Fire With Fire

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Interesting story out of California, where two brothers may go to jail for setting a back fire on their own property to protect against approaching wildfires. They set the blaze in defiance of direct orders from local authorities.

As it turns out, the back fires saved the brothers' home, as well as the homes of several people who rented from them, and potentially an entire neighborhood.

Emergencies can often call for a different set of rules (remember the post-Katrina euthanasia cases?). A little prosecutorial discretion would go a long way, here.

Matt Welch defended "apartheid fire protection" in our January 2008 issue.

MORE:  I should add, here, that had the back fire caused damage to others' property, I'd have no problem with holding the brothers financially liable.  But there was no criminal intent, here.  Their intent was to preserve their property, and that of their neighbors.  And they succeeded.

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  1. One fire captain says “awesome job” and the other says “you might have gotten my men killed”.

    Who’s right? I’m no expert. Though I think the guy has the right to take action to defend his property, that action can’t properly pose a serious risk to the lives of others and still be defensible.

  2. If charged, they might get off with the necessity defense but they’d have to prove that there was no reasonable, legal alternative to violating the law.

  3. He is scheduled to be arraigned July 15 on two misdemeanor counts

    You get prison for a misdemeanor now?

  4. Based on both intent and outcome, they did the right thing. It could be argued that their action was foolhardy, but considering they achieved exactly what they intended, that would be a tough argument.

    If they had injured someone or if they had burned down a house that might not have otherwise or if they had set them with malicious intent (that just didnt happen), I would agree with them being prosecuted.

  5. ed,

    You get prison for a misdemeanor now?

    In most places a misdemeanor CAN have up to 1 year in jail, max. Not all misdemeanors would have that as the max, but I think that is the max jail time for something considered a misdemeanor.

  6. A little prosecutorial discretion would go a long way, here.

    Yes, it certainly would.

    The really basic question here (from the facts presented) would be: Is it okay to burn your own property?

    I say yes and would certainly vote that way on a jury.

    The anti-pollution freaks may have a different view, I suspect.

  7. One fire captain says “awesome job” and the other says “you might have gotten my men killed”.

    They’re both right. If that back fire had…um, backfired, they could have made the situation worse. But, as it happens, they did it right and saved a bunch of homes that might have been lost while the professionals were on other fronts.

    The question in this case is going to be whether the law is intended as a safeguard against harm or as an expression of the state’s authority. Considering that this case is being tried in CA, I’m not confident.

  8. I sympathize with the brothers. They were trying, and succeeded, to do good.

    However, the authorities are right in charging them. Fighting wildfires requires training and coordination. Allowing Joe Shit the Ragman to set backfires is a recipe for a conflaguration. The next time, instead of saving a handful of homes, well meaning folks may well be responsible for hundreds going up in flames.

    Convicting them and having them spend a night in jail would be just.

  9. I am an expert and both Captains are right. In this case luck prevailed.

    Homeowners may clear brush, pump water, and take other defensive action. Backfires by amateurs without an understanding of prevailing wind and topo conditions and fireground tactics could be culpable negligence resulting in the loss of neighborhoods not otherwise at risk. Without situational awareness of the total fire ground, they could also put ground crews at risk.

    The Cerro Grande NM fire that toasted Los Alamos a few years back occurred precisely because park employees were unaware of changing conditions and lost control of a “controlled” burn.

    The criminal charges are misdemeanor and are appropriate. If these guys showed a reasonable standard of care in their actions, they get a fine or nothing.

  10. Hugh —

    I agree that it ought to merely be read as a safeguard against harm, and since no harm resulted in this case and it was an emergency, no foul. After all, the law (sometimes, no, make that rarely) recognizes that in emergency situations, a person may not have time to consult their copy of the general laws (and relevant case law) before undertaking a plan of action.

    But there is something to be said about discouraging idiots who *think* they know how to run a firebreak from doing so poorly and then killing a squad of firemen who are charged to defend theirs and others’ property. I don’t think future behavior modification ever really ought to be dispositive, but I can see how a person might.

