DALLAS (AP) - Two attorneys representing survivors of the Branch Davidian siege and relatives of those killed say they will appeal a federal judge's ruling clearing the government of wrongdoing.
U.S. District Judge Walter Smith ruled Wednesday that federal agents cannot be held responsible for the deaths of 80 Branch Davidians during the April 19, 1993, standoff.
On Thursday, Ramsey Clark, a plaintiffs' attorney in the $675 million wrongful death lawsuit, and lead attorney Michael Caddell announced plans to appeal.
``It was clear that soon after the trial commenced that Judge Smith had made up his mind and he could have written his opinion then,'' Caddell said in a statement.
Smith's ruling mirrored conclusions reached in July by an advisory jury and Special Counsel John Danforth. Both said federal agents were not responsible for the deaths on the final day of the 51-day standoff.
The siege began Feb. 28, 1993, when agents with the Bureau of Alcohol, Tobacco and Firearms tried to arrest sect leader David Koresh. A gunfight erupted, leaving four agents and six Davidians dead.
The standoff ended when agents pumped tear gas into the compound. A fire broke out and nearly all the Davidians, including Koresh, died.
The government maintains that suicidal sect members started the fires and were responsible for the deaths.
A federal judge on Wednesday rejected all of the wrongful death claims that Branch Davidian survivors had filed against the government in connection with the deadly 1993 siege in Waco, Texas.
U.S. District Judge Walter Smith Jr. issued 22 pages of findings that said the government was not at fault in the conduct in the initial raid on the sect's Mount Carmel complex. He also said federal agents had no responsibility for the Davidians' deaths during the fiery end of the government's siege.
In a footnote in his decision, he said the entire tragedy can be laid at the feet of David Koresh, the Davidians' leader who died on the last day of the siege.
FBI Director Louis Freeh said government agents and their families had carried heavy personal burdens for the past seven years because of allegations that agents fired on the Davidians or started the fire that led to the deaths of most of the sect's members.
"No one in the FBI wanted anyone harmed," Freeh said. "Everyone did their best under extraordinarily difficult circumstances. In the end, no one fired a shot, the government did not start the fires and the Davidians were found by the court to be solely responsible for the unnecessary deaths that occurred."
Smith also criticized the Davidians' lead attorney, Mike Caddell, saying Caddell had tried his case in the media with "innuendo, distortions, and outright falsehoods."
Caddell last week filed a motion to recuse Smith from the case, saying the judge was biased against the Davidians. The judge rejected that motion Wednesday, saying it was "an abuse of the judicial process."
Caddell was unavailable for comment Wednesday.
Smith's ruling, coupled with an interim report issued July 22 by special counsel John Danforth, nearly closes the book on Waco. Danforth's 10-month investigation absolved the government of wrongdoing, although the investigation
continues into whether Justice Department lawyers failed to disclose evidence to Davidian defense lawyers during a 1994 criminal trial. A report from Congress on Waco is to be released this fall.
Smith's findings were not a surprise. An advisory jury that heard the same claims in Smith's court during a four-week trial in Waco this summer took less than three hours to render a verdict for the government. Smith's decision is the last development in that case, barring an appeal by the Davidians.
The government's siege began Feb. 28, 1993, when 75 agents of the Bureau of Alcohol, Tobacco and Firearms attempted to serve an arrest warrant on Koresh and to search for illegal weapons. During a gunbattle, four ATF agents and six Davidians were killed.
After a 51-day standoff, the FBI attempted to evict the Davidians by using tanks to insert tear gas into their complex. After a six-hour assault, the building caught fire and about 80 Davidians died from gunshot wounds and the effects of the fire.
Survivors of the sect and relatives of those who died had sought hundreds of millions of dollars from the government, claiming that actions by government agents contributed to the deaths. Smith's findings said they will get nothing.
The judge ruled that:
* FBI agents did not fire guns on the Davidians on the last day of the siege. He said an infrared surveillance video supported that conclusion because the flashes on the video were too long to be gunfire and no shooters were visible. "The only gunfire on April 19, 1993 was generated by certain Davidians inside the compound," the judge said.
* The initial raid by ATF agents was conducted lawfully. He said the Davidians provoked gunfire when they fired on ATF agents from numerous locations and that agents returned fire to protect themselves and others.
