Do Wildland Firefighters Have Constitutional Rights?

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Photo Courtesy of witnessing firefighter   [/caption]

News Commentary by Mark Rose

Last Wednesday, Border Patrol Agents detained two forest fighting crews on the Bear Gulch fire for nearly three hours. They forced them to produce IDs, told them not to film the incident, and refused to let them say goodbye to a crewmember they had cuffed and disappeared.

Bear Gulch is the largest active fire in the Northwest. It’s currently 9,000 acres. Smoke from that fire has been drifting in and out of Dabob Bay, where we live, for weeks. The Olympic Peninsula is usually immune to wildfire due to heavy precipitation, but that’s changed over the last few years. We’ve had large fires that bring hundreds of firefighters into our community. We feed them, support them, praise them.

That compact was shattered when armed federal agents corralled firefighters like criminals. There are 300 firefighters still on the scene at Bear Gulch. They are shaken by this event, as are all wildland firefighters, and it adds another level of stress to a dangerous, difficult job with a paltry starting hourly wage of $15 (FYI: the local McDonald’s offers $17.50).

I was a wildland firefighter for seven years. Five years on Hotshot crews and two years on Helitack. My heart and soul will always be with the firefighters. There’s a special bond in a crew when you work side by side for 12 to 36 hours without sleep, push yourself beyond where you imagined you could ever go, and face dangerous situations that you barely survive. Now, wildland firefighters face this performative terror that knows no boundaries. Now, that person you relied on, who was your mentor and friend, can be plucked out and disappeared by ICE. This is really sick.

Michael Kerwin-Smith, a member of the Confederated Tribes of the Umatilla Indian Reservation, was among the firefighters detained.

He told the Seattle Times that they waited for an hour for their supervisor to show up. Instead, federal agents arrived in unmarked vehicles. It felt like a setup, he said.

Firefighters were shaken and felt intimidated by the confrontation with federal law enforcement, said Kerwin-Smith. They were denied the opportunity to say goodbye to crew members who were detained.

“The people they detained were my really good friends, and one of them was even a role model,” Kerwin-Smith said.

Another firefighter told the Seattle Times:

“I asked them if his (family) can say goodbye to him because they’re family, and they just ripped them away. And this is what he said: You need to get the fuck out of here. I’m gonna make you leave.”

“You risked your life out here to save the community,” the firefighter said. “This is how they treat us.”

Detained Firefighter Located

A firefighter detained on the Bear Gulch fire has been located in Tacoma, and his lawyers are attempting to secure his release. The firefighter, whose name has not been made public, has lived in the US for 19 years, having arrived with his family at the age of four. He received a U-visa certification from the U.S. attorney’s office in Oregon in 2017 and submitted his U-visa application to U.S. Citizenship and Immigration Services the following year.

The U-visa program was established by Congress to protect victims of serious crimes who assist federal investigators. The man has been waiting since 2018 for the immigration agency to decide on his application, according to Stephen Manning, a lawyer with Innovation Law Lab, a Portland-based nonprofit representing the firefighter.

His arrest was illegal, the lawyers said, and violated Department of Homeland Security policies that say immigration enforcement must not be conducted at locations where emergency responses are happening. Another homeland security policy says agents cannot detain people who are receiving or have applied for victim-based immigration benefits, his lawyer said. Charging the man with an immigration violation was “an illegal after-the-fact justification” given his U-visa status.

Hopefully, the firefighter will be released soon and can rejoin his crew.

Our Representatives Respond

Fifty members of Congress, including several Washington Democrats, signed a letter on August 29 seeking answers from the Department of Homeland Security (DHS) and other agencies.

“The two arrests and dozens of firefighters temporarily sidelined during an active wildfire raise questions about the priorities and (judgment) exercised by federal agencies,” reads the letter, spearheaded by U.S. Rep. Emily Randall, the congressperson representing us on the Olympic Peninsula.

“Our communities—our residents, local governments, and first responders—deserve clear and immediate answers. Emergencies like wildfires demand collaboration and mutual support across agencies. The firefighters in question deserve respect, clarity, and assurance that their critical duties won’t be hindered by reckless enforcement actions. Arresting folks who risk their lives to protect public safety is not acceptable by any stretch of the imagination.”

The letter also addresses attempts by DHS to smear the two fire crews detained as non-essential and irrelevant to fire activities. They are contract crews from Oregon, including Mexicans and members of several Tribes. They are experienced, professional firefighters. They all carry Red Cards (the annual certification required to fight wildfires) and perform the tasks required of all firefighters.

ALL wildland firefighters deserve to be treated with dignity and respect.

Statement from Senator Patty Murray:

“Trump has undercut our wildland firefighting abilities in more ways than one—from decimating the Forest Service and pushing out thousands of critical support staff, to now apparently detaining firefighters on the job. This administration’s immigration policy is fundamentally sick. Trump has wrongfully detained everyone from lawful green card holders to American citizens—no one should assume this was necessary or appropriate.

“Here in the Pacific Northwest, wildfires can, and have, burned entire towns to the ground. We count on our brave firefighters, who put their lives on the line, to keep our communities safe—this new Republican policy to detain firefighters on the job is as immoral as it is dangerous.

“What’s next? Will Trump start detaining immigrant servicemembers? Or will he just maintain his current policy of deporting Purple Heart veterans?

“I am demanding immediate answers from this administration about the circumstances of this incident, the whereabouts of the detained firefighters, and the administration’s current policy regarding immigration enforcement during active wildfires.”

Wildland Firefighters Need to Know Their Rights

Wildland firefighters now must be educated about their rights. Here is some guidance that needs to be confirmed by immigrant rights groups, such as JCIRA.

In an encounter with U.S. Immigration and Customs Enforcement (ICE) or Border Patrol while on the job, wildland firefighters have the same rights as other individuals, including the right to remain silent. The specific rights depend on their citizenship status and whether agents have a judicial warrant.

You are not required to answer questions about your citizenship, immigration status, or how you entered the country.

Special considerations for non-citizens

• Show immigration papers: If not a U.S. citizen and asked for papers by an immigration agent, they must be shown if available.
• Rights for visa holders: Wildland firefighters on an H-2B visa should be aware that some private contracting companies utilize this program to hire workers. Recent enforcement actions in Washington also involved investigations into contractors, with agents checking rosters and verifying documentation.