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 exploitaton, public corruption -- can be solved simply by 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." -------------------------------------------- The writer is lead attorney for Kevin Harris. 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