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officials gave any consideration to the negative image of military helicopters being used as part of a raid on American civilians.
D. SERVICE OF THE WARRANT
One of the issues considered by the subcommittees was whether the ATF agents serving the arrest and search warrants on February 28 were required to "knock and announce" their intention to serve the warrant before entering the Davidian residence. When the ATF agents conducted the raid on the Davidian residence the agents did not knock on the Davidians' front door and announce their intentions to serve the warrant. Rather, the ATF agents dismounted from the cattle trailers in which they were riding on the run. One group attempted to enter the residence forcibly through the front door. A second group attempted to enter the second floor windows via the roof.
The subcommittees' review of videotapes made of the training sessions during which ATF practiced the raid plan revealed that the plan was designed around this type of dynamic entry and did not involve a knock and announce approach. In other words, the use of these tactics was not the result of any circumstances which had occurred on February 28.
In 1917,111 Congress enacted the Federal knock and announce statute.112 Generally speaking, the statute permits forcible entry for the purpose of executing a search warrant only after the officer gives notice of his authority and his purpose but is refused admittance. Courts interpreting the statute, however, have adopted a number of exceptions to the rule allowing unannounced police entries in limited exigent circumstances. For example, courts have held that such an announcement is unnecessary when the facts known to officers would justify them in being virtually certain that the person on whom the warrant is to be served already knows the officers' purpose and that an announcement would be a useless gesture. 113 Courts also have held that police need not knock and announce their intent to serve a warrant if they fear that to do so would allow the person on whom the warrant is to be served to destroy the evidence to be seized under the warrant.114 A third general exception to the rule requiring the police to knock and announce their intent to serve a warrant is when to do so would increase the risk of danger to the officers serving the warrant.115
Given the fact that the arrest and search warrants were based, in part, on the evidence that the Davidians were in possession of illegal automatic weapons, the subcommittees believe it was reasonable for the ATF to have presumed that the Davidians might fire on them had they announced their intent to serve the warrants
111 See generally Robert J. Driscoll, Unannounced Police Entries and Destruction of Evidence After Wilson v. Arkansas, 29 Colum. J.L. & Soc. Probs. 1, 10 (1995).
112 The Federal knock and announce statute is found in 18 U.S.C. §3901. That section states, "The officer may break open any outer or inner door or window of a house, or any part of a house or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”
113 Driscoll, supra note 111, at 11.
in advance. The Davidians own behavior in firing on the ATF agents proves the reasonableness of that belief.
E. UNRESOLVED ALLEGATIONS
1. WHO SHOT FIRST?
Wich has been made of the issue as to which side in the gun batse shot first. Conflicting evidence on this point was presented to the subcommittees by the ATF agents who were involved in the raid, the Texas Rangers who conducted an investigation into the events of the raid following the end of the standoff on April 19, and by the attorneys for the Davidians.
ATF Special Agent John Henry Williams, a member of the SRT team assigned to enter the front door of the Davidian residence, and who spoke to David Koresh at the front door of the Davidian residence as the raid began, testified that he was convinced that the Davidians shot first. As Williams testified before the subcommittees,
As we approached the front door, David Koresh came to the front door dressed in black cammo fatigues.
As he closed the door, before we reached the door, one agent reached the door, and at that point that is when the doors erupted with gunfire coming from inside. It was 10 seconds or more before we even fired back.116
Later on that same day, Williams testified at greater length about the start of the gun battle.
Mr. SCOTT. Can you go through just very briefly, you were walking up to the door, and how close to the door were you when the shooting started?
Mr. WILLIAMS. About 10 feet from the door.
Mr. SCOTT. Was it your intention prior to that to-had
Mr. WILLIAMS. Yes.
Mr. SCOTT. And how far from the door were you when he closed the door in your face?
Mr. WILLIAMS. Approximately 15 feet from the door.
Mr. SCOTT. And how close were you when the shooting started?
Mr. WILLIAMS. I-basically about 10 feet. After that, the shooting started immediately after he closed the door.
Mr. SCOTT. Is there any question in your mind as to where the shooting began?
Mr. WILLIAMS. None.
Mr. SCOTT. Thank you-excuse me, that was from the inside coming out.
