ENTRAPMENT AND A REJECTED OFFER
BATF soon found its opening. The Weavers were exceptionally short of money when Randy Weaver offered to sell two shotguns to a friend. The friend happened to be a BATF informant. The informant offered Weaver a considerable sum, $700, two or three times what the guns were worth, if Weaver shortened the barrels to a point the informant indicated. The National Firearms Act of 1934 requires a permit and payment of a $200 tax before making or transferring a shotgun with a barrel of less than eighteen inches, and the informant indicated a length well below that measurement. When Weaver modified the shotguns to the informant’s specification, he committed a federal felony that carried penalties of up to ten years’ imprisonment.
BATF now had Weaver on a leash, but months passed before it pulled the leash tight. The case was probably not a high priority, and Weaver would have had a solid entrapment defense—he had proposed a legal transaction, the BATF informant had proposed making it an illegal one, offering an inflated price to a man desperate for money. Better to work more solid cases.
Things changed when BATF’s existing Aryan Nations informant had his cover blown, and the agency needed a quick replacement. A BATF supervisor tracked Randy and Vicki down at a friend’s house and demanded that he become an informant or be charged with multiple federal felonies. Weaver refused.
Again, months passed. Driving down an isolated road, the Weavers encountered a couple with a seemingly disabled truck. When they stopped to render aid, they found themselves staring down the couple’s pistol barrels while more BATF agents climbed out of the camper shell. The agents departed with a handcuffed Randy Weaver.
The following morning, Weaver appeared before a federal magistrate. The court quickly made two serious errors. First, the magistrate suggested that if he were convicted, Weaver’s land and house would be forfeited. This was not the law, but Weaver thought, “I’d be sitting in prison and Vicki and the kids would be homeless.”6
The court’s second error had even more impact. During the hearing, the magistrate fixed Weaver’s trial date for February 19. After Weaver left, the judge realized that February 19 was a federal holiday, President’s Day, so he changed the trial date to February 20. But the court’s Pretrial Services Division sent Weaver a notice that the trial date was changed to March 20, a month after the real date.7
When Weaver did not show up on February 20, the federal court issued a bench warrant, ordering his arrest. A few days later a newspaper reporter—possibly alerted by Weaver himself8—called Pretrial Services and pointed out that it had given Weaver a notice with the wrong date. Pretrial Services notified the court and the U.S. Attorney’s Office, but remarkably, the court refused to withdraw the arrest warrant. The U.S. Attorney’s response was even more high-handed. On March 14—that is, six days before the day when Weaver had been told to appear—it indicted Weaver on felony “failure to appear” charges. When U.S. Department of Justice (USDOJ) investigators later asked the U.S. Attorney why he did not wait to see if Weaver showed up when he had been told to, he responded cavalierly that if Weaver showed up, they could just dismiss the failure to appear charge.9
Believing he had to appear on March 20, Randy Weaver was startled to hear on the radio that a warrant had been issued for his arrest and the Marshals Service was announcing that it would bring him in. He decided to stay where he was and not come to court on March 20.10
To sum up the situation: an arrest warrant had been issued against a man who seemed to be holed up in a remote cabin with his family and a friend. He had harmed no one and seemed to be a danger to no one. After all, BATF would have been willing to forget about the charges they had filed if Weaver had agreed to become an informant.
What priority do you give such a case? Close to zero. If the defendant spends the rest of his life in his cabin, no one will be harmed except himself.
