{"id":54301,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/waco-civil-trial-primer.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"waco-civil-trial-primer","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/waco-civil-trial-primer.html","title":{"rendered":"Waco Civil Trial Primer"},"content":{"rendered":"\n
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WACO CIVIL TRIAL PRIMER<\/h1><\/td>\n <\/tr>\n

By SOLOMON L. WISENBERG<\/h2><\/a><\/td>\n\n <\/tr>\n <\/table>\n\n

More than seven years after the Bureau of Alcohol, Tobacco and Firearms (“ATF”) \n raid on the Branch Davidians, we are on the eve of yet another exploration of \n the initial raid on February 28, 1993, and subsequent assault on April 19, 1993, \n which began with the launching of tear gas and concluded with a fire that destroyed \n the entire compound and left 75 people dead. This time, the forum is the courtroom \n of United States District Judge Walter Smith for a civil trial.<\/p>\n

Judge Smith has already whittled the case down to five major issues: 1) Whether \n the ATF used indiscriminate gunfire during the February 28 assault; 2) Whether \n the FBI prematurely demolished the Mount Carmel compound on April 19; 3) Whether \n the government fired on the Branch Davidians during the April 19 assault; 4) \n Whether the Government was responsible for the start and spread of the fire \n on April 19; 5) Whether the FBI negligently refused to have a firefighting plan \n in place on April 19. <\/p>\n

Because the government — the United States — is the defendant, there are some \n wrinkles to the resolution of the plaintiffs’ wrongful death claims. The United \n States, as a sovereign nation, is immune from suit unless it consents to be \n sued — which it has under the Federal Tort Claims Act. Under the FTCA, the United \n States is liable for the negligent conduct of its employees acting within the \n scope of their offices, if a private person would be liable under the law of \n the place (in this case Texas) where the acts complained of occurred.<\/p>\n

Nevertheless, the plaintiffs have one huge hurdle to jump due to an exception \n to the FTCA’s waiver of sovereign immunity known as the discretionary function \n exception. Under this doctrine, sovereign immunity is not waived when a governmental \n entity is performing or failing to perform a discretionary, policy-based duty \n or function. In its defense of the Davidian case, the United States has successfully \n urged, and will no doubt continue to argue, that ATF and FBI officials were \n exercising their discretionary duties at Waco, and that the United States is \n therefore immune from suit. <\/p>\n

“Two Smoking Guns”<\/b><\/p>\n

I recently spoke to Michael Caddell, the lead attorney for the plaintiffs, \n and he did not seem concerned about the discretionary function exception. His \n response to the government’s assertion of the exception will be to argue that \n the exception does not apply when government officials deviate from a mandatory \n plan. Moreover, Caddell said he is able to demonstrate that the premature demolition \n of the Davidian compound and the failure to have a firefighting plan were both \n deviations from what the Attorney General had mandated. “I have two smoking \n guns,” Caddell told me. <\/p>\n

With respect to the demolition, Reno was assured, according to Caddell, that \n no demolition would begin until 48 hours after the assault. Nevertheless, Caddell \n says he has an incriminating document — a commendation given to HRT members \n who had participated in the systematic demolition of the compound the morning \n of April 19. Caddell says that this commendation, which was given to the HRT \n members shortly after the final assault, shows that senior agents of the FBI \n (Jeffrey Jamar, the Special Agent in Charge of the bureau office in San Antonio \n and the on-site leader during the siege, and Dick Rogers, the HRT commander) \n planned all along to demolish the compound — contrary to the Attorney General’s \n wishes and to the notion that the demolition was an inadvertent by-product of \n the tear gas insertion. <\/p>\n

With respect to the firefighting plan, the starting point, according to Caddell, \n is Reno’s direction that a firefighting plan be prepared. The second smoking \n gun is a document prepared about a week before the final assault in which Jamar \n and Rogers state, according to Caddell, that there will be no plan to fight \n a fire. (Wholly apart from this document, the FBI has stated that it was too \n dangerous for the firefighters to fight the blaze any sooner than they did, due \n to the risk of explosion or incoming rounds. Caddell, however, scoffs at this \n notion: “Several safe firefighting alternatives were available,” he \n told me.)<\/p>\n

Did The Branch Davidians Cause The Fire At The Compound? <\/b><\/p>\n

\n\nThough Caddell is certainly correct as a matter of law that deviation from \n a mandatory plan eliminates the discretionary function exception to the FTCA, \n that hardly ends the inquiry. The plaintiffs will still need to show that the \n claimed deviations caused the deaths at issue. The United States maintains that \n the cause of the Davidian deaths was the intentional setting of fires by the \n Davidians themselves, and the evidence to this effect is quite strong. <\/p>\n

Who is likely to prevail? The outcome of a trial depends upon an unpredictable \n combination of law, reason, fact, and emotion. Emotion seems to favor the plaintiffs \n — especially on the undeniable fact that there was no need for the FBI to launch \n such a high-risk an assault on April 19. <\/p>\n has evidence from a number of sources that the Davidians were responsible for \n the fire. The powerful presentation of this evidence may be too forceful for \n the factfinder — on this issue, Judge Smith, who has impaneled an advisory jury \n to help him make findings on the other factual issues in dispute — to disregard.\n<\/span>\n\n

\n\n\n<\/a>Solomon Wisenberg<\/a>, a former Assistant United States Attorney in the Western \n District of Texas, is a partner in the law firm of Ross Dixon & Bell in \n Washington, D.C.\n

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Copyright \u00a9 2000 Solomon L. Wisenberg<\/p>\n\n <\/div>

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