California Fires Reportedly Caused by Gender Reveal Party – Could There Be Criminal Charges?

Recorded on September 9, 2020.

According to authorities, the El Dorado fire in California ignited as a family was using a “pyrotechnic device” to reveal the gender of a new baby. Is it likely that someone will be charged with a crime? Attorney Ben Barry of Martin, Harding & Mazzotti, LLP is on the radio with WVMT discussing the situation.

Please give it a listen or read the transcript below.

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Marcus: We’re talking to Ben Barry, not the Marvel character that you might think. He is a super lawyer with Martin, Harding & Mazzotti. Ben, it’s great to talk to you again.

Ben: Good morning, gentlemen.

Marcus: Got to talk to you about this gender reveal party gone really bad. 10,000 acres burned because pyrotechnics were being used in order to say, “Hey, it’s a boy,” or, “Hey, it’s a girl.” I used to live in the central coast of California. I am no stranger to wildfires. But that being said, it wasn’t very often that people got arrested for it either. We know who these people are. Do you suspect that someone’s gonna be charged with a crime here?

Ben: I think that’s reasonable given the circumstance. There has been a growing effort for enforcement agencies to both raise public awareness of the types of crimes that could be charged in this type of setting.

But also just raising the consciousness of the public at large, like, listen, you know, don’t, don’t go and put a bunch of tannerite or a bunch of flammable liquid or homemade gender reveal bombs in the middle of a field or a forest that’s got a lot of tinder and got a lot of dry material. So, it’s two things at once. Yes, they can be charged as a crime, because there was probably quite a bit of want and disregard for the public. But also, I think that the laws need to be working for the natural resources that exist against the public at large.

And so, I do think that there will be charges that stem from this. It may likely resolve itself in some sort of civil action because these people have done a lot of damage, a lot of resources that had to be allocated to trying to contain the fire right now. I think the last report I read was that the fire was like 22% contained or something like that. A lot of damage. A lot of natural resources have been ruined, and they know who did it. So, unlike a lot of fires from the past where the investigation may not have been so clear with respect to how it started or when it started.

But you can look at… also you can look at analogies and see where other people have been charged. Other corporations have fallen into a situation where they have to pay a lot of restitution. So, yeah, I think it’s very possible that they’re charged with misdemeanor offenses, even violation level offenses that would cause them to have to pay restitution.

Kurt: And it would seem like they really have to be charged with something here because you’ve got to make a point to say, “This has got to stop.” I mean, 10,000 acres, put people’s lives at risk. It seems like they’ve really got to make a point out of this.

Ben: I absolutely think so. Part of the law is deterrence. I think that if they are not charged, it certainly sends the wrong message to the public that you can do stuff like this, cause unimaginable harm, put people’s lives at risk recklessly and have no consequence either criminally or in terms of the civil component, which is the restitution.

Marcus: And even the woman who popularized this gender reveal party now says, “Enough already, no more, please stop doing this.” She said she’s encouraged people to not do this anymore. The article that I read acknowledged that back a couple years ago, a gentleman fired off a gun at a target that would reveal the gender, which set off 47,000 acres on fire.

Now, at the time, that individual did get charged. When they were sentenced, they had to pay $8 million in restitution. Now, we’re talking about 10,000 acres currently, but it’s still not fully contained. We don’t know how far this will go. This is gonna be the most expensive baby they’ve ever had.

Ben: It’s absolutely going to be an expensive baby. Terrible way to, you know, celebrate something that’s fun and exciting for a family. But again,
there are examples where people have caused wide scale damage to a natural resource and have been charged with misdemeanor offenses and sometimes felonies, depending on what their criminal intent was or what the elements of the crime were.

But also there is this component of restitution. I think what’s interesting about… and I think that you’re talking about the fire that was in 2017. And I think that was started by tannerite which is an explosive compound that when it’s percussed it will explode, by a bullet, for example. But you can see in that particular circumstance, how our laws are not necessarily adapted to deal with this kind of thing.

