# Presentation: 619377

## The Acts Of People Legal Implications 

- Fuels and Fire Use Burn Boss Workshop
- Plains Hotel
- Cheyenne, WY
- January 31, 2007
- Kenneth P. Pitt
- USDA-Office of the General Counsel
- Mountain Region
*kenneth.pitt@usda.gov  *
-  My thanks to my colleagues in OGC’s Ogden, Albuquerque, Missoula and Denver offices, from whom some of the contents of this outline were borrowed.

## Agency and/or Personal Liability

- Contract - Interpretation of Contract Terms;
- Criminal - Enforcement of violations of duties owed the community; and
- Tort - Redress of injuries to persons or property.

- Types of Legal Actions

## REMINDER - Clean Air Act Liability

- Violations of state required burn plans, or other state air quality related requirements, (*e.g.* asbestos removal) may subject federal agencies to civil liabilities because of CAA sovereign immunity waiver.  42 U.S.C. § 7418.
- No personal civil liability for federal officers (if within scope of duties).
- Federal criminal penalties against persons (including federal officers) for “knowing” violations.  42 U.S.C. § 7413.

## Personal Tort Liability

- The threshold standard for personal tort  liability of federal government employees  is whether they were acting
- “_Within The Scope Of Their Employment_.”

## Agency Tort Liability

- The legal standard for Federal Tort Claim Act (“FTCA”) tort law suits against the federal government is usually whether it, or its employees, acted “_Negligently_.”

## Agency Tort Liability

- Document, document, document!
- Judges and Assistant United States Attorneys are human.
- Nothing is ever certain in court.
- If you have to deviate from a policy, safety plan, contract requirement, or other specific direction, _document, ASAP_, the “social, economic and policy reasons” why.

- Take Home Points

## Criminal LiabilityTake Home Points

- Perform your jobs according to your training and in accordance with the norms within your profession.
- In the event of a fatality, you are held to the standard of what a reasonable firefighter would do under the circumstances.
- One must deviate substantially from this standard of care to be found grossly negligent and criminally liable for manslaughter.

## Agency Tort Liability

- Social: “The local public has demanded that the agency keep this snow play area open.”
- Economic: “We did not have sufficient resources to fight both fires at the same time.”
- Policy: “Mountain pine beetle infestations are a natural mechanism and it is agency policy that natural mechanisms will be allowed to function in Wilderness areas without human interference.”

- Social, Economic and Policy Examples

## Agency Liability

- The United States, and its officers acting in an official capacity, cannot be sued unless Congress has specifically authorized such lawsuits.
- Congress has authorized lawsuits for the “tort of _negligence_” under the Federal Tort Claims Act.

- Sovereign Immunity - General Principles

## Agency Liability

- Elements injured party must prove to establish negligence:
- _Duty_ - the action required under the circumstances
- _Breach_ - a failure to act in the manner required of a reasonable person under the circumstances
- _Proximate Causation_ - the breach must have caused the harm
- _Damages_ - actual harm to property or life

- Elements of Negligence

## Agency Liability

- You receive request to send folks to fire B. For safety reasons, you decline to take folks off fire A to send to fire B, and subsequent lack of firefighting resources on fire B causes damages.
- Probably no negligence as no duty or breach of duty.

- _Hypothetical Example 1_

## Agency Liability 

- You are an IC flying over a fire and note that firefighting personnel are unaware that a massive mudslide has moved across their escape route.  You do not communicate this fact to anyone.  They escape, but then later are injured in a vehicle accident leaving the search.
- Probably no negligence as no proximate cause.

- _Hypothetical Example 2_

## Agency Liability

- You are supervising a work crew in removing for a hazard tree. You personally assist the crew in juryrigging a 50 gallon drum on a fork lift that which then hits overhead high voltage lines, and injures one of the employees.
- Probably negligent, as duty, breach of duty, proximate cause, and damages all present.

