West, Texas, man charged with destructive device to plead not guilty

[arely staircase]

A volunteer paramedic in the Texas town rocked by a massive fertilizer plant explosion in April will plead not guilty to charges that he possessed an explosive device, his lawyer said Saturday....

...Bryce Reed, 31, is due to appear in court on Wednesday. He was arrested after a friend told a local sheriff that Reed possessed explosives, authorities said. Reed had gathered pieces for a pipe bomb, according to court documents, but had not assembled the parts into a working explosive.

Reed took on a significant profile in the aftermath of the disaster in the small town, giving interviews and delivering the eulogy for victim Cyrus Reed. “I will avenge this. This will get right. I don’t care what it takes. I will get square,” Reed said in an interview at the time.

http://usnews.nbcnews.com/_news/2013/05/11/18196195-west-texas-man-charged-with-destructive-device-to-plead-not-guilty?lite

The guy's statements can be taken as incriminating or exculpatory. I hope there isn't a search for a scape goat to shift the blame from the lack of regulation.

[jberryhill]

1. I think he's just a nut that fell out of the tree upon closer scrutiny

The guy seems a little screwy, but not as screwy as some people are down there. Because of media attention around the event, and because of his peculiar appetite for it, he got noticed, and not in a way that turned out well for him.

I don't think he has diddly to do with the cause or origin of the fire. I wouldn't rule it out, but I think he's just a weirdo who was in the right, or wrong, place at the right time, depending on your perspective.

On the pipe bomb, he'll just say he was helping someone to remove stumps and they were too cheap for dynamite.

[jberryhill]

2. Oh, and, on the legal consequences

I've run into this notion a couple of times on DU, and feel compelled to point out that if this guy had something to do with the cause or origin of the fire, it does not relieve the plant operator of liability.

First, the operation involved is what is called "an inherently dangerous activity". Making large quantities of an explosive substance is an inherently dangerous activity, no matter how you slice it. In situations involving liability for such activities, the operator is subject to "strict liablity" - in other words "we don't care what happened, the plant blew up, and that is an inherent danger in operating a plant like that, against which you are to not have happen in ANY circumstances."

Secondly, the possibility of someone breaching security or sabotaging the plant is ONE of the things the operator of such a facility is strictly obligated to do. Even if a nut with a pipe bomb got in - the operator is supposed to ensure that a nut with a pipe bomb can't get in. Again, that is within the range of foreseeable hazards of operating an inherently dangerous facility.

Him doing something to cause the fire does not at all get the plant operator off the hook.

[Ilsa]

3. I wonder, though, if they have someone

they can pin (or suggest) the explosion on, if they'll wreck the opportunity for civil suits for the victims by apportioning liability.

I'm also wondering what they really found in his possession. The write-ups are vague.

[jberryhill]

5. That's the beauty of strict liability

Now, someone may fill in more details on what are no doubt peculiarities of Texas tort law, but the bottom line with inherently dangerous activities is that we are still going to essentially assign them complete liability for the fact that a guy could get in there and do that.

And, yes, that means more than having a rusty chain link fence.

[arely staircase]

7. wouldn't the illegal and unsafe storage of certain materials constitute proximate cause

under common law regardless of a pipe bomb?

[jberryhill]

8. Yeah - it's pretty much res ipsa

You don't even get to "proximate cause" when an explosive manufacturing plant explodes. It's kind of a "no shit, really? They must have been doing something wrong" sort of analysis.

What people are suggesting is that a willfully malevolent active agency constitutes what is an "intervening cause" or a "superseding cause".

For example, someone carjacks a taxi and runs someone else over. In that circumstance, the taxi company and its agent had no control over the situation and can't be held liable for merely operating a taxi - any car could become carjacked by a dangerous driver.

But when we are talking about inherently dangerous activities, it's more like saying the taxi driver should have had a bulletproof compartment. What were the access controls and alarms like at this place? What kind of security did they have? How did they control access to sensitive areas and what systems were in place for breach?

In the context of a dangerous facility, willfully malevolent active agency is, again, something that has to be part of the physical and operational plan. And, you bet, those things are also subject to regulatory compliance.

[arely staircase]

6. I think I read the owner had failed to report what was being stored there as required by law

so he/she is exposed to liability regardless. An actual lawyer (familiar with Texas law, preferably) could clarify. But my understanding of common law (limited as it is) tells me that if I run a pizza place and store dangerous explosive chemicals there unlawfully, then the pizza liberation army sets fire to it and the resulting explosion exposes me to liability regardless of th pla's act. my unlawful acts are still a proximate cause.

lawyers please correct me if I am wrong.

[jberryhill]

9. Yes, but I wouldn't state it as "proximate cause"

What really matters in that context is that causation is short circuited by the fact that the resulting harm is precisely the sort of harm which one would expect from the improper storage of explosives.

