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1
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PLAINTIFFS-RESPONSE3
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EXTRACTED KEY WORDS
FIREFIGHTING FIRE EVIDENCE SUMMARY JUDGMENT EQUIPMENT DISCRETIONARY FUNCTION PLAN PLAINTIFFS CARMEL RESPONSE MOTION COMPOUND FBI TANKS GOVERNMENT DISCRETIONARY FUNCTION EXCEPTION SUFFICIENT EMERGENCY VEHICLES DAVIDIANS POLICY DIRECTIVES ARMORED FIREFIGHTING MEMORANDUM FIRE TRUCKS TEAR GAS ROUNDS CEVS PENETRATION ATTORNEY GENERAL RENO SIOC HRT MEMBERS MEMORANDUM OPINION |
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
ISABEL G. ANDRADE, et al. § CIVIL ACTION NO. W-96-CA-139
§ JUDGE WALTER S. SMITH
Plaintiffs,
§ and consolidated actions:
V. § Holub v. Reno W-96-CA-140
§ Ferguson v. Reno W-96-CA-141
PHILLIP J. CHOJNACKI, et al. § Brown v. U.S. W-96-CA-142
§ Riddle v. Reno W-96-CA-143
Defendants. § Gyarfas v. U.S. W-96-CA-144
§ Martin v. U.S. W-96-CA-145
§ Holub v. U.S. W-96-CA-146
§ Brown v. U.S. W-96-CA-147
§ Sylvia v. U.S. W-96-CA-373
ANDRADE PLAINTIFFS'1 RESPONSE TO DEFENDANT'S MOTION
FOR PARTIAL DISMISSAL AND MOTION FOR
PARTIAL SUMMARY JUDGMENT
In a rehash of prior motions-which were rejected-and bereft of any substantial
new evidence, the Government asks for dismissal or summary judgment on four issues:
(1) decisions concerning the use of experts and/or specialized equipment
pertaining to firefighting;
(2) decisions regarding the means of inserting tear gas, including the use of
particular vehicles and equipment;
(3) the reasonableness of holding fire trucks at a checkpoint until the gunfire
from the compound ceased; and
(4) the Branch Davidians started the fire on April 19, 1993.
For reasons detailed below, the Government's motion must be denied.
1 This Response is also submitted on behalf of the Holub plaintiffs as well.
\\SPOCKS-BRAIN\PUBLIC\FRED\CNN\FRED\RESMSJ_003
I. PARTIAL DISMISSAL BASED ON DISCRETIONARY FUNCTION
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2
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CONSOLIDATED-COMPLAINT
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EXTRACTED KEY WORDS
AGENTS RELATIVES CHURCH PLAINTIFFS PURSUANT BIVENS LAW TEXAS CARMEL CONSOLIDATED COMPLAINT RICO FTCA WARRANT DEFENDANTS SURRENDERING WRONGFUL DEATH ESTATE SURVIVORS INFLICTION REM EMOTIONAL DISTRESS PERSONAL INJURY CLAIMS TIMES RELEVANT COMMON LAW MORRISON VINCENT NOBREGA DAVID KORESH SEARCH WARRANT ASSAULT |
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
ISABEL G. ANDRADE, et al. § CIVIL ACTION NO. W-96-CA-139
§ JUDGE WALTER S. SMITH
Plaintiffs,
§ and consolidated actions:
v. § Holub v. Reno W-96-CA-140
§ Ferguson v. Reno W-96-CA-141
PHILLIP J. CHOJNACKI, et al. § Brown v. U.S. W-96-CA-142
§ Riddle v. Reno W-96-CA-143
Defendants. § Gyarfas v. U.S. W-96-CA-144
§ Martin v. U.S. W-96-CA-145
§ Holub v. U.S. W-96-CA-146
§ Brown v. U.S. W-96-CA-147
§ Sylvia v. U.S. W-96-CA-373
PLAINTIFFS' THIRD CONSOLIDATED COMPLAINT
The following claims are asserted pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics1 ("Bivens"), 42 U.S.C. §§ 1983 and 1985(3)
("Sections 1983 and 1985(3)"); The Racketeer Influenced and Corrupt Organizations Act2
(RICO) and the Federal Tort Claims Act3 ("FTCA") as supplemented by the laws of the
State of Texas.
