Thomas Fiddleman / David Kopel
Unsettling questions in probe of Waco
What motivated the raid?
[From The Washington Times, Tuesday, June 1, 1993. p. E3]
Congressional investigators studying the mass murder in Waco, Texas,
have correctly decided it is more important, for long-term public
safety, to find out why the siege began than to keep on
second-guessing its end. Why was the federal Bureau of Alcohol,
Tobacco and Firearms assaulting the Branch Davidians in the first
It is increasingly clear that the original federal raid on the
compound never should have occurred, because the BATF's application to
search the premises was far below legal standards.
The warrant to search the Branch Davidian compound near Waco was
procured on the basis of an affidavit from an inexperienced special
agent with the BATF, Davy Aguilera. The affidavit was approved by a
U.S. magistrate who was a former prosecutor. The affidavit, kept
secret during the siege, now has been released. Review of the
affidavit shows that it failed to establish probable cause.
Some parts of the affidavit were patently false. For example,
Agent Aguilera told the federal magistrate that Mr. Koresh had
possession of a "clandestine" firearms publication.
The "clandestine" publication was Shotgun News, a national
newspaper that carries want-ads by gun retailers and wholesalers. The
newspaper is sold at newsstands all over the country, and to tens of
thousands of subscribers. With a circulation of more than 150,000, it
is no more clandestine than the New Republic.
Other errors in the affidavit apparently came from the BATF's and
the magistrate's ignorance of federal gun laws. Although Agent
Aguilera asserted that he knew about federal firearms laws, he
confused the definitions of "machine gun," "destructive device,"
"explosive," and "explosive device." All four terms have very
specific meanings under federal weapons laws, and different rules
apply to different items. The magistrate failed to notice.
Mr. Koresh's group had, according to the BATF affidavit, AK-47
rifles. The affidavit detailed how an undercover agent had observed
the upper and lower receivers of disassembled AK-47s. (The receiver
is the housing for a gun's working parts). But in truth, the
informant could not have seen what he claimed. The AK-47 has a
unitary receiver, not separate upper and lower receivers.
Mr. Aguilera asserted that a neighbor heard machine-gun fire; but
Mr. Aguilera failed to tell the magistrate that the same neighbor had
previously reported the noise to the sheriff. The sheriff found that
Mr. Koresh had a lawful item called a "hell fire device", which
simulates the sound of machine-gun fire but does not turn a regular
gun into a machine gun.
All other allegations that Mr. Koresh owned machine guns were made
by persons who were clearly ignorant of firearms and could not
reliably testify to whether the guns, or the pictures of guns, they
saw were legal semiautomatic firearms or illegal machine guns.
Amazingly, the magistrate apparently failed to notice that Mr.
Aguilera had sworn that his informants were knowledgeable or reliable.
The only legal violation that the BATF actually alleged was that
the Davidians possessed machine guns without having paid the required
$200 federal tax. Other than statements from people who knew
virtually nothing about guns, the only evidence that the BATF offered
was proof that the Davidians had bought spare parts for guns. The
spare parts were usable for both legal semiautomatic rifles and
illegal machine guns; the Davidians violated no laws by purchasing
Why did the BATF think Mr. Koresh was going to be violent, thereby
justifying its perpetrating an armed assault to present a simple
search warrant? The affidavit contained an allegation that Mr. Koresh
had told a social worker that he was a messenger of God and that, when
the time came, the violence in Waco would make the Los Angeles Riots
pale in comparison. The statement, however, was supposedly made on
April 6, 1992 -- 3 1/2 weeks the LA riots began. Apparently someone
lied about Mr. Koresh's "threat", and the magistrate didn't notice.
BATF director Stephen Higgins testified to Congress that as of
December 1992, there was not probable cause to justify the arrest and
search. What happened between December and late February to establish
probable cause? In January, BATF agents merely reconfirmed statements
made in 1992, or investigated witnesses who hadn't been in the
compound for several months, so the information was legally "stale".
What about February? An undercover agent told of a meeting with
Mr. Koresh, at which Mr. Koresh read the Bible, played the guitar,
voiced support for the right to keep and bear arms, called federal gun
laws stupid, and showed a videotape in which the BATF was accused of
using lies and threats to take away the rights of gun owners. Which
of these actions established probable cause for an armed BATF raid?
The most important protections of the sanctity of every American's
home are the good judgment and reliability of teh law enforcement
community and a judiciary that carefully scrutinizes law enforcement
claims. All of these protections were absent when the BATF asked a
federal magistrate in Texas for permission to raid the Branch Davidians.
Theodore Fiddleman is a free-lance writer. David B. Kopel is director
of the Firearms research Project at the Independence Institute in
Denver and an associate policy analyst of the Cato Institute.
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