- _Hypothetical Example 3_

## Agency Liability

- The United States is liable under FTCA for negligence tort claims, in the same manner as a private citizen, under the controlling law of the state where the incident occurred.  28 U.S.C. § 2674.
- State or local fire fighter protection statutes probably do not provide protection to federal government because these protections are not available to “private citizens.”
**May be available to Volunteer Fire Departments and other cooperators under state law.**

-  _Federal Tort Claims Act (“FTCA”)_

## Agency Liability

- Any act or omission
- Of an “employee of the government”
- Exercising due care in the execution of a statute or regulation
- _Based on his/her performance of a discretionary function or duty_

- _Federal Tort Claims Act - Exceptions _(*i.e.,* there is no liability to federal government), 28 U.S.C. § 2680

## Agency Liability

**Definition may not be used for worker’s compensation purposes.**
**Courts may evaluate on a “case by case” basis **
**Officers and employees of any federal agency**
**Persons acting on behalf of a federal agency in an ****	****official capacity**
**Temporarily or permanently in the service of the United States**
**Whether with or without compensation (28 U.S.C. § 2671),**
**Volunteer fire departments fighting federal fire on federal land under statewide Annual Operating Plan – most likely. **
*Billings v. United States***, 57 F.3rd 797 (9th Circuit 1995).  Private person invitee of FEMA was federal employee for Westfall Act purposes.**

- _Who is an “Employee of the Government”_?

## Agency Liability

- Examine whether the contracted-for work was inherently governmental.
- Volunteer Fire Department IC on federal fire - probably
- Fire camp food purveyor - probably not

- _Employee of the Government - __Contractors_?

## Agency Liability

- A decision that is:
- _Discretionary_ (an element of choice or judgment, that is not guided or mandated by specific law, regulation or policy, must be present); _and_
-  _Policy Level_ (is the choice or judgment of the kind that the discretionary function was designed to shield?  Is the choice or judgment susceptible to a policy analysis?)

- _Discretionary Function Exemption_ (“DFE”)

## Agency Liability

- When the relevant law leaves room for official’s discretion in a particular area, that discretion will be protected even with what may seem as details of implementation.
- Post Office accused of improper mail box placement resulting in injury.  *Lopez v. USA*, 376 F.3d 1061 (10th Cir. 2004)

- DFE - Policy Level Decisions

## Agency Liability

- However, at least in the 9th Circuit, where the “choice” is to not follow applicable safety standards, industry or otherwise, there may not be governmental immunity under the DFE.
*Kelley v. USA*, 241 F.3d 755, 763 (9th Cir. 001).

- DFE - Safety Standards

## Agency Liability DFE - Safety Standards

- Agency’s failure to enforce safety equipment requirements on contractor’s bulldozer, although a discretionary choice,  was a only matter of technical, scientific, or engineering consideration. DFE was not available because the choice was not based on public policy. *Routh v. U.S.,* 941 F.2d 853 (_9__th_ Cir. 1991)

## Agency Liability DFE – 10 Fire Orders

- For FTCA purposes: “Vague principles of 10 Standard Orders [and 18 Watchout Situations] and other Forest Service directives (IAP & WFSA) show that hard and fast rules are not appropriate to all fires under all circumstances,” but are flexible principles to be used in fighting fires.
- Because firefighters must weigh competing risks, lighting backfires is a “discretionary act” protected by DFE.
*Backfire 2000 v. U.S.,* Civ No. 03-198-M-DWM (District of Mont. 2006). Sula and Valley Complex Fires.

## Agency Liability DFE – 10 Fire Orders

- [When lighting backfires], “placing one resource at risk in order to protect another resource is a social policy decision that must be made at the level of the individual firefighter as well as at the national policy level.”
*Backfire 2000 v. U.S.A.* CV No. 03-198-M-DWM (D. MT)

## Agency Liability DFE – Signing 

- Forest Service “warranted” snowmobile speeds at 35 mph, then raised speed, w/o further “warrant,” to 45 mph; and
- No documentation of any social, economic, or policy reasons why no signs were posted on _known_ hazardous hill.
- _DFE did not apply._
*Oberson v. USDA-Forest Service*, 441 F.3d 703 (9th Cir. 2006)
- _Suggestion _- Use “sign plans” on _known_ hazards. These  plans should document those DFE requirements you analyzed in your decision to sign/not to sign.