This Third Consolidated Complaint consolidates, without duplication, the Plaintiffs
and their claims from the cases of Andrade, et al. v. Chojnacki, Ferguson v. Reno, Riddle
v. Reno, Gyarfas v. U.S., Martin v. U.S., and Sylvia v. U.S. It does not add any new FTCA
Plaintiffs or claims or Bivens, §§ 1983 and 1985(3), and RICO Plaintiffs or claims to those
1 Bivens, 403 U.S. 388 (1971).
2 18 U.S.C. §§ 1961 et seq.
3
28 U.S.C. § 1346(b) and §§ 2671 et. seq.
\\SPOCKS-BRAIN\PUBLIC\FRED\CNN\FRED\CONSOLID_3
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3
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PLAINTIFFS-RESPONSE5
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EXTRACTED KEY WORDS
EQUIPMENT ROGERS FIREFIGHTING EQUIPMENT RESPONSE MOTION ARMORED FIREFIGHTING PARTIAL SUMMARY JUDGMENT GOVERNMENT FIRE CARMEL TESTIMONY ROUNDS BRADLEY ANDRADE PLAINTIFFS COMMANDER HRT FAILURE AVAILABILITY TEAR GAS PYROTECHNIC MILITARY TEAR EVIDENCE COUNSEL COURT SUPPLEMENTAL RESPONSE FINITE RESOURCES GOVERNMENT NEGLIGENCE ATTORNEY DEPUTY ASSISTANT |
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
ISABEL G. ANDRADE, et al. § CIVIL ACTION NO. W-96-CA-139
§ JUDGE WALTER S. SMITH
Plaintiffs,
§ and consolidated actions:
V. § Holub v. Reno W-96-CA-140
§ Ferguson v. Reno W-96-CA-141
PHILLIP J. CHOJNACKI, et al. § Brown v. U.S. W-96-CA-142
§ Riddle v. Reno W-96-CA-143
Defendants. § Gyarfas v. U.S. W-96-CA-144
§ Martin v. U.S. W-96-CA-145
§ Holub v. U.S. W-96-CA-146
§ Brown v. U.S. W-96-CA-147
§ Sylvia v. U.S. W-96-CA-373
ANDRADE PLAINTIFFS' SUPPLEMENTAL RESPONSE TO
DEFENDANT'S MOTION FOR PARTIAL DISMISSAL AND
MOTION FOR PARTIAL SUMMARY JUDGMENT
Following submission of the Andrade Plaintiffs' Response to Defendant's Motion for
Partial Dismissal and Motion for Partial Summary Judgment, depositions were taken in
Washington of an HRT member present at Mt. Carmel on April 19 and Richard Rogers,
former Commander of the HRT. The Andrade Plaintiffs file this supplemental response to
apprise the Court of testimony from those depositions relevant to the issues raised by
Defendant's motions.
I. ARMORED FIREFIGHTING EQUIPMENT
The testimony of Rogers makes it clear that any summary disposition of this issue
should be in favor of Plaintiffs, rather than for Defendant. The failure to have armored
firefighting equipment present at Mt. Carmel on April 19, 1993, was not an exercise of the
"discretionary function" of government, involving the allocation of "finite resources," but
rather simple, unadulterated government negligence.
\\SPOCKS-BRAIN\PUBLIC\FRED\CNN\FRED\RESMSJ_005
First, Rogers confirmed that he and Jeff Jamar, Special Agent in Charge at Waco,
SNIPPETS:
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4
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APPLICATION-TO-RECONSIDER2
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EXTRACTED KEY WORDS
JAMAR PLAINTIFFS DAVIDIANS RICHARD ROGERS CARMEL PLAN NEGOTIATOR FIRE TEAR GAS GYMNASIUM WINDOWS DISMANTLING VIOLENT RESPONSE NOESNER DEFENDANTS JEFFREY JAMAR CEV BIVENS CLAIMS CEV-2 RECONSIDERATION FBI AMENDMENT OPENINGS DEMOLITION BLACK ALPHA REACTION ANTICIPATION VAN ZANDT SHOOTING |
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
ISABEL G. ANDRADE, et al. § CIVIL ACTION NO. W-96-CA-139
§ JUDGE WALTER S. SMITH
Plaintiffs,
§ and consolidated actions:
V. § Holub v. Reno W-96-CA-140
§ Ferguson v. Reno W-96-CA-141
PHILLIP J. CHOJNACKI, et al. § Brown v. U.S. W-96-CA-142
§ Riddle v. Reno W-96-CA-143
Defendants. § Gyarfas v. U.S. W-96-CA-144
§ Martin v. U.S. W-96-CA-145
§ Holub v. U.S. W-96-CA-146
§ Brown v. U.S. W-96-CA-147
§ Sylvia v. U.S. W-96-CA-373
ANDRADE PLAINTIFFS' APPLICATION TO RECONSIDER
DISMISSAL OF JEFFREY JAMAR AND RICHARD ROGERS
\\SPOCKS-BRAIN\PUBLIC\FRED\CNN\FRED\RECONSID_002
* "Well we had known in the past that when we were, had activity around
there, the Davidians would run to the windows and hold children up in front
of the windows. What happens if you tell them that you are going to, and we
would tell them this before we started destroying part of the building,
look get out of the gymnasium we're gonna take it down. But his reaction
would be, fine I'm gonna put all the kids in there. So you don't have those
kinds of options and so our . . .