In other words - it happened. Precisely how or why is not a concern. Shit happened, and it is the type of shit that happens when you improperly store, manage or otherwise maintain explosives.

[arely staircase]

10. got it

thanks

is that per se liability? I did one year of law school years ago.. did fine in torts but just didn't want to be a lawyer. I live with one but she is asleep.

[jberryhill]

12. Yeah - "per se" that's a good formulation

[Igel]

16. Failed to report it to DHS.

They monitor where large quantities of potentially explosive things are so they can find out easily if some go missing.

Not sure they impose security requirements on it. That would be other regulatory agencies. He reported it to local and state authorities.

At least you have it right: he stored the NH4NO3, he didn't produce it. It would take a lot of energy to manufacture it and he wasn't set up for it. He was set up for mixing the ammonium nitrate with other chemicals to produce mixes for different crops and soils. But let's not confuse chemical and physical changes.

Haven't seen any word on whether he stored the stuff in a way that violated regulations. From what I've seen his violation of regs was a failure in reporting requirements at the federal level. There have been suggestions and claims of other failures, but nobody with any actual information to buttress their suspicion and speculation. Most assume that if something goes wrong there must be a violation of regulations and intent. They always assume the opposite when *they* make a mistake.

People act like this is some sort of highly dangerous substance. I used it as a kid. The local hardware store in what amounted to a suburb kept anywhere from 500 to 1000 pounds of the stuff stacked in paper sacks on a pallet in the fertilizer section. One bag was always open. You could buy it by the pound for something like 8 cents or buy a 50 lb (100?) bag of the stuff. I'd usually buy something like 5-10 lbs every May or June to spread by hand on my backyard garden, with some left over for a late-season application. It gives plants, especially greens and things that are already bearing fruit, a quick jolt of nitrogen. (Give it to plants too early and often all you get is spectacularly large plants that don't really bear much fruit.)

A commercial farmer would be likely to use tons of this stuff if I used let's say 5 lbs on a 20 x 20 plot. 240 tons? That's probably what he expected to sell in the next month or two.

[arely staircase]

4. Thanks for both posts

I am not a lawyer, though I have some legal training and access to free lawyers in my own immediate family, and what you say seems solid.

[hunter]

11. I've "possessed explosives."

As a young man I liked to make things that sometimes went "BOOM!"

Mostly rockets, but not always. (PVC pipe is evil, BTW.)

At times I was a danger to myself which is one reason I quit these experiments. Just like riding too fast on big motorcycles in the desert, or body surfing huge storm waves, moments of absolute terror can change a person. But I always thought about the safety of others unless they were co-conspirators in the day's mischief.

Hey bro' can you pick this shrapnel out of my back? We won't tell mom.

I worry this is a witch hunt. About this fertilizer company: Did the sales volume of ammonium nitrate seem reasonable in comparison to the amounts stockpiled? Was the ammonium nitrate stored safely? (No.) Is their a possibility someone was playing the market, trying to buy low and sell high? Inquiring minds want to know.

Components one might build a bomb with are not uncommon.

I'm not sure, but I may have one of grandma's pressure cookers in my garage, and also a few galvanized pipe fittings. There's no potassium nitrate that I know of, but there is some sugar. I use it for canning and baking mostly.

I haven't built a candy rocket for a long, long time, especially not one made of pipe. But it's possible at some point in my life I could have been "caught" possessing them.

[arely staircase]

13. i know for a fact

some of the things we did in high school would get you picked up as a terrorist today.

[jberryhill]

14. I plead guilty too

Does filling ballons with an H2/02 mix, tying dynamite fuse to them, and lighting them as they float away from a campus rooftop count?

Remarkably stupid, but I never made an acetylene bomb with a Hefty bag, at least.

It took a while to realize that a full H2 fill wouldn't ignite upon the balloon rupturing, and you have to make a trade off between buoyancy and O2 content.

[arely staircase]

15. we once cut a hole in a tennis ball

Last edited Sun May 12, 2013, 02:49 PM - Edit history (1)

and packed it with a gazillion strike-anywhere match heads. then threw it a against a wall - pretty spectacular. we also took one of those old timey powdered snuff cans and filled it with gun powder (from fireworks) - not so spectacular because we could never get it sealed tight enough to actually explode. and for anyone monitoring this, it was 1983 so I am sure any statute of limitations has run. plus I was a minor and a lot of those laws probably hadn't been written yet.

[jberryhill]

17. Wow

That tennis ball one sounds awesome. I had some bad luck in the "fun with strike-anywhere matches" category. Pro-tip: don't run when you have a whole bunch of them in your pocket, or... don't put a whole bunch of them in your pocket.

[arely staircase]

18. lol

nt