Supervising Fire Investigation Units

Flames tear through a heavy timber residential style barn

By STEVEN J. AVATO and RICHARD D. GUNDERT

Fire officers recently assigned to a supervisory role within the Fire Investigation Unit (FIU) will face many challenges; obstacles; and, likely, a significant learning curve that they have not encountered with their previous experiences. FIUs are unique within the fire service. Rules governing right-of-entry to conduct fire investigations, evidence collection and storage, qualifications for rendering expert opinion testimony in courts, and investigator health and safety are not typically suppression officer concerns, but they are everyday occurrences in an FIU. Many fire departments’ FIUs consist of personnel with both fire origin-and-cause determination and law enforcement responsibilities, creating a hybrid fire/law enforcement unit. Typically, the mission of such teams is to do the following:

Determine the origin and cause of fires, explosions, or hazardous materials releases.
Determine if the incident is intentional or criminally negligent.
Determine culpability and enforce the applicable criminal statutes to include obtaining and serving search and arrest warrants.

Overseeing such a unit can be a difficult assignment for a supervisor newly assigned from the suppression, training, or operations side of a fire department. Although many FIUs are also responsible for enforcing fire codes and conducting fire and life safety inspections, this article will focus solely on the issues related to fire origin-and-cause investigation and enforcement issues.

RELATED FIREFIGHTER TRAINING

Mindset

One of the first changes a new fire investigation supervisor will need to acknowledge is that the basic view of the fire changes. In suppression, the fire officer needs to assess where the fire is, where it may go, and how to stop it before it gets there. In fire origin-and-cause investigation, the approach is somewhat reversed and historical. The fire origin-and-cause determination begins where the fire ended. The investigator will work methodically through the scene by gathering and analyzing observed data, following the fire backward though its various paths to the area of origin. At the origin will be the heat source that ignited the first fuel, initiating the event. The investigator must identify the “circumstances, conditions or agencies that bring together a fuel, ignition source and oxidizer.”¹Although it may seem like an easy task (find the origin, then the cause) at each step between the point of extinguishment and the origin, the fire investigator must understand the complex fire dynamics that drive the fire to accurately describe the initiation, growth, and spread of the fire. In addition, the fire investigator must consider and account for how the fire suppression tactics may have changed the movement of the fire throughout the structure.

The pace of a fire investigation is different than that of extinguishment. Whereas fire suppression is an immediate and urgent task requiring quick, dynamic action, a fire origin-and-cause investigation requires a slower, methodical, and deliberate pace. The processing of a fire scene may take hours (perhaps days) to complete and properly document. In addition, the report of the investigation may take time to finalize as critical interviews may be delayed, lab analysis reports may take time to complete, and research may need to be conducted to firmly establish an origin and cause.

This shift in the approach to fire is a learning process. Even a seasoned fire suppression officer will likely need some time to adjust to the practice of fire investigation before becoming comfortable enough to understand the technical aspects of his new role. Many of the skills needed for fire investigation such as interviewing, application of scientific methodology, and detailed report writing may not have been the typical fire suppression officer’s experience. Simply reading a book on fire investigation may not be enough to grasp the nuances of the position.

The Role of NFPA 921 and 1033

The fire service is accustomed to the standards promulgated by National Fire Protection Association (NFPA) committees. Firefighters train to meet the minimum standards of NFPA 1001, Standard for Professional Firefighter Qualifications; safe fireground operations adhere to NFPA 1500, Standard on Fire Department Occupational Safety, Heath, and Wellness Program; and many departments require compliance with NFPA 1582, Standard on Comprehensive Occupational Medical Program for Fire Departments, for annual physicals. For the suppression officer, a general awareness of the NFPA standards may suffice, whereas an FIU supervisor will be required to have an intimate knowledge of two foundational documents. Fire investigations are guided by two critical NFPA documents: NFPA 1033, Standard for Professional Qualifications for Fire Investigator, which prescribes the minimum job performance requirements to function as a fire investigator; and NFPA 921, Guide for Fire and Explosion Investigations, which describes how an investigator “qualified” in NFPA 1033 should investigate. The FIU supervisor needs to understand that the validity of the fire investigator’s findings depends on compliance with these documents. Fire investigators will often find themselves in either criminal or civil courts testifying as an expert witness about a fire’s origin and cause. To express his expert opinion in court, an investigator must establish that he is qualified in knowledge, training, and experience to render an opinion and that he followed an accepted methodology to form that opinion.

