Court urged to throw out 2 charges in Davidian suit

Government says judgment calls protected

The Dallas Morning News, Feb 2, 2000
By Lee Hancock

Arguing that the U.S. government can't be sued even if its agents' judgment calls prove negligent, Justice Department lawyers asked a Waco federal judge Tuesday to throw out two key charges in the Branch Davidians' wrongful-death lawsuit.

The Justice Department's pleading argues that strict federal limits on how and when the government can be sued should prevent the court from considering whether authorities contributed to the 1993 tragedy by ordering tanks to demolish the sect's building and refusing to let fire trucks approach after it caught fire.

If successful, the bid would leave only two major issues for trial: Did federal agents use excessive force when they shot at sect members during the raid that began the standoff near Waco? And did agents fire again, trapping Branch Davidians inside their burning building, as the siege came to an end? The motion was made just before a court deadline for arguments from both sides on the final size and scope of the case, which is set for trial in Waco in mid-May.

The federal law limits how and when citizens can sue the government, broadly restricting actions against federal agencies and employees. Despite those restrictions, U.S. District Judge Walter Smith ruled in July that the case could go to trial on several allegations: the sect's charges of excessive force in the Feb. 28, 1993, raid by the Federal Bureau of Alcohol, Tobacco and Firearms and negligent or deadly conduct by the FBI during the tear-gas assault and final fire.

Government lawyers argued Tuesday that most of the FBI's actions during the April 19, 1993, tear-gas assault are immune because they involve judgment calls protected under a legal doctrine known as the "discretionary

function." Even if the FBI "abused its discretion," Branch Davidians can't put the government on trial, the lawyers argued.

"This is so . . . even if, as plaintiffs claim, the FBI knew that Branch Davidians might 'view it as an attack and at least some Davidians would shoot at the tanks,' the assault 'was not inducing any Davidian to surrender,' and the Branch Davidians believed they had been 'double-crossed' and the operation 'was a sneak attack to kill them,' " their brief stated. More than 80 Branch Davidians died when a fire engulfed their compound. It broke out six hours after the FBI tried to end the 51-day siege by bashing the building with tanks and spraying in tear gas. Officials have alleged that the Branch Davidians caused the tragedy, and they have denied that anyone from the government's side fired guns during the April 19 assault.

Officials cite a government arson investigation that ruled that sect members set the fires, and recordings from government bugs that captured voices of sect members discussing their preparations to torch their building. In Tuesday's brief, the Justice Department lawyers argued that all questions about the fire should be thrown out of the case, in part because of recent testimony obtained from a jailed sect member. Graeme Craddock, an Australian serving 20 years for convictions arising from the standoff, recounted in a December deposition that he saw and heard other sect members talking about pouring fuel. Drawn by shouts of "Wait, wait. Not inside. Outside," he said, he saw another sect member with a fuel can. "It looked to me like they were pouring fuel on the floor."

"It was a few minutes later I heard a call from upstairs . . . 'The building's on fire," Mr. Craddock said.

He added that he looked out the window for smoke and then heard the same voice. "He said this time, 'Light the fire.' "

The fires broke out just after FBI tanks demolished the entire rear area of the building and then drove deep into the structure.

The FBI's senior negotiators in Waco told the Justice Department afterward that they thought the decision to go in was flawed and resulted from the loss of patience among FBI commanders, internal memos show. FBI and Justice Department officials involved in approving the use of gas said afterward that they were surprised at the rapid escalation of FBI actions that day, FBI documents indicate. The approved plan called for gradually inserting tear gas over a period of 48 hours, but commanders were authorized to spray gas on all sides of the building if they encountered gunfire.

Ms. Reno and her assistants were assured that "the goal of the plan was to introduce the tear gas one step at a time to avoid confusing the people in the compound and thereby maintain the impression that the individuals in the compound were by no means trapped," Mary Incontro, a senior Justice Department official, told FBI investigators in 1993, documents indicate. Mark Richards, another senior Justice Department official, said Ms. Reno decided to leave the FBI's command post in Washington to make a speech at midmorning April 19 because of "anticipation that the process of ending the siege would take days."

FBI commanders in Waco concluded shortly afterward that the gassing was not working, federal records indicate. Saying he had expected complete surrender within an hour, hostage rescue team commander Dick Rogers persuaded FBI commander Jeff Jamar to allow tanks to penetrate the building's interior, Justice Department records indicate.

But even that decision can't be challenged under federal law, Justice Department lawyers argued Tuesday.

Nor can the failure to obtain adequate fire equipment before the tear-gas operation or the decision by Mr. Jamar to keep local fire trucks away for more than 40 minutes after the fire began, government lawyers argued. Mr. Jamar later said that the Branch Davidians had been firing that day at the FBI's tanks and that he feared that fire trucks would be shot at, too. Some officials had warned of the risk of fire, noting the sect's repeated references to it, including a sign hung just before April 19 that read "flames await."

Federal records indicate that one official in Waco explicitly voiced those fears in mid-April.

After the blaze began, Army records indicate, officials in Waco frantically called Fort Hood to ask how quickly airborne water scoops used to dump water on forest fires could be flown in. A military log indicated those calls were quickly followed by grim casualty reports. "Nine people have been found alive. Four of which are in the hospitals. They have found 17 or 18 bodies. The youngest person gotten out is a 16-year-old girl. No children's bodies have been found. There are about 70 people unaccounted for," the log stated.

"They have heard some cries for help, but not many. They are still trying to get the rubble cooled down so they can rescue any survivors."

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