Mr. WILLIAMS. Yes, from the inside coming out. 117
Senior officers of the Texas Rangers also testified as to the findings of their investigation into these events after April 19. The
116 Hearings, Part 1 at 717.
Rangers interviewed virtually everyone who was present at the Branch Davidian residence on February 28, including several of the surviving Davidians and all of the ATF agents who were present. As Texas Ranger Captain David Byrnes testified to the subcommittees:
I believe the evidence was to me overwhelming in the trial that the Davidians fired first. The cameraman and the reporter, although very reluctantly, finally I believe conceded that. He had broadcast that several times. He was more or less a hostile witness. But in my mind there is no doubt who fired first. 118
But the attorneys for the Davidians testified that they believed the gun battle erupted as the result of an accidental discharge by one of the ATF agents. Jack Zimmermann, attorney for David Koresh during the standoff, testified:
My personal opinion is that it was an accidental discharge by one of the ATF agents as he was dismounting and that that was a signal to open fire, which you haven't heard a testimony about. Nobody asked them, what was the signal to open fire if you did open fire? Who made that decision? What command was it?
But I believe that what the evidence from the trial, the criminal trial, was that somebody off to the side heard, somebody fired, and they testified that it came from behind them. .. I will point out to you from talking to the foreman of the criminal trial jury, who heard 6 weeks of testimony by the Government in 2 days of testimony from the defense, they could not decide, he told me. The foreman of the jury told me they could not decide because the evidence was in such conflict as to who fired first. 119
2. WERE SHOTS FIRED FROM THE HELICOPTERS?
Allegations were leveled by the Davidians' attorneys that agents in the National Guard helicopters used in the raid fired into the Branch Davidian residence from the air. The Davidians' attorneys testified that they were shown holes in the roof of the structure which appeared to them to be bullet holes fired from the outside into the structure.
Phillip Chojnacki, who was riding in one of the helicopters, testified, however, that no shots were fired from the helicopters. He testified that ATF personnel on the helicopters were armed only with 9-millimeter sidearms and that he observed no shots fired from the helicopters. 120 His testimony is supported by the sworn statements of each of the pilots of the helicopters, taken on April 20, 1993, that the helicopters were unarmed and that no ATF agents fired from the helicopters. 121 Texas Ranger Captain David Byrnes also testified as to what the Rangers' investigation concluded with respect
118 Hearings, Part 2 at 150.
119 Hearings, Part 2 at 26.
120 Hearings, Part 2 at 813-814
121 See Documents produced to the subcommittees by the Department of the Treasury T005723, T005730, T005731, at Appendix [hereinafter Treasury Documents]. The Appendix is
to this issue. He stated that the Rangers found no evidence that shots were fired from the helicopters. 122
The subcommittees reviewed videotape of the raid shot by agents in the helicopters as well as videotape of the exterior of the helicopters involved in the raid after the helicopters withdrew from the scene. At no point in the videotape does any ATF agent fire a weapon from the helicopters and the helicopters do not appear to have been equipped with machineguns or other weaponry. The videotape reviewed, however, is not continuous from the point from which the helicopters lifted off to the point at which they landed. The fact that videotape was taken at some points in the raid and not at others has not been explained to the subcommittees.
It has been suggested that the bullet holes in the roof of the Branch Davidian residence may have come from ATF agents on the roof who were firing into the structure as the firefight continued. Jack Zimmermann, the attorney for Branch Davidian Steve Schneider during the standoff, conceded that this was a possible explanation for the presence of the bullet holes during his testimony before the subcommittees. 123 Given that there were several ATF agents who were on the roof of the residence during the firefight with the Davidians, this explanation seems plausible.
F. THE FIRING AND REHIRING OF CHOJNACKI AND SARABYN
In October 1994, following the Treasury Department's review of the failed raid against the Davidians, the Department terminated the employment of the two senior raid commanders, Chojnacki and Sarabyn. 124 Both of them filed complaints with the Merit System Review Board. While those complaints were pending, the Treasury Department reached agreements with both Chojnacki and Sarabyn. 125 As a result of those agreements, both were rehired by the ATF. However, neither is assigned to positions of authority over other agents and neither is presently empowered to carry a
At the hearings before the subcommittees, Treasury Department officials were asked why a deal was struck with the two people on whom the Treasury Department blamed the failure of the Davidian raid. No sufficient answers to this question were provided. In light of the Treasury Department Report's conclusion that "raid commanders Chojnacki and Sarabyn appeared to have engaged in a
122 "Mr. MCCOLLUM. What about with regard to firing from the helicopters? Did any of the ATF agents tell you that there had been shots fired from the helicopters?