In short, meeting the requirements of NFPA 1033 establishes the minimum qualifications, and adherence to NFPA 921 validates the methodology. Numerous courts throughout the country have recognized NFPA 1033 and NFPA 921 as, at least, a “best practices” plan to conduct fire investigations. Without an understanding of this interaction, a new supervisor may inadvertently allow subordinate investigators to appear ill-prepared at best or, at worst, incompetent. Either way, the investigator may be disqualified from testimony at that and, possibly, future court proceedings. A newly assigned supervisor in an FIU can best prepare for his role by prioritizing knowledge of NFPA 921 and 1033 and ensuring that personnel under his command appreciate the importance of these documents, adhere to them, and produce written reports that conform to the methodologies. These documents are the investigator’s passport to professional fire investigations that will withstand courtroom scrutiny.

One of the hardest adjustments a supervisor will make comes from reviewing complicated origin-and-cause reports and evaluating them for compliance with the basic methodology of fire investigation—the scientific method. NFPA 921 devotes Chapter 4 (“Basic Methodology”) to describing the scientific method as, “A principle of inquiry that forms a basis for legitimate scientific and engineering processes, including fire incident investigation.”¹The supervisor needs to review written reports for the documentation of data as well as the formation, analysis, and testing of hypotheses regarding the origin and cause of the fire. Simply put, the reports need to show that the investigator considered several possible reasonable alternatives before arriving at a conclusion and that this conclusion is validated by the methodology described in NFPA 921. The fire investigator must base his origin-and-cause determinations on substantiated and documented observations or evidence and the technical knowledge and research that support his opinion.

It is in report review and rendering expert opinions as to the origin and cause of fires that the supervisor needs to proceed with caution. A supervisor should never be construed (or misconstrued) as “ordering” a subordinate to report a fire’s origin and cause in a way that is inconsistent with the investigator’s opinion. For example, a supervisor should refrain from telling the reporting investigator that he thinks a fire was intentionally set when the investigator has reported the fire to be an accident. If there is a discrepancy between the investigator’s observations, analysis, and report and the supervisor’s opinion of how events unfolded, both must discuss the data collected and their analyses. Each must justify his analysis based on the verifiable data to include damage patterns, witness statements, and fire dynamics. The hypothesis that is most supported by the data and fire science should prevail. If the supervisor is seen as “ordering” the investigator to acquiesce to the supervisor’s authority, this may come out in courtroom testimony and result in the disqualification of the investigator’s opinion, the loss of a criminal case, or potential criminal charges against the investigators if potentially exculpatory information was withheld or false charges filed. [Authors’ note: Steven J. Avato has reviewed testimony where an investigator, under questioning by an attorney about a report, stated that he (the investigator) was told to write “that” by his supervisor. This does not bode well for the investigator’s nor the supervisor’s expertise and credibility.] This is a problem and potential pitfall for some FIU supervisors and a concern of which a newly assigned supervisor should be aware.

This should not discourage supervisors from critically reviewing the reports of their subordinate investigators. Report review is a critical part of the supervisor’s job and an important part of the technical review of origin-and-cause reports. The new supervisor, whose technical knowledge may be limited, is encouraged to question the origin-and-cause report’s author as to his methodology and conclusions. The investigator should be able to explain every detail of the report and provide supporting data (i.e., photographs, evidence, lab reports, and so on) to the supervisor, if for no other reason than that the investigator may be called to present this same information to a jury with no fire experience. The supervisor is, in effect, preparing the investigator for courtroom testimony and, at the same time, learning about fire scene processing and documentation. This review should be viewed as mutually beneficial.

On-Scene Investigations

Supervisors without fire scene origin-and-cause investigation experience should make every effort to shadow experienced fire investigators at scenes. The best way to understand the process of fire origin-and-cause determination is to observe the examination as it happens. Supervisors should be inquisitive and not hesitate to ask questions. Investigators should be willing to share all their knowledge, training, and experience with their new supervisor and—perhaps more importantly—the new supervisor should be receptive to the input of the experienced fire investigator. As mentioned in reports review, this sharing process is mutually beneficial. Fire damage patterns may be subtle and difficult to see in photographs, but an investigator who can outline the patterns and explain their significance at the scene will not only make the report review process easier and train the new supervisor but also enhance the investigator’s ability to articulate observations and explain their significance in the context of the scene. This also provides practice in answering “off the cuff” or unexpected questions—like those that may come up in a courtroom proceeding. For the supervisor, the on-scene question-and-answer interaction provides invaluable insight and experience as well as highlights the abilities of subordinates. The new supervisor should also acknowledge the subordinate for taking the time to share his expertise and recognize the hard work and training it took to achieve that skill level.