Because the $8.2 million in restitution for one, it’s probably never going to be paid because that individual doesn’t have that kind of money. That’s just the government’s estimate of what the cost was probably for the services that were deployed to get the fire under control. It does not reflect the value of the natural resources that were destroyed, the views of people that were destroyed.

Marcus: That’s right.

Ben: You know, the COPD that was suffered by somebody who’s trapped in one of their homes. It’s just an example of how significant this can be. Because for the normal person like you or I, 8 million is insurmountable. And for the public loss, it doesn’t even touch the value of the thing that has been destroyed.

Kurt: So, Ben, when someone like that has restitutions amounting to more money than they can ever pay, what happens?

Ben: Generally nothing. Usually what happens is, for example, if someone is on a term of probation, probation will arrange for a periodic payment, for example, like a monthly payment in an amount that that person can basically afford. And they try to make advances towards that restitution amount but generally speaking, in these types of cases, the restitution is basically never paid.

That person pays for a long time on it, they die at some point, and the restitution is just out there as an owed amount. If you pay some million dollars of it, you know, I think everyone would be surprised.

Marcus: The government sentencing will obviously charge and then look for restitution to repay those costs. But from a civil standpoint, who might have standing in order to go after this couple or anybody who starts a fire like this? Because I can imagine what kind of damage it would do if you lost your house, if you lost your business. But even if it’s your community, and you have burned up public lands, is there an opportunity for municipalities, not just the state or federal government to go after these people in a civil suit?

Ben: I think as a general rule of thumb when you’re evaluating any type of case, the question of standing first, the first inquiry is do you have damages? And I think once you answer that in the affirmative, it generally gives rise to standing. Now can a municipality sue an individual? Absolutely. They’ve done it time and time again. Whether it be for an adverse taking or some other thing but absolutely. A municipality can say, “You started this fire, you’ve taken something away from the community or away from the municipality, and we want that thing back.”

And again, referencing the 2017 fire, that’s exactly what happened. Basically, the municipality said, “Look, we had to allocate $8 million worth of resources to put this fire out. We want that money back.” I think from an individual perspective, if my house is burned because of the fire that someone else started, I’ve got a claim, I’ve got a valid claim to say, “You caused this damage. Without your act, my house would still be standing.” And I think that that gives rise to the claim.

The problem I think for most people is that they are going to contact an attorney, and that attorney is gonna to say, “Look, there’s no insurance policy that covers this kind of damage. These people are not gonna have the kind of money to just pay out of pocket for some intentional act that they performed that caused you damage. There’s no money here, you can’t get money from a stone… you can’t get water from a stone.”

Kurt: When can it go from civil to actually a felony? Is it only if they did it on purpose?

Ben: Well, anytime you’re charged with a crime, you have to have two things at the same time. You have to have the mens rea which is a mental state and you have to have the act. If I think about murdering Marcus that’s not enough…

Marcus: Wow, this just turned ugly.

Kurt: I’m on board. I’m on board.

Ben: I’m sorry, Marcus I had to use you.

Kurt: I don’t blame you.

Ben: I only have the mental state.

Kurt: You won’t be convicted in any court of law, Ben.

Ben: No one’s gonna miss him. You have to have the mental state in the act of the thing, right? So, I think in this particular circumstance, they don’t have the intention of starting a wildfire. But they’ve probably acted so recklessly with respect to the safety of others, that they would have a… that the state would have a basis to charge them with a misdemeanor level offense.

Because they had the act, right, the lighting of the thing. And their mindset wasn’t necessarily intending to cause a wildfire, but it was intending to do something that was reckless in nature.

Marcus: All right, everybody. Well, if something happens to me, you’ve heard it here first. Ben Barry is looking to kill me. But Ben it’s always fun to talk to you. Thank you so much for the time and the insight. And again, we’d recommend anybody, if you have legal questions about anything, reach out to the expertise at Martin, Harding & Mazzotti, Thanks, Ben.

Kurt: The evidence will never stand up in court.

Ben: Thank you, gentlemen.

Marcus: And we’ll be back with more on “The Morning Drive.”

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