## Agency Liability

- Discretionary Function Exception (”DFE”) is threshold “subject matter jurisdictional” question.
- Court will probably look at each alleged negligent act to determine if DFE applies.
- If DFE present for each allegation, Court does not have jurisdiction to hear complaint with regards to that allegation.
- If DFE not present for each allegation, Court will analyze whether that complained of action was negligent.

- DFE - Role of Negligence

## Agency Liability

- Negligence analysis irrelevant if DFE present:
*McDougal v. US Forest Service*, 195 F. Supp. 2d 1229, (D. Or.) (2002), “Wildcat Fire.” A prescribed natural fire, where additional lightning strikes caused blowup.  Forest Service met its burden of establishing that its conduct did not violate any specific, mandatory directives.

- DFE - Discretionary Actions

## Agency Liability

- _Dry Cottonwood Fire_.  Forest Service conducted prescribed 3000 acre burn to further “policy” of improving elk habitat.  Fire was within Burn Plan Rx and FSM guidelines.  Fire escaped and burned 7,100 acres.  Court held that all actions were within DFE. *Thune v. USA*, 872 F. Supp.  921 (D. Wyo. 1995).

- DFE - Policy Level Decisions

## Agency Liability

***Kelly v. USA*****, 241 F.3d 755 (9th Cir. 2000)**: Montana plane crash killing two contract pilots. Circuit Court stated that “a general regulation or policy, like an Accident Plan, does not remove discretion unless it specifically prescribes a course of conduct.”
_**Big Elk Fire**_ – 2006, Judge criticized FS for allowing use of older planes, but held DFE precluded lawsuit.

- DFE - General Regulations or Policy

## Agency Liability

*Miller v. USA*, 163 F.3d 591, (9th Cir. 1998), “_Bald Butte Fire_.”  Requested resources were tied up in another fire.  Court held that CFRs, FSM, Oregon common law, and PrePlanned Dispatch Blocks did not establish any specific, mandatory directive addressing:
**How to fight multiple fires; or **
**How to fight fires.**
- Therefore, DFE applied

- DFE - Role of Regulations and Policy

## Agency LiabilitySpecial Use Permit Issuance and Enforcement

- DFE applicable to situation where BLM issued permit for “Burning Man” gathering and man was run over while sleeping in tent.
- Site plan, law enforcement needs, signing requirements, health and safety, and monitoring requirements considered as part of the “discretionary” permit process.
- Permit issued pursuant to NEPA, FLPMA, and 1st Amendment
- No DFE waiving requirement to automatically suspend permit for violation of _any_ permit requirements
***Reed ex rel. Allen v. U.S. Dept. of Interior*****, 231 F.3d 501 (9****th**** Cir. 2000) **

## Agency Liability

- IC decides to concentrate resources on spot fire A rather than on spot fire B based on her experience, and her analysis of risk to structures.
- Unfortunately, her analysis is wrong and spot fire B burns down structures.
- Most likely DFE as policy level decision not specifically mandated by policy.

- _DFE Hypothetical Example 4_

## Agency Liability

- That an agency has a Discretionary Function defense does not guarantee that a judge will agree.
- Judges often want to make parties whole.
- Sometimes circumstances are so bad, that a judge will find a way to redress plaintiff’s injury, despite the government’s position on the law.
- However, Judges do not like to be overturned.

- _Reality Check _

## Agency Liability

- On way to fire, IC turns government rig left instead of right into traffic and causes an accident.
- Probably no DFE protection; no policy level decision.

