‘Live Burn’ Training Exercise Resulting In Firefighter’s Death Does Not Violate Due Process

On February 9, 2007, Racheal Wilson, a new recruit with the Baltimore City Fire Department, participated in a live burn training exercise staged at a vacant three-story building in Baltimore. The live burn exercise was required as part of the training program for aspiring Baltimore City firefighters. To stage the building for the exercise, officials of the Fire Department tore down wall-boards and ceilings to create debris and stuffed walls with highly flammable excelsior. Then they lit fires at multiple locations on the first and second floors. After a period of delay, Fire Department officials instructed Wilson and her team to proceed to the third floor, with Wilson carrying the hose.

The team encountered “severe fire conditions,” and by the time they reached the third floor, they realized that their “lives were in danger.” Accordingly, the team began to evacuate the building “through a small window in the back of the dwelling that opened onto the rear roof of the second floor,” but Wilson “had difficulty getting through the window,” and, when others were unable to pull her through, she fell back into the building. Although the team ultimately managed to get Wilson through the window, she had by then become unconscious. She was immediately taken to the University of Maryland Shock Trauma unit, where she was pronounced dead on arrival. Her autopsy confirmed thermal injury and asphyxia as the causes of death.

Wilson’s survivors and estate sued the City, alleging that the Department violated Wilson’s substantive due process rights by staging the exercise with deliberate indifference to Wilson’s safety. When a trial court dismissed the lawsuit, Wilson’s estate appealed to the federal Fourth Circuit Court of Appeals.

The Court upheld the dismissal of the lawsuit. Though the Court noted that “the touchstone of due process is protection of the individual against arbitrary action of government,” the Court also found that “’arbitrary action,’ however, is used in a constitutional sense, which encompasses ‘only the most egregious official conduct,’ namely that which ‘shocks the conscience.’ Defining conduct that shocks the conscience does not draw on any traditional standard of liability from tort law but rather refers, as a constitutional construct of substantive due process, to ‘conduct intended to injure in some way unjustifiable by any government interest.’

“To be sure, a lower level duty of culpability may amount to a substantive due process violation in those situations where the government is required ‘to take care of those who have already been deprived of their liberty’ – such as pretrial detainees, persons in mental institutions, convicted felons, and persons under arrest. But this standard does not apply to persons in an employment relationship with the government.

“The plaintiffs in this case alleged that the Baltimore City Fire Department, in conducting the live burn exercise, failed to provide Wilson with safe working conditions, proper equipment, proper training, and particularized notice about risks of which Fire Department officials had actual knowledge. These allegations might be consistent with the Fire Department’s deliberate indifference. But in the voluntary employment context, the plaintiffs have not alleged arbitrary (in the constitutional sense) or conscience-shocking conduct because they did not assert that the Fire Department intended to harm Wilson, as would be necessary to establish a substantive due process violation.

“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). It is true that in this case the Baltimore City Fire Department created the danger. But this fact does not satisfy any element of the standard that the Supreme Court has articulated for showing a substantive due process violation with respect to a government employee. Moreover, if we were to recognize that government liability could flow simply from its creation of a dangerous condition, the practical consequences would be immense. By finding a state-created danger here, we might well inject federal authority into public school playground incidents, football (or even ballet) practice sessions, and class field trips, not to mention training sessions for government jobs that require some degree of physical fitness. Sometimes practice is demanding because games are demanding, and training is demanding because jobs are demanding, and how best to conduct these sessions can rarely be the focus of a constitutional claim.”

Slaughter v. Mayor and City Council of Baltimore, 682 F.3d 317 (4th Cir. 2012).