U.S. District Judge Walter Smith will ask jurors to answer unanimously a four-step series of questions to reach a verdict in the Branch Davidian wrongful-death lawsuit:
1. Did the Federal Bureau of Alcohol, Tobacco and Firearms use excessive force when its agents tried to serve search and arrest warrants on Feb. 28, 1993, at the sect's compound? In particular, did agents fire at the compound either indiscriminately or without provocation in the gunbattle that broke out?
2. Did the FBI act negligently in any of the following ways during its teargassing operation on April 19, 1993:
A. By driving tanks into the building in ways that violated the Washington-approved gassing plan?
B. By starting or contributing to the spread of the fire?
C. By deciding not to have any plan to fight any fire that might break out, despite a directive from Attorney General Janet Reno to have "sufficient emergency vehicles"?
If jurors answer yes to ATF or FBI negligence, they must then answer a third set of questions about the Branch Davidians:
3. Did the government prove "by a preponderance of the evidence" that Davidians acted negligently in:
A. Resisting the ATF agents who were trying to serve arrest and search warrants, and continuing their resistance until the siege ended on April 19?
B. Setting fire to the compound?
4. If jurors answer yes to ATF or FBI negligence, what percentage of that negligence is attributable to the FBI and what percentage is attributable to the government?
The jury's instructions on how to answer those questions include the following from Judge Walter Smith: Plaintiffs must prove each any every claim by a preponderance of evidence, or by evidence that "persuades you that the plaintiff's claim is more likely true than not true."
Law enforcement officers can use as much force as reasonably necessary to complete a search or arrest, can protect themselves from someone resisting arrest, including taking the lives of those who pose serious bodily threats.
The government is not claiming that Davidians were negligent in failing to leave the compound during the 51 days standoff. "However, you may consider ... evidence that plaintiffs continued to resist the execution of the search and arrest warrants between Feb. 28, 1993, and April 19, 1993, in deciding the issue of whether the FBI negligently prevented or hindered them from leaving the compound.
"There are certain aspects of what happened. ... which are not submitted for your consideration in this case. For example, there has been a public debate in the years following the incident as to whether the Bureau of Alcohol, Tobacco and Firearms should have attempted to execute the search and arrest warrants in a less forceful manner. Congress, however, in authorizing this type of lawsuit against the government, prohibited courts from second-guessing law enforcement decisions such as this. There may be other matters of concern to you which you are not asked about for the same reason."
The government contends that the Davidians were negligent in their actions "and also committed intentional acts and crimminal acts that were the actual cause of these allegations." The government must prove that by a preponderance of evidence.
When considering that allegation, jurors are told that search and arrest warrants on Feb. 28 were lawful, and citizens violate the law when they resist law enforcement officials trying to execute such warrants. Individuals can use force to resist only they believe they must protect themselves after a law enforcement officer has attempted to use greater force than necessary.
Like any other individuals, the Davidians had to look out for their own safety just as much as any other reasonably prudent person.
"You need to consider whether the actions of any of the adult plaintiffs in Mt. Carmel" in resisting arrest on Feb. 28 and setting fires on April 19 "proximately caused the harm" that injured any of the Davidians in the lawsuit.
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