THE PURSUIT OF RANDY WEAVER
What the government actually did was the exact opposite. Now that Weaver had (seemingly) failed to show up for trial, the job of bringing him in passed to the U.S. Marshals Service, which is responsible for apprehending fugitives from justice. Idaho’s Chief Marshal Ronald Evans did not wait to see if Weaver would show up on March 20 before he contacted the Marshals’ Special Operations Group, or SOG, the agency’s SWAT team that makes dangerous arrests.11 Evans told the SOG leader that “‘a very senior judge’ was not going to tolerate delay in capturing Weaver.”12 (After the fact, Judge Ryan told USDOJ investigators that he saw Weaver’s case as “just another case” and “thought scarce judicial resources were being wasted on the large number of gun cases brought in federal court.”13)
Judicial resources were not the only ones being wasted. The Marshals managed to wrangle a National Guard reconnaissance aircraft to snap photos of the Weaver cabin, which were analyzed by the Defense Mapping Agency. They installed $130,000 worth of solar-powered spy cameras to monitor the Weavers’ life from a distance.14 They hired a psychologist to give them a profile of Weaver (we may hope he was not overpaid—his report was filled with typographical errors and called Weaver “Mr. Randall”).15 In the end, SOG concluded that the plywood cabin could not safely be taken by assault, and there the matter rested.
A year after the bench warrant was issued, newspaper articles appeared in the Spokane Spokesman Review and the Chicago Tribune suggesting that Weaver was defying the government and becoming a folk hero.16 The Chief Deputy Marshal for Idaho later told USDOJ investigators that “pressure from USMS headquarters to effect the arrest of Weaver increased substantially after these two articles.”17
In 1996, FBI expert Frederic Whitehurst blew the whistle on the FBI crime lab’s hair analysis section, which he alleged was routinely and falsely claiming that defendants’ hair samples matched hair found at crime scenes. In 1997, DOJ’s Office of Inspector General confirmed his assertions, finding that as much as 90 percent of the lab’s hair analyses were flawed. But the FBI took years to notify those who had been convicted based on the analyses, and three were executed; three more served over twenty years each before DNA testing exonerated them.18
Planning began for an undercover operation to grab Weaver after luring him outside his cabin. The agency wanted more information so a team of six Marshals, headed by SOG member William Degan, flew in to scout the area. They made their approach shortly before dawn on August 21, 1992, dressed in camouflage and with faces hidden by ski masks. Most were carrying M16s, the standard military assault rifle; Deputy Marshal Larry Cooper carried a silenced 9 mm submachine gun.
Three Marshals took up observation posts, while the other three began throwing rocks up toward the cabin, hoping to attract the attention of the Weavers’ dogs. The combination of a silenced gun and an attempt to attract the dogs’ attention suggests that the plan was to lure the dogs away, then kill them silently, depriving the Weavers of their canine alert system. Camera surveillance of the Weavers had demonstrated that when visitors approached, the dogs heard them and barked, whereupon one or two of the young Weavers would climb the rock outcropping to see who had arrived. Eliminating the dogs would make a close approach possible.
The dogs did not alert to the rocks, and the Marshals moved in closer. How close the Marshals got to the cabin is unknown. The Marshals claimed that they stayed 100–150 yards away, but this seems questionable. It is hard to see how a four-feet-eleven fourteen-year-old Sammy could have chased down professional law enforcement if they had a hundred yards’ head start.
The plan succeeded up to a point. Striker, the Weavers’ yellow lab, detected the Marshals and ran downhill toward them. They retreated, drawing Striker further into the forest. What the Marshals hadn’t counted on was that the Weavers were short of meat and thought Striker might have detected game. With winter approaching, a deer or, better yet, a bear would improve their diet. Sammy Weaver and Kevin Harris followed the dog while Randy Weaver went down a different trail, in hope of catching the game between them.
THE MARSHALS AND THE WEAV
ERS COLLIDE: TWO DIE
What happened next was vigorously disputed at the criminal trial that followed the confrontation, but the most reasonable reconstruction is as follows.
The Marshals fled for a time and then took up defensive positions. The dog Striker caught up, circled Marshal Cooper, then left him to find Marshal Arthur Roderick, who was farther away. (That the dog circled Cooper and left him suggests its motivation was friendly curiosity rather than aggression.) Before reaching Roderick, the dog turned away, possibly in response to a human call, and Roderick shot Striker dead. Roderick’s bullet struck the dog from its rear. Striker let out one yelp, may have been shot again, and died.
