Immunity Helped Turn Waco Trial

Associated Press, July 15, 2000
By Suzanne Gamboa

WACO, Texas (AP) - Long before an advisory jury decided the federal government was not responsible for the deaths of Branch Davidians in the Waco siege, U.S. attorneys had turned the case in their favor.

By invoking a federal law known as the discretionary function exemption, they eliminated several allegations in the $675 million wrongful death lawsuit brought by survivors of the 1993 siege and relatives of those who died. That exemption gives federal officials room to make judgment calls and carry them out without fear of being sued, even if their decisions prove to be bad.

``Even before we got to trial, the case was whittled down significantly to relatively narrow legal issues, in large part because a lot of the things we did are protected by the nature of discretionary function,'' said Thom Mrozek, a Department of Justice spokesman.

``The discretionary function exemption ... was designed to allow federal officials to exercise their best judgment in carrying out their responsibilities in matters involving the public interest - without exposing taxpayers to liability for their choices,'' said Marie Hagan, who helped defend the government in the Davidian case.

On Friday, a five-member jury decided the government did not use excessive force in its attempt to serve search and arrest warrants on Branch Davidian leader David Koresh on Feb. 28, 1993. A gun battle broke out and four Bureau of Alcohol, Tobacco and Firearms agents as well as six Davidians were killed.

Jurors also decided the government's actions on April 19, 1993, the final day of the siege, were not negligent and did not contribute to the deaths of about 80 sect members. The government said suicidal sect members started fires in the building and were responsible for their own deaths.

U.S. District Judge Walter Smith doesn't have to follow the jury's advice. He will make his final ruling after he considers whether federal agents shot at the Davidians at the end of the siege.

The plaintiffs say they don't expect him to deviate much from the jury. One Davidian leader on Saturday was already discussing an appeal.

``The government would like to think we've had our day in court and it's over. But you can't prove your point if you can't present your point,'' said Clive Doyle, a survivor of the siege who was part of the lawsuit against the government.

He joined about a dozen Davidians for Bible study Saturday in the small chapel built on the site where the sect's compound, known as Mount Carmel, burned to the ground.

``This is not the end of this,'' said Koresh's mother, Bonnie Haldeman. ``We're not going to let it be forgotten.''

Federal attorneys convinced Smith last year that the FBI's decision to tear gas the compound on April 19 to force the Davidians out was a discretionary function. Also taken out of consideration were tactics used during the standoff to persuade Davidians to surrender, such as turning off the electricity and playing loud music.

Even with such absolution, the case got a full airing, said U.S. Attorney Mike Bradford.

``Discretionary function played a role,'' Bradford said. ``But most issues went to the jury and judge. It was fairly tried and the judge let all the other issues go to the jury.''

Lead plaintiffs' attorney Michael Caddell disagreed: ``There was a lot of evidence we didn't get to present.''

Originally, the federal government was nearly untouchable in liability suits. The concept that the government could do no wrong - sovereign immunity - was a holdover from English law when kings were considered infallible.

Congress changed that in 1946.

``They realized they needed a way to end immunity, but not end it so broadly that all the money was used to pay claims,'' said Victor Schwartz, a partner at Crowell & Moring in Washington, D.C.

Baylor University professor Bill Underwood said the jurors' decision in the Waco trial was significant even though some aspects were never presented to the panel.

``It is hard to sue the federal government,'' Underwood said. ``But understand, while the government has the right to be wrong, if the government fails to exercise reasonable care in executing policy it can be held liable.''

The discretionary function privilege ``left the plaintiffs with plenty of room to challenge the government's conduct,'' Underwood said. ``Given that latitude, it's significant that the government was vindicated.''