LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media, L.P.
Soon after the U.S. Marshals Service Headquarters learned of the shooting at Ruby Ridge it contacted FBI Headquarters officials. A decision was made to deploy the FBI Hostage Rescue Team ("HRT") to Ruby Ridge. Allegations have been made that the deployment of the HRT on August 21 was based on false information about the dangerousness of Randy Weaver, the situation at Ruby Ridge and the August 21 exchange of gunfire. In addition, it has been contended that the activation of the HRT and regional FBI Swat Teams was an improper, unnecessary, and exaggerated response to the situation. Specifically, critics have suggested that local law enforcement agents, who rescued the marshals, should have been left to resolve the situation and that the U.S. Marshals Service should have remained in charge. There has also been a claim that the federal response was driven by an influential Department of Justice official who had been a close friend of Deputy U.S. Marshal Degan and the Degan family.
Critics have also charged that the FBI failed to assess the situation accurately after the August 21 shooting in large part because they failed to carefully gather and verify information on the background of the Weaver/Harris group and the events that transpired at the Y. The faulty information gathering techniques of the FBI is alleged to have contributed to the subsequent shots fired on August 22, 1992.
Following the shooting at the Y, Deputy Marshal David Hunt, who was familiar with the terrain of the mountain, and Deputy Marshal Joseph Thomas left, at approximately 10:45 a.m. to get aid. They headed through the woods to the Rau house [FN446] where they arrived approximately 40 minutes later.
Hunt immediately placed a "911" call for assistance which was received by the Boundary County Sheriff's Office, Bonners Ferry, Idaho, at 11:20 a.m. Hunt told the dispatcher:
I have an emergency situation on my hands..... I got one officer dead. I got (inaudible) pinned down. I need help quick.....I want the State Police, I want all the help that I can get. I gotta go back in for more officers that are trapped. [FN447]
Next, Hunt called Marshals Service Headquarters in Washington, DC and told Tony Perez, Chief of Enforcement Operations, that before the shooting began, a dog had picked up the marshals' scent and that they had run to avoid the Weavers. Hunt spoke of a "heck of a gunfight," in which Harris killed Degan. Hunt told Perez that he had not heard any gunfire since leaving the mountain. [FN448]
Shortly thereafter, Hunt told Chief Deputy Ron Narvarro of the Boundary County Sheriff's Office that the marshals were still on the hill and that they required assistance. Hunt did not say that the marshals were "pinned down." [FN449]
The Marshals Service Crisis Center ("Crisis Center") was activated under the direction of Duke Smith, Deputy Director of Operations, and the Special Operations Group ("SOG") was alerted to deploy. [FN450] Hunt was transferred to an open line in the Crisis Center, on which he explained:
Initial reports indicate that the USMS surveillance team came under fire from occupants of the Weaver compound and are still pinned down in defensive positions. [FN451]
(Emphasis added.)
Twenty five minutes later, at 12:05 p.m., Hunt reported to the Crisis Center:
Local sheriff has SWAT team on the way to the scene, which [sic] is no longer taking fire . . . . Team [of marshals] was trying to pull out when Weaver's dog alerted, team drew multiple volleys of fire from the house. Degan was struck in the chest. Return fire killed on e of Weaver's dogs. The rest of the team is still located on the mountain, but not under fire, unable to withdraw without exposing themselves to hostile fire. [FN452]
(Emphasis added.)
FBI Special Agent Donald Glasser was detailed to the Crisis Center. Perez briefed Glasser at approximately 1:00 p.m. and used the term "pinned down" to describe the marshals' state, but did not say that the marshals were "receiving fire." [FN453]
By this time, agents from the U.S. Border Patrol, the Boundary County Sheriff's Office, and the Idaho State Police had reached the scene. The Idaho State Police Critical Response Team ("CRI") and the Marshals Service SOG unit were en route. [FN454] Various law enforcement officers ran sirens to "send a message to the mountain that they were there." [FN455]
In the afternoon, Hunt spoke to Mays in the Marshals Service Office in Boise. Mays asked for an account of the events so that he could prepare court papers, if needed. Hunt started to tell Mays about the events of August 21 when Marshal Johnson took the phone. Later Johnson repeated to Mays what Hunt had told him. Mays used this information to prepare an affidavit in support of a warrant to search the Weaver cabin and property. [FN456]
At some point, Cooper told Hunt that he may have shot Harris. this information was passed to the Crisis Center.[FN457] Hunt briefed many of the law enforcement officers on the scene, giving a detailed listing of the weapons each member of the Weaver family was known to carry. He told them he did not believe that there were booby traps on the property.[FN458]
John Twomey, Deputy Director of Administration, informed Director Hudson of the shooting, while the latter was en route to North Carolina. Twomey reported that, according to Hunt, the Weaver dogs had been "spooked" by the marshals, Harris had killed Degan, and the marshals were pinned down. Twomey added that Hunt assumed that the marshals were still receiving gunfire. [FN459] Hudson instructed Twomey to notify Douglas Gow, FBI Associate Deputy Director of Investigations, at FBI Headquarters, of the incident.
