Date: Mon, 20 Dec 93 22:11:51 -0700
From: kevin@axon.cs.byu.edu (Kevin Vanhorn)
Subject: Waco article, part 4
To: libernet@Dartmouth.EDU
Serving the Warrant
On February 25 ATF Special Agent Davy Aguilera filed for and received a warrant to search the premises of Mt. Carmel, claiming evidence of illegal conversion of (legal) semiautomic weapons to automatic. Contrary to early ATF claims, there was no arrest warrant for Koresh. The affidavit supporting the warrant was seriously flawed, containing many inaccuracies and patently false statements (such as the "LA riots" quote). According to several legal experts, including a former ATF senior enforcement official with more than 20 years' federal firearms experience, it is questionable that the affidavit demostrated probable cause for a search 51,58].
Steve Holbrook, an attorney in Washington, D.C. area, whose law practice specializes in gun-related offenses, was unequivocal: "Probable cause did not exist. There was evidence cited of a large quantity of legal firearms and parts, including interchangeable parts... Nowhere in the affidavit is it said all necessary parts and materials to convert semiautomatic weapons into machine guns were obtained [by Koresh]." [51]
The claimed violation itself is a tricky area of the law. "This is a very, very convoluted, technical, angels-dancing-on-the-head-of-a-pin kind of argument," says Robert Sanders, former enforcement chief of the ATF. "And there are no published rulings telling you what is and isn't [a violation]." [62]
Importantly, this was not a no-knock search warrant, in which agents may knock down doors and burst in heavily armed without prior warning to occupants; such warrants must be specifically applied for, which the ATF failed to do [53]. Nor was a no-knock approach necessary. As we have seen, Koresh and his followers had peacefully cooperated with law enforcement officers on at least three occasions in the past (once after the Roden gunfight, twice during the child-abuse investigation). And in July 1992 Koresh had actually invited ATF investigators to come out to Mt. Carmel and inspect the Davidians' guns [4,6,55], but he was angrily told "we don't want to do it that way." [6]
Furthermore, the ATF knew that nearly all the guns at Mt. Carmel were locked up and only Koresh had a key [63]. To avoid any possibility of armed resistance from the Davidians, they could have simply detained Koresh during one of his frequent excursions outside of Mt. Carmel [18,29] and had him unlock the store of guns in their presence.
Absent a no-knock warrant, U.S. law (Title 18, U.S.C. 3109) states that an officer must give notice of his legal authority and purpose before attempting to enter the premises to be searched. Only if admittance is refused after giving such notice is it legal for an officer to use force to gain entry. Said one former senior ATF official, "Irrespective of the situation inside, the notice of authority and purpose must be given... Unless the occupants of a dwelling are made aware that the persons attempting to enter have legal authority and a legal warrant to enter, the occupants have every right to defend themselves..." [54]
Dick DeGuerin, a well-known Houston lawyer, put it more bluntly: "...if a warrant is being unlawfully executed by the use of excessive force, you or I or anybody else has a right to resist that unlawful force. If someone's trying to kill you, even under the excuse that they have a warrant, you have a right to defend yourself with deadly force, and to kill that person." [4]
It appears that the ATF never intended to serve the warrant in a lawful manner. ATF agents told the Houston Post that before the raid they had practiced to where it took 7 seconds to get out of their tarp-covered cattle trailers and 12 seconds to get to the front door. It is absurd to imagine that after such a mad dash to the door, the ATF agents intended to stop, knock, calmly state their legal authority and purpose, demand entry, and wait for a response, all before taking further action.
So how did the ATF serve its warrant? On Sunday morning, February 28, 1993, 100 federal agents arrived at Mt. Carmel in cattle cars and helicopters. About 30 agents dressed in black commando uniforms and armed with machine guns stormed the complex [9,19]. According to an Associated Press report, "Witnesses said the law officers stormed the compound's main home, throwing concussion grenades and screaming `Come out,' while three National Guard helicopters approached." [2]
Who Shot First?
The question of who shot first is in a sense irrelevant, as the ATF agents clearly attacked first when they threw grenades at the Davidians' home. Once the ATF used unlawful force, the Davidians had the legal right to resist them with deadly force.
Nevertheless, the Davidians insist that ATF agents shot first. "They fired on us first," Koresh told CNN. "...I fell back against the door and the bullets started coming through the door... I was already hollering, `Go away, there's women and children here, let's talk.'" [19] Davidians in another part of the city-block-sized complex said the battle began when the helicopters circling overhead fired on them without warning [13].
David Troy, ATF intelligence chief, said a videotape was taken of the entire mission [36]. But although parts of this tape were released to the media, one important part was not: the start of the raid. It seems unlikely the ATF would have withheld this footage if it supported the ATF's contention that the Davidians fired first.
There is evidence to support Koresh's version of events. Federal law enforcement sources told Soldier of Fortune magazine the following:
* One ATF agent had an accidental discharge getting out of one
of two goose-necked cattle trailers used to transport and
conceal agents -- he wounded himself in the leg and cried out,
"I'm hit!" [14] Unless you have a very disciplined group, you
can expect all hell to break loose once any shot is fired; and
according to Charles Beckwith, a retired Army colonel and
founder of the military's antiterrorist Delta Force, the ATF's
raid was "very amateur." [28]
* Steve Willis, one of the ATF agents killed in the raid, was
assigned to "take out" Koresh if necessary. When Koresh came
out, Willis began firing a suppressed MP5 SD submachine gun at
him from the passenger side of the leading pickup. Reporters
kept some distance away from the action would not have heard a
silenced MP5 SD, while the cattle trailer would likely have
blocked their view [14,15].
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Part Five.
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