reprinted from:

The Washington Post
Sunday, July 18, 1993
Editorials/Columnists
Page C7


It Could Happen to Anyone

Law enforcement out of control.
by David Z. Nevin

Randy Weaver was an insignificant little man, struggling to
survive with his family of five in a plywood cabin in the
mountains of north Idaho when he became a target of his
government. His story is important because it illustrates law enforcement out of
control -- and because it could happen to anyone.

Weaver held beliefs about racial separation that are repugnant to most
Americans. But he had served honorably in the military, had no criminal record
and in 1989 had violated no laws. Then the Bureau of Alcohol Tobacco and
Firearms turned its gaze upon him because it believed (incorrectly) that he was
a member of a
neo-Nazi group. An ATF informer -- a spy -- persuaded Weaver to saw off two
shotguns and sell them. ATF then sprung its trap: Weaver must infiltrate and spy
on thee Nazi group himself or be indicted for sale of the shotguns.

When Weaver refused to spy he was arrested, taken to court and released pending
trials. Alarmed by a series of suspiciously inconsistent statements by court
personnel about the date of his trial, he became fearful that the government
meant to destroy his family and seize his property. He refused to leave his
mountaintop cabin and did not appear for trial.

Now a "fugitive," Weaver's apprehension fell to the U.S.
Marshal's Service, which came loaded for bear. The marshals
called in military aerial reconnaissance and had photos studied by the Defense
Mapping Agency. They prowled the woods around Weaver's cabin with night vision
equipment. They had
psychological profiles performed and installed $130,000 worth of solar-powered
long-range spy cameras. They intercepted the
Weaver's mail. They even knew the menstrual cycle of weaver's teenage daughter,
and planned an arrest scenario around it. They actually bought a track of land
next to Weaver's where an
undercover marshal was to pose as a neighbor and build a cabin in hopes of
befriending Weaver and luring him away from his cabin.

Although they knew his precise location throughout this elaborate investigation,
not a single marshal ever met face-to-face with Weaver. Even so, Weaver offered
to surrender if conditions were met to guarantee his safety. The marshals
drafted a letter of acceptance, but the U.S. attorney for Idaho abruptly ordered
that negotiations cease.

On Aug. 21, 1992, Weaver, his son Sammy, 14, and their friend Kevin Harris, 24,
heard the family dog barking. In the woods a team of six camouflaged marshals
armed with fully automatic
assault weapons (one with a silencer) had attracted the dog's attention. Harris
and Sammy followed the dog's bark. The dog had chased the marshals. At the fork
of two abandoned logging roads, the boys and the marshals met. One of the
marshals shot the dog, and Sammy, in the line of fire, shot back in self
defense.

Thee woods erupted with gunsmoke and flying shell casings as the marshals opened
up on the boy, who had by now turned to run home. One shot struck the rifle he
carried, and another hit him
square in the back, killing him instantly. In the melee, Kevin Harris fired in
defense of himself and of Sammy, killing deputy marshal William Degan.

Two of the remaining marshals made their way to a telephone and called for help.
Within hours the FBI Hostage Rescue Team was in the air from Virginia and soon
thronged the hills above the
Weaver cabin. On the spot the HRT promulgated new rules of
engagement, directing agents to shoot any armed adult male on sight, whether he
posed an immediate threat or not. These rules violated Idaho law and had never
been applied before. They were not even used in the extraordinary attack on the
Branch Davidian compound at Waco, which took 72 lives.

Late the next day, Weaver, Harris and Weaver's teenage daughter Sara left the
cabin and went to an outbuilding where Sammy's body lay, washed and prepared for
home burial.

Sniper Lon Horiuchi, who testified he could hit a quarter-inch target at 200
meters, took two shots. The first struck Weaver under the right arm. The three
then rushed back to the cabin, where Weaver's wife, Vicki, stood holding open
the door, with 10-month old Elisheba in her arms. As Harris ran into the open
door Horiuchi shot again, striking Vicki in the head and then Harris as he
passed behind her. Vicki fell dead. Horiuchi
reporting hearing a scream (it was from 10-year-old Rachel) that lasted at least
30 seconds.

Weaver at last surrendered. He was charged with the sale of the shotguns and
failure to appear at trial, and he and Harris were charged with Degan's murder,
assault on the officers and a
nine-year conspiracy to provoke a confrontation with federal officers.

At trial -- Weaver and Harris were tried together with separate attorneys --
misconduct on the part of prosecutors led Judge Edward J. Lodge to assess
defense attorney's fees against the government itself, a step almost unheard of
in criminal cases. Well into the case, the lead prosecutor, who enjoyed a
reputation of punctilious attention to professional responsibilities, collapsed
and was unable to complete the trial. After 40 days of government testimony,
Weaver and harris rested their cases
without calling a single witness. The jury acquitted an all the substantive
charges except for Weaver's failure to appear. With three human lives and some
$3 million down the drain, the U.S. attorney declined to answer questions from
the press.

The ATF, the Marshal's Service, the FBI, even the U.S. attorney, each had the
opportunity to stop this trail of horrors. Because they saw nothing wrong in any
of it, none did. As late in the day as closing argument, the assistant
prosecutor who took over the sagging case called all this the "honorable"
tactics of proper police work.

Law enforcement has become a sacred cow in America, and it
happened quite naturally. It is comforting to believe that our thorny problems
-- violence, drug abuse, child exploitation, public corruption -- can be solved
simply y getting tough. And every year we build more prisons and put more people
in them for longer periods of time.

But consigning our social problems to the criminal justice system is bad policy
for two reasons. First, it won't work. Despite all the mandatory prison terms,
no one seriously argues that the crime problem is diminishing.

Second, it has disturbing side effects. Overwhelming expense, the degradation of
constitutional protections and the country's
growing sense of frustration and helplessness are a few. The sorry tale of
federal law enforcement run amok in the Weaver case
-- as in the Branch Davidian affair -- is another.

We know that those with power will use it -- all of it. And
police officers in America have vast power. Not just statutory power, although
there is plenty of that, but also the power that comes from being what America
believes is its last best hope.

But beware: As officers perceive no genuine checks on their
authority, more will take their lead from the Dirty Harry movies and do whatever
it takes to get their man. And we will be left to learn again the hard way, as
George Washington taught, that
government, "like fire ... is a dangerous servant and a terrible master."

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The writer is lead attorney for Kevin Harris.