One word of caution for the new supervisor: Avoid “oversupervising” during the fire scene examination. Nothing will discourage the free flow of information and knowledge faster than a supervisor constantly correcting an experienced investigator about perceived procedural flaws. The supervisor may walk a thin line between being a neophyte fire investigator and an overzealous manager. Perhaps the framing of questions can bridge the supervision and training functions. For example, asking the investigator, “It seems like this item would support your hypothesis. Why wouldn’t we collect this item as evidence?” may be better received than, “You need to collect this item and properly package it. It’s evidence.” Both statements may serve to remind the investigator that an item should be retrieved, but the first encourages an explanation, while the latter comes off as authoritative and alienating. The investigator may feel as though you do not want to learn and only want to exert your authority. Of course, this is not to suggest that a supervisor should remain silent if unsafe or illegal activity is occurring.

Investigator Health and Safety

Almost every fire service organization has acknowledged the health and safety risks associated with fire suppression operations, and most have implemented procedures to safeguard personnel. Fire investigators are not exempt from the hazards of the fireground environment and, in some cases, may be more at risk than during active fire suppression operations. One area of particular concern for supervisors is respiratory protection. Fire departments are accustomed to the use of self-contained breathing apparatus (SCBA) and often view the SCBA as the only form of respiratory protection acceptable for fireground operations including overhaul and investigations. However, the scope of the fire scene origin-and-cause investigation may give FIU supervisors reasons to seek alternate respiratory protection such as half-face respirators with appropriate filter cartridges.

Although some departments have SCBA “no-drop” policies, a fire investigation that may take hours presents challenges for compliance with such policies. Often, the department’s FIU has limited staffing, and investigators working in SCBA have limited working time on air and must take frequent breaks to change air cylinders, conform to mandatory break periods after SCBA usage, undergo vital sign monitoring, and ensure that “rescue” personnel are outside the building while the investigator is “on air.” All these procedures, while providing maximum safety, commit valuable department resources when safe alternatives exist for extended fire scene investigations.

Personal protective equipment (PPE) for fire investigators is as important as it is for suppression personnel, for the same reasons. Fire investigators are exposed to the same types of carcinogens and toxins after the last ember has been extinguished as during flaming combustion. Research into postfire exposures indicate that absorption is also a concern as a route of entry for harmful chemicals. Effective hazard protection should include complete coverage of any potentially exposed skin. Although structural firefighting gear may provide a convenient, readily accessible solution to the problem, the added weight, bulk, and heat retention concerns may make that ensemble less desirable during long fire scene investigations. New FIU supervisors should be aware that alternatives to structural gear exist and should be explored.

After the scene work is completed, the health and safety risks to investigators may linger. Just as suppression personnel have become aware of the risk of “off gassing” of hazardous chemicals from their gear, fire investigators’ clothing and equipment can cause similar concerns. Vehicles used for fire investigations should employ the same “clean cab” concept as many departments have applied to their other apparatus. Keep investigators separate from clothing and equipment used in fire scene processing and make duplicate scene processing clothing and equipment available for use while decontamination is being completed on dirty items.

An excellent resource to aid the newly assigned investigations supervisor to grasp the unique hazards of origin-and-cause investigations and the associated health risk mitigation is Fire Investigator Health and Safety Best Practices, Second Edition produced by the International Association of Arson Investigators.²

Law Enforcement Issues

Many jurisdictions grant fire investigators the same law enforcement powers as police officers or sheriff’s deputies. This authority means that a new supervisor coming from suppression operations must learn a new set of skills, rules and regulations, and a lexicon. The average firefighter does not often consider what right he has to enter a building on fire. The need is obvious and, after all, his job is to enter the building, search for victims, and extinguish the fire. However, fire investigators, especially those with law enforcement authority, must be aware that their right to enter a private property may be restricted to certain conditions to make it lawful. Fire investigators cannot enter a structure simply because they have a lock box key or building access code. The supervisor should recognize that entering a property to conduct an origin-and-cause investigation constitutes a search by the government and can, by law or court precedent, be conducted only under exigent circumstances with the consent of the owner (with some exceptions) or with a warrant (administrative or criminal). Once legally inside, the supervisor must realize that he may need to stop his investigation to obtain a criminal search warrant if it appears that the purpose of the investigation has shifted from merely attempting to determine origin and cause to collecting evidence (including observations and photographs) of a criminal act—even if the criminal act discovered is not directly associated with the fire.

The rules for the proper collection, packaging, and handling of evidence are other areas that are often unfamiliar to the average fire department supervisor. In the fire investigation field, the proper recognition and handling of evidence need to be a priority. Criminal cases may be dismissed because the “chain of custody” was not properly maintained or documented or the evidence was not placed in the proper container for laboratory examination. Most fire debris evidence must be packaged in vapor-tight, clean, unused cans to get a useful ignitable liquid residue analysis. The supervisor will be called on to review the procedures and paperwork surrounding the collection of evidence of their subordinates and will need to learn this new skill set.

