FD's Right To Enter

[x635 4,066]

Something I'm just curious about.

Let's say a person owns a home on a large piece of property, where there are no exposure problems or threats to the public.

Now let's say the same house is on fire. The owner doesn't want the FD to put it out. Does he have that right? Could an FD be charged with tresspassing if they did?

[INIT915 1,119]

From the NYS Attorney General's Office

http://www.ag.ny.gov/bureaus/appeals_opinions/opinions/2006/informal/2006-4.pdf

[Guest yolkman]

The previous post cites an opinion by the state attorney general. However this is still open to interpritation. I would say that if the owner has a note on the property, by mortage stipulation (& insurance) the FD has permission (by agreement-the mortgage) to prevent loss of lender interest. I would further say that if the property is free and clear of lien, then the horizon could be muddy, but any logical judge would dismiss any claim for the benefit of public safety. However, would still hold solid the owners civil litigation to recover loss or cost from the victim or their insured to cover damage costs to loss or recitify damage in any rescue operation. If an owner chooses to arson his own property, then it would be logical that a criminal case could be persued. But would suggest another thread of why/who approves controlled burns for training, and why burns are allowed to destroy/resolve derilect & unsafe structures in rural areas for personnel safety? Same difference?

[INIT915 1,119]

The previous post cites an opinion by the state attorney general. However this is still open to interpritation. I would say that if the owner has a note on the property, by mortage stipulation (& insurance) the FD has permission (by agreement-the mortgage) to prevent loss of lender interest. I would further say that if the property is free and clear of lien, then the horizon could be muddy, but any logical judge would dismiss any claim for the benefit of public safety. However, would still hold solid the owners civil litigation to recover loss or cost from the victim or their insured to cover damage costs to loss or recitify damage in any rescue operation. If an owner chooses to arson his own property, then it would be logical that a criminal case could be persued. But would suggest another thread of why/who approves controlled burns for training, and why burns are allowed to destroy/resolve derilect & unsafe structures in rural areas for personnel safety? Same difference?

While your post is difficult to follow, I would offer that a homeowner who chooses to "arson his own property" can do just that (under certain circumstances).

[Just a guy 493]

This is a very interesting question, it's one that I never thought of because we never have access issues with homeowners here but it would seem that the emergency services do have the right to enter the property. I posted the NYS penal law for arson, it seems that if you wanted to burn a building on your own property you could technically... but there are other questions that come up, can you really take the homeowners word that the house is empty ? Did he set the fire to cover up another crime ? Or maybe he's just a nut that wanted to burn his house down and live in the woods ....

S 150.00 Arson; definitions.

As used in this article, 1. "Building", in addition to its ordinary

meaning, includes any structure, vehicle or watercraft used for

overnight lodging of persons, or used by persons for carrying on

business therein. Where a building consists of two or more units

separately secured or occupied, each unit shall not be deemed a separate

building.

2. "Motor vehicle", includes every vehicle operated or driven upon a

public highway which is propelled by any power other than muscular

power, except (a) electrically-driven invalid chairs being operated or

driven by an invalid, vehicles which run only upon rails or tracks,

and © snowmobiles as defined in article forty-seven of the vehicle and

traffic law.

S 150.01 Arson in the fifth degree.

A person is guilty of arson in the fifth degree when he or she

intentionally damages property of another without consent of the owner

by intentionally starting a fire or causing an explosion.

Arson in the fifth degree is a class A misdemeanor.

S 150.05 Arson in the fourth degree.

1. A person is guilty of arson in the fourth degree when he recklessly

damages a building or motor vehicle by intentionally starting a fire or

causing an explosion.

2. In any prosecution under this section, it is an affirmative defense

that no person other than the defendant had a possessory or proprietary

interest in the building or motor vehicle.

Arson in the fourth degree is a class E felony.

S 150.10 Arson in the third degree.

