An attorney for the family of three firefighters killed in a 2016 blaze asked a federal judge late Monday to keep a civil rights lawsuit against Wilmington officials alive, arguing that the city’s controversial “rolling bypass” policy had put the workers in harm’s way.
Plaintiffs’ attorney Thomas S. Neuberger said in a court filing that two former mayors and fire chiefs had broken a union contract and violated a city budget statute requiring 172 uniformed firefighter positions to be filled and fully funded at all times. Though the officials knew about the danger for months, they repeatedly misled City Council about the need to staff the vacancies, Neuberger argued.
“This failure shocks the judicial conscience even more because in addition to everything else, defendants also are violating at least 45 years of clear state law,” he said in the 110-page brief. “They signed and approved the CBA, agreed to its terms and must do everything in their power to live up to it. But instead they actively worked to undermine the very provisions they legally obligated themselves to obey.”
Neuberger in August sued the city, former Mayors Dennis P. Williams and James M. Baker, and former fire chiefs Anthony S. Goode and William Patrick Jr. over the rolling bypass policy, which mandated that fire engines be shut down in the event of staffing shortages instead of paying overtime to firefighters to work the shift.
The complaint alleged substantive due process violations and argued that the policy had prevented firefighters from supplying enough water to the scene of the deadly house fire in Canby Park on Sept. 26, 2016. Lt. Christopher Leach and senior firefighters Jerry Fickes and Ardythe Hope died in the blaze and three others were seriously injured.
Current Mayor Mike Purzycki, who was not named in the suit, has accused Neuberger of seeking a “quick cash settlement” from the city and has vowed to “aggressively defend” the case.
Attorneys for the city in October denied responsibility for the deaths and asked U.S. District Judge Maryellen Noreika of the District of Delaware to dismiss the case. According to the city, the policy, which mandated that certain fire engines be closed in the event of staffing shortages, dealt with the allocation of public resources and was not subject to a constitutional challenge by the families of the deceased firefighters and their injured colleagues.
“Decisions about safety standards for public employees and the benefits provided when they are harmed in the line of duty are matters of state and local law and are not determined through federal lawsuits that would burden public entities with millions of dollars of discovery and litigation costs and have federal judges and juries dictate workplace conditions by interpreting the contours of the substantive due process clause,” defense attorneys from McCarter & English attorneys wrote in a 31-page brief.
City officials said that Beatriz Y. Fana-Ruiz, who occupied the home at the time, has been indicted on multiple counts of arson, murder, assault and reckless endangering in connection with the fire.
On Monday, Neberger made his case under the “state-created danger” doctrine, which exposes the state to liability when affirmative acts by officials place workers in jeopardy. According to Neuberger, it was “reasonably forseeable” that an arson or accidental fire would occur and that firefighters would be the likely victims of the decision to leave fire-department vacancies unfilled.
He said that full discovery was needed before the court could conduct an exact analysis of the facts in the case.
Neuberger’s argument mirrored similar ones he made in 2017 in a case over the deadly prison takeover at James T. Vaughn Correctional Center. That case settled for $7.5 million, shortly before the parties were scheduled to argue the state’s motion to dismiss before U.S. District Judge Richard G. Andrews.
The case, in the U.S. District Court for the District of Delaware, is captioned Speakman v. Williams.
The plaintiffs are represented by Neuberger and his son, Stephen J. Neuberger, of the Neuberger Firm, as well as Thomas C. Crumplar and Raeann Warner of Jacobs & Crumplar.
The city and former officials are set to wrap up briefing on the motion to dismiss Feb. 4, according to an online docket-tracking service. Oral arguments have not yet been scheduled in the case.