Even if the FIU does not have law enforcement authority, the supervisor must understand that the origin-and-cause investigation may lead to criminal charges against individuals (or corporations). Unlike his role in fire suppression, the investigation supervisor’s decisions may be responsible for the restriction of an individual’s freedom. The supervisor is obligated to critically review his subordinate’s reports and ensure that not only is he employing sound, valid fire science principles but that his conclusions regarding who may be responsible for the incident are logical and legally supported by evidence and defensible in court. This ability to impact an individual’s freedom is an immense power that is not encountered anywhere else within the fire service and cannot be taken lightly.

An area of potential conflict for the newly assigned officer may arise from a disparity in law enforcement authority. When a supervisor has not been granted law enforcement authority but subordinates are sworn law enforcement, there may be some information that cannot be shared with the supervisor to preserve criminal investigation information. This situation is rare, but it can occur when the release of certain information would compromise the integrity of the criminal case, especially in investigations that may involve undercover operations, informants, or confidential surveillance techniques. However, the supervisor should be on guard to avoid having employees misuse this privilege.

Typically, administrative procedures are not confidential and can be addressed without compromising the investigation. For example, an investigator may tell the supervisor that he needs overtime pay to “conduct an investigation” but cannot tell the supervisor what will be done, where, or for how long because it is “law enforcement sensitive.” The supervisor still has the responsibility to be a good steward of the department’s financial resources and should expect some verification that the function could not occur on regular time and that the request is legitimate. (Authors’ note: Steven J. Avato is familiar with such an incident where an investigator advised that he was conducting interviews on overtime but could not share with whom, where, or why because the supervisor was not law enforcement. When the supervisor requested documentation, the overtime, suddenly, was no longer needed.)

By the same token, the supervisor must realize that there may be legitimate reasons for confidentiality. A supervisor who learns that an informant has said that a particular location will be set on fire at a particular time cannot have two engines, a ladder, and a chief park in the block during that time frame as these actions, although perhaps providing public safety, may endanger the life of the informant or undercover officer. In such a case, make alternative, but more covert, plans to prepare for such an event.

Freedom of Information Act (FOIA) requests may be viewed differently by supervisors in an FIU than when in other assignments. Typically, fire departments have little or no concerns about releasing information, on request, to the public. However, certain information may be contained in fire investigation files that may not need to be, nor should be, released. Most states do not require the release of information that would jeopardize ongoing criminal investigations or the safety of individuals such as cooperating witnesses or informants or reveal specific confidential investigative techniques. The fire investigation supervisor bears a responsibility to familiarize himself with his state’s FOIA regulations and ensure that certain sensitive information is not released by an FOIA administrator unfamiliar with the nature of investigative information.

Unless they have been previously assigned to fire origin-and-cause investigations, fire department officers may find themselves in a strange new world if they transition from suppression, emergency medical services, safety, or training to an FIU. Expert testimony in court, hypothesis development and testing, the scientific method, laws of arrest, and use of force were not typical training topics or firehouse dinner table conversations.

Although a part of many fire departments, the FIUs seem to have their own unique language and skills and their own challenges and benefits. As a supervisor newly assigned to fire origin-and-cause investigations, there will be a tremendous amount to learn, new and exciting aspects of fire science revealed, and new law enforcement skills to be gained. Once you begin, the learning process should never end.

References

1. NFPA 921, Guide for Fire and Explosion Investigation, 2021 edition. National Fire Protection Association (Quincy, Massachusetts) at §3.3.71 Fire Cause.

2. NFPA 921, Guide for Fire and Explosion Investigation, 2021 edition. National Fire Protection Association (Quincy, Massachusetts) at §4.3 Relating Fire Investigation to the Scientific Method.

3. International Association of Arson Investigators, accessed on April 25, 2021. www.firearson.com/Publications-Resources/Fire-Investigation-Resources/Health-Safety.aspx.

STEVEN J. AVATO, IAAI-CFI, is a 40-year veteran of law enforcement, spending 27 years investigating and supervising fire and explosion incidents for the United States government. He has also spent the past five years working in a Northern Virginia fire department’s fire marshal’s office.

RICHARD D. GUNDERT, IAAI-CFI, has 25 years of experience in private and public fire departments. He works for a large Northern Virginia fire department, where he was previously a suppression officer. For the past eight years, he has been a supervisor at that department’s Fire Investigation Unit.