* The FBI's tank and tear gas assault was conducted within federal law that gives federal authorities discretion to act. "Despite deadly gunfire directed at them during the tear gas operation, the FBI did not return fire," the judge said.
* The fire that engulfed the structure and was chiefly responsible for most of the deaths was not the fault of the FBI. The judge found that three pyrotechnic tear gas rounds that were fired at a tornado shelter at 8 a.m. had nothing to do with the fires that began around noon.
He also said it was reasonable for the FBI to have kept firetrucks from approaching the complex because Davidian gunfire could have hit firefighters.
"Because the fire was started by certain Davidians the United States owed no duty to rescue the remaining Davidians from a peril it did not cause," Smith said. But he pointed out that several Davidians were saved from the fire by FBI agents who left the safety of the tanks to rescue them.
Smith also pointed out that 21 Davidians died of wounds that apparently were either self-inflicted or inflicted by other Davidians.
Smith also rejected Caddell's motion to reopen the case to hear additional evidence because the judge believed the evidence would have been inadmissible under federal law that gives discretion to government agents.
Caddell's motion seeking Smith's recusal said the judge had referred to Davidian witness Livingstone Fagan as a "crazy murdering son of a bitch."
Smith said, "That statement was off the record in response to another lawyer's humorous suggestion and was not in any way intended to be taken seriously. The court regrets the slight to Mr. Fagan's mother, should he have one."
The Branch Davidians' long-running wrongful-death lawsuit ended Wednesday with a federal judge's ruling that they and not the government were responsible for the 1993 tragedy.
In a 22-page judgment finalizing an advisory jury's recommendation, U.S. District Judge Walter S. Smith Jr. ruled that surviving sect members and their families who had sought $675 million in damages would "take nothing" from the federal agencies involved in the deadly standoff near Waco.
Judge Smith's ruling also included a lengthy rebuke of lead plaintiffs' lawyer Michael Caddell of Houston, saying he abused the judicial process.
The judge wrote that Mr. Caddell had attempted "for the past year ... to try their case in the media through the use of innuendo, distortions and outright falsehoods, rather than honestly presenting the true facts of the case."
Mr. Caddell and other lawyers for the plaintiffs could not be reached Wednesday evening.
The decision drew praise from Justice Department officials and FBI director Louis Freeh, who termed it a "most gratifying" vindication of federal law enforcement.
"No one in the FBI wanted anyone harmed. Everyone did their best under extraordinarily difficult circumstances. In the end, no one fired a shot, the government did not start the fires and the Davidians were found by the court to be solely responsible for the unnecessary deaths that occurred," Mr. Freeh said.
The judge's decision came two months after an advisory jury concluded that Branch Davidians alone instigated a Feb. 28, 1993, shootout with federal agents and then ended a 51-day standoff by immolating themselves inside their besieged building.
Six Branch Davidians and four federal Bureau of Alcohol, Tobacco and Firearms agents died in the shootout, and about 80 sect members died in the final fire at the compound they called Mount Carmel.
Judge Smith's ruling rejected the sect's arguments that FBI efforts to force them out of their building with tanks and tear gas on April 19, 1993, were at least partially responsible for the fire.
Instead, the judge wrote, sect leader David Koresh and several of his male followers intentionally set the fires, and "adult Davidians kept the children in the compound after starting the fire rather than sending them to safety."
"The entire tragedy at Mount Carmel can be laid at the feet of this one individual," he wrote of Mr. Koresh.
The judge concluded that the plaintiffs failed to prove their most controversial claim: that blips of light recorded by an airborne FBI infrared camera just before the fire were heat flashes from government guns firing into the compound.
"Mere speculation does not constitute proof," he wrote. "The FBI acted with restraint on April 19, 1993, despite the deadly gunfire directed at them during the tear gas operation. The FBI did not return fire."
Judge Smith also rejected the argument that FBI agents had failed to protect the lives of more than 17 children and other innocents who died inside the compound.
"Because the fire was started by certain Davidians, the United States owed no duty to protect the remaining Davidians from the fire," Judge Smith wrote. "Despite this, a number of FBI agents risked their lives to assist Davidians from the burning compound in an attempt to save the children."
