Back Bay Fire Sparks Legislative Debate About Negligent Homicide Law

Last month, wind-blown sparks from an open-air welding project to install an iron handrail intended, ironically, for safety purposes at 296 Beacon Street in Boston's Back Bay set off a massive blaze that consumed neighboring 298 Beacon Street, and in the process extinguished the lives of two heroic Boston firefighters. Typically, city permitting requirements call for such a job to have an on-site inspection by the Boston Fire Department before work can begin. This inspection allows the BFD to determine whether or not a fire detail needs to be present during the project to ensure the public's safety, as well as that of the workers and property. No such permit was obtained by the welders working at 296 Beacon. Because of this, no site inspection ever occurred. Moreover, it appears that several other safety initiatives usually employed by welders were not undertaken or used on this particular job; not the least of which appears to be commonsense - it's probably not the best idea to weld outside on a very windy day without employing the use of fireproof/retardant barriers and coverings, let alone weld at all. Had there been no fire, no loss of property, and most importantly, no loss of life, the failure to obtain necessary permits and to employ standard safety precautions for this type of welding job may have been seen at best as an oversight, but because we continue to deal with the tragic and irreversible consequences that resulted, we are likely looking at the incident through the prism of "clear negligence" and/or what some may argue was actually reckless behavior.

We can be sure the welders' actions will continue to be investigated and tied to the fire, which will in turn give rise to insurance claims and civil suits for loss/destruction of property against them and/or their employer. However, because two firefighters perished, the question of whether criminal punishment should be levied against them personally, as well, has now become an appropriate and serious topic for discussion.

Massachusetts currently has no statute for negligent homicide (unless it involves the operation of a motor vehicle, mostly when a fatality occurs and intoxication can be proven), but the larger question in the wake of the recent Back Bay fire in which two Boston firefighters died is, is it time for us to have one? In other words, the tragedy at 298 Beacon Street informs the following questions...Should the Legislature now act to codify negligent homicide in Massachusetts, or do the laws we currently have in place adequately address situations like the one that occurred on March 26th?

As a longtime New England criminal defense attorney working in Boston, discussion about this fire, while equally tragic but not as deadly in terms of the total number of victims, prompted me to make legal comparisons with the Station Nightclub fire in Rhode Island ten years ago. Like Massachusetts, Rhode Island does not have a negligent homicide statute on the books. As a result, the three defendants in the Station Nightclub cases were all charged with (and pled guilty or no contest to) Involuntary Manslaughter for their parts in that terrible tragedy. However, Massachusetts does have a Manslaughter statute (M.G.L. c. 265 § 13) which may, depending upon what further investigation and the results of recently executed search warrants reveal, be applicable here. It should be noted, however, that the MA manslaughter statute does not distinguish between voluntary and involuntary manslaughter. That distinction is instead made applicable through the Common Law. Basically, the MA involuntary manslaughter charge requires proof that the "unlawful killing was unintentionally caused as a result of wanton or reckless conduct..." Wanton or reckless conduct is, generally, conduct which creates a high degree of likelihood that substantial harm will result to another person. That's more than mere negligence, and in a criminal case where the standard of proof remains beyond a reasonable doubt, much harder to prove.

If the welders were charged under M.G.L. c. 265 § 13, an experienced Boston criminal defense attorney like me would probably argue to the jury at every turn that their conduct was irresponsible and negligent, but not wanton or reckless. The welders didn't intend to burn down the building. They didn't intend for anyone to be hurt - they do this all the time and in their minds, and likely in the minds of most people, the risk of a fire was small, and certainly did not create a substantial likelihood that the whole building would go up and two firefighters would perish. These would be fair comment(s) and reasonable defense(s). There's a realistic chance they could prompt acquittals in this case. Would that be a fair and just result where lives were actually lost?

Do I condone the welders' skirting of permit and safety requirements? No. Do I think they need to be held accountable to some extent? Yes. Does that mean that manslaughter is the appropriate charge? That's harder to say.

Having a Negligent Homicide statute on the books may well present the best approach towards addressing this last question's uncertain response. The sheer stupidity, or basic disregard, behind what the welders were allegedly doing that day shouldn't go without sanction. Civil suits and permit pulling may hurt temporally and financially but they are hardly remedial over the long term, and in the end, aren't much of a deterrent. (Yes, that may be the former state and federal prosecutor in me talking — but it's also the property owner, husband, father, taxpayer, and civic custodian.) In short, it's hard to overlook the fact that it's precisely this either/or situation we are currently facing that may just lead to other lives being endangered in the future. As a community, that's too much of a risk to accept, regardless of one's philosophical leanings or affiliations. (Do you think the wedding guest who carelessly discarded a lit cigarette that led to the burning of the entire Lakeview Pavilion banquet facility two weeks ago in Foxborough might have acted differently if he/she knew their actions might result in criminal negligence charges?)

A charge of negligent homicide would be a lesser offense than manslaughter. As I see it, it would adequately fill the current void between blameless accident and a tragedy caused by wanton and reckless conduct. As a former prosecutor and as a longtime experienced Boston criminal defense attorney who defends numerous murder cases, I see it cutting both ways - providing a lesser charge for a prosecutor who can't necessarily prove involuntary manslaughter, and a welcome option for a defense lawyer to plea "bargain" down a case when it looks as though the prosecutor's more serious charge may be pretty solid. Moreover, isn't the distinction between blameless and reckless conduct one reason we vest District Attorneys with charging discretion on a case by case basis to begin with? And isn't it why we make sure the end point is making sure our juries are the final arbiter of how that discretion was used? As I see it, anyone (prosecutors, defense lawyers, legislators, and law abiding citizens) who truly has the best interests of justice in mind, always wants to be sure any charge fits the actual crime. In the final analysis, I think that's exactly what a Negligent Homicide statute may do.