A judge ruled last week that there is insufficient evidence to take to trial the men arrested for allegedly starting the 2021 Caldor Fire, which burned more than 221,000 acres south of Lake Tahoe, California.
David Scott Smith, 66, and his son Travis “Shane” Smith, 32, were arrested and charged with reckless arson in December 2021, months after the start of the fire. The two were accused of violating section 452 of the California Penal Code, commonly referred to as “reckless arson,” which causes inhabited properties to burn and results in great bodily injury to multiple victims. This charge can be filed against someone who unintentionally starts a fire. Both David and Travis were held on a $1 million bail, the district attorney’s office said. Both pleaded not guilty to the charges.
One firefighter was severely burned while assigned to the fire. Richard Gerety III of Patterson was on a four-person engine crew from West Stanislaus Fire when he fell into burning material. It was his tenth day on the fire. He suffered third-degree burns on his arms and hands and second-degree burns to his legs, said his wife, Jennifer Gerety.
Capital Public Radio reported that prosecutors said the two men started the fire “when a projectile discharged from a firearm and struck an object.” But El Dorado County Superior Court Judge Vicki Ashworth has ruled there was not enough evidence to move the case to trial. “As to reckless burning charges, the court found there was insufficient evidence to meet the legal requirements that the behavior was reckless,” said the El Dorado County District Attorney’s office.
The Caldor Fire burned for 67 days in El Dorado, Alpine, and Amador counties, destroying more than 1,000 structures and forcing 53,000 people from their homes. It was the second fire to burn across the crest of the Sierra Nevada in state history, the first being the Dixie Fire earlier in the summer of 2021.
The pair still face gun-related charges, Shane Smith for possession of a machine gun, and David Smith for possession of a silencer. They will be arraigned in February.
According to a CBS News report, the relevant law specifically states that a defendant’s behavior must be “reckless as defined in Penal Code section 450, requiring that an individual knows their actions present a substantial and unjustifiable risk but consciously disregards that risk.” Prosecutors said they showed evidence that David and Thomas Smith drove out of a location where the Caldor Fire started, and they were shooting a gun on a day with dry conditions.
The USFS determined a bullet strike was the probable cause of the fire. Travis Smith will be arraigned on February 2 for possession of a machine gun, and David is scheduled to be in court the same day for arraignment on a charge of possessing a silencer.
I’m a retired wildland criminal arson investigator. I have no opinion other than you need to prove two elements to convict, act and intent. It appears there’s evidence to prove act, however the judge failed to find criminal intent. Maybe a State civil complaint is a path forward.
Disappointed with the DA’s office here; just from the weather conditions, the guys’ ages (assuming some level of experience, if not IQ) and law enforcement evidence, this should have been prosecuted.
BUT STAY TUNED.
I was in the courtroom every day during the preliminary hearing, and though the prosecution’s causation expert originally stated that the fire started due to bullet fragments, on the stand he later had to admit that it was merely possible.
In addition, the 2013 study on bullets causing wildfires was conducted under laboratory conditions much more conducive to smoldering than what existed on the day of the fire.
The referenced experiment was conducted by firing into a steel plate. There was no evidence that a steel plate was present in the general origin area of the Caldor Fire. The lab experiment was conducted in a controlled room setting with an ambient temperature of 109°F. The temperature reading from a weather station 2.5 miles from the Caldor Fire ignition site, on top of a hill with no tree cover, was 87°F. The general origin area was in a valley/ravine, on a north aspect, near a river and a swimming hole with a heavy tree canopy.
In the controlled experiment,the fuel temperature (of Russian peat moss) was 131°F, versus 85° at the exposed weather station.
The fuel in the experiment was set close to the metal plate for spark or fragment catching. The expert was unable to establish the exact point of ignition or the point where a bullet may have struck anything. The relative humidity for the experiment was 7 percent, but RH at the exposed weather station near the Caldor Fire ignition site was 27 or 28 percent.
One witness said he’d heard gunfire in the general area the day before, the night before, and on the morning of the fire. He also said the site was a common target area, littered with shell casings and campfire rings. The causation investigator arrived at the site three days after the fire started. At some point thereafter he said the nearest campfire ring was cold.
The judge ruled that even if the Smiths were firing (she believed they were), the conditions and the longtime use of the area for shooting indicated that the Smiths’ conduct would not have risen to the level of recklessness.
NOTE:
This anonymous reader was the investigator for Travis Smith’s attorney Mark Reichel.