Panel debates whether smoldering qualifies as 'setting a fire' in Golseth appeal

At oral argument, Ariana Downing told the panel that the record lacks evidence that Mr. Golseth engaged in active ignition and argued the Department’s 'setting a fire' disciplinary charge should be limited to conduct that involves an actual flame or similar affirmative act.

Downing said the record shows admissions of smoldering or using homemade pipes to smoke but that those facts do not establish the agency or ignition element she says the infraction requires. "We do dispute that he said it as well," she said when the court queried whether Golseth admitted to smoldering; she argued there is no evidence he took active steps to ignite a fire, such as using glasses to focus sunlight or otherwise causing ignition.

Judges pressed on statutory meaning and ordinary usage, asking whether smoke necessarily implies a fire and whether administrative notice to inmates about the scope of 'fire' is adequate. One judge noted common definitions and circuit precedent that indicate a flame is typically involved in a fire, while another said the record does not show evidence that Golseth had agency in setting a fire.

The state did not extensively develop a contrary position on the fire issue during the hearing; argument focused on whether smoldering or smoking in violation of prison rules should automatically elevate to a 'setting a fire' infraction with more serious penalties. Downing emphasized both the lack of direct evidence of ignition and the need for clear notice about what behaviors the infraction encompasses.

The panel did not issue an immediate ruling. The court's decision will resolve whether administrative definitions or common-law notions of fire govern disciplinary findings and whether the record supplies the agency and notice the defense says are missing.