The FBI's involvement in the Idaho crisis began when U.S. Marshals Service Director Henry Hudson told FBI Associate Deputy Director W. Douglas Gow that a Deputy U.S. Marshal had been shot and killed in Northern Idaho; That two other deputy marshals remained pinned down, having previously received heavy gunfire from several subjects; and that the Department of Justice had instructed that the FBI would be the lead agency handling the situation. Director Hudson and Gow scheduled a meeting for 4:30 p.m. EDT to discuss the situation. [FN460]
Before the meeting with the Marshals Service, FBI Assistant Director Larry Potts told FBI Violent Crimes and Major Offenders Section Chief E. Michael Kahoe to learn as much as he could about the incident. thereafter, Kahoe called Special Agent in Charge Eugene F. Glenn of the FBI's Salt Lake City Division at approximately 5:30 p.m. EDT (3:30 p.m. MDT). He told Glenn that a deputy marshal had been shot and killed during a firefight in Northern Idaho, that Gow had been called by the Marshals Service Headquarters and that FBI assistance had been requested. Kahoe said Hudson was en route to FBI headquarters to provide additional details to senior Bureau managers. [FN461]
Glenn realized that there would be few resources in Northern Idaho and initiated a series of actions to prepare for a probable FBI response. he instructed Special Agent George J. Calley at the Boise FBI Office to obtain additional details of the incident. Calley subsequently reported that he had learned from U.S. Marshal Michael Johnson that, during a fugitive investigation, one deputy marshal had been killed, another had been wounded, and additional marshals were pinned down near the site of the original gunfire. In addition, Calley learned that the primary subject in this matter was Randy Weaver and that the current priority of the Marshals Service was to rescue the marshals on the hill. [FN462]
Glenn relayed this information to Kahoe and over the next several hours, it was agreed that he would begin an FBI SWAT Team call-up in the Salt Lake Division and would prepare for deployment to Northern Idaho. Glenn also agreed with FBI Headquarters to deploy the Portland and Seattle SWAT teams and accepted management assistance from Special Agent in Charge William D. Gore, Seattle Division. [FN463]
When Gow received word of the assault, he called Assistant Special Agent in Charge Richard Rogers, Commander of the FBI Hostage Rescue Team ("HRT"). The HRT is a specialized full-time tactical team, based at the FBI Academy in Quantico, Virginia. Although its original purpose was to handle high-risk terrorist, hostage situations, its mission has evolved to cover a variety of sensitive, high-risk situations.[FN464] At 4:30 p.m. EDT, Gow told Rogers that a deputy marshal had been shot and killed in Northern Idaho, that other deputy marshals were still pinned down there, and that the Marshals Service had requested assistance. As a result, the HRT was put on alert. [FN465]
Gow, Potts, and Deputy Assistant Director Danny O. Coulson met with Hudson and Marshals Service officials John Twomey and Herb Rutherford. Hudson described the situation and requested FBI assistance. He conveyed an urgency in the request, explaining that: "one DUSM had been shot, two DUSMs were 'pinned down,' a third DUSM was relaying information. The concern at the time was to get these deputies out of 'harms way' before additional casualties were incurred." [FN466] Hudson and the others reported that a team of marshals had been attempting to perform reconnaissance in preparation for serving an arrest warrant on Randy Weaver. They asserted that:
[O]ne of the DUSMs had been attacked by a dog, and had shot the dog, which started a firefight. During the firefight, one DUSM had been killed and his body and the remaining surviving DUSMs had been able to escape and get to a telephone, the remaining DUSMs were in only sporadic radio contact, and their exact location was not known. The reported heavy fire had been directed at the DUSMs from numerous locations . . . the team of DUSMs had not intended a confrontation with the subjects, and had attempted to flee when confronted by the dog and subjects, but had been chased by the subjects, before the shooting death of the DUSM occurred. [FN467]
During this meeting, the FBI representatives were shown an aerial photograph of the Weaver cabin and the surrounding area and were told that Weaver and his associates would leave their [Editor's Note: Page 135 in the text is unavailable, which includes footnotes 468 to 472.] cabin. It was believed that Weaver knew well the extremely rugged terrain near his cabin. He had told the media that he would not be captured alive and that the only way he would leave his cabin would be to die in a shoot-out. His entire family, including his wife and children, was reported to be heavily armed. [FN473]