  11. Thank god for juries. Peer review exists to correct for the occasions when the authorities get it wrong. And on this one it looks like they got it wrong.

  12. Can and should “no harm, no foul” work as a defense in court?

    Isnt that the question here?

    Secondly, in the past it has been determined that you have no legal right to police protection. (Its not the police’s fault if they fail to prevent a burglary or something) Does the same apply in this case? I doubt you could sue the state of CA for failing to stop the fire if your house burned down. In the first case, this leads to the idea that you can defend your own home. In the latter, doesnt the same apply? If the state grants no guarantee of fire protection, dont you have the RIGHT to protect it yourself as long as your manner harms no one elses property?

  13. Alright!
    Now dig this baby!
    You don’t care for me,
    I don’t care about that.
    You got a new fool,
    Hah, I like him like that.
    I have only one burning desire,
    Let me stand next to your fire.
    [Let me stand next to your fire] Hey, let me stand next to your fire
    [Let me stand next to your fire] Oh, let me stand baby
    [Let me stand next to your fire] Let me stand
    [Let me stand next to your fire] Yeah baby

    Listen here baby,
    Stop acting so crazy!
    You say your mom ain’t home,
    It ain’t my concern.
    Just don’t play with me,
    And you won’t get burned.
    I have only one itching desire,
    Let me stand next to your fire
    [Let me stand next to your fire] Yeah, let me stand next to your fire
    [Let me stand next to your fire] Let me stand
    [Let me stand next to your fire] Oh, Let me stand

    Oh, move over Rover,
    And let Jimi take over.
    Yeah, you know what I’m talking about
    Yeah!
    Get on with it baby!

    That’s what I’m talking about.
    Now dig this!
    Ha!
    Now listen baby!
    You try to give me your money,
    You better save it babe.
    Save it for your rainy day.
    I have only one burning desire,
    Let me stand next to your fire.
    [Let me stand next to your fire] Oh, let me stand
    [Let me stand next to your fire] Let me stand baby
    [Let me stand next to your fire] I ain’t gonna do you no harm
    [Let me stand next to your fire] Oh

    Yeah!
    You better move it baby . . .
    I ain’t gonna hurt you baby . . .

  14. Start a fire, don’t start a fire… whatever.

    Communicate that the citizenry doesn’t *NEED* The State?

    That calls for the highest penalty allowed by law plus a speech on the part of the judge where he expresses regret that his hands are tied and he cannot raise the penalty further.

  15. Sorry, but no matter what the conditions it’s tyrannical to claim dominion over what somebody does on their own property.

  16. law =/= justice

  17. The government is here to protect us from every conceivable danger; if these “amateurs” are allowed to successfully protect themselves, somebody might think the government is unnecessary.
    This is a grave danger, and must not be tolerated.

  18. Every fireman I have ever met was an obnoxious, prissy totalitarian asshole.

  19. P Brooks,

    Your fireman experience is almost identical to my cop experience. The firefighters I have met were all pretty cool folks.

  20. robc —

    Excellent point. However, does the absolute value of being able to defend one’s own property (since no one else is required or obligated to) trump the fireman’s right to not be burned to a crispy cinder by an idiot’s bad firebreak?

    For my part, I support only punishing acts as regards their outcomes when intent is clearly not criminal.

  21. If they were negligent, then there’s no issue here. Could the very act of attempting a back burn been, in and of itself, negligent? That is, does it need an expert to even be attempted?

    Oh, move over Rover,
    And let Jimi take over.
    Yeah, you know what I’m talking about

    Actually, I don’t know what you’re talking about. That line always confused me.

  22. lmnop,

    For my part, I support only punishing acts as regards their outcomes when intent is clearly not criminal.

    I agree. No criminal intent here. No harm, no foul.

    If they had burnt their neighbors house down trying this, throw the book at them.

  23. I don’t know what you’re talking about.

    Ask Max Moseley; he can explain it to you.