The Marshals contended that Roderick’s shot came after Kevin Harris fired the first shot. As will be noted below, this sequence is impossible to believe. It requires us to believe that, after a firefight has begun at close range, Roderick stopped to shoot a dog that posed no threat to anyone.
Sammy Weaver shouted, “You shot my dog, you son of a bitch!” He fired at the Marshals and Marshals Cooper and Degan fired back. One of their bullets damaged Sammy’s rifle and mangled his arm, and he broke off the fight. Randy Weaver testified that he had called for Sammy and Harris to retreat to the cabin, and he heard Sammy call that he was coming back.
At that point, Marshal Cooper shot and killed the fleeing Sammy: the fatal bullet entered Sammy’s back and was ballistically linked to Cooper’s silenced submachine gun. When found, the bullet had traces of Sammy’s shirt in its hollow point.19 That Cooper thought he shot Harris, who fell “like a sack of potatoes,”20 is indicative of how stress distorts the memory. Harris was not wounded during the fight; the teen Sammy Weaver, shot through the heart, likely fell as Cooper described.
Seeing the camouflaged men firing on his friend Sammy, Kevin Harris shot Degan, using his .30-06, a powerful deer rifle that punched a two-inch hole through Degan’s chest. The government contended that Harris’s shot had started the battle rather than ended it—but Degan’s gun had fired seven shots, whose fired casings were found spread for twenty-one feet moving in Sammy’s direction. It is hard to believe that a man with a two-inch hole in his chest and a deflated lung would have been running forward and continuing a gun battle.
All of the above happened in perhaps two seconds, so rapidly that Kevin Harris shot from the hip without shouldering his rifle.
Everyone involved then retreated. The Marshals recovered Degan’s body, and the Weavers recovered Sammy’s, which they put in a shed. Then the Weavers retired to the cabin to mourn the loss of their only son, a small boy whose voice had not yet changed.
Elsewhere, the groundwork for further tragedy was being laid. Hungry for news, the media reported what information the government provided, and did not trek through the woods to get the other side of the story. In the government’s releases, the Weavers’ plywood and two-by-four cabin became a fortress, and Weaver himself a homicidal fanatic whose gunfire had kept Marshals pinned down for hours. “He has vowed to die, and to take his three daughters and his wife, Vicki, with him if necessary,” went one story.21 “Court documents said Harris, Randy Weaver, and Samuel Weaver chased and shot at six marshals who surprised them,” went one Associated Press release.22 “Six marshals were fired on Friday at the fortress-like cabin of Randy Weaver,” went another.23
Things were also happening in Washington where the Deputy Director of the Marshals Service had alerted the FBI leadership to the case; the FBI was recognized as having lead responsibility in cases where federal officers have been assaulted. FBI headquarters initially ordered an FBI SWAT team call-up in its Salt Lake City, Portland, and Seattle Divisions.24 The FBI also put its Hostage Rescue Team on alert. Shortly thereafter, FBI Assistant Director Larry Potts ordered the Team to deploy to Ruby Ridge.
The Hostage Rescue Team was not just a SWAT team (the FBI already had fifty-six of those). It was created as an elite force to give the FBI capabilities rivaling those of the Army’s Delta Force or the Navy SEALs. Its members trained daily, six days a week, on dynamic entry—kick in or blast through the doors, “break and rake” the windows, and then charge in for an incredibly intense battle whose duration would be measured in seconds rather than days. Hopefully, at the end of seven or ten or twenty seconds, the terrorists or other targets would be dead, the HRT members alive, and hostages (if any) rescued. Needless to say, it was a job that beckoned to adrenalin junkies.