Following the meeting, Gow briefed the FBI Director William Sessions and called the Deputy Attorney Generals office in the Department of Justice. Although Gow acknowledged that Degan was a "high profile individual within the USMS", Gow stated there was no pressure on the FBI to activate the HRT by friends of Degan. [FN474] Robert Mueller, then Assistant Attorney General for the Criminal Division, was a professional acquaintance of Deputy Marshal Degan's as they had both worked in Boston while Mueller was in the U.S. Attorney's Office. Mueller, however was not even in town during the first days of the crisis. Gow thought that Potts may have also known Degan in Boston.
HRT deployments must be initiated by the Assistant Director of the FBI's Criminal Investigative Division ("CID"). After consulting with FBI Deputy Assistant Director Coulson, Potts decided to deploy the HRT fully. He had no conversation with anyone outside the FBI regarding this decision and was not pressured to deploy the HRT. Potts acknowledged, however, that he consulted with Coulson whom he considers the most knowledgeable tactical operations manager in the Bureau. They concluded that this would be an "extremely high-risk operation, possibly the highest risk situation [they] could encounter," given the information about Weaver's Special Forces background; his knowledge of explosives; the fact his children were trained with weapons; and his possible Aryan Nations affiliation. It was their understanding that:
One law enforcement officer had already been killed, and others remained "pinned down," unable to be extricated. The attack on the retreating DUSMs had been extremely aggressive in nature, with a "barrage of gunfire" having been directed at them. The situation was so sever 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. [FN475]
Rogers was notified of the decision to deploy and immediately departed aboard an FBI aircraft. The Strategic Information and Operations Center ("SIOC") at FBI Headquarters was activated and other routine investigative steps were instituted. The Special Operations and Research Unit ("SOARS") in Quantico was notified to provide negotiators.
Neither Potts nor Coulson had any discussions with persons from the Department of Justice, outside the FBI or the United States Marshals Service, regarding their decision to activate the HRT until after the decision had been made. That evening Gow discussed the trouble the FBI was having in getting HRT transportation to the crisis site with Attorney General Barr, who appeared to know about the situation. They discussed the "red tape" preventing the transportation of the main body of the HRT to Idaho. [FN476]
HRT commander Rogers departed for Idaho at approximately 6:30 p.m. EDT on August 21 with an advance team of HRT personnel, including Supervisory Special Agent Stephen McGavin, and Special Agents Lester B. Hazen and Dale F. Carnegie, accompanied by Marshals Service Deputy Director Duke Smith.
Potts had instructed Rogers to advise Coulson immediately after an on-site assessment had been made. Potts knew that the Idaho State Police SWAT Team was on the scene, but Potts would not authorize them to rescue the surviving marshals until an FBI on scene evaluation of the mission had been made. The Marshals Service had not been authorized to conduct tactical operations and, as far as Potts knew, they were involved only in perimeter assignments given by the FBI. When the first FBI personnel arrived at the crisis site, Potts was advised that no shots had been fired for some time and that communications with the surviving marshals would make it possible to locate them.
Captain David Neal, Commander of the Idaho State Police CRT, was informed of the incident and proceeded to the command post at the RAU meadow. After a briefing from Hunt, Neal decided that the CRT would wait until nightfall to rescue the marshals so as to avoid ambush by the Weavers. [FN477]
A ten man CRT team, along with Deputy Marshal Thomas, left the command post at approximately 8:30 p.m. PDT (11:30 p.m. EDT). [FN478] The night was "pitch," and only two member of the team had night vision equipment. The others made their way by placing their hands on the person in front of them and forming a chain.[FN479] They proceeded slowly and with extreme caution for fear of being ambushed or encountering booby traps. At 11:21 p.m. PDT, the team reached the marshals at the Y. When Captain Neal arrived at the Y he was concerned about the security of the CRT team and asked Roderick for an update. The first thing Roderick told Neal was, "I shot the dog." [FN480]
The CRT team secured Degan's body and headed down the mountain. The return was long and difficult due to the extreme darkness and the burden of Degan's body. They returned to the Command Post and 12:46 a.m. PDT.
