.5.2 Right of Refusal and Responder Liability 7.6 Intentional infliction of severe emotional distress 7.7 Trespass to land 7.8 Trespass to chattels 7.9 Conversion 7.10 Misrepresentation 7.11 Bad faith 7.12 Defamation 7.12.1 Truth and Privilege 7.12.2 Defamation of Public Figures 7.13 Invasion of privacy Chapter 8 ? Negligence 8.1 Introduction 8.2 Elements of Negligence 8.2.1 An act or omission 8.2.2 A legal duty 8.2.3 Resulting in damages to the plaintiff 8.2.4 Breach of the standard of care 8.2.5 Professional Standard of Care 8.2.6 Evidence of the Professional Standard of Care 184.108.40.206 Expert witnesses 220.127.116.11 Learned treatises 18.104.22.168 Laws and regulations 22.214.171.124 Industry wide standards 8.3 Fire Service Negligence Cases 8.4 Emergency Medical Care and Negligence 8.4.1 Consent to Treat, Battery, and Negligence 8.4.2 Patient Abandonment 8.5 Beyond Negligence 8.6 Defenses to Negligence 8.6.1 Assumption of the Risk 8.6.2 Contributory and Comparative Negligence 8.6.3 Rescue Doctrine 8.6.4 Last Clear Chance 8.6.5 Fireman?s Rule 8.7 Strict Liability 8.7.1 Keepers of dangerous animals 8.7.2 Workers compensation 8.7.3 Strict product liability 8.7.4 Dram shop liability 8.7.5 Abnormally dangerous activities 8.8 Respondeat Superior 8.9 Joint Liability Chapter 9 Immunity from Liability 9.1 Introduction: Sovereign Immunity 9.2 Tort Claims Acts 9.3 Discretionary and Functionary Acts 9.4 What is Discretion? 9.5 The Other Distinction: Governmental v. Proprietary 9.6 Statutory Immunity 9.7 Volunteer Protection Act 9.8 Private Non-Profit Volunteer Fire Companies 9.9 Limitations on Immunity 9.9.1 Gross Negligence, Recklessness, or Intentional Act Limitation 9.9.2 Insurance Waiver Limitation 9.9.3 Special Duty Exception 9.10 The Flip Side of the Special Duty Exception: The Public Duty Doctrine 9.11 Concluding Thoughts on Civil Liability, Sovereign Immunity and Tort Claims Acts Chapter 10 ? Contract Law and Employment Issues 10.1 Introduction 10.2 Offer and Acceptable 10.3 Contract Formality 10.4 Breach and Damages 10.5 Authority to contract 10.6 Void or Voidable Agreements 10.7 Promissory Estoppel 10.8 Fire Service Contracts 10.8.1 Mutual Aid Agreements 10.8.2 Insurance Policies 10.8.3 Fire Insurance Policies 10.8.4 Purchasing 10.8.5 Employment Agreements 10.9 Due Process 10.9.1 Whether 10.9.2 How Much 10.9.3 When 10.9.4 Name Clearing Hearing 10.9.5 Suspensions 10.9.6 State Law Due Process 10.9.7 State Action Requirement 10.10 Workers Compensation 10.10.1 Scope of Workers Compensation 10.10.2 Exclusivity 10.10.3 Firefighters and Workers Compensation 10.10.4 Exclusivity Protection for Fire Officers Chapter 11 - Labor Law and Collective Bargaining 11.1 Introduction: Labor History 11.2 Public Sector Labor Relations 11.3 Public Sector v. Private Sector 11.4 Labor Relations Acts 11.5 Good Faith Bargaining 11.6 Scope of Bargaining 11.6.1 Categories of Subjects for Bargaining 11.6.2 Impact Bargaining 11.6.3 Unilateral Changes to Mandatory Subjects 11.6.4 Past Practices 11.6.5 Management Rights Provisions 11.7 Impasse Disputes 11.7.1 Representational Impasses ? Who Can Join a Union 126.96.36.199 Supervisors 188.8.131.52 Managers and Confidential Employees 11.7.2 Dispute Resolution in Interest Bargaining 184.108.40.206 Mediation 220.127.116.11 Fact-Finding 18.104.22.168 Arbitration 22.214.171.124 Challenging The Arbitrator?s Authority 126.96.36.199 Appeal of Interest Arbitration Awards 11.7.3 Grievance Impasses 188.8.131.52 Arbitrability of Grievances 184.108.40.206 Whose Grievance Is It 220.127.116.11 Judicial Enforcement and Review of Grievance Arbitrations 11.8 Union Security Provisions 11.9 Duty of Fair Representation 11.10 Strikes, Slowdowns, Picketing and Concerted Job Actions 11.11 Weingarten Rights 11.12 Garrity Rights Chapter 12 ? Employee Rights and Discrimination 12.1 Introduction 12.2 Constitutional Rights 12.3 Civil Rights Laws 12.4 What is Discrimination? 