Real Crime Stories/Paranormal Hauntings/Conspiracy Theories Book II

Waco Stand-Off: David Koresh and the Branch Davidians (Part IV)

Civil suits by Branch Davidians

Several of the surviving Branch Davidians, as well as more than a hundred family members of those who had died or were injured in the confrontation, brought civil suits against the United States government, numerous federal officials, the former governor of Texas Ann Richards, and members of the Texas Army National Guard. They sought monetary damages under the Federal Tort Claims Act, civil rights statutes, the Racketeer Influenced and Corrupt Organizations Act, and Texas state law. The bulk of these claims were dismissed because they were insufficient as a matter of law or because the plaintiffs could advance no material evidence in support of them.

The court, after a month-long trial, rejected the Branch Davidians' case. The court found that, on February 28, 1993, the Branch Davidians initiated a gun battle when they fired at federal officers who were attempting to serve lawful warrants. ATF agents returned gunfire to the building, the court ruled, in order to protect themselves and other agents from death or serious bodily harm. The court found that the government's planning of the siege—i.e., the decisions to use tear gas against the Branch Davidians; to insert the tear gas by means of military vehicles; and to omit specific planning for the possibility that a fire would erupt—was a discretionary function for which the government could not be sued. The court also found that the use of tear gas was not negligent. Further, even if the United States government were negligent by causing damage to the buildings before the fires broke out, thus either blocking escape routes or enabling the fires to spread faster, that negligence did not legally cause the plaintiffs' injuries because the Branch Davidians started the fires.

The Branch Davidians appealed. Their contention was that the trial court judge, Walter S. Smith, Jr., should have recused himself from hearing their claims on account of his relationships with defendants, defense counsel, and court staff; prior judicial determinations; and comments during trial. The Fifth Circuit concluded that these allegations did not reflect conduct that would cause a reasonable observer to question Judge Smith's impartiality, and it affirmed the take-nothing judgment, in Andrade v. Chojnacki, 338 F.3d 448 (5th Cir. 2003), cert. denied (2004).

Controversies

Roland Ballesteros, one of the agents assigned to the ATF door team that assaulted the front door, told Texas Rangers and Waco police that he thought the first shots came from the ATF dog team assigned to neutralize the Branch Davidians' dogs, but later at the trial, he insisted that the Branch Davidians had shot first. The Branch Davidians claimed that the ATF door team then opened fire at the door, and they returned fire in self-defense. An Austin Chronicle article noted, "Long before the fire, the Davidians were discussing the evidence contained in the doors. During the siege, in a phone conversation with the FBI, Steve Schneider, one of Koresh's main confidants, told FBI agents that 'the evidence from the front door will clearly show how many bullets and what happened'." Houston attorney Dick DeGuerin, who went inside Mount Carmel during the siege, testified at the trial that protruding metal on the inside of the right-hand entry door made it clear that the bullet holes were made by incoming rounds. DeGuerin also testified that only the right-hand entry door had bullet holes, while the left-hand entry door was intact. The government presented the left-hand entry door at the trial, claiming that the right-hand entry door had been lost. The left-hand door contained numerous bullet holes made by both outgoing and incoming rounds. Texas Trooper Sgt. David Keys testified that he witnessed two men loading what could have been the missing door into a U-Haul van shortly after the siege had ended, but he did not see the object itself. Michael Caddell, the lead attorney for the Branch Davidians' wrongful death lawsuit explained, "The fact that the left-hand door is in the condition it's in tells you that the right-hand door was not consumed by the fire. It was lost on purpose by somebody." Caddell offered no evidence to support this allegation, which has never been proved. However, fire investigators stated that it was "extremely unlikely" that the steel right door could have suffered damage in the fire much greater than did the steel left door, and both doors would have been found together. The right door remains missing, and the entire site was under close supervision by law enforcement officials until the debris—including both doors—had been removed.