He added that the agents' rescue efforts were the "most telling evidence" to debunk persistent conspiracy theories that the government intentionally set the compound fire or tried to cut off escape routes with gunfire.
The ruling ends more than seven years of federal litigation arising from the standoff. In addition to presiding over the four-week wrongful-death trial that led to Wednesday's ruling, Judge Smith heard a 1994 criminal trial arising from the standoff and several other lawsuits brought by federal agents.
But even before the judge issued his final judgment, lawyers for the sect declared that they would appeal what they predicted would be a hostile decision toward them.
Mr. Caddell fired an opening salvo last week with a lengthy and caustic motion charging that the judge had denied his clients a fair trial. Asking Judge Smith to recuse himself and declare a mistrial, the motion alleged that the judge's behavior, comments and rulings displayed "profound and deep-seated prejudice" against the sect members and their families.
He also condemned the judge's move to impanel an advisory jury to help him decide the case, contending it was a ruse to provide the judge with cover for a controversial decision.
Such litigation against the federal government is normally decided by a federal judge alone. But Judge Smith announced just before the trial began in mid-June that he was bringing in a jury because of the high degree of public interest and controversy in the case.
After hearing four weeks of testimony, jurors returned a verdict for the government in less than three hours, and court personnel later said their actual deliberations took less than an hour.
Criticism from the bench
Judge Smith began his Wednesday ruling by castigating Mr. Caddell's recusal motion as legally and factually baseless. He told the Houston lawyer that such an unfounded and "reckless" public attack on a judge could constitute a violation of the Texas Bar Association's disciplinary rules.
Although he acknowledged remarking during one bench conference that he considered sect member Livingstone Fagan "a lying, murdering son of a bitch," the judge wrote that the comment was a joking and "off-the-record" response to a joking comment.
Mr. Fagan was among eight sect members convicted of federal firearms and manslaughter charges after the standoff, and he acknowledged in a recent deposition that he had shot at least one ATF agent. "The court resents the slight to Mr. Fagan's mother, should he have one," Judge Smith wrote Wednesday.
Lawyers for the sect argued during the wrongful-death trial that ATF agents started the shootout as they arrived to search the compound and arrest Mr. Koresh on weapons charges. But Judge Smith rejected that claim, as well as the sect's contention that ATF agents fired indiscriminately and used excessive force.
He wrote that the ATF's decision to rush the building with a large number of agents was "reasonable in light of the accumulation of weapons by the Davidians," and he added that agents acted lawfully and reasonably after being ambushed.
He noted that lawyers for the sect had admitted before the trial that their clients had amassed an arsenal of more than 300 weapons, including sniper rifles, illegal grenades and machine guns.
Lawyers for the sect also contended that FBI tanks touched off or helped spread the fire at the end of the siege when they smashed into the compound during a tank and tear gas assault. They alleged that the decisions of the FBI's commanders to send the tanks deep into the building and to have no provision for fighting fires that day violated a Washington-approved plan for the tear gas operation.
But the judge ruled that the FBI's actions and decisions were both proper and protected under federal law from subsequent legal challenge.
He said that the Branch Davidians' actions were the sole cause of their injuries and precluded any claims of government negligence. "The law requires each person to act reasonably. The standard is what a reasonable person would do, not what a reasonable Davidian would do. As a matter of law, there was nothing reasonable about the adult Davidians' behavior from Feb. 28, 1993, through April 19, 1993."
The ruling mirrors a preliminary July report by Waco special counsel John C. Danforth absolving government agents and Attorney General Janet Reno of any wrongdoing in their efforts to end the siege.
A Waco chronology
Feb. 28, 1993: Four Alcohol, Tobacco and Firearms agents and six Branch Davidians die when a gunbattle erupts as agents arrive to search the sect's Waco compound and serve an arrest warrant on its leader, David Koresh.
April 19, 1993: After a 51-day standoff, FBI tanks ram the compound and spray in tear gas to end the siege. The compound erupts in flames, burning about 80 sect members inside.
April 1995: Families and survivors of the Branch Davidians involved in the siege have their wrongful-death lawsuits consolidated into a single case in the court of U.S. District Court Judge Walter S. Smith Jr. of Waco. Judge Smith also handled 1994 trials in which eight Branch Davidians were convicted of criminal charges stemming from the siege.