12.5 Proof of Discrimination 12.5.1 Disparate Treatment 12.5.2 Disparate Impact 12.6 Standard of Review for Constitutional Claims Of Discrimination 12.7 Defending Against Charges of Discrimination 12.8 Procedural Issues in Discrimination 12.9 Affirmative Action ? Equal Opportunity 12.10 Americans with Disabilities Act 12.10.1 Key definitions under the ADA 18.104.22.168 Individual with a disability 22.214.171.124 Major life activities 126.96.36.199 Qualified individual with a disability 188.8.131.52 Reasonable accommodation 184.108.40.206 Essential functions 220.127.116.11 Undue hardship 12.10.2 Prohibited Inquiries and Examinations 12.10.3 Drug and Alcohol use 12.10.4 Physical Abilities Testing 18.104.22.168 Job Task Analysis 12.10.5 Medical Requirements 12.10.6 State Law Disability Discrimination 12.11 Age Discrimination 12.11.1 Firefighters and Mandatory Retirement Age 12.12 42 USC 1983 Actions Against Fire Departments 12.12.1 Firefighters and the Right of Free Speech Chapter 13 ? Sexual Harassment and Other Forms of Employment Discrimination 13.1 Sexual Harassment 13.1.1 Quid Pro Quo Sexual Harassment 13.1.2 Hostile Work Environment Sexual Harassment 13.1.3 Scope of Sexual Harassment 13.1.4 Addressing Sexual Harassment in the Workplace 13.1.5 Sexual Harassment Policies versus Employee Rights 13.2 Pregnancy Discrimination 13.3 Religious Accommodation 13.4 Clothing, uniforms and grooming issues Chapter 14 ? Fair Labor, Family Medical Leave, Residency and Drug Testing 14.1 Introduction to the Fair Labor Standards Act 14.1.1 Who is an Employee for FLSA Purposes 14.1.2 Volunteers 22.214.171.124 Volunteering By Career Personnel 14.1.3 Maximum Hours 14.1.4 Maximum Hour Exemptions 126.96.36.199 Firefighters Exemption 188.8.131.52 Emergency Medical Exception to Firefighters Exemption 184.108.40.206 Public Safety Officers 220.127.116.11 Public Agency Requirement 18.104.22.168 Executive, Administrative, and Professional Exemption 22.214.171.124 Recent Changes to the Executive, Administrative, and Professional Exemption for Firefighters 126.96.36.199 Small Fire Department Exemption 14.1.5 Calculation of Maximum Hours 14.1.6 Substitutions 14.1.7 Detail Pay 14.1.8 Medical Attention 14.1.9 Compensatory Time 14.1.10 FLSA Anti-Discrimination and Retaliation 14.1.11 FLSA Recordkeeping 14.1.12 Enforcement 14.1.13 FLSA Statute of Limitations and Damages 14.1.14 FLSA and Collective Bargaining Agreements 14.1.15 State Wage and Hour Laws 14.2 Family Medical Leave 14.2.1 FMLA Requests for Leave 14.2.2 FMLA Enforcement 14.2.3 State Medical Leave Laws 14.3 Residency Requirements 14.4 Drug Testing 14.4.1 Drug Testing Under State Law 14.5 Confidentiality of Medical Information 14.5.1 Historical Background 14.5.2 Medical Confidentiality Under State Law 188.8.131.52 Infectious Disease Exposures 184.108.40.206 Breaches of Confidentiality 14.5.3 HIPAA 220.127.116.11 Covered Entities 18.104.22.168 HIPAA Compliance 22.214.171.124 HIPAA Penalties Chapter 15 ? Public Accountability Laws 15.1 Introduction 15.2 Conflicts of Interest and Ethical Codes 15.2.1 Conflicts of Interest Laws 15.2.2 Ethical Codes 15.2.3 Ethics Commissions 15.2.4 Local Ethics Commissions 15.2.5 Conflict of Interest Disclosures 15.2.6 Conflicts of Interest and Ethics Violations 15.2.7 Financial Disclosure Laws 15.3 Open Government Laws 15.3.1 Open Meetings Laws 126.96.36.199 Volunteer Fire Companies 188.8.131.52 Secret and Informal Meetings 184.108.40.206 Modern Technology and Open Meetings Laws 220.127.116.11 Open Meetings requirements 18.104.22.168 Public Participation 22.214.171.124 Closed or Executive Session 126.96.36.199 Penalties of Open Meetings Violations 15.3.2 Open Records Laws 188.8.131.52 Records Subject to Open Records laws 184.108.40.206 Exceptions to Open Records Laws 220.127.116.11 Violations of Open Records Laws 15.4 Whistleblower Acts