Earlier that day, Marshal Jurgensen had been dispatched to Idaho to render assistance. When the marshals were rescued, he accompanied the five marshals to a hospital at Bonners Ferry, Idaho. [FN481] The marshals kept their weapons because of reports that Weaver supporters were on their way to the hospital. [FN482] They were examined briefly at the hospital and then released. Thereafter, Jurgensen drove the marshals to the condominium at Schwaitzer Mountain, where they arrived at approximately 3:00 a.m. By this time, Roderick, Cooper, Thomas, Norris and Hunt had been awake nearly 24 hours. After awhile, they went to sleep. [FN483]
Jurgenson collected the marshals' weapons and counted the ammunition. From this inspection, he determined that Hunt, Norris, and Thomas had not fired any shots; Roderick had fired one shot from his M16 rifle; Cooper had fired six shots from the .9mm; and seven shots had been fired from Degan's weapon. [FN484]
Meanwhile, while en route to Idaho, Smith briefed Rogers and the other HRT personnel on the Weaver case. Rogers had seen a photograph of the crisis area, which Smith described as an isolated area of extremely rugged terrain. According to Rogers, Smith provided the following background on the family:
[G.J.]
Rogers also testified at trial about the impression of the crisis that Smith conveyed:
Smith said the aggression was on the part of the members of the Weaver family and that Degan....and the others were actually pursued while attempting to retreat from Randall Weaver and Kevin Harris and after being observed by those subjects.....He told me that the family was heavily armed, they had both pistols and rifles. There was an indication that they might possibly.....have some armor- piercing ammunition. It was unclear as to whether there were grenades or explosives, because of Mr. Weaver's background in the military....I certainly had the impression that this was a heavily armed group, and based on what he had told me concerning the fire-fight breaking out and Marshal Degan dying, it was clear to me that they were willing to use these weapons. [FN486]
Smith related Weaver's threats that a standoff would only end in his death, and explained that the Weaver family had threatened other law enforcement officials on numerous occasions. In response to letters about the pending charges, he stated that the Weavers asserted that Randy was not coming down willingly. Both Randy and Vicki Weaver had commented at an initial appearance that any attempts to arrest them would result in the deaths of law enforcement officers. Randy Weaver had told a local reporter that he would not come off the mountain. The Weavers sent letters to both state and federal court officials regarding Randy Weaver's unwillingness to face charges. Smith also reported that Weaver had been a Green Beret and had expertise in the manufacture of explosives and booby traps. He described the Weaver compound as a mountain stronghold, inaccessible except by a single extremely rough road, and protected by fighting positions. Smith reported that TV show host Geraldo Rivera had unsuccessfully attempted to interview Weaver and that there were unconfirmed reports that Weaver had fired at Rivera's helicopter. [FN487]
[G.J.]
[G.J.]
Rogers said that it was his impression that a firefight was either "still in progress" or there was "intermittent gunfire taking place" or "sporadic gunfire . . . through the evening". He believed that the marshals were still on the mountain and that they could not extract Degan's body. [FN489] Rogers considered the subjects to be potentially still in an offensive, aggressive mode, and he concluded that the situation was dangerous with the potential for additional violence. [FN490]
Potts and Coulson relayed to Glenn the information about the crisis situation that the Marshals Service had provided. Prior to Glenn's arrival Hunt had briefed two FBI agents who had responded to the call for assistance. He gave them information on the Weaver family and Kevin Harris, an overview of the morning's events, and a description of Weaver's tactical operations and defensive positions. Hunt told them that Weaver and the others had pulled back to their defensive positions and were preparing for and awaiting the arrival of government agents. Hunt also briefed local law enforcement officials. [FN491]
These were the only times that Hunt was asked for information, with one exception. Late in the evening of August 21, Hunt was summoned to the command post and asked for the best position for sniper/observers. Hunt identified the high ground overlooking the Weaver compound and located it on a map. He was surprised that he was not asked additional questions. The FBI did not inquire about the intelligence he had collected during the early hours of the response. However, Idaho State Police and others retrieved his case files, including surveillance photos and topographic maps, from the Marshals Service command post. Hunt was frustrated that his files were disassembled and distributed without his consent.