- _DFE Hypothetical Example 5_

## Agency Liability

- Decision to fight Fire A rather than Fire B - DFE
- Decision to attack Spotfire A rather than Spotfire B - DFE
- Decision use County Road A rather than County Road B as your primary line - DFE
- Forgetting to bring chainsaw gas - _Priceless!!_

- Plaintiff Counsel’s Roadmap

## Agency Liability

- Executive Order 12196 (1974)
- Makes Occupational Safety and Health Act binding on federal agencies - no civil penalties.
- 29 C.F.R. §1960.8(a)
- “The agency shall furnish . . . a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious injury.”
- OSHA considers 10 and 18 “industry standards.”
- 10th Circuit has held that OSHA violations are evidence of negligence.

- Occupational Health Safety Administration - OSHA

## Agency LiabilityContracts- Discretionary Function

- Agency’s contractor choice based on environmental and tribal policies _was_ protected by DFE.
- Agency’s assumption of safety oversight of contractor’s logging operation and subsequent failure to supervise safety issues _was not_ protected by DFE.
*Bear Medicine v. U.S.,* 241 F.3d 1208, 1214 (9th Cir. 2001)

## Agency LiabilityContracts – Inherently Dangerous Activities

- Usually, no federal liability for negligent actions of contractors;
- May be a “Non-delegable” duty if:
- A contracted for activity is inherently dangerous; and
- The landowner should have reasonably known that the activity was inherently dangerous;
- Based on state law where the act occurred; and
- A matter for the trier of fact.  *Mc Millan v. U.S.,* 112 F.3d 1040, 1044 (9th Cir. ),

## Agency LiabilityContracts – Inherently Dangerous Activities

- Some Examples of “Contracted For” Activities That Might  Be Considered Inherently Dangerous.
- Snag falling (Hazard trees);
- Working on elevated scaffolds;
- Security in demonstrations and riots;
- Ditch/canal construction;
- Handling explosives.
- If unsure, check with H.R. and/or agency counsel for law of the state in which activity is to occur.

## Personal Civil Liability

- The threshold standard for personal tort  liability of federal government employees  is whether they were acting
- “_Within The Scope Of Their Employment_.”

- Legal Threshold

## Personal Liability

- Purpose:  “[T]o remove the potential personal liabilities of Federal employees for common law torts committed within the scope of their employment, and instead provide that the exclusive remedy for such torts is through an action against the United States under the FTCA.”  (*Billings v. U.S.*, at page 799).

- _Westfall Act Employee Protections_
- (“Federal Employees Liability Reform and Tort Compensation Act” - 28 U.S.C. § 2679)

## Personal Liability

- Federal government official is known for running stop signs. He drives friend’s car from official speech he has given to his mother’s house where he has dinner. He then drives this same car to his home (which also has his official office), but he  again runs a stop sign and kills motorcyclist.  He is convicted of involuntary manslaughter under state law and sentenced to 100 days in jail.
- Does the official have personal civil liability?
- Is U.S. liable under FTCA?

- _Hypothetical Example 6_

## Personal Liability

- Based on state law
- Serving the employer
- Performed an act for which the employee is employed; and
- Furthering the business interest of the employer.

- Westfall Act - Scope of Employment

## Personal Liability

- A federal land management agency employee is working in a agency boneyard and decides to smoke some marijuana.  He observes his supervisor approaching so he tosses the lit marijuana into high grass, where it catches fire and proceeds to burn several hundred acres and 50+ homes.
- Is federal government liable?
- Is employee personally liable?

- _Hypothetical Example 7_

## Personal Liability

- Agency determines whether employee was “acting within scope of employment” and submits recommendation to agency’s counsel.
- If agency’s counsel concurs, it submits “scope of employment certification” recommendation to the Department of Justice (“DOJ”).
- If DOJ refuses to certify, employee may, on his/her own (i.e., retain private counsel), petition court to certify.

