By Dave Kopel
A slightly different version of this article appeared in the National Reviewon March 20, 1995.
If you can pass this simple test, you may be qualified to run federal government SWAT team.
1. You are assigned to serve search and arrests warrants on one man who lives in a building with 126 other people, including many women and children. Your job is to search the premises for illegal weapons. In the past, whenever government agents have asked to look around the premises, the man has always immediately complied. One time in the past, the man was arrested; he peacefully surrendered to the arresting officers. The premises to be searched are on a ranch outside out town. The man you want to arrest regularly goes jogging along a lonely road, and also goes into town frequently. What is the best way to serve the search and arrest warrants?
(a). Nab the guy when he goes jogging, or goes into town.
(b). Knock on the front door, and explain that you have warrants to search the premises. If you are denied admittance, force your way in.
(c). Shoot your way into the people's home.
2. As an agent for the Bureau of Alcohol, Tobacco and Firearms, you are conducting an investigation of suspected illegal firearms modifications. You do not believe you have probable cause yet, so you send an undercover agent into the group home where firearms are allegedly being converted from semiautomatic to full automatic. While in the group home, your undercover agent discovers no evidence of illegal conversions. The undercover agent (who is known to be an undercover agent by the people in the home) is shown a videotape, "Breaking the Law in the Name of the Law," which criticizes BATF. The showing of the videotape:
(a). Is protected under the First Amendment to the Constitution.
(b). Constitutes harassment of your undercover agent.
(c). Creates probable cause allowing for an armed raid.
3. In the home which you intend to search, you believe that some people have medium-powered rifles. The best way to protect your agents serving the search warrant would be to:
(a). Have them wear heavy ceramic body armor, which can stop a rifle bullet.
(b). Attempt to serve the search warrant peacefully.
(c). Have your agents wear light body armor, which can stop handgun bullets, but not rifle bullets.
4. A federal statute requires that a person serving a search warrant announce his purpose, and use force only if necessary. In order to comply with this statute, you should:
(a). Start intercepting and opening the mail of anybody living at the home, without bothering to obtain a search warrant.
(b). Announce that you are serving a search warrant. Identify which agency you are with. Use force only if your demand for a search is resisted.
(c). Don't bother to rehearse any kind of peaceful approach. Strafe the building with machine gun fire from National Guard helicopters. Engage in a "dynamic entry" geared to look good at your upcoming Senate appropriations hearings.
5. You have made a plan for a surprise attack to secure a building and conduct a search.You have no alternative plans in case anybody resists. Shortly before your attack begins, your undercover agent comes out and tells you that you have lost the element of surprise; everybody knows that you are coming. The best tactical response at this point is to:
(a). Call off the attack, and try again a different day.
(b). Knock on the door, and, warrant in hand, ask for admittance to the house.
(c). Proceed with your carefully-scripted plan for a surprise attack, even though nobody will be surprised.
If you answered (c) to all of the above questions, you are qualified for a job with the Bureau of Alcohol, Tobacco and Firearms. Indeed, given how few people who choose to answer (c), your responses indicates that you already probably have a job with the BATF.
The questions, of course, are based on the BATF's disastrous raid of the Branch Davidian group home in Waco, Texas two years ago, on February 28, 1993.
The Treasury Department's fall 1993 investigation of the Waco raid acknowledged that the attempt to serve a search and arrest warrant on David Koresh led to an incompetent armed assault. But the federal government has not answered the larger question, of why the BATF in particular (and the federal government in general) are in the business of launching attacks with machine guns, grenades, and helicopters in order to serve search warrants for violations of federal statutes, especially statutes involving victimless crimes.
As the new Congress gets down to the business of downsizing federal government, few projects could be more worthwhile than a review of the culture of militaristic violence that permeates federal law enforcement agencies, including BATF. With federal agents now consisting over a tenth of all law enforcement officers in the nation, specific reforms are in order to prevent a repeat of Waco, as well as a repeat of the less-publicized incidents in which, almost every day in the United States, American citizens are subjected to unjustifiable violence by the federal government.
One of the best places to begin reforming federal law enforcement is in the search and seizure process. If the following reforms had been in place in 1993, then BATF would not have had carte blanche to use fraud and deception to obtain a search warrant at Waco, and to serve that warrant with an unjustifiable armed assault.
Forbid violent, masked, or no-knock service of search warrants, except when specifically authorized by a court. The United States Supreme Court this term will decide on whether the Constitution imposes any limits on non-knock searches of homes. But regardless of what the Court decides, Congress is free to enact its own limits on no-knock searches.
Until the early 1970s, police serving search warrants would routinely knock at a door and demand admittance; as a result of the "drug war" then in progress, no-knock raids become more common, as drug suspects would sometimes flush the incriminating evidence down the toilet while the police were knocking.