He said that?
No, we anticipated that that's what his reaction would be.
Floyd Clark, Deputy Director FBI,
Press Briefing, April 21, 1993
* Any negotiator would have told them that dismantling the building would
provoke a violent response. Noesner would have told them that and he
believes Van Zandt would have too. He believes that is what triggered the
starting of the fires and the shooting of the children.
Gary Noesner, Crisis Negotiation
Team Coordinator at Mt. Carmel
(from DOJ Internal Interview dated 8/31/93)
* He told Jamar that they could not send in the tanks because if they did
so children would die and the FBI would be blamed even if they were not
SNIPPETS:
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5
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APPLICATION-TO-RECONSIDER4
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EXTRACTED KEY WORDS
DEFENDANTS HRT BIVENS CLAIMS JAMAR GYMNASIUM COUNSEL ROGERS CARMEL CEV-2 DISMANTLING CEV TAB DEFENDANTS JEFFREY JAMAR LEADERSHIP RICHARD TANK MISSION DAVIDIANS DEPARTURE PLAN FBI TESTIMONY DRIVER PASSENGER INSTRUCTIONS ACTING PURSUANT GUNFIRE SMOKING GUN BIVENS LIABILITY |
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
ISABEL G. ANDRADE, et al. § CIVIL ACTION NO. W-96-CA-139
§ JUDGE WALTER S. SMITH
Plaintiffs,
§ and consolidated actions:
V. § Holub v. Reno W-96-CA-140
§ Ferguson v. Reno
PHILLIP J. CHOJNACKI, et al. § Brown v. U.S.
§ Riddle v. Reno W-96-CA-143
Defendants. § Gyarfas v. U.S.
§ Martin v. U.S.
§ Holub v. U.S.
§ Brown v. U.S.
§ Sylvia v. U.S.
ANDRADE PLAINTIFFS' SECOND SUPPLEMENTAL APPLICATION
TO RECONSIDER DISMISSAL OF BIVENS CLAIMS
AGAINST DEFENDANTS JEFFREY JAMAR
AND RICHARD ROGERS
1. The Andrade Plaintiffs are continuing to review the tens of thousands
of pages of documents produced by the Government after the document production
deadline of January 15, 2000. Plaintiffs have now located another document
directly relevant to Plaintiffs' application to reconsider dismissal of the Bivens claim
against Defendants Jamar and Rogers.
2. In addition to the "Action Summaries" previously supplied to the
Court,1 Plaintiffs have also now located a global summary prepared by the HRT
leadership to support their application for medals and "substantial cash incentive
1 Attached as Exhibits to the Andrade Plaintiffs' Supplemental Application to
Dismissal of Bivens Claims Against Defendants Jeffrey Jamar and Richard Rogers.
\\SPOCKS-BRAIN\PUBLIC\FRED\CNN\FRED\RECONSID_004
awards" to themselves and all HRT members for their actions at Mt. Carmel. Page
10 of the global summary describes the actions of the crew of CEV-2, the modified
Patton tank operating on the black side of Mt. Carmel on April 19:
SNIPPETS:
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6
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APPLICATION-TO-RECONSIDER3
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EXTRACTED KEY WORDS
DEFENDANTS JEFFREY JAMAR COUNSEL RICHARD ROGERS ACTION SUMMARIES BIVENS CLAIMS GOVERNMENT PRODUCTION SYSTEMATIC DESTRUCTION COMPOUND CARMEL CEV-2 OPENINGS REDACTION ORIGINAL ACTION SUMMARIES GLARING ADMISSIONS DEPARTURE PLAN UNITED STATES ESCAPE TOWER PROBE GAS CONFLICTING EXPLANATIONS REQUESTING CERTIFY FOREGOING SPECIAL COUNSEL TOM SCHWEICH LOUIS |
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
ISABEL G. ANDRADE, et al. § CIVIL ACTION NO. W-96-CA-139
§ JUDGE WALTER S. SMITH
Plaintiffs,
§ and consolidated actions:
V. § Holub v. Reno W-96-CA-140
§ Ferguson v. Reno
PHILLIP J. CHOJNACKI, et al. § Brown v. U.S.
