Andrade v. Chojnacki

Decision Date01 July 1999
Docket NumberCivil Nos. W-96-CA-139 to W-96-CA-147.,Civil No. W-96-CA-373.
Citation65 F.Supp.2d 431
PartiesIsabel G. ANDRADE, et al., Plaintiffs, v. Phillip J. CHOJNACKI, et al., Defendants.
CourtU.S. District Court — Western District of Texas

WALTER S. SMITH, JR., District Judge.

Plaintiffs bring this action pursuant to the provisions of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq., 42 U.S.C. §§ 1983 and 1985(3), and pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiffs additionally assert claims under RICO and Texas state law. The Defendants have moved to dismiss many of Plaintiffs' claims and for summary judgment. After reviewing the parties' motions and briefs, the Court has determined that the Defendants' motions are partially meritorious and should be partially granted.


Plaintiffs' claims arise out of the tragic events which occurred at the Mount Carmel religious center outside of Waco, Texas. Many of the underlying facts are not disputed, and have been widely publicized in the media and during various Congressional hearings. For background purposes, the Court will begin with a brief history of the Branch Davidians.1

In the 1930's, a splinter group of the Seventh Day Adventist Church, known as the Branch Davidians, re-located to Waco, Texas from California under the guidance of a self-styled prophet named Victor Houteff. Houteff's wife Florence assumed the leadership of the sect after his death, and prophesied that the end of the world, as foretold in the Christian Bible's Book of Revelation, would commence on April 22, 1959. Her prediction was unfulfilled, and many members abandoned the group. A small group of followers remained in Waco under the leadership of Benjamin Roden, who was succeeded by his wife, Lois. The group eventually moved out of the Waco city limits and established a commune-type settlement, known as Mount Carmel, near the small community of Elk.2

A young man named Vernon Howell, who later changed his name to David Koresh ("Koresh"), joined the group in 1984 and soon became embroiled in a struggle for leadership with Lois Roden's son, George ("Roden"). It was during this period that the 24-year-old Koresh married his legally acknowledged wife, a 14-year-old girl by the name of Rachel Jones, the daughter of Perry Jones who was a prominent member of the sect.3 In 1985, Koresh and his followers were ejected from Mount Carmel at gunpoint. Koresh led them to the Angelina National Forest near Palestine, Texas, where they lived in plywood boxes, tents and converted school buses. During this period, Koresh declared himself a religious leader and prophet, preaching his own alleged divinely revealed interpretation of the Seven Seals in the Book of Revelation.

While Koresh's religious teaching did not focus on the "Golden Rule," it did focus on para-military training. As he repeatedly told his followers, "You can't die for God if you can't kill for God." Koresh armed his followers and led them on a raid of the Mount Carmel complex in 1987. Roden was injured during the resulting shoot-out, and Koresh and his followers were arrested and tried for attempted murder. All of Koresh's followers were acquitted, while the jury was unable to reach a verdict as to the charges against Koresh.

Subsequent to the trial in 1989, Roden was arrested in Odessa, Texas for murder in an unrelated case. He was tried and found not guilty by reason of insanity, and was committed to a state mental hospital.4 Koresh was then free to set himself up as undisputed leader of the Davidians at Mount Carmel. In 1990, he legally changed his name to David Koresh after another revelation from God. He also began recruiting new members in other American cities, as well as in Australia and Great Britain. The ramshackle outbuildings that once made up the Mount Carmel community were consolidated into a large complex, which included living quarters, a chapel, a gymnasium, as well as look-out towers and an armory. The fort-style building, referred to in later press reports as the Compound, was a reflection of Koresh's apocalyptic mentality and preaching — the end of the world was near and would be brought about by "the Beast" or "the Babylonians," which he identified as agents of the Government, particularly the Federal Bureau of Alcohol, Tobacco, and Firearms ("ATF").

