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U.S. government on trial: Waco families take wrongful-death case to court

The Branch Davidian compound ablaze on April 19, 1993

By Raju Chebium
CNN Interactive Correspondent

June 19, 2000
Web posted at: 3:51 a.m. EDT (0751 GMT)

In this story: Brief background of a complicated story The main questions of the case A non-jury trial -- technically The different viewpoints about the case's meaning RELATED STORIES, SITES

WASHINGTON (CNN) -- A $675 million lawsuit stemming from the deaths of some 80 Branch Davidians at Waco, Texas, in 1993 goes to trial Monday.

The defendant is the federal government, which says it was justified in using armed force to end a 51-day standoff with the Branch Davidians, a Christian apocalyptic sect.

The plaintiffs are about 100 family members of the sect members who died, among whom were sect leader David Koresh and 17 children. The families allege the government used excessive force throughout the standoff, which began on February 28, 1993 and ended on April 19, 1993.

The wrongful-death case, to be heard in a Waco federal court by U.S. District Judge Walter Smith, will once again focus attention on the government's actions during the 1993 raid and standoff that made headlines around the world and led to congressional inquiries. Though the government was cleared of wrongdoing, critics have insisted it went too far.

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Brief background of a complicated story

On February 28, agents of the federal Bureau of Alcohol, Tobacco and Firearms, sent to the Branch Davidian compound -- called Mount Carmel -- to investigate reports that the sect was hoarding weapons, came under intense fire. Four agents and six Davidians were killed in an exchange of gunfire.

The standoff began, and the FBI took over. Throughout the standoff, FBI agents repeatedly asked the Davidians to surrender but the Davidians refused, saying they would not bow to anyone's authority but God's. FBI tanks rammed the compound; agents played music and sounds offensive to the sect, and used tear-gas canisters.

On April 19, there was a fiery explosion in the compound, ending the standoff. To this day, controversy still surrounds the question of who caused the fire. The government says Koresh ordered his followers to set the compound ablaze to avoid surrendering to the government. The Branch Davidians say the fire was caused by the FBI's use of incendiary tear-gas canisters.

A number of other aspects of the case are also under dispute. For instance, the families allege that the government at times initiated the shooting exchanges, pointing to flashes on a surveillance tape as proof of gunfire from the agents. The government argues those flashes were caused by sunlight glinting off debris in the compound.

The main questions of the case

The wrongful-death trial revolves around five issues:

  • Did the BATF agents shoot indiscriminately into the compound on February 28?

  • Did the FBI start and spread the fire on April 19?

  • Did the FBI shoot into the compound?

  • Did the FBI prematurely demolish the compound?

  • Did the FBI prevent firefighters from reaching the compound in a timely fashion after the compound went up in flames?

A wrongful death claim is a civil action that occurs when someone is killed as a result of the negligence, recklessness or intentional act of another. Such lawsuits are usually brought by the victims' families.

The families are entitled to monetary damages as a result of the wrongful act. Damages may be assessed from the time of injury to death, including pain and suffering; and for death.

A non-jury trial -- technically

The trial is technically a non-jury trial, meaning only Smith has the power to decide the case.

But the judge has taken the fairly unusual step of calling for a jury to serve in an advisory capacity to help him sift through the evidence and make findings of fact, said Sol Wisenberg, a Washington attorney who has closely observed the case.

Judges have discretion to ask that such juries be seated. But in this case, Smith does not have to accept the jury's findings, said Wisenberg, a Texas prosecutor before he entered private practice.

Until 1946, when the Federal Tort Claims Act was passed, the government could not be sued because it has sovereign immunity, a doctrine that absolved actions that could be construed as wrong, he said.

The Tort Claims Act allows citizens to sue but specifies that trials against the government could not be decided by juries, Wisenberg said.

Come Monday, the attorneys on both sides will begin questioning people to sit on the advisory jury. The trial is expected to last several weeks.

Wisenberg said the families' lead attorney, Michael Caddell, faces a difficult task in proving government culpability because of the so-called 'discretionary function' exception in the 1946 law. That exception says a government agent cannot be held liable for doing his or her duty.

"The government is going to say our agents, that's their job to decide whether to use force, how much force to use. That's going to be real tough to overcome," Wisenberg said.

The different viewpoints about the case's meaning

Caddell, a Houston attorney, has said the wrongful-death case goes beyond compensating the victims' families.

"This case is about abuse of power in the large sense," Caddell told CNN Interactive in April. "This is about the direction our country may be headed wherein the government and law enforcement become an armed force that can be used against the American population, against anyone who is different, anyone who is strange, anyone who doesn't fit in."

The government argues that the lawsuit is unjustified.

"We believe the claims that are being made are not accurate and have no legal basis," Mike Bradford, the U.S. attorney for the Eastern District of Texas in Beaumont, who will defend the government come Monday.

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May 11, 2000
Waco investigator found dead at his office in Maryland
April 30, 2000
Judge: Question of whether FBI shot at Branch Davidians remains open
April 24, 2000
Branch Davidians attorney critical of Reno's deposition
March 28, 2000
Opposing views of new test videotape in Waco debate
March 20, 2000
Documents: FBI wanted clearance to shoot unarmed Branch Davidians
October 8, 1999
Tear gas canister 'bounced off' Waco bunker
September 3, 1999
FBI tape shows field commander OK'd use of tear gas at Waco
September 2, 1999

Federal Bureau of Investigation
United States Attorney's Office, Central District of California
Branch Davidian
Federal Tort Claims Act -- Defined & Explained

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