1. A person is guilty of arson in the third degree when he

intentionally damages a building or motor vehicle by starting a fire or

causing an explosion.

2. In any prosecution under this section, it is an affirmative defense

that (a) no person other than the defendant had a possessory or

proprietary interest in the building or motor vehicle, or if other

persons had such interests, all of them consented to the defendant`s

conduct, and the defendant`s sole intent was to destroy or damage

the building or motor vehicle for a lawful and proper purpose, and ©

the defendant had no reasonable ground to believe that his conduct might

endanger the life or safety of another person or damage another building

or motor vehicle.

Arson in the third degree is a class C felony.

S 150.15 Arson in the second degree.

A person is guilty of arson in the second degree when he intentionally

damages a building or motor vehicle by starting a fire, and when (a)

another person who is not a participant in the crime is present in such

building or motor vehicle at the time, and the defendant knows that

fact or the circumstances are such as to render the presence of such a

person therein a reasonable possibility.

Arson in the second degree is a class B felony.

S 150.20 Arson in the first degree.

1. A person is guilty of arson in the first degree when he

intentionally damages a building or motor vehicle by causing an

explosion or a fire and when (a) such explosion or fire is caused by an

incendiary device propelled, thrown or placed inside or near such

building or motor vehicle; or when such explosion or fire is caused by

an explosive; or when such explosion or fire either (i) causes serious

physical injury to another person other than a participant, or (ii) the

explosion or fire was caused with the expectation or receipt of

financial advantage or pecuniary profit by the actor; and when

another person who is not a participant in the crime is present in such

building or motor vehicle at the time; and © the defendant knows that

fact or the circumstances are such as to render the presence of such

person therein a reasonable possibility.

2. As used in this section, "incendiary device" means a breakable

container designed to explode or produce uncontained combustion upon

impact, containing flammable liquid and having a wick or a similar

device capable of being ignited.

Arson in the first degree is a class A-I felony.

Edited July 29, 2010 by crime cop

[FFEMT150 214]

Well Crime Cop, i too was scratching my head on this one so out came the PL/CPL book. Not sure how helpful this will be but here we go...

S140.05- Tresspass

A person is guilty of tresspass when he knowingly enters or remains unlawfully in or upon premises.

S140.15- Criminal tresspass in the second degree

A person is guilty of criminal tresspass in the second degree when he knowingly enters or remains unlawfully in a dwelling.

seems that in NYS if the homeowner says stay out you stay out, but then again, can he prove to you he is the SOLE property owner? This should be a good discussion.

[SageVigiles 1,194]

A fire would be considered exigent circumstances and would therefore be an exception to the 4th amendment requirements for government employees needing a warrant to enter property.

[lad12derff 283]

What if the homeowner was trying to cover up a crime scene. Murder, rape, drug operations or counterfeiting. Do we not have the right to put out this fire and turn it over to PD for investigation? As far as I am concerned once your house is on fire you have lost your rights to stop us from entering.

[INIT915 1,119]

What if the homeowner was trying to cover up a crime scene. Murder, rape, drug operations or counterfeiting. Do we not have the right to put out this fire and turn it over to PD for investigation? As far as I am concerned once your house is on fire you have lost your rights to stop us from entering.

People v. Kalbfeld, 1924, 124 Misc. 200, 207 N.Y.S. 744

It is no crime to burn and destroy one's own property if it is not occupied by, or there is no human being in it, or no human being or property of others is endangered, or there is no intent to defraud.

[helicopper 1,050]

What if the homeowner was trying to cover up a crime scene. Murder, rape, drug operations or counterfeiting. Do we not have the right to put out this fire and turn it over to PD for investigation? As far as I am concerned once your house is on fire you have lost your rights to stop us from entering.

What if the homeowner wasn't doing anything illegal? What if they just don't want to let you in/on their property? What if they bar you from entering?