The HRT was founded by Danny Coulson, who became its first commander.25 Coulson had the brains and judgment to control any adrenalin oversupply; he came from an FBI SWAT sniping team. Sniping requires not only marksmanship, but near-superhuman patience and self-control. By 1992, however, Coulson had been promoted to Deputy Director of the FBI, where he would oversee the new HRT commander, Dick Rogers, but he would not directly command or deploy with the team. Unfortunately, Coulson’s wisdom and restraint were not present in his replacement. Rogers had been a noncom in Vietnam, and FBI Agent Gary Noesner notes that his FBI nickname was “Sergeant Severe”: “[H]e epitomized the tough-guy school of law enforcement.”26
The attitude at FBI headquarters at the time was one of near panic, or what could be called “institutional paranoia.” The menace posed by Randy Weaver and Kevin Harris—supported by Mrs. Weaver, two teenage girls, and an infant—was inflated to incredible levels. The Justice Department investigation later summarized the headquarters’ understanding of the situation as follows:
It was their understanding that one law enforcement officer had been killed and others remained “pinned down,” unable to be extricated. The attack on the retreating DUSMs [Deputy U.S. Marshals] had been extremely aggressive in nature, with a “barrage of gunfire” having been directed at them. The situation was so severe that these USMs, who were specially trained, were afraid to move. They were located in a remote area of rugged terrain, which was well known to the subjects. The family of Randy Weaver was armed, including his children. It was unknown whether the surviving DUSM’s were still receiving fire and it was not known whether the subjects had reinforcements, were in the Weaver cabin, in the woods near the cabin, or whether they had escaped. Because of Randy Weaver’s military background, it was believed that the subjects may have built tunnels and bunkers, making any approach to the area exceedingly dangerous.27
One of the HRT snipers would testify that their briefings depicted Randy Weaver “as a Rambo-like figure, commanding an unknown number of heavily armed white separatists who had fired indiscriminately at the Deputy Marshals the previous day, killing Deputy Marshal Degan.”28 Like a good legend, the danger of the two men with deer rifles, holed up in a plywood cabin, seemed to grow with each telling.
HRT hitched a ride to Spokane in two Air Force C-141 “Starlifters” and drove to Ruby Ridge from there.29 On the flight, HRT commander Dick Rogers worked out with FBI Assistant Director Larry Potts (who remained at headquarters) the rules of engagement; Rogers then met with the on-scene commander, Agent Gene Glenn, to draft an operations plan. Both the rules and the plan favored a quick and violent end.
The rules of engagement—a term, significantly, borrowed from the military—defined how and when lethal force could be employed. The FBI’s normal rules of engagement track what the Supreme Court had ruled was permissible. Law enforcement cannot kill an offender just to stop his escape. Lethal force may only be used if an offender “poses a significant threat of death or serious physical injury to the officer or others.”30 The Court outlined two circumstances that met this test: where the suspect threatened the officer with a gun and where the use of lethal force was necessary to prevent escape of a violent offender, with warning (“halt or I’ll fire!”) having been given, if feasible.
The rules of engagement for the Weaver household were at odds with Supreme Court guidance. The early drafts instructed HRT agents that any adult males seen with arms “could” be shot on sight, even before the HRT announced its presence and demanded surrender. This permitted the illegal killing by ambush—a polit
e term for murder—of Randy Weaver or Kevin Harris. HRT commander Dick Rogers thought “could” was too mild and changed the wording to “could, and should,” converting the authorization to murder into an order.31 As finally given to the HRT, the rules of engagement contained a slight variation on this:
1. If any adult male is observed with a weapon prior to the announcement, deadly force can and should be employed, if the shot can be taken without endangering any children.
2. If any adult in the compound is observed with a weapon after the surrender announcement is made, and is not attempting to surrender, deadly force can and should be employed to neutralize the individual.
3. If compromised by any animal, particularly the dogs, that animal should be eliminated.
4. Any subjects other than Randall Weaver, Vicki Weaver, Kevin Harris presenting threats of death or grievous bodily harm, the FBI rules of deadly force are in effect. Deadly force can be utilized to prevent the death or grievous bodily injury to oneself or that of [sic] another.32
According to the USDOJ report, the FBI’s negotiator told Justice investigators that he was “surprised and shocked by the rules of engagement. The Rules were the most severe he had ever seen in the approximately 300 hostage situations in which he had been involved.”33 The USDOJ review would later note the following:
I'm from the Government and I'm Here to Kill You Page 8