When Special Agent in Charge Eugene Glenn arrived in Sandpoint, Idaho, about 7:00 p.m.(PDT), deputies from the Boundary County Sheriff's Office took him and members of the Salt Lake SWAT Team and Technical Agents to a National Guard Armory to be briefed by law enforcement personnel. Deputy Sheriff Lonnie Ekstrom told Glenn that Randy Weaver was a violent, former Green Beret and explosives expert, who reportedly had a large cache of arms concealed on his property. Because of Weaver's political and religious beliefs, he had separated himself from the community and was living off the land. Weaver was said to have constructed bunkers and fortifications around his home and claimed he wanted to have a show down or last stand with the federal government. Ekstrom told Glenn that Weaver had stated he would never be taken off the mountain and in fact had not come down for nearly 18 months. [FN492]
Glenn was told that Weaver was with at least one or two other people who may also have been present during the exchange of gunfire. He was told that these people, as well as Weaver's entire family, were committed to similar religious and political beliefs, such as white separatism and supremacism and an intense hatred of the federal government. [FN493]
Following this briefing, Glenn travelled to the Command Post at Ruby Ridge, arriving at approximately 9:30 p.m. (PDT). Special Agent Wages told Glenn that it was believed that Randy Weaver, Vicki Weaver, their children, and at least one additional individual, Kevin Harris, were in the cabin. [FN494] Glenn began to solicit information from Idaho State Police Major Edwin Strickfaden, who was commanding the "predominant agency on site" and other "senior personnel from all of the major agencies at the scene."[FN495] Those personnel included the U.S. Marshal for Idaho, Michael Johnson, and Boundary County Deputy Sheriff, Lonnie Ekstrom.
Glenn described the shooting incident to Special Agent in Charge William Gore, who arrived at the command post approximately 45 minutes after Glenn. Gore joined Glenn at the briefing, then in progress with the Idaho State Police, Boundary County Sheriff, and Marshals Service personnel. They learned that the Marshals Service was reporting that Kevin Harris may have been shot during the shootout. There was a report that the marshals still on the mountain had received sporadic gunfire until after dark. [FN496]
U.S. Marshal Johnson provided information about BATF's investigation of Weaver, his arrest, failure to appear, and the entry of the Marshals Service into the case. Weaver was described as a "white supremacist who had been affiliated with the Aryan Nation." [FN497]
In spite of the fact that the marshals were rescued in the early morning hours of August 22, first-hand information about the incident which began the crisis was not gathered immediately because the marshals were not made available until 2:00 p.m. Glenn reported that he "did not have the opportunity" earlier on to speak with any of the marshals who had been on the hill. He "wanted access to them but the USMS denied this request in order to give the Deputies time to compose themselves after their ordeal."[FN498]
Glenn learned that first night that a cold front was approaching, with rain, snow, and temperatures in and around the twenties, and that the terrain around the crisis site was severe. There was no current intelligence as to the tactical preparations the Weavers might be making to engage law enforcement, but Glenn knew that agents would have to take positions close to Weaver's residence to address the situation properly. Glenn believed that Weaver was aware that he had been involved in killing a federal law enforcement officer and that he was intentionally resisting arrest. Glenn was concerned about possible reinforcements from the ranks of Weaver's supporters.
Because of the information he had gathered and his understanding of the capabilities of someone with military training ascribed to Weaver, Glenn was seriously concerned for the safety of personnel at the scene. He saw Weaver as someone "trained in the tactics of escape and evasion, who had now chosen to fortify himself and remain at his cabin, when he could have effected an escape from capture." Glenn thought that he was "facing an individual who may have made considerable prior arrangements to inflict serious casualties or damage on any individual(s) who may attempt to challenge him."[FN499] Therefore, he decided that no aggressive effort should be made to attempt to arrest the subjects until additional tactical resources arrived.