People v. Kalbfeld, 1924, 124 Misc. 200, 207 N.Y.S. 744

Got a link or source to view this decision? I can't seem to find it.

[ny10570 745]

It seems pretty clear, no they cannot stop you. There's no way they can quickly prove ownership, that the structure is vacant, or that there is no crime cover up. It seems that the act of impeding a response would be suspicious enough to warrant action by the responders.

[INIT915 1,119]

Got a link or source to view this decision? I can't seem to find it.

Hey Chris,

Unfortunately the online databases I have access to do not archive cases this old. I am using the hard copy of McKinney's. I could try to scan it and upload it as a pdf.

The ironic part is we don't really need to use that case, as Arson 3rd has a built in affirmative defense (See PL 150.10 Subd. 2)

The question that seems to be taking shape on this thread is more of a "how would the FD know in advance" that the homeowner was exercising such a right. That is a more complex question that would be best served by advance notification on part of the would-be pyromaniac.

[helicopper 1,050]

Thanks INIT, that's what I figured when I saw the date.

Perhaps with a fire it's easier to err on the side of the FD. But what if it is an automatic alarm or other impetus for a response?

I meet you in my driveway and tell you the alarm was accidental and refuse to grant you access to my home or property; in fact I ask you to leave.

Now where are we?

[Guest alsfirefighter]

Good topic.

If the fire was accidental or some other form other then set by the homeowner Arson wouldn't apply.

I'm fairly certain law enforcement would handle the issue as I wouldn't deem that rational behavior, but that's my thought and I'd rather deal with the aftermath then not deal with the incident. But there are other actions that could be taken to remove the individual impeding the FD operation. Some are a stretch and I'm going on some older experience but I'd find something to take the person into custody to get them out of the way:

1. Illegal Open burn...then onto #3

2. Obstruction of Governmental Administration

3. Disorderly Conduct (probably wouldn't stick but it get them out of the way for the intended purpose, and if they are froggy...bye bye)

4. MHL?

5. Try to get them out off their property and into the public street...pick a number of things to try to use.

Bottom line is NY State law requires the Fire Chief to determine a cause of a fire, so sooner or later that has to come to light.

[antiquefirelt 994]

In this state and likely yours the open burning laws prevent burning of anything but clean unpainted wood. Most likely the person is violating the open burning law and therefore like debris fires that we extinguish on anyone's property, a house fire should be extinguished.

As a mater of fact, our state is now putting far more difficult regulations on the FD using acquired structures for live fire training due to environmental concerns. These include having a certified test that no asbestos or lead paint is present and any hazardous materials have been removed.

Edited July 29, 2010 by antiquefirelt

[gamewell45 258]

I'd offer the opinon that, no matter what, any fire creates a safety issue for the public at large.

Anything that's burning creates a safey and health issue for the public at large because the fire is releasing by-products into the air which could contain heavy metals, carcinogens, etc.

Based on the above, I think an argument could be made that it's justifiable to enter the property and extinguish the fire.

Just a thought.

Edited July 29, 2010 by gamewell45

[antiquefirelt 994]

I'd offer the opinin that, no matter what, any fire creates a safety issue for the public at large.

Anything that's burning creates a safey and health issue for the public at large because the fire is releasing by-products into the air which could contain heavy metals, carcinogens, etc.

Based on the above, I think an argument could be made that it's justifiable to enter the property and extinguish the fire.

Just a thought.

This is exactly why burning a house is a violation of the open burning laws.

[gamewell45 258]

This is exactly why burning a house is a violation of the open burning laws.

I would concur with you regarding that.

[FFEMT150 214]

Had a chance to sit with a few LEOs and discuss this thread over a cup of coffee. The collective opinion was that if a property owner were trying to impede with FD operations they would most likely be charged with Obstruction of Governmental Administration, however, the threat of force from PD is usually enough to get them out of the way. Don't take this as bible, its only the opinion of a few cops but it seemed to make sence to me.