Is a Search Warrant Your Death Warrant?
The Fourth Amendment of the Constitution protects us from unreasonable searches and seizures. The Eighth Amendment protects us from excessive fines and cruel punishments. We gun owners pay a lot of attention to the Second Amendment right to bear arms. However, the government can abuse the Fourth and Eighth Amendments to undercut the Second.
Perhaps the best known example in this area are the events this year in Waco, Texas. We watched the building burn along with its occupants--80 or more men, women and children--at the conclusion of a government raid to look for illegal guns. Many of us asked, was this devastation really necessary?
The more we learn about the events there, the more the answer appears to be, "no." David Koresh and his group had willingly complied with law-enforcement officials on several occasions--even on the issue of illegal firearms. Paul Fatta, a member of Koresh's group who was absent during the day of the raid, told reporters that eight months before the raid, the group had learned that law-enforcement officials wished to put recording devices on their property to check for illegal automatic weapons. Fatta added, "We went into the sheriff's office and said, 'why don't you come and ask us what we've got?'" Fatta said that Lt. Gene Barber at the sheriff's office had told the group that its firearms were legal.
The BATF's reason for its paramilitary assault on the compound seemed to change by the day. The BATF was claiming on March 6 that a report that Koresh would order a Jonestown-style mass suicide had triggered the raid. The BATF told the Texas National Guard before the raid that they had detected an illegal methamphetamine laboratory in the compound using infrared cameras but withdrew that charge on March 29.
(The claimed illegal-drug operation was the only way that the BATF could legally request the helicopters it obtained from the Texas National Guard. The role of these helicopters is still controversial and is discussed below.)
Perhaps BATF's most controversial justification was that Koresh had not left his compound for months. However, both a waitress and the general manager of the Chelsea Street Pub & Grill in Waco reported seeing Koresh in the restaurant just three weeks before the raid. The BATF's response was a concession by Dan Hartnett, associate director of the BATF, that "federal agents were not keeping constant watch on" Koresh.
Even the _New York Times_, a full month after the raid, pointed out on page one that, "No criminal charges have been filed. And the government has never clearly articulated what laws members of the Branch Davidian sect were suspected of having committed before the raid, although some officials have said they believe its leader, David Koresh, violated Federal firearms and explosives laws."
The BATF even backed away from the accusation that they could prove Koresh and his followers had illegal firearms. David Troy, chief of the BATF's Intelligence Division, told the Washington Post that the BATF expected that the group would reconvert its illegally converted firearms back to semi-automatic status. Troy then said, "We would have to demonstrate that" the weapons had been reconverted, "and the evidence may or may not be conclusive in court."
The weapons evidence may well have been far from conclusive if the BATF's affidavit used to get its search warrant is any indication. To take one example, the affidavit claims a BATF agent observed the upper and lower receivers of a disassembled AK-47. But the AK-47 has a one-piece receiver. Thus, what the BATF claimed to see did not exist.
The fire that consumed the Waco compound on April 19 made certain that no one will ever know exactly what was in those buildings. The fire consumed another major piece of evidence as to who had fired first.
On April 2, 1993, Stephen Higgins told Congress that "I have no information that anyone fired from the helicopters." Yet Koresh's legal team told the _New York Times_ that the helicopters were used as offensive weapons to fire indiscriminately through the walls and roof of the building. Attorney Jack Zimmerman was quite specific as to the evidentiary value of the building itself: "An expert will be able to tell from the angle of the trajectory plus the pattern whether there are entry or exit holes. if it's in the ceiling and it's clearly an exit hole, it had to have come from above. How else could it have come in?"
The fiery conclusion to the siege at Waco ensured that the investigation Zimmerman suggested will be impossible.
When even _The New Yorker_ magazine thinks something strange happened at Waco, it would seem that the government's excuse for using tanks and tear gas was not being believed:
"What caused the authorities to take 'the next logical step' of breaking holes in the structure with a tanklike armored vehicle and pumping in tear gas? It was to save the children, Attorney General Janet Reno claimed later that day, explaining that she had been told Koresh was 'slapping babies around.' The FBI's director, William Sessions, denied that there was any evidence of ongoing child abuse. His reason for gassing the compound was to encourage the stalled negotiations, he said. The assistant director of the bureau's criminal division offered a third reason: 'These people had thumbed their noses at law enforcement.'"
Perhaps this last comment is why the FBI chose to flood the Waco compound with CS tear gas despite the obvious dangers. CS is an extremely potent agent designed for riot control. One expert called it the last resort prior to opening fire. CS is not recommended for use by law enforcement when dealing with a barricade situation. CS grenades in particular are notorious for starting fires. U.S. Army Training Circular 19-3 _Control of Civil Disturbance_ (January 1968) stated:
"It must be remembered that _burning type_ grenades should not be used if there is _danger that a fire may be started_." (emphasis in original)
James Pate, who analyzed the Waco events for another publication, was contacted by a law-enforcement source who suggested the fire was not an accident:
"I'm flat here to tell you that, every time they [the FBI] really want to hurt somebody, they use tear gas. They use pyrotechnic burning devices. They do it intentionally. I've been there when they did it."