"Mr. BYRNES. Quite to the contrary, we could find no evidence that there was ever any shots fired. Our best evidence is that they peeled off at about 300, 350 meters, because there was gunfire, and those pilots were not going to fly over that residence."
Hearings, Part 2 at 197.
123 "I couldn't tell you whether those rounds were fired from a helicopter or not. All I could tell you is they come from the sky downward. If somebody were standing on top of the roof shooting down into the ceiling, it would look exactly the same way." Hearings, Part 2 at 27 (statement of Jack Zimmermann).
124 Memorandum to Charles D. Sarabyn from ATF Deputy Director, "Decision to Remove from Position and from the Federal Service" (October 26, 1994); Memorandum to Phillip J. Chojnacki from ATF Deputy Director, "Decision to Remove from Position and from the Federal Service" (October 26, 1994). Treasury Documents T00012743-T00013735.
125 Settlement Agreement, Phillip J. Chojnacki v. Department of the Treasury, Case No. DA0752-95-0126-1-1, Merit Systems Protection Board, Denver Field Office (December 1994). Treasury Documents T00013868-T00013874. Settlement Agreement, Charles D. Sarabyn v. Department of the Treasury, Case No. DA-0752-95-0127-1-1, Merit Systems Protection Board, Denver Field Office (December 1994). Treasury Documents T00013428-T00013434.
concerted effort to conceal their errors in judgment," 126 it is difficult to imagine any basis upon which the rehiring of these two individuals can be justified by Treasury Department officials.
G. FINDINGS CONCERNING THE RAID EXECUTION
1. Chojnacki and Sarabyn jointly share most of the responsibility for the failure of the ATF raid against the Davidians. The blame for the failure of the raid, and for the loss of life that occurred, must be borne by the senior ATF raid commanders, Phillip Chojnacki and Chuck Sarabyn. They either knew or should have known that the Davidians had become aware of the impending raid and were likely to resist with deadly force. Nevertheless, they recklessly proceeded with the raid, thereby endangering the lives of the ATF agents under their command and the lives of those residing in the compound. This, more than any other factor, led to the deaths of the four ATF agents killed on February 28.
2. The former Director and Deputy Director of the ATF bear a portion of the responsibility for the failure of the raid. Former ATF Director Stephen Higgins and former ATF Deputy Director Daniel Hartnett bear a portion of the responsibility for the failure of the raid because they failed to become involved in the planning for the raid. Had they done so, they might have ensured that a procedure was in place through which the undercover agent's information was relayed to them and they could have acted upon it. At the very least, they share some blame for not instilling in the senior raid commanders an understanding of the need to ensure that secrecy was maintained in an operation of this type.
3. The planning for the raid was seriously flawed. There were numerous problems with the ATF's planning for the raid. These failures evidence the lack of experience and sophistication of the senior ATF agents charged with developing the ATF's raid plan. They also suggest that the ATF's senior officials failed to fully train or monitor the actions of its senior operational commanders. Included among the failures were:
The ATF's own internal guidelines resulted in less qualified people being placed in command and control of the operation when other, more qualified agents, were available for these positions. The commanders also made strategic command and control errors on raid day, placing themselves in positions that hampered their ability to receive and act upon important information that might have led them to postpone the raid or redirect it to minimize casualties.
The raid plan itself lacked significant depth, principally in that it contained almost no contingency planning which might have minimized the losses suffered by the ATF on February 28.
ATF commanders also failed to adequately train the agents involved in the raid or to fully inform the Texas National Guard of the intended role that its personnel would play in the raid.
ATF commanders failed to reduce the raid plan to writing, as was required by ATF internal guidelines. Had this been done, and the written plan circulated to those involved in the raid, the errors in the raid planning might have been brought to light and corrected.
126 Treasury Department Report at 193.