§ Riddle v. Reno W-96-CA-143
Defendants. § Gyarfas v. U.S.
§ Martin v. U.S.
§ Holub v. U.S.
§ Brown v. U.S.
§ Sylvia v. U.S.
ANDRADE PLAINTIFFS' SUPPLEMENTAL APPLICATION
TO RECONSIDER DISMISSAL OF BIVENS CLAIMS
AGAINST DEFENDANTS JEFFREY JAMAR
AND RICHARD ROGERS
1. The Andrade Plaintiffs are continuing to wade through the dozens of
boxes of documents dumped on Plaintiffs by the Government after the document
production deadline of January 15, 2000.1 After completion of Plaintiffs' application
for reinstatement of the Bivens claims against Defendants Jeffrey Jamar and
Richard Rogers, two additional documents have come to the attention of Plaintiffs'
counsel which have a significant bearing on this issue. These are action
summaries supporting recommendations of the "FBI Shield of Bravery" and
1 Plaintiffs will supplement later this week their motion for sanctions in
this production.
\\SPOCKS-BRAIN\PUBLIC\FRED\CNN\FRED\RECONSID_003
"substantial cash incentive awards" for HRT members involved in the April 19, 1993
assault.
2. The action summaries for the driver and passenger in CEV-2 on
SNIPPETS:
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7
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MOTION-TO-COMPEL
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EXTRACTED KEY WORDS
PLAINTIFFS COURT CARMEL ORIGINALS PHOTOGRAPHS GOVERNMENT FBI TAPES MOTION RESPONSE FLIR STATES DISTRICT COURT FIRE ROLL AUDIO RECORDINGS ANDRADE PLAINTIFFS TESTIMONY SUPPOSED ORIGINALS CEV-2 LITIGATION FLIR VIDEOTAPE AERIAL PHOTOGRAPHS HRT FLASHBANGS FLIR VIDEO CONSISTENT CHARLIE TEAM LABORATORY |
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
ISABEL G. ANDRADE, et al. § CIVIL ACTION NO. W-96-CA-139
§ JUDGE WALTER S. SMITH
Plaintiffs,
§ and consolidated actions:
V. § Holub v. Reno W-96-CA-140
§ Ferguson v. Reno W-96-CA-141
PHILLIP J. CHOJNACKI, et al. § Brown v. U.S. W-96-CA-142
§ Riddle v. Reno W-96-CA-143
Defendants. § Gyarfas v. U.S. W-96-CA-144
§ Martin v. U.S. W-96-CA-145
§ Holub v. U.S. W-96-CA-146
§ Brown v. U.S. W-96-CA-147
§ Sylvia v. U.S. W-96-CA-373
ANDRADE PLAINTIFFS' MOTION TO COMPEL OR,
ALTERNATIVELY, MOTION FOR SANCTIONS
On August 9, 1999, the Court ordered-in response to a motion by the Texas
Department of Public Safety-that all evidence "in any way relevant to the events
occurring at Mt. Carmel in February-April 1993" be delivered to the Clerk of the United
States District Court, Western District of Texas.1 The government objected to the Court's
Order. On September 2, 1999, in response to the government's motion for modification or
reconsideration, the Court stated the following:
Because of the unprecedented nature of the litigation currently pending
before this Court, the undersigned was endeavoring to ensure that evidence
that was relevant to the civil trial could be stored in a central location,
accessible to all the civil litigants, under the direction of the Court, and in
accordance with the applicable Rules of Civil Procedure . . . . Also, such a
plan would, hopefully, deflect the suspicion reported in the press, whether
warranted or not, that there is a massive coverup regarding the evidence
that was seized and generated as a result of the Branch Davidian criminal
case.
1 The Court's Order of August 9, 1999, is attached at Tab 1. Emphasis is added
Motion unless otherwise noted.
\\SPOCKS-BRAIN\PUBLIC\FRED\CNN\FRED\MTCOMPEL_002
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