  24. lmnop,

    However, does the absolute value of being able to defend one’s own property (since no one else is required or obligated to) trump the fireman’s right to not be burned to a crispy cinder by an idiot’s bad firebreak?

    Of course not. But these idiots didnt set a bad firebreak.

  25. Your fireman experience is almost identical to my cop experience. The firefighters I have met were all pretty cool folks.

    Your moniker makes this comments ironic on several levels.

    But my experiences concord with yours. Cops are generally (though not universally) pricks, whereas firefighters were pretty cool. Except when you started talking fire safety; then they became pricks as if you’d flipped a switch in their heads.

    I suppose putting out burns day in and day out started by some fool or other would make pretty much anyone testy about fire safety though.

  26. Am I the only one with Kansas in my head now?

  27. Am I the only one with Kansas in my head now?

    You were, but you arent now. Bastard.

  28. Their real crime was fighting a fire without the appropriate porn stache.

  29. The real issue is that the state wants a monopoly on “protecting us” and always feels threatened when someone takes matters into their own hands and does it better.

  30. I think this brings up the issue of how preventative laws should be. For instance, I think (though I haven’t heard it discussed here) that most people support drunk driving laws. Its the same thing: Disallowing doing something dangerous to prevent actual harm from befalling others. The next question, of course, is how far down the line can you go in the name of prevention. It seems to become a slippery slope with no meaningful cut off.

  31. Robbie,

    Drunken driving on the public roads = bad.

    Drunken driving on your own property != bad.

  32. Except when you started talking fire safety; then they became pricks as if you’d flipped a switch in their heads.

    My point, exactly; pretty much every fireman I ever talked to was obsessed with worst-case scenarios, and claimed “trained professionals” were our only hope.

    Hence, prissy totalitarian asshole; and if you see the fire inspector coming, lock the door. Those fuckers think their real job is to shut down anybody who is actually making things.

  33. P Brooks,

    I usually sit and listen to the safety stuff, because they have a different background, different field, than most of my safety stuff. You know, rather than popping off a big fat argument when they mention taping down a breaker is bad and stuff.

    Electricians are pretty cool too, until you start talking to the fiber optic guys and they get all wacky pretty fast.

  34. Robc, no harm no foul will absolutely not be a defense In fact, there’s a whole category of crimes, called inchoate offenses, where no harm is required.

    What they will likely use is the defense of necessity (assuming they don’t plea bargain). The trouble with necessity in the case is that is judged from an objective standpoint is neither his good intentions nor the fortunate outcome will help. It will hard for him to argue that his actions were reasonable when he acted in defiance of authorities whose assessment of the matter will be likely to be more credible in court.

    By the way, there was criminal intent here. “Intent” doesn’t just mean you intended the result. It may also mean you intended to start the fire or even simple recklessness can mean intent depending on the standard listed in the statute. I’ll bet the law they are charging him with violating uses “malice” which can include reckless conduct.

  35. Elemenope speaks my mind, for the most part. Don’t punish risky behavior, but when that risky behavior actually does harm someone, the punishment should be swift and terrible.

    I would, however, quibble with the notion of criminal intent. It is from that hallowed place that we get things like hate crime laws.


  36. Robc, no harm no foul will absolutely not be a defense In fact, there’s a whole category of crimes, called inchoate offenses, where no harm is required.

    What is it about lawyers that that always argue from the point of what the law is instead of what it should be?

    Happens with constitutional law all the time, but it just showed up here. Eryk, you dont even seem to be questioning whether inchoate offenses should, in fact, even be offenses.

  37. Personally, Robbie, I find deterrence to be pointless, and so I would say that, e.g. for Drunk Driving I’d simply prosecute the results. If someone is drunk and they plow into someone, killing them, then they get 20 years for manslaughter. If you like, you can make the intoxication an aggravating factor in sentencing.

    If, on the other hand, someone is drunk and they’re going a total of five blocks at a top speed of twenty miles an hour, I can’t bring myself to give a shit.

