Last year was unsettling in many respects, and 2020’s affect on the fire law world was no different. One of the most significant fire law impacts occurred in the aftermath of a photo-taking scandal that surrounded the Kobe Bryant helicopter crash in January 2020. California became the third state to make it a criminal offense for emergency responders to take and share certain emergency-scene photos.
The law went into effect on Jan. 1, 2021, but it begs the question: How did we, as first responders, get to the point that a state legislature felt the need to step in to fix a behavior problem? Perhaps more importantly, is the use of our criminal justice system the best solution to the problem of responders taking and sharing emergency-scene imagery?
Cases that involve first responders and emergency-scene digital imagery go back to the early-2000s. This coincided with the proliferation of small, lightweight, inexpensive digital cameras, soon followed by the incorporation of digital cameras into smartphones. The next key development was social media, where these images found an insatiable audience.
When I started my fire service litigation database in 2010, the sheer volume of photo-taking scandals caught me by surprise, as did the legal complexities. Firefighters who were disciplined for digital imagery-related matters either grieved or sued to overturn their punishment, because the department did not have clear rules that prohibit what they did. In some cases, public outrage pressured police and prosecutors to charge first responders with criminal offenses that really did not fit. Often, the victims sued the firefighters and their departments to recover damages for emotional distress and invasion of privacy.
In 2011, Connecticut was the first state to enact a law that made it a criminal offense for emergency responders to take photos of victims. New Jersey followed suit in 2012. New York and, undoubtedly, other state legislatures around the country considered similar measures. Last year, California followed suit.
How do we manage the digital imagery problem so that legislatures in other states do not follow the path that was established by Connecticut, New Jersey and California?
Three themes
Looking at the cases, three major themes emerge. The first theme is that none of the responders (fire, EMS or police) acted with malicious intent. Their purpose was not to harm someone by taking and/or sharing the photo. Far from it, some were posted in an effort to warn others about the certain dangers, such as gruesome photos from drunk-driving wrecks. Others were posted to share with friends, colleagues or the public to show what responders face on a daily basis. What was missing was any sort of consideration for how the images would affect the victim or the victim’s family and friends.
The second common theme was that, upon further investigation, those who were caught up in the scandals were not the only ones in their organization to be engaging in the same behavior. In the aftermath of one high-profile case, an outside investigator recommended that the fire chief be terminated. The investigator concluded that the member who shared the image did little more than what many other members had been doing, but the chief allowed it to happen.
The third common theme was that each scandal was attributed by many to be the by-product of a new generation of personnel who lack the common sense that more seasoned members supposedly possess. The problem with that theory is that not all of the perpetrators were younger members. Some were in their 40s or 50s. What truly was different was that the technology that allowed these scandals to occur did not exist prior to the 2000s. It did by 2010. The technology got ahead of our ability to manage it.
Today’s culture
So, why do some firefighters feel the need to share incident-related photos, and what causes them to be oblivious to the pain and suffering that such imagery invokes?
The answer is in part because sharing our life stories in social media has become part of American pop culture. Whether it is an entrée at a chic restaurant, a nifty vacation snapshot or a nostalgic family photo, the new norm is to share imagery with others. Most of the time, it poses no problem.
However, how do we distinguish between a photo that is the harmless equivalent of pop-culture digital-gossip from something that is over the line?
Let me rephrase the question to the one that must be asked: Is the photo being shared because it truly is appropriate to do so, or is the taker-sharer doing so to glamorize his/her role in someone else’s tragedy? The latter seems to be where we have the problem.
Pop culture has led us to a point where sharing images has become a socially acceptable way of saying “Hey, look at me” or “Aren’t I cool.”
When the “Hey, look at me” aspect of sharing imagery is coupled with an obliviousness to someone’s tragedy, problems are inevitable.
At the end of the day, the solution is the same as most problems that confront the fire service: the three-legged stool of policies, training and supervision. First, we need effective policies that manage the taking and sharing of incident-related imagery. In particular, incident-scene imagery must be objectively evaluated before being approved for release to members or the public. Second, personnel need training on the policies. Third, we need effective supervision to enforce the policies.
The alternative is to wait for the legislature to address the problem.
Curt Varone
CURT VARONE has more than 40 years of experience in the fire service, including 29 years as a career firefighter with Providence, RI, retiring as a deputy assistant chief (shift commander). He is a practicing attorney who is licensed in Maine and Rhode Island and served as the director of the Public Fire Protection Division at the NFPA. Varone is the author of two books, "Legal Considerations for Fire and Emergency Services" and "Fire Officer's Legal Handbook," and remains active as a deputy chief in Exeter, RI.