Another part of Koresh's philosophy was his belief that as the new Messiah, all women belonged to him, including the wives and daughters of his male followers. Allegations of child-abuse arose when Koresh's custom of "marrying" girls as young as twelve was revealed during a child custody hearing in Michigan involving one of his followers, Sherri Jewell. These charges attracted the attention of the media, both foreign and domestic. The Waco Tribune-Herald (the "Waco Trib") began an in-depth investigation of the cult, which came to the attention of the ATF.

The ATF had other reasons for investigating Koresh and his followers, having received information that the inhabitants of the Compound were involved in the manufacture and distribution of illegal weapons, including machine guns and hand grenades. One report came from United Parcel Services ("UPS") that suspicious deliveries had been made to persons residing at the Compound, including over $10,000 in firearms, inert grenade casings, a substantial quantity of black powder, and explosives. Other reports indicated that residents at the Compound were constructing what appeared to be a barracks-type cinder-block structure, had buried a school bus to use as a firing range and a bunker, and were stockpiling arms and other weapons, including .50-caliber weapons. Further investigation revealed that Koresh was also obtaining numerous kits which could be used to illegally convert semiautomatic weapons to fully automatic. Such information was obtained from firearms dealers with whom Koresh had dealt, former members of the Church, and family members of some of the then-current residents, some of whom are now Plaintiffs in this case. Comments made by Koresh to a number of people hinted at his dangerous and violent propensities. He stated to a child protective case worker investigating reports of child abuse that his time was coming to be revealed as a messenger and what would follow would make the Los Angeles riots pale in comparison. In addition to the increased trading in weapons, Koresh announced to his followers that the world would end before Passover of 1993. His philosophy and teachings made clear that such an end would come at the hands of "the Beast."

As part of its investigation, the ATF set up an undercover house near the Compound. The house was manned by ATF agents posing as students at the nearby Texas State Technical College, including Defendant Robert Rodriguez. Over the next few months, the undercover agents attempted to infiltrate the compound by attending Koresh's Bible study groups. The Davidians, however, never believed the agents were merely college students because they were too old and drove expensive cars.

During December 1992, the ATF instituted plans to obtain and execute an arrest warrant for Koresh and a search warrant for the Compound. The planning and execution of the raid were in the hands of Defendant Phillip Chojnacki ("Chojnacki") (the Incident Commander) and his immediate subordinate Defendant Chuck Sarabyn ("Sarabyn") (the Tactical Coordinator). The operation was code named "Trojan Horse" (with an action code of "Showtime") and revolved upon a plan to conduct a "dynamic" entry into the Compound, which entailed surrounding the facility and entering with a strong show of force. The plan depended heavily on the element of surprise for its success in order to reduce, or prevent, the possibility of injuries to those involved — Davidians as well as agents. Defendant Stephen Higgins ("Higgins"), the ATF Director, ordered the field commanders to cancel the operation if they learned that the secrecy of the raid had been compromised.

One other consideration asserted by Plaintiffs as justification for the raid is that the ATF was facing budget scrutiny and needed a successful, high-publicity operation to warrant its continued existence.

In February, 1993, ATF representatives met with officials at the Waco Trib to request that the newspaper delay publication of its series on Koresh because of the pending criminal investigation and proposed warrant execution. The agency was concerned that publication of the articles on Koresh would upset him and possibly cause him to increase patrols and security around the Compound. However, ATF refused to reveal the date of the proposed raid, and the Waco Trib declined to delay publication.

ATF agents also met with Rural Metro Ambulance Service in order to have ambulance service available, if necessary, on the day of the raid. Through either the ambulance service, local law enforcement, or ATF itself, news of the proposed raid was leaked to the press. The raid was originally scheduled to occur on Monday March 1, and the ATF agents assigned to carry out the raid gathered the week before at Fort Hood5 to train for execution of the arrest and search warrants.

On Thursday, February 25, Chojnacki obtained under seal from United States Magistrate Judge Dennis Green an arrest warrant for Koresh and a search warrant for the Mount Carmel premises, alleging violations of federal firearms laws.

On the 26th, the Waco Trib informed ATF that publication of the Koresh series would begin the next day — Saturday, February 27. After learning of the newspaper's decision to run its story on...

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