Of course there was a simple solution to the potential destruction of evidence: the police and the utility department could shut off water flow just before the search. But in any case, no-knock raids are now common even in cases where there is no plausible risk of contraband going down the toilet. The Branch Davidians, for example, supposedly had Colt's and Kalashnikov semi-automatic rifles which had been illegally converted to full automatic. Rifles won't fit down most toilets.
In California, millionaire Donald Scott was alleged to be growing marijuana plants in trees on his property. (The Drug Enforcement Agency agent who made this claim was later determined to have been lying.) After determining the re-sale value of Scott's huge ranch (an attractive forfeiture target), a huge state-federal strike force broke down Scott's front door in the middle of the night. Were they afraid that if they knocked, Scott would run out to the trees all over his ranch, collect the dozens of (alleged) plants, return to his home, and flush them down the toilet, while the federal police were knocking at the front door?
When Donald Scott heard his home being invaded in the middle of the night by a large gang of armed, masked men, he did what any responsible husband should do: he grabbed his revolver to protect his wife. He was promptly shot dead.
In Boston last March, three men with sledgehammers broke into the apartment of seventy-five-year-old Methodist Reverend Accelyne Williams. The men chased him into his home, forced him to the floor, and bound his hands behind his back with a strip of tight plastic. Rev. Williams began vomiting, and died of a heart attack.
The Boston police (who have previously been criticized for falsifying information to obtain drug warrants) had been told by a paid informant that a particular apartment, where the informant had gotten drunk, contained drugs and guns. The informant, still drunk when he talked to the police, mistakenly gave the police the wrong address, which led them to the apartment of Reverend Williams, a retired substance abuse counselor. Before breaking into the apartment, the police did not bother verifying a shred of the informant's "information."
Fortunately, most no-knock raids do not result in a death, but they heighten the risks for everyone involved. Obviously there are cases where armed, desperate suspects may need to be subdued by surprise; in these instances, courts should be able to grant special permission for a violent no-knock raid.
Greater Congressional and judicial control of the violent service of search warrants is especially appropriate because violent assaults on homes have become routine for much of federal law enforcement, including BATF; former BATF Director Stephen Higgins testified that the BATF "Special Response Team" which perpetrated the Waco attack had hundreds of similar "activations" in recent years.
Even search warrants not involving actual break-ins are often accompanied by excessive violence. Simple inspections of gun dealers' paperwork and seizures of allegedly mislabeled vitamins from health food stores may be performed by people waving automatic weapons.
For example, last May, a BATF squad showed up at home of gun show promoters Harry and Theresa Lamplugh. When Mr. Lamplugh asked the BATF agents (most of whom wore no identifying vest) if they had a search warrant, an agent stuck an MP-5 submachine gun in his face, and told him, "Shut the fuck up motherfucker; do you want more trouble than you already have?" During the six hour search, BATF agents refused to allow the Lamplughs to get dressed. The search squad held a pizza party in the middle of the search, stomped a housecat to death, spilled his cancer medicine all over the floor, and seized 61 guns, along with the Lamplughs' birth certificates, marriage certificate, medical record, business contact lists, and personal mail.
While exigent circumstances should allow for use of violence and surprise in service of search warrants, violence and forced entry should be the exception, not the norm.
Except in special cases, federal police should not wear masks, as did many of the BATF and FBI agents at Waco. The Ku Klux Klan Act from the Reconstruction era forbids wearing a mask for the purposes of terrorizing the public. There is no reason that public sector terrorists should be exempt from the Act.
To help courts determine whether violent, masked, or no-knock warrants are necessary, applications for violent search warrants should be required to contain all known evidence regarding the defendant's cooperation or lack of cooperation with government investigations in the past. David Koresh had previously allowed searches of his home by social workers. He had peacefully submitted to arrest, and surrendered all his weapons, when he was investigated for participation in a shoot-out with George Roden, his predecessor as leader of the Branch Davidians. During the summer of 1992, when BATF agents were talking to Koresh's gun dealer, Koresh had invited them over to search his house; BATF omitted all these facts from the warrant application.
Keep hearsay out of search warrant applications. In a court, hearsay evidence (one person's claim about what another person said), is generally inadmissible, because it is considered unreliable. The same considerations of reliability should forbid the use of hearsay in a search warrant application. (Exceptions should be included to match the hearsay exceptions in court.)
In the application to search the Mount Carmel Center, the application quoted a statement by a woman who said that her brother said he saw a machine gun conversion kit at a Branch Davidian home in Southern California. Rather than relying on hearsay, BATF should have interviewed the brother to determine what he actually saw. It is very possible that what he saw was not a kit to convert a semiautomatic to a full automatic; such kits can only be purchased by a person who undergoes the same rigorous federal licensing process necessary to buy an actual machine gun.