The goal to this point was to stabilize the situation, avoiding contact with the Weavers until the situation had been contained. With the arrival of the HRT, Glenn believed it was possible for the FBI to establish a perimeter around the Weaver cabin to assess the situation and establish communications with the cabin. Glenn thought those steps were necessary to resolve the situation peacefully through negotiations. [FN500]
By early morning, August 22, HRT Commander Rogers and the HRT advance unit had arrived, along with senior Marshals Service personnel. Rogers reported Glenn:
I asked Mr. Glenn for a quick briefing as to what the current situation was up on the mountain. He told me that they had managed to get Marshal Degan's body off and extricate the remaining marshals. Other than that, it was basically unknown what was taking place up around the cabin, because there were no law enforcement directly with eyes on at the shooting site or at the Weaver cabin. [FN501]
Rogers knew that the firefight was not continuing, [FN504] but this did not change his opinion of the danger. [FN505]
[G.J]
Like Glenn and Gore, Rogers did not talk to any of the marshals involved in the shooting because he had been told that they were asleep or were being treated for exposure. According to Rogers, the "implication" of this report "was that they were not available to me and that they would certainly have to be debriefed before I would have a chance to talk to them... debriefed I assumed by their own marshals." [FN507]
Although Rogers had not definitively concluded that Weaver had shot at a federal officer, he had concluded that Weaver "clearly demonstrated that he was willing to shoot at federal officers," in spite of the fact that he knew of no one who had seen Weaver shoot or point a gun at anybody. [FN508]
The next Morning, Tony Perez spoke by telephone to Cooper, Roderick, and Norris and received "bits and fragments' of information. [FN509] Duke Smith, Deputy Director of Operations and the highest ranking Marshal Service official at the scene, visited to offer emotional support. Smith did not interview the marshals , and he received only a few details of the shooting. [FN510] The marshals told Smith that Harris had shot Degan, that Cooper may have killed Harris, and that Roderick shot the dog after the gunfire had started. [FN511] One of the marshals mentioned that Sammy Weaver was present, but there was no evidence that he had been injured. Smith spent approximately 30 minutes at the condominium. [FN512]
Jurgensen drove Cooper, Roderick, and Hunt to the Boundary County Sheriff's Office for interviews by the FBI later that day. Thomas and Norris were interviewed the following day. [FN513]
After the interviews, Cooper and Roderick went to the staging area by the Rau house. They offered their assistance to John Haynes and Lou Stagg of SOG, but were told that their help was not needed. [FN514]
Cooper and Roderick informed HRT members about the layout of the Weaver complex, the terrain, and weaponry. They told the HRT that there were no booby traps or mines on the Weaver property. After that short debriefing, no one consulted with Cooper and Roderick again. [FN515]
Duke Smith recalled Jurgensen telling him that the deputy marshals had been to the Boundary County Hospital for physical checkups and then taken to their command post condominium at Shweitzer Mountain. Smith recalled that Jurgensen had asked him to postpone his visit with the five marshals, who had been part of the August 21 team, until the afternoon of August 22. When Smith went to the command post that afternoon, Deputy Marshals Cooper and Roderick spoke to him about their mission but he did not formally interview them or debrief them. [FN516] Smith said the marshals were available to the FBI at all times and the marshals even came to the site on Saturday and Sunday. Smith told this inquiry that he never restricted access to the marshals for intelligence purposes. [FN517]
There have been allegations that the marshals involved in the shooting and others in the Marshals Service intentionally concealed the marshals' role in the August 21 shooting. It has also been charged that the Marshals Service lied about Weaver's dangerousness and the circumstances at the time of the shooting to gain the FBI's support and assistance and to cover up a confrontation with the Weavers' son, Sammy.
At trial, the defense contended that a deputy marshal had fired the first shot, which killed the family dog Striker. After that shot a marshal knowingly and fatally shot Sammy Weaver in the back as he retreated from the firefight. The defense also contended that Sammy Weaver responded to the killing of his dog with gunfire, which Degan returned, and that Harris shot Degan in defense of himself and Sammy only after these events had occurred and because they were subjected to gunfire.
Those who believe that sequence of events, particularly after Weaver and Harris' acquittal for Degan's murder, have charged that the marshals involved in the shooting engaged in a coverup to protect themselves. That coverup is said to have included exaggerated accounts of aggressive acts at the shootout on August 21, Weaver's role in the events, and the danger of Weaver and Harris. One area repeatedly challenged at trial was the claim that the marshals were "pinned down" and had sustained "continuing fire" hours after the fatal shots had been fired. [FