A "Groundbreaking" Legal Decision Sparks Uproar Among Italian Scientists
November 20th, 2012 by CHHS RAs
By W. Sam Lauber, CHHS Research Associate
On October 22nd , an Italian judge convicted six seismologists and one regional official of manslaughter for the more than 300 deaths caused by an earthquake on April 6, 2009. A week before that earthquake, the official called in those seismologists to assess the situation. At a press conference prior to the meeting it was said that residents had nothing to worry about because the recent seismic activity released energy and lessened the likelihood of a major earthquake. Plaintiffs in that case claimed that the remarks caused many residents not to evacuate the town or exit their homes as they would have, and therefore caused a higher death toll in the earthquake.
As the rumbling amongst scientists in the wake of the decision grows, it has emerged that this is an important step toward more clearly defining the role of scientists in the Italian government’s efforts to protect citizens. These convictions, however, are an unnecessarily harsh step. And frankly, it’s a step backward that raises two serious dangers in the world of homeland security and emergency management: a lack of scientists and a chronic case of crying wolf.
Scientists across Italy resigned after hearing the judgment. At worst, Italy is left with no scientists to man the seismographs and barometers for fear of criminal punishment if they speak and someone dies. Only slightly less worse is that, supposing Italy can manage to incentivize scientists to assist its government, those scientists will issue warnings about every conceivable event. The problem with this is that too many warnings can be just as dangerous as too few warnings. Take a recent American experience as an example: While Tropical Storm Irene was a very costly storm, it “proved less lethal than expected at the point of the spear.” That experience of serious warnings and a less than monumental storm led people in New York prior to Superstorm Sandy not to evacuate despite warnings and orders to do so. American skepticism toward weather warnings born out of hearing too many has led to higher death tolls in recent events, and the Italian judge would have done well to heed the warnings of that experience before creating this incentive to warn just for the sake of avoiding liability. It seems the judge paid more attention to the U.S. District Court decision against the Army Corps of Engineers in a case brought by flood victims of Hurricane Katrina, than to the U.S. Fifth Circuit Court of Appeals’ overruling of that decision.
Though disputed in its wisdom, the September 2012 ruling by the U.S. Court of Appeals for the Fifth Circuit provides an example of how Italy could take a step forward, instead of this dangerous step backward. Plaintiffs in that case sued the Army Corps of Engineers alleging that its mismanagement of the Mississippi River-Gulf Outlet canal caused worse flooding and therefore greater damage and more deaths in New Orleans and its environs than would have occurred otherwise. The Fifth Circuit determined that the Corps had immunity under the discretionary function exception to liability.
The discretionary function exception to liability protects officials for accidents and mistakes. It does not protect people who are grossly negligent, just plain reckless or intentionally malicious. It is important because it allows people to work without having to take efforts at every turn to protect themselves from being sued. This approach is a far cry better than criminalizing scientists’ statements about possible dangerous events. It allows scientists to work without fear of every utterance being prosecuted, and permits them to focus on their work instead of on shielding themselves. It also reinforces the personal responsibility of citizens who cannot so easily put the blame on government officials and agents. In the first few months of 2009, the number of tremors per month increased almost exponentially to the point that there were 100 tremors and shocks in the first five days of April. At what point does it become the citizen’s responsibility to protect him or herself?
Scientists cannot predict meteorological and seismic events with inscrutable exactitude, so we cannot rely completely on the predictions they give us. We have to take responsibility for our own safety in light of what officials and scientists have predicted. We should be able to rely, however, on the fact that these officials and scientists are working responsibly and diligently, and do not issue predictions or warnings without good reason. Criminal penalties, however, are not the best way to ensure this is the case because they either stop scientists from working for the government, or they cause them to warn about everything in order to protect themselves in the event that someone gets hurt by meteorological or seismic events. Restricting liability to fines and suspensions, and only in the cases of scientists and officials who are grossly negligent, just plain reckless or intentionally malicious, better ensures the balance between personal responsibility and reasonable reliance on government warnings. It keeps scientists working for the public and protects the public from evil scientists.