**Westfall Act Process  **

## Personal Liability

- Upon certification by DOJ to the Federal Court that the defendant employee was acting within the scope of employment out of which the claim arose,. . .the United States is _substituted_ as the defendant, 28 U.S.C. § 2679(d)(1).
- Certification can be challenged
- If the matter is filed in state or local court, the matter is removed to federal court.
- Removal cannot be challenged

- Westfall Act Process

## Personal LiabilityWestfall Act Process

- If the U.S. Attorney’s Office certifies an employee was acting within scope of employment, even if it denies that the complained of action occurred, the matter _must_ be removed to federal court; and
- The United States must be substituted for the employee, unless: 1) the certification is challenged; _and_ 2) the court makes a finding of fact that the action was outside of scope.
*Osborn v. Haley*, No. 05-593,  U.S. Supreme Court 1/22/07

## Qualified Personal Liability

- Realistically, who has the deepest pocket?
- However, the DOJ scope of employment certification may be challenged in court -WHY?
**State law may afford better remedy (e.g., punitive damages) than FTCA**
**FTCA’s Statue of Limitations may have run**
**Government may have successfully invoked DFE**
**State court may be more sympathetic**
**May be an attempt to harass or intimidate federal employee**

- _Westfall Act - Certification_

## Qualified Personal Immunity

- Gross negligence
- “Intentional failure to perform a duty with wanton or reckless disregard of consequences.”
- Rule of thumb difference between negligence and gross negligence – “foreseeability.”
- _Hypothetical Example 8_.
- Despite the clear provisions of your safety plan, and without establishing escape routes or anchor points, you decide that you can use untrained bystanders to try and dig a line directly above a rapidly moving fire in order to try and beat the observed weather front that is moving in.  You do not mention these facts to the bystanders.  A bystander is injured when the fire overruns them.

- Westfall Exceptions (*i.e.,* You May Be Personally Liable)

## Qualified Personal Immunity

*Bivens* Actions - [There is qualified immunity if] the conduct does not clearly violate established Constitutional rights of which a reasonable person would have known.   *Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics*, 403 U.S. 388 (1971).
- Warrantless search with no probable cause (wrong house), visual strip search, and being manacled in front of family was violation of 4th Amendment (searches and seizures).

- Westfall Exceptions - Violation of Constitutional Rights

## Qualified Personal Liability

*Bivens* matters (e.g., constitutional torts -illegal search and seizure, unlawful detention, etc.)
- Use your law enforcement folks, county sheriffs, etc., to handle these situations.

- Exceptions to Westfall Act Protection

## Qualified Personal Immunity

- 1st Amendment
- Freedom of Speech, Press & Association
- Establishment or Prohibition of Religion
- Retaliation for exercise of above
- 4th Amendment
- Unreasonable searches and seizures
- Warrants only upon probable cause

- Westfall Exceptions - Violation of Constitutional Rights

## Qualified Personal Immunity

- 5th Amendment
- Takings - *Bivens* action not available
- Retaliation for excluding government from private property - *Bivens* action _may_ be available (Currently before the U.S. Supreme Court).

- Westfall Exceptions - Violation of Constitutional Rights

## Personal Liability

- _Hypothetical Example 9_. In the middle of the night, you find one of your seasonals who is violently drunk.  You secure him to a fence to keep him from injuring anyone.  Liability?
- Possible constitutional violation; unlawful detention
- _Hypothetical Example 10_.  While walking through a campground, you smell funny smoke coming from a tent, so you open a tent to see who is smoking, and what.  Liability?
- Possible constitutional violation; unlawful search

- Exceptions to Westfall Act Protections

## Personal Liability

- Statutory violations (e.g., civil rights/EEO violations)
- Criminal charges
- If determination is made that the challenged act was “outside scope of duties,” employee must retain private defense counsel
- Employee may retain private counsel, regardless

- Westfall Act Exceptions

## Personal Liability

- “In the case of each fatality of an officer or employee of the Forest Service that occurs due to wildfire entrapment or burnover, the Inspector General of the Department of Agriculture _shall_ conduct an investigation of the fatality.  The investigation shall not rely on, and shall be completely independent of, any investigation of the fatality that is conducted by the Forest Service.” Public Law 107-203, (July 24, 2002), 7 U.S.C. § 2270b.

- Criminal Liability

## Personal Liability

- Employee must retain private defense counsel.

- Criminal Liability_ _

## Personal Liability

- (a) Manslaughter is the unlawful killing of a human being without malice.  There are two kinds:
_**Voluntary**_** – Upon a sudden quarrel or heat of passion.  (e.g., “road rage”)**
_**Involuntary**_** – The commission . . . in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.**
**Example:  Operating a chainsaw, but while under the influence of drugs, and which results in bystander’s death.**

- Criminal Liability - 18 U.S.C. § 1112 - Manslaughter

## Personal Liability

**In order to be convicted of involuntary manslaughter of a non federal employee under 18 U.S.C. ****§**** ****1112, the federal government must prove the following elements beyond a reasonable doubt:**
- 	**The defendant committed a lawful act**
**The act was done either in an unlawful manner, or **
**The act was done with “wanton or reckless disregard” for human life, which caused death; **_*United States v. Pardee*_*,* 368 F.2d 368 (4th Cir. 1966), ** **_**and**_
**The act occurred on lands wherein the federal land manager has  “exclusive or concurrent” jurisdiction. **
**Examples: Some National Parks, Native American Reservations, military posts. **
**Most NFS lands in the west are **_**not**_** under “exclusive or concurrent” Forest Service jurisdiction.**
- 18 U.S.C. § 1112(b),18 U.S.C. § 7(3), 18 U.S.C. § 1114(2), *U.S. v. Gliatta,* 580 F.2d 156 (5th Cir. 1978), *U.S. v Grant,* 318 F.Supp. 2d 1042, 1046 (D. Mont. 2004) **	****	****	****	****	****	**

- Criminal Liability - 18 U.S.C. § 1112 - Manslaughter

## Personal Liability

- That the defendant either knew, or should have known:
- That such conduct was a threat to the lives of others, or
- Of circumstances that would reasonably cause the defendant to foresee that such conduct might be a threat to the lives of others.
- Difference between Negligence and Gross Negligence – “Foreseeability.”

- Criminal Liability - 18 U.S.C. § 1112 - Manslaughter

## Personal LiabilityCriminal Liability - 18 U.S.C. § 1114 – Killing Federal Employee

- Whoever kills or attempts to kill any officer or employee of the United States    . . . . While such officer or employee is engaged in . . . the performance of official duties, or any person assisting such an officer or employee . . . shall be punished:
-  	(2) in the case of manslaughter, as     provided under 18 U.S.C. § 1112.

## Personal Liability Criminal Liability – State Laws

- If enforcement of a state criminal law against a federal employee operating within scope of his duties would significantly interfere with those duties, state law should not be enforceable.
- If within scope, Justice Dept may represent employee, remove to federal court, and then move to dismiss.
- E.g., Wyoming littering case and F&WS employee
- E.g., Klingensmith Fire and State Arson Charges

## Personal Criminal LiabilityGeneral Message

- Properly trained wildland firefighters who perform their jobs according to their training and in accordance with the norms within their profession should not fear being held criminally liable even if a fatality occurs.
- Fighting fires is a dangerous job with difficult decisions. You are held to the standard of what a reasonable firefighter would do under the circumstances. One must deviate substantially from the standard of care to be found grossly negligent.

## Personal Liability

- Red Book (2005) Page 10-11
- Good Samaritan Statutes
- Colorado: C.R.S. § 13-21-108 et seq.
- Wyoming: W.S.A. § 1-1-120
- South Dakota: S.D.R.S. § 20-9-4.1
- Utah: U.C.A. § 78-11-22

**Rendering Aid**

## DOCUMENTATION 

- If it is not written down, as soon as possible - _It Is Not Documented_.
- If it is not documented, _It Did Not Happen_.
- If it was so obvious it didn't need documentation, _It Did Not Happen_.
- If 15 people saw it happen, but you did not document, _It Did Not Happen The Way You Remember It_.

