By Chief Joe Maruca
Massachusetts passed a new law that makes taking photos of victims at emergency incidents by first responders a criminal offense and makes posting photos of victims a criminal offense. There are some exceptions. The law, Chapter 146 of the Acts of 2022, was signed by the Governor on August 4, 2022, and takes effect on November 4, 2022. Here’s what it says first responders can and can’t do with regards to taking photographs at emergency incident scenes.
First, the law applies to all first responders. The definition of first responders in the law is extensive and includes all call/volunteer firefighters and EMS providers. The law does not apply to the public or the media. The law is written so it applies to you whether you are on-duty or off-duty. I think there is an interesting constitutional issue to be resolved as to when the law applies to you while off-duty, but until a court says otherwise, I would assume that the law applies to you when you are both on and off duty. Don’t be the test case.
The law says that first responders cannot take photos of crime victims, accident victims, or emergency victims (very broad), including the immediate family of the victims at any incident, UNLESS you are taking the photos in the line of duty or the victim or their immediate family consents to the photo (you’d better have it in writing). The definition of immediate family includes a spouse, child, step-child, adopted child, sibling, step sibling, adopted sibling, parent, step-parent, legal guardian, adoptive parent, grandparent or grandchild.
The law does allow you to take photos in the line of duty, but what does that really mean? I think that you first need to have a written department policy that says what your line of duty responsibilities are with respect to taking incident scene photos. For example, when I step out of my car at a fire, a crash, or some other complex incident, I take an arrival photo of the whole incident scene. I do this so I have a reference for what I saw on arrival in case my decisions are called into question, or I need to testify about the incident. I also do this for use in department training or post-incident reviews. These are legally acceptable reasons for taking pictures that include victims and their families. However, I will now have to write a policy that says my firefighters and I should or can do this and what we do with those photos.
It is not uncommon for EMS personnel to photograph a crash scene to share with the hospital or medflight crew, and it might contain a victim or their family. If you have written policy allowing this, I think you are OK.
Additionally, the law says that it is illegal to transmit, disseminate or otherwise make available to a third person any photo (including digital images) of a victim (or their immediate family) of a crime, accident or emergency without their consent, unless it is in the line of duty. Posting on Facebook is not going to be in the line of duty. Sharing it with friends or other firefighters is not going to be in the line of duty. Sharing it as part of a training class might be OK as long as it is relevant to the class. Sharing it with arson investigators or police investigators should be OK. It is important that your department have a written policy about how you store these photos, who can see them and why, and who you can share them with. If you don’t, almost any use won’t qualify as line of duty. Your duty must be defined.
There is an exception in the law for body cameras and dash cameras. Clearly the law allows these cameras to indiscriminately photograph victims and their families. The writing of the law also seems to exempt them from the law about sharing the photos, but I would strongly recommend you not share these photos any differently than you do other photos.
Intentionally violating this law is punished by a fine of $2000 or up to 1 year in jail or both. While it does not say this in the law, negligently sharing these photos will certainly result in civil liability – a big payout to the family.
Why did this law happen? It happened because first responders failed to use common sense, got greedy or incredibly insensitive to the people we serve. While there have been lots of lesser known first responder photo controversies in recent years, the big case that is driving many states to adopt these kinds of laws is the case of Kobe Bryant’s 2020 helicopter crash. In the Kobe Bryant case, the LA County Sheriff’s Department and LA County Fire Department took and shared gruesome photos of the crash and its victims. A jury awarded the Bryant family $31 million in damages.
What should you do? Your department should create a written photo policy that at its bare minimum includes:
- When photos can and can’t be taken.
- Who can take photos and with what devices.
- Storage of photos.
- No photos can be delated (ever – except in accordance with state law) – even bad out of focus photos and such.
- How photos can and can’t be used.
I would also recommend that you only take photos with department issued cameras and cell phones (except under exigent circumstances) so that your personal cellphone does not become evidence in a criminal case.
What about posting incident photos on your department Facebook (or other social media platforms)? While there a many legitimate reasons for posting incidents, you must exercise care. You can still post emergency scene photos so long as you don’t include photos with any victims or their families. In practice, that means making sure you know the status of every person in the photo. (If you don’t know for certain who someone is and that they are not a family member of a victim, don’t post the photo.) It means generally avoiding photos with civilians in them.
I would even avoid using blurred out faces or images in such postings. The way this law is written, I think it is the posting or sharing of the image that is the crime, not whether you can identify the victim.
Posting photos of training exercises, community events, staff members, and other non-emergency incidents photos is not restricted by this law.