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

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

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

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

"Two Smoking Guns"

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

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

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

Did The Branch Davidians Cause The Fire At The Compound?

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

Who is likely to prevail? The outcome of a trial depends upon an unpredictable combination of law, reason, fact, and emotion. Emotion seems to favor the plaintiffs -- especially on the undeniable fact that there was no need for the FBI to launch such a high-risk an assault on April 19.

has evidence from a number of sources that the Davidians were responsible for the fire. The powerful presentation of this evidence may be too forceful for the factfinder -- on this issue, Judge Smith, who has impaneled an advisory jury to help him make findings on the other factual issues in dispute -- to disregard.

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

Copyright © 2000 Solomon L. Wisenberg

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