- If In Doubt (and Even If Not In Doubt) - Document

## DOCUMENTATION

- If you do not keep the record in the place  required by your agency - _It Did Not Happen_; and
- If you cannot find a document within 30 seconds in court - _It Did Not Happen_.

- DOCUMENTATION IS YOUR FRIEND

## DOCUMENTATION

- Other’s will always argue that _It Did Not Happen_ the way you remember it.
- Even if mistakes were made, good documentation protects you and the agency against other’s characterizations and exaggerations.

- DOCUMENTATION IS YOUR FRIEND

## DOCUMENTATION

- If it isn't documented, the _Judge Is Likely To Believe The Other Side_.
- If it is not documented you will be spending a lot more time with lawyers.

- DOCUMENTATION IS YOUR FRIEND

## DOCUMENTATION

- NEVER, EVER, ENGAGE IN A COVER UP!!!
- If you later change documentation, without documenting why the change was necessary - _It Did Not Happen_.
- Never, ever, alter or discard documentation after receipt of a discovery, FOIA, administrative, or subpoena document request.
- Never, ever, provide false testimony to investigators

## DOCUMENTATION Electronically Stored Information (“ESI”)

- As of December 1, 2006, with the amendment of the federal court rules, when an agency reasonably expects litigation in federal court, _all_ ESI:
- That may relate to that expected litigation
- In every component of the federal agency, must be;
- Frozen (neither altered nor deleted)
- In the exact format it was created and stored;
- Until the conclusion of all such litigation.
- Error on the side of retention, if in doubt consult prior to alteration/deletion with DOJ/OGC.
- Sanctions available for improper deletion/alteration

## USDA Discretionary Indemnification Policy, 7 C.F.R. 1.501(2006)

- Indemnifies USDA employees for verdicts, judgments, or other monetary award rendered against employee if:
- Conduct resulting in award was within scope of employment; and
- Indemnification is in the interests of the United States.
- Must be requested by employee
- Indemnification is discretionary

## Personal Liability

- Your Decision
- Westfall Act dismisses you from civil case
- Insurance - You are still in civil case, but may collect from insurance company - hopefully
- May provide inexpensive peace of mind
- Ensure that the policy does not simply duplicate protections you already have.

- INSURANCE “To Have Or Not To Have”

## Personal Liability

- Insurance will not (of course) protect you from criminal penalties.
- But can provide legal representation in criminal, civil, and/or administrative proceedings
- Law enforcement personnel - Insurance for *Bivens* actions - Probably worthwhile
- Non-decision making person? - Insurance needs probably suspect

- INSURANCE

## CONCLUSION

- FTCA (agency) threshold of liability - Was there a non-discretionary action (or inaction) that was negligent under law of the state where the incident occurred, and which resulted in injury to persons or property?
- Personal tort threshold of liability - Identity of employee irrelevant.  Was nature of conduct “within the scope of the employee’s duties” as defined by state law where the incident occurred.
- Exception:  Constitutional torts (*Bivens*  actions).

## Conclusion Personal Criminal Liability

- Perform your jobs according to your training and in accordance with the norms within your profession.
- You are held to the standard of what a reasonable firefighter would do under the circumstances.
- One must deviate substantially from the standard of care to be found grossly negligent.

## CONCLUSION

- If you have an safety policy or contract requirements follow it!
- If you must deviate from specific requirements in any sort of applicable plan or policy, document the policy, social and/or economic reasons why ASAP.
- Retain all ESI, and other related documentation, when you reasonably expect litigation
- Make sure your actions are encompassed in your job description, training, and established fire fighting norms.

## Conclusion

- DOCUMENT!!

- 1/26/07