August 1999: After years of denials, the Justice Department acknowledges Dallas Morning News reports that pyrotechnic tear gas canisters were used at the compound during the siege.
September 1999: Former U.S. Sen. John C. Danforth of Missouri is appointed by Attorney General Janet Reno to lead an independent inquiry into the events in Waco.
July 14, 2000:A five-member advisory jury decides that federal authorities were not responsible for the gunfight that began the siege or the deadly fire that ended it. Judge Smith reserves the right to make final rulings in the case.
July 21, 2000: In a preliminary report, Mr. Danforth clears the government of any wrongdoing, saying Mr. Koresh and his followers were solely responsible for the tragedy. He said there was "no massive conspiracy or cover-up" after the siege and he exonerated Ms. Reno and other top federal officials.
Sept 20, 2000: Judge Smith rules that the government was not responsible for the gunfight or the fire. He also ruled that no agents shot into the burning compound.
David Koresh is responsible for the 1993 Branch Davidian debacle and no sectsurvivors or their families are entitled to recover damages from the government, a federal judge in Waco ruled Wednesday.
"The entire tragedy at Mount Carmel can be laid at the feet of this one individual," U.S. District Judge Walter S. Smith Jr. wrote in a 23-page order that included his final judgment in the case and what are known as "findings of fact and conclusions of law."
The judge's ruling in the wrongful-death lawsuit upholds the July 14 verdict rendered by a five-person advisory jury impaneled by Smith to hear the case.
Jurors, after hearing four weeks of testimony, absolved the government of wrongdoing in the Feb. 28, 1993, military-style raid at Mount Carmel and in the April 19, 1993, fire in which Koresh and 75 of his followers, including 21 children, died.
A week after the trial, Special Counsel John Danforth also cleared the government and blamed Koresh for the deaths.
Lead plaintiffs' attorney Michael Caddell of Houston, who has openly sparred with Smith since near the end of trial, was out of state Wednesday and had not seen Smith's judgment, a spokesman in his office said.
Former U.S. Attorney General Ramsey Clark, another plaintiffs' attorney, also was traveling and was not available for comment, his office said.
Deputy U.S. Attorney General Eric H. Holder said the government is pleased with the ruling and said it "appropriately recognizes that many law enforcement officers risked their lives to uphold our nation's laws."
"Like the special counsel before it, the court reaffirmed the fact that David Koresh and certain Branch Davidians were responsible for the tragedy at Waco," Holder said.
Smith determined in his ruling that the Branch Davidians initiated the gun battle with agents from the Bureau of Alcohol, Tobacco and Firearms who had come to arrest Koresh for weapons violations. The judge ruled that no agents fired indiscriminately or without provocation and said they acted in self-defense or in defense of other agents.
"The ATF agents were prevented from serving the lawfully issued arrest and search warrants by the Davidians' superior fire power and defensive position," Smith wrote.
The ATF was justified in using a "dynamic raid and entry" to try to serve the warrants, and the plaintiffs are barred from recovering damages on claims of excessive force because the government has sovereign immunity from those who would second-guess such discretionary decisions, Smith ruled.
Relating to the events on the day of the fire, Smith noted that the Davidians shot at agents while the FBI was injecting tear gas and failed to leave Mount Carmel as instructed.
The FBI's use of three pyrotechnic, military-style tear gas rounds that morning, which the FBI belatedly admitted, had nothing to do with the cause of the inferno later in the day, which was set intentionally by the Branch Davidians, Smith said.
"At least 21 of the plaintiffs died of wounds that apparently were either self-inflicted or inflicted by other Davidians; 20 Davidians died of gunshot wounds and one child died of a stab wound to the chest," the ruling states. "The FBI did not prevent nor hinder any plaintiff from leaving the building. To the contrary, The FBI repeatedly asked the Davidians to leave the building, warned them that tear gas would be inserted, opened up egress routes, and cleared material that was blocking the front door."
The plaintiffs alleged that FBI officials deviated from the tear-gas plan approved by Attorney General Janet Reno by the premature destruction of the building. Smith rejected that argument, saying that the agents at the scene acted within their discretion.
