A judge has tossed out a federal lawsuit filed on behalf of firefighters killed or injured in a 2016 Wilmington arson.

In dismissing the case Friday, U.S. District Court Judge Maryellen Noreika said in her 21-page opinion that the federal civil lawsuit failed to "allege the necessary underlying constitutional violation" for the claims brought forth by the families of the three dead firefighters and the surviving firefighters.

Attorneys representing the firefighters and their families said they would be appealing Noreika's ruling.

"That's what the courts of appeal are for and we're confident that the Third Circuit Court of Appeals in Philadelphia will give a fair hearing of all the issues," said Thomas S. Neuberger, one of the attorneys representing the firefighters.

"All errors of the law made by the district judge will be corrected," Neuberger said. "Hopefully the case will be reinstated ... we are into this for the long run for the many orphans and widows involved in this case."

The lawsuit, filed in 2018, blamed Wilmington and former city officials for the deaths of Wilmington firefighters Capt. Christopher Leach and Lt. Jerry Fickes who died on the morning of Sept. 24, 2016, and Lt. Ardythe Hope, who died on Dec. 1, 2016.

One of the suit's contentions was that the Wilmington Fire Department's years-old cost-saving policy, called rolling bypasses, led to insufficient staffing and slowed response to the fire contributing to the deaths and injuries.

The fire engine closest to the Canby Park scene was not operating that night because of rolling bypasses.

Wilmington has been battling the lawsuit, which the mayor called "an attempt to get even more money from the city."

CITY'S RESPONSE: Wilmington mayor calls fire lawsuit 'attempt to get even more money from the city'

“We are pleased with the Court’s decision,” Wilmington Deputy Chief of Staff John Rago said.

Last year, U.S. Magistrate Judge Mary Pat Thynge recommended dismissing some of the civil charges against the city, former Mayor Dennis Williams and former Wilmington Fire Chief Anthony Goode. She also recommended that former Wilmington Mayor James Baker and former Wilmington Fire Chief William Patrick Jr. be dismissed from the case.

But Thynge, in her 38-page recommendation, repeatedly came back to the publicity around the dangerous use of rolling bypasses and the known complications surrounding this initiative – a controversial practice of placing a fire truck out of service to save on overtime expenses.

"Despite repeated, emphatic warnings and concerns expressed by Union officials, firefighters, City Council, the public, and the media, Mayor Williams and Chief Goode maintained the rolling bypass policy," court documents show. "Accordingly, Plaintiffs adequately state facts which support conduct that shocks the conscience against Mayor Williams and Chief Goode."

LAWSUIT BACKGROUND

Suit over fatal fire claims Wilmington to blame in firefighters' deaths at Canby Park

Judge recommends dismissing some Wilmington officials from Canby Park fire lawsuit

Sept. 24, 2016

Two fire engines dispatched from miles away were at the front of the Lakeview Road rowhome, pumping water on the burning structure when Wilmington Fire Capt. Christopher Leach led a team of firefighters into the building in an attempt to rescue residents believed to be inside.

Engine 6, which was parked a mile away and able to carry 750 gallons of water, was out of service because of the rolling bypass policy. Two other engines from twice as far away had to respond.

Leach and Lt. Ardythe Hope fell into the burning basement when the first floor collapsed. Capt. Jerry Fickes rushed to their rescue.

Fickes was carrying Leach out when another portion of the floor collapsed, fatally trapping them. They died on the scene.

Hope died months later.

Three other firefighters were seriously injured in the fire.

Lawyers contended that had Engine 6 been operational, Leach would have had the firetruck pumping water in the back of the house where the "heart of the fire" was located, preventing damage that led to the floor giving way and the firefighters' deaths.

Beatriz Fana-Ruiz, 30, pleaded guilty last year to starting the Sept. 24, 2016, fire.

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Contact Esteban Parra at (302) 324-2299, eparra@delawareonline.com or Twitter @eparra3.