  38. What is it about lawyers that that always argue from the point of what the law is instead of what it should be?

    Drives me up a fucking wall. My trial procedures instructor was a practicing ADA, and she gave these great assignments about legal ambiguity and asked for our opinion about certain legal matters. But, when my opinion was too far away from what the law *was*, even though she was asking what we thought what the law *should be*, she chewed me out.

  39. Could the very act of attempting a back burn been, in and of itself, negligent?

    I don’t think so. Negligence gets to how something is done, not whether its done. If the very act is illegal, regardless of how its done or its outcome, you’re really talking strict liability.

    That said, I like their chances with a jury. Get their neighbors to testify about how their houses were saved. Cross-examine the firefighters about how they wrote off the neighborhood. Dare the jury to send someone to jail for doing the right thing.

  40. RC Dean,

    Get the chief in there in his dress darks and badge, then we’ll see who gets what.

  41. robc,

    First, if you are going to talk about what will happen in court, you should probably mention what the law actually is.

    Second, I’ll be happy to defend inchoate offenses, even as a capital L Libertarian …well, two of the three. The first is attempt and I have no problem with sending someone to jail who tried to blow my head off with a shotgun even if he missed (I’d even add a charge of being a criminally bad marksman for missing with a shotgun). The second is solicitation. As long as the crime being solicited is a real crime, (murder for hire, yes; prostitution, no) you can go spend some time in a cell.

    OK, conspiracy is ripe for abuse (and “conspiracy of one” is bullshit on stilts).

    As for what I think the law should be, I think the law should give the hairy eyeball to someone who sets a big fire that damages the property of others. They should have to pay for the damage and prove that their actions were justified from an objective viewpoint.

    I know there was a generally good outcome in this case. I remember a case where a robber shot a store owner. During the surgery to remove the bullet, the surgeon found a tumor. By shooting the store owner, the robber saved his life. No, I am not morally equating the two actors. I’m merely saying that a good outcome is not enough to justify taking risks with the lives and property of others.

  42. R C Dean,

    That’s really where I was going. If this is just the government saying no, only we can do something you’re perfectly capable of doing yourself, then the government is clearly wrong.

    However, this situation might be like some guy building and operating his own nuclear reactor without any expertise in doing so. I think stopping him prior to the meltdown is okay, subject to the government proving that his mere possession and operation of the reactor was actually dangerous to others.

    Naturally, I defer to people who know what the heck they’re talking about. About all I know about fire is that it burns stuff.

  43. Eryk, I agree with you only on the solicitation point, but probably for very different reasons. For me, I argue that a crime ought to be said to have occurred if the criminal act will inexorably proceed to occur after that point even if the primary actor takes no further action.

    For example, I think that a person ought to be able to research how to make a bomb, actually make it, and even put it in a box and put postage on it, and be yet to commit a crime. However, once he or she drops the box in the mail, a crime has occurred because even if the actor takes no further action, the bomb will still reach the target.

    Murder-for-hire is similar. Once you hire the guy to do the deed, even if you take no further action the crime will occur. At the point where you need act no further for the crime to result is the point at which the crime occurs.

  44. I’m no firefighter, but I’m willing to guess that a “controlled burn” is the sort of thing that’s really easy to screw up. If so, then the best thing to do is tell these guys “Glad it worked this time, but don’t make a habit of it.”

    If I were on the jury, and if the jury were allowed to determine the sentence, I’d vote to convict and fine them $0.02.

    Just my $0.02 worth.

  45. the authorities are going to lose some credibility when the jury learns that a rag tag bunch of amatures defended property deemed “undefendable” by the “experts”

  46. LMNOP, your fact pattern suggests an unjustified faith in the postal service.

  47. LOL, Eryk. I think it would be justifiable to take judicial notice of the notion that when people put a package in the mail, they generally expect it to be delivered.

  48. P Brooks,

    Sorry you’ve had bad experiences with fire professionals. I’m not saying there aren’t bad eggs, but generally it tells me you haven’t met many of us.