Establish a 30-day limit between the commission of the alleged illegal act and the date of the search warrant application. Almost all of the evidence in the BATF's application for a February 1993 search warrant in Waco related to evidence gathered in June or July of 1992. The investigation had lain dormant until November 1992. It was revived after a 60 Minutes expose of sexual harassment at BATF led agency leaders to determine that they would need a major publicity stunt to cope with the upcoming Spring 1993 budget hearings. Evidence over half a year old should not be considered sufficient for a federal invasion of someone's home.
Require that search warrant applications disclose possible exculpatory or contradictory evidence. There was virtually no evidence that the Branch Davidians had actually converted semiautomatic rifles into machine guns (a complex process which requires several hours of highly skilled gunsmithing). In the warrant application, perhaps the strongest "evidence" that conversions had occurred was a statement from a neighboring farmer that he had heard machine gun fire coming from Mount Carmel.
But BATF never told the magistrate that the local sheriff had already investigated the neighbor's machine gun complaint, and found it to be incorrect. The sheriff found that the machine gun noise was caused by a legal trigger accessory which makes a gun sound, but not shoot, like a machine gun.
Although BATF has no legal authority over child abuse, BATF's search warrant application dwelt at length on allegations of abuse, based on the State of Texas' child abuse investigation. BATF failed to reveal that the child abuse investigation had been closed for lack of evidence April 30, 1992, nearly ten months before the assault on Mount Carmel Center.
Other, irrelevant allegations were also presented in a one-sided manner. The claim by Marc Breault (who had left Mount Carmel in 1989) that Koresh had falsely imprisoned a woman in June 1991 was included in the warrant application, but not the fact that the FBI had investigated the case in April 1992, and closed the case in June 1992.
Require that search warrant applications disclose evidence affecting the credibility or reliability of witnesses. The most important source of information in the warrant application came from Marc Breault, who had been the Koresh's right-hand man before angrily leaving the group. Breault had defected after Koresh--with an obvious eye on Breault's new wife Elizabeth--began claiming that all of the Davidian's wives were meant to bear Koresh's children as Brides of the House of David. A self-described "cult-buster," Breault readily admitted that he had a "vendetta" against Koresh, a fact which obviously affected his credibility, but which was not disclosed in the warrant application..
The fact that Breault is legally blind--a fact which would clearly undercut Breault's reliability--was never mentioned to the magistrate. To the contrary, the warrant application gave the impression that Breault had been one Koresh's combat troops. Breault "participated in physical training and firearm shooting exercises conducted by Howell. He stood guard armed with a loaded weapon." Being able to see three inches in front of his face with one eye, and not all with the other, Breault would probably have been more a threat to fellow Davidians than to intruders.
Limit the time for which warrants, affidavits, and related items can be sealed after service. Immediately after procuring the search warrant, BATF obtained a court order to have the warrant sealed from public scrutiny. During the siege, FBI negotiators sent Koresh a copy of the search warrant and related documents. At this point, there was obviously no law enforcement need to keep warrants documents hidden from the public. Yet they remained sealed until after Mount Carmel was burned to the ground on April 19.
If the warrant documents had become public in March, after having been shown to Koresh, it would have been quickly discovered that there was shaky probable cause for the search, and no justification presented for serving the warrant by shooting first and never attempting a peaceful entry. Exposure of the warrant's deficiencies in March, while the siege was in progress, might have eroded public support for the government sufficiently to keep the government from mounting the final tank and chemical warfare attack on April 19th.
Sensitivity Training. BATF and other federal law enforcement agent should be required to undergo Constitutional "sensitivity training." Law enforcement officers, especially members of elite units like the misnamed FBI "Hostage Rescue Team," should be reminded that loyalty to the unit should be subordinate to respect for the law and for Constitutional rights. Officers should be aware that American law justifies the use of force for self-defense by civilians, and that such force may lawfully be used against law enforcement officers when a law enforcement officer attacks a person without appropriately identifying himself or uses excessive force. Training should also explain that exercise of First Amendment rights, such as owning a Gun Owners of America videotape critical of BATF does not help create probable cause for a search.
Make federal law enforcement accountable. In January 1993, ten civil liberties groups, ranging from the American Civil Liberties Union to the National Rifle Association, wrote to President Clinton asking for the creation of a temporary commission to study the growing militarization and violence of federal law enforcement. Besides creating a special commission, Congress should hold its own hearings on the subject of law enforcement violence, a problem that has raised concerns by legislators as diverse as Senator Orrin Hatch (R-Utah) and Representative Patricia Schroeder (D-Denver).
A separate, permanent civilian federal law enforcement oversight commission should be established to investigate individual allegations of federal law enforcement abuse; the commission would be similar to the police review commissions which now exist in 60% of major American cities. Lastly, it is time to consider the creation of a permanent federal prosecutor, outside the Department of Justice, to investigate and prosecute violent crimes perpetrated by federal law enforcement.