Branch Davidian Clive Doyle, whom the judge noted was among those who helped start the fire, did not return phone messages Wednesday.
FBI listening devices placed in the compound during the 51-day standoff provided the "most telling evidence" that sect members intentionally started the fire, Smith wrote.
"While there was much discussion of spreading the fuel and starting the fire, there was no discussion of getting the children to safety," Smith notes.
FBI officials were justified in holding back firefighting teams because of the threat of gunfire coming from the compound, he said. Agents risked their lives to save some of the Davidians who came out of the fire.
"The actions of these agents are the most telling evidence that the government did not plan to intentionally harm the Davidians either by shooting them or by setting fire to the compound," Smith said. "It is inconceivable that these agents were the only ones not part of the 'conspiracy.' "
Before Smith's ruling addressed the heart of the lawsuit, he rejected motions that Caddell filed within the past week for Smith to recuse himself from the case and declare a mistrial and to reopen the case on two issues that Caddell claimed the judge unfairly "ambushed" him on during trial.
Caddell claimed in his recusal motion that Smith displayed bias against the plaintiffs throughout the trial and orchestrated the proceeding to ensure a government victory.
"This motion is a further example of this attorney's abuse of the judicial process," Smith said of Caddell. The judge said that the attorneys representing the plaintiffs "have attempted to try their case in the media through the use of innuendo, distortions, and outright falsehoods, rather than honestly presenting the true facts of the case."
Although Smith said it should not be necessary, he reminded Caddell in his order of a lawyer's responsibilities under the Texas Disciplinary Rules of Professional Conduct, including an edict that lawyers make no statements that they know to be false concerning the integrity of a judge.
"Many of the allegations contained in plaintiffs' motion are either false or made with reckless disregard as to their truth or falsity," Smith wrote.
Caddell alleged that members of the government's trial team gave presents to the judge's staff after the trial. Smith said that while government attorneys gave T-shirts and cookies to U.S. marshals and to members of the court clerk's office, none of those are members of his staff.
Caddell also alleged that Smith referred to Branch Davidian Livingstone Fagan as a "crazy, murdering son of a bitch" during the trial.
"That statement was off the record in response to another lawyer's humorous suggestion, and was not in any way intended to be taken seriously," Smith said. "The court regrets the slight to Mr. Fagan's mother, should he have one."
DALLAS (AP) - Federal agents acted within the limits of the law and cannot be held responsible for the deaths of 80 Branch Davidians during a 1993 standoff in Waco, a judge has ruled.
The decision from U.S. District Judge Walter Smith late Wednesday clears the government in a $675 million wrongful-death lawsuit filed by surviving Branch Davidians and relatives of those killed.
``The only gunfire on April 19, 1993 was generated by certain Davidians inside the compound,'' Smith wrote. No evidence supports the claim that government agents fired any weapons that day, he said.
Smith's ruling mirrors the conclusions an advisory jury and Special Counsel John Danforth reached in July. Both have said Bureau of Alcohol, Tobacco and Firearms agents and others were not responsible for the deaths on the final day of a 51-day standoff.
The siege began Feb. 28, 1993, when ATF agents tried to arrest sect leader David Koresh. A gunfight erupted, leaving four ATF agents and six Davidians dead.
The standoff ended when tanks driven by FBI agents pumped tear gas into the compound. A fire broke out and nearly all of the Davidians, including Koresh, died, some from the fire, some from gunshots.
``The FBI acted with restraint ... despite the deadly gunfire directed at them during the tear gas operation,'' Smith wrote.
Michael Caddell, lead attorney for the plaintiffs, did not return telephone messages left by The Associated Press.
Deputy Attorney General Erich Holder said the Justice Department was pleased with the ruling.
``Today's decision appropriately recognizes that many law enforcement officers risked their lives to uphold our nation's laws,'' Holder said.
In July, the five-member advisory jury decided the government did not use excessive force in its attempt to serve search and arrest warrants on Koresh.
Jurors also decided the government's actions on the final day of the siege were not negligent and did not contribute to the deaths of the sect members. The government said suicidal sect members started fires in the building and were responsible for their own deaths.
Waco, FBI and the Branch Davidians: Updates
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