The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
On May 30, 1999, a fire claimed the lives of two firefighters
and seriously injured three others. Plaintiffs in the instant
case, two of the injured firefighters and the estates of the two
firefighters who perished in the fire, bring suit against the
District of Columbia, the former Fire Chief and Deputy Fire Chief
of the fire department for alleged constitutional violations and
intentional torts giving rise to injuries and loss of life. On
March 31, 2003, the Court denied the defendants' motion to
dismiss plaintiffs' claims brought pursuant to 42 U.S.C. § 1983
against individual defendants and the District of Columbia and
plaintiffs' claims of intentional torts against individual
defendants in their personal capacities.*fn1
The defendants thereafter filed interlocutory appeals in the
United States Court of Appeals for the District of Columbia
Circuit, challenging this Court's March 31 Order denying their
motion to dismiss on the issue of qualified immunity. Following
the defendants' notice of appeal but before the Circuit Court had
resolved the defendants' motions, that court issued two opinions
in cases unrelated to this case but bearing on the issue of
qualified immunity for government officials. Those cases are
International Action Center v. U.S., 365 F.3d 20 (D.C. Cir.),
decided April 16, 2004, and Fraternal Order of Police Dep't of
Corr. Labor Comm. v. Williams, 375 F.3d 1141 (D.C. Cir.),
decided July 20, 2004.
On April 16, 2004 and July 22, 2004, this Court, sua sponte,
ordered the parties to address the impact, if any, of the Int'l
Action and FOP decisions, respectively, on the instant case.
Both parties filed responses to Int'l Action and FOP pursuant
to those orders. Plaintiffs maintain that this Court's March 31,
2003 Order denying defendants' motion to dismiss their claims
against the individual defendants accords with the Int'l Action and FOP decisions. Defendants, on the other hand, argue that
the Court of Appeals' decisions are supervening events requiring
reconsideration of this Court's earlier decision and contend that
the plaintiffs' claims against the individual defendants must be
dismissed in light of those holdings. Based on these arguments,
this Court will construe the responses filed by the defendants as
a motion to reconsider and vacate its March 31, 2003 Order
denying defendants' motion to dismiss plaintiffs' claims against
the individual defendants and the collateral claims against the
District of Columbia.
On July 29, 2004, the Circuit Court ordered that the
interlocutory appeal in this case be held in abeyance pending
this Court's reconsideration of its qualified immunity decision.
See Phillips v. District of Columbia, et al., No. 03-7060 (D.C.
Cir. July 29, 2004).
Having reconsidered its previous Opinion and Order in light of
the Court of Appeal's decisions in International Action Center
and Fraternal Order of Police, the parties' Court-ordered
pleadings in response to those decisions, as well as the entire
record in this case, the Court sees no reason to modify its
original Order of March 31, 2003, denying defendants' motion to
dismiss the § 1983 and intentional tort claims against them on the grounds that they are immune.*fn2 Thus, defendants'
motion to vacate this Court's Order of March 31, 2003 is
The following is a recapitulation of the facts and the
plaintiffs' claims, based on the Court's previous Memorandum
On May 30, 1999, a fire broke out in a townhouse at 3146 Cherry
Road, N.E., Washington, D.C. The fire took the lives of District
of Columbia Fire Department ("DCFD") firefighters Anthony Sean
Phillips, Sr. and Louis J. Matthews. Firefighter Joseph Morgan
suffered severe burns, and DCFD Lieutenant Charles Redding was
also burned in the fire.
Firefighter Phillips was assigned to DCFD Engine Co. 10, and
Matthews and Morgan were assigned to DCFD Engine Co. 26. Redding
was an officer assigned to Engine Co. 26. The firefighters were
responding to a multi-alarm fire on Cherry Road.
Firefighter Phillips entered the first floor of the residence with his officer, Lieutenant Cooper, as did Matthews,
Morgan and Redding. After entering the building, Cooper was
separated from Phillips. Cooper exited the building and
subsequently learned that Phillips had not. When Redding entered
the townhouse, he had been informed that the fire was on the
first floor of the house. As the firefighters were inside the
house, a truck arrived on the scene and began ventilating the
front of the townhouse. A second truck then arrived and prepared
to ventilate the basement.
While the firefighters were inside the house, the Incident
Commander ("IC") twice radioed Redding to locate his position.
However, Redding did not receive this transmission. The IC had
not established a fixed command post and was relying on a weaker
portable radio device rather than the stronger radio mobile. The
firefighters inside the house were unaware of each other's
presence. Communications were impaired and visibility was poor.
Redding did not even have a hand light with which to illuminate
the inside of the townhouse.
The improper and untimely ventilation of the house resulted in
a sudden increase in temperature. Redding ran from the townhouse,
with his face and back burning. He relayed to the IC that
Matthews was still in the townhouse. Redding was unaware that
Morgan and Phillips were also in the townhouse at that time. The
IC did not order a rescue effort until approximately 90 seconds later, when firefighter Morgan exited the house
critically injured. Firefighter Phillips was found unconscious
and severely burned, and was removed from the townhouse
approximately seven minutes after the rescue effort began.
Matthews was found unconscious and severely burned approximately
eleven minutes after the rescue effort began. Phillips died of
his injuries approximately 23 minutes after his removal from the
townhouse, while Matthews died of his injuries on the following
National Institute for Occupational Health and Safety ("NIOSH")
investigators concluded that the DCFD did not follow standard
operating procedures ("SOPs"). Specifically, the investigators
found that there was a failure to properly ventilate the building
and to coordinate personnel activities; that there was a failure
to utilize the communication system effectively; and that there
was a continuing failure surrounding the maintenance of
self-contained breathing apparatuses as well as the need to
provide all firefighters with automated personal alert safety
The District of Columbia's Reconstruction Report mirrored the
findings of NIOSH and restated criticisms articulated in a report
published two years earlier. The earlier report focused on the
1997 death of firefighter John Carter in a fire at a grocery
store. The Cherry Road report recognized that deficiencies in training, staffing, equipment and administration,
noted in the Carter report, persisted and stated that "[f]urther
inaction on these recommendations cannot be tolerated." The
report concluded that "[t]he events that took place demonstrate
the serious consequences that result from failure to train,
equip, and staff appropriately."
Plaintiffs point to a number of deficiencies in the defendants'
implementation of standard operating procedures, which they
allege resulted in the death and injuries of the firefighters at
Cherry Road. Phillips' complaint, for example, alleges:
"(a) the failure to follow appropriate equipment
backup procedures (Engine No. 12, as fourth-due
engine company, proceeded to the front of the
structure and took position. By so doing, Engine No.
12 did not backup Engine No. 17, the second-due
engine company, in the rear of the structure);
"(b) the failure by an Officer-in-Charge (Defendant
Cooper) to maintain required contact with a member of
his crew, Firefighter Phillips, on the fireground;
"(c) the failure by Defendant Cooper to immediately
account for, report the fact of, and locate a missing
firefighter (Firefighter Phillips);
"(d) the failure by the D.C. Fire Department to have
sufficient personnel on the scene to perform
"(e) the failure to provide a size-up of the rear
conditions (a size-up of rear conditions was never
reported by Engine No. 17, the first arriving unit in
the rear); and
"(f) the failure to have an available backup unit in
service to replace Truck No. 13 which delayed
ventilation procedures." Phillips Compl. at ¶ 27.
Plaintiffs claim that "[s]uch ...