Caldor prosecutors faced uphill battle

Proving someone started a wildfire is difficult under most circumstances, as prosecutors in the Caldor Fire learned on Dec. 29, 2023, after charges against a father and son were dismissed.

“Just because you find an ignition source doesn’t mean that source caused the fire,” longtime arson investigator Terry Taylor said in an interview with The Record-Courier. “The shooting thing is very difficult to prove because you can have smoldering go on for a considerable length of time and nobody will ever see it unless they’re on top of it.”

The Caldor Fire broke out on Aug. 14, 2021, on the middle fork of the Consumes near Grizzly Flat on the West Slope.

The fire burned along the Highway 50 corridor for almost two weeks before cresting Echo Summit and threatening South Lake Tahoe.

One of the issues cited by an El Dorado County Superior Court judge after a 4.5-day preliminary hearing was the presence of other shooters, according to attorneys for Shane and David Smith.

“The prosecution’s evidence showed substantial shooting by others in the hours and days before the Smiths were even in the area,” defense attorney Mark Reichel said. “The judge found that the totality of the evidence presented by the prosecution did not make it probable that the Smith’s were the cause of the fire.”

Taylor said that unlike Nevada, California prosecutors don’t have to prove malice to make an arson case.

“In California they require proof of general rather than a specific intent,” he said. “General intent includes reckless disregard, and is actually easier prove a case like this as a crime in California than in Nevada.”

But even in those instances, it’s difficult to prosecute.

“Even though we’ve had massive fires caused by shooting, for most of my career there has been very little prosecution,” Taylor said. “Historically, it has been very, very difficult to prove that the act of shooting ignited a fire,” he said.

Generally, Taylor said cases where there’s an indication someone reported, tried to extinguish or warned people at the scene of a fire, the person tends to receive a break on charges

“I think that it is generally good policy to not try to throw people in prison for five years for being felony stupid,” Taylor said.

Reichel said that evidence presented by the prosecution in the Caldor case showed that the Smiths saw the fire, tried to put it out and took great pains to warn local campers about the fire, then called 911.

“They kept trying 911 until they got to the right agency,” he said.

Reichel said that the Smiths cooperated with the investigation into the cause of the fire telling what they observed.

“There had been others — not the Smiths — at the site of the fire origin, who had been shooting guns earlier that morning, as well as the night before, and in the days before,” Reichel said. “Again, this was not the Smiths, who did not get to the area of the fire’s origin until minutes before the fire was observed at 6 p.m. that day. The expert for the prosecution could only testify that it was ‘possible’ that the Smiths started the fire with gunshots.”

Reichel said the judge found there was only a single study into bullets causing a wildland fire in 2013 where a bullet hit a rock outcrop and caused a spark.

“The prosecution’s evidence showed substantial shooting by others in the hours and days before the Smiths were even in the area,” Reichel said. “The judge found that the totality of the evidence presented by the prosecution did not make it probable that the Smith’s were the cause of the fire.”

Taylor said he was familiar with the 2013 Forest Service study which was conducted in New Jersey’s Pine Barrens using a variety of firearms and standardized fuels, consisting of dried peat moss. That study proved that a bullet striking a hard object can heat to 451 degrees, which is the ignition temperature for most wildland fuels.

Taylor said he and colleague Greg Liddicoat experimented with a variety of firearms and bullets in the Johnson Lane Sand Pits the next year.

“We used thermocouples and a backdrop of steel and another of granite,” he said.

For the fuel, he said they cut welcome mat sized bits of cheat grass.

He said that for rifle ammunition they had four or five ignitions out of 20-30 rounds while they had a couple with a handgun.

“We proved in a real-life environment what the Forest Service showed,” Taylor said.

Taylor worked for the East Fork Fire Protection District for nearly 20 years and was a Johnson Lane volunteer firefighter for eight years before that. During his career, he has investigated fires across the state.