Intentionally or not, the flammability of CS would surely have indicated that the FBI might wish to have fire trucks standing by. But fire trucks were not called until 12:12 p.m. despite tear-gas canisters being fired as early as 6:30 a.m. And even when the fire trucks arrived at 12:22 p.m., they were not allowed to pass the government's checkpoints until at least 12:37. By that time, the fire had been roaring through the building for nearly a half hour.
In addition, CS in an enclosed room can be easily fatal because it reaches highly concentrated levels--CS was originally designed to be used outdoors, after all. Suffocation is not uncommon when CS is used indoors. Even non-flammabie CS powder can explode if allowed to build up, much like an explosion in a grain silo.
It is also possible that the FBI tanks themselves may have triggered the fire inadvertently--perhaps by knocking over a kerosene lantern or propane tank. Again, something that can never be known. The government investigation of the fire can be shown to be self-serving.
Much was made of "Houston arson investigator" Paul Gray who told the press that David Koresh's followers set the fires, "lend[ing] credence to the FBI version of how the Branch Davidian compound went up in flames." Not only had Gray himself worked with the BATF as part of a federal task force, but his wife was still employed as a secretary in the BATF's Houston office.
If Koresh was as dangerous as the BATF claimed he was, why did the agency act as though it was trying to get on television. It is not often that a secret raid against a heavily armed group of fanatics is covered live by the press. Yet at least 11 reporters were on the scene before the raid began. In addition, editors at both the ABC and NBC television affiliates in nearby Dallas admitted that they received a call the day before the raid from Sharon Wheeler of the BATF who told them, "We have something big going down."
The desire of the BATF to make a television statement is also suggested by the agency's unwillingness to attempt a less telegenic approach. Koresh was recorded as telling the BATF shortly after the first raid, "It would have been better if you just called me up or talked to me. Then you could have come in and done your work."
Had the BATF sent one agent with a search warrant, it may
have been able to settle the matter peacefully. However, that would have done nothing to advance the militant anti-gun agenda of the agency. Paul Craig Roberts, a nationally respected economist and commentator came to this conclusion:
"It now appears that the raid on the compound was intended to further the cause of gun control by televising into every home alarming scenes of a vast stockpile of weapons in the hands of fanatic cultists."
In May, Attorney General Reno quietly released a new Justice Department policy that bars the news media from going along with federal law-enforcement officers on raids.
A review of the evidence the BATF put forward to justify its first search warrant indicates that the case it had against Koresh was based more on his views than his actions.
David Koresh had what most of us would consider strange religious views. However, there is no federal death penalty for believing oneself to be Jesus Christ. Koresh and his people owned firearms--more than one, in fact. There is nothing illegal about that. David Koresh didn't think much of the BATF. That appears to have been a crime.
The official affidavit of BATF agent Davy Aguiiera used to justify the search warrant issued on Feb. 25 contained an interesting passage:
"On Feb. 22, 1993, ATF Special Agent Robert Rodriguez told me that on Feb. 21, 1993, while acting in an undercover capacity, he was contracted by David Koresh and was invited to the Mt. Carmel compound.... David Koresh told [Rodriguez] that he believed in the right to bear arms but that the U.S. government was going to take away that right. [Koresh then explained how it was legal for him to own a drop-in sear for an AR-15, but not an AR-15 with the sear.]... David Koresh stated that the Bible gave him the right to bear arms. David Koresh then advised [Rodriguez] that he had something he wanted [Rodriguez] to see. At that point he showed [Rodriguez] a video tape on ATF which was made by the Gun Owners Association (GOA). This film portrayed ATF as an agency who violated the rights of Gun Owners by threats and lies."
The BATF's legendary committment to accuracy is demonstrated here. There is indeed a GOA--but the initials stand for Gun Owners of America, a group of over 100,000 pro-gun Americans who I am proud to represent in Washington. GOA indeed made a tape about the BATF's abuses of power. We called it _Breaking the Law in the Name of the Law: The BATF Story_. The tape has been available for years. If it were inaccurate in any way, I expect I would have heard from the BATF by now.
That this is the last charge made in the affidavit prior to the raid should be an alarm to every law-abiding gun owner. According to the BATF, it is suspicious for a citizen to believe in the right to bear arms, be knowledgeable about firearms laws and own video tapes critical of the BATF. If this is grounds for a search warrant to be served by an army, the rest of us had better step lightly.
In fact, in another application for a search warrant on April 13, the BATF told a judge that Koresh espoused "certain doctrines hostile to law enforcement and particularly the ATF." The agency added:
"Special Agent Robert Rodriguez... learned that Howell [Koresh] had videotapes and other commercially produced material which are critical of firearms law enforcement and particularly the Bureau of Alcohol, Tobacco and Firearms (ATF). I therefore intend to search for and seize videotapes, writings and other materials which evidence Howell or other cult members' motive for wanting to shoot and kill ATF agents."
If these are grounds for a raid, it appears that the BATF will police the First Amendment as well as the Second. If the _Shotgun News_ is a "clandestine magazine" to the BATF, the copy of _Guns & Ammo_ you are holding could be evidence against you. Unpopular beliefs are a good way to put a target on your back.