    I get paid to think in advance about when “Shit Happens”. You and I are probably not as far apart as you think in how much of that analysis should begat rule-making but I will tell you something, if you want to put most of us out of a job, sprinkler everything.

  49. Sorry you’ve had bad experiences with fire professionals. I’m not saying there aren’t bad eggs, but generally it tells me you haven’t met many of us.

    No, you are all little control freaks, and the best way to put you out of business would be to privatize fire control.

  50. They set the blaze in defiance of direct orders from local authorities.

    So when is the representative to the local authority going to be fired?

  51. Josh,

    You mean in the good old days when entire cities were lost in the “Great” fires or just back to the days when owners locked the exits to prevent theft thereby dooming the occupants?

    Examples of your proposal please.

  52. Tbone,

    Or how about making fire departments private companies that contract with clients.

  53. I’m no firefighter, but I’m willing to guess that a “controlled burn” is the sort of thing that’s really easy to screw up.

    I’m no firefighter either, but it looks like you’re right.

    The Cerro Grande Fire was a disastrous forest fire in New Mexico, United States of America that occurred in May 2000. The fire started as a result of a controlled burn that became uncontrolled owing to high winds and drought conditions.

    And that one was set by professionals.

    That said, they work far more often than they fail and are an exceedingly useful tool in fighting wildfires as this case shows.

  54. I find the American penchant for “leaving it to the professionals” interesting. Especially when viewed alongside our mythological “rugged individualism.”

    The Province of Ontario once had a law (maybe still does – but I doubt it) that provided for a fine for anyone who refused to help fight a forest fire if asked by the authorities. They could actually pull you over on the highway and dragoon you.

    Of course, in the end I think the law was largely unenforceable and in fact not even worth enforcing. Conscript labor is not that effective, especially when it’s a job involving actual skill.

    But it still something to think about re differences in attitudes.

  55. robc, fire response is probably the one element most amenable to privatization (the term fire “company” comes from the days when insurers provided the service).

    It’s possible but won’t happen. Insurers use the profits from fire portion of homeowners (low risk of multiple high dollar claims) to offset multi-claim risk (seismic, flooding, weather). Also, the fire service would mobilize against it. Just ask any Paramedic/EMT who has worked for private EMS versus muni FDs.

  56. Tbone,

    You want examples of privitization and then complain that they will be fougth against? Of course they will be, schools havent been privitized yet either.

  57. Don’t punish risky behavior, but when that risky behavior actually does harm someone, the punishment should be swift and terrible.

    So you’re OK with people getting so hammered they can barely get the key in the ignition, driving off, swerving all over the place, crossing the center line, narrowly missing hitting multiple cars, and having no legal recourse to stop them?

    Seriously?

    In this case, though, they were protecting their private property by setting fire to part of their private property, and doing so in a way that drew praise from a professional firefighter. So, I’d acquit in a heartbeat.

  58. prolefeed,

    I was actually going to say earlier that I have no problem with laws against reckless driving. Indeed, the situation you describe would violate many rules of the road.

    What I do have a problem with is laws against drunken driving. Someone can be a total road hazard even with their full faculties intact, while someone else can guzzle a bottle of Old Harper and parallel park with minute precision.

    People take calculated risks all the time. By being severely punishing actual harm, we can deter the unskilled from taking undue risks while the people who know what they are doing can go about their business.

  59. Not so sure about privatizing fire protection. When I lived outside the city limits, our county had volunteer fire companies that would only fight fires for subscribers. They would sit and watch a non-subscriber’s house burn to the ground, and resist the “deadbeat’s” effort to put it out on his own. It was especially hilarious when the “non-subscriber” turned out to have actually paid up, and it just hadn’t gotten posted to their approved list.

  60. Maybe we should privatize police protection. If a cop sees somebody being mugged, they shouldn’t do anything unless the muggee had paid the cops a monthy fee first. And, of course, if somebody is murdered, the cops shouldn’t investigate it unless the victim had paid his dues prior to being killed.

  61. There’s a pronounced difference between DUI and impaired driving in a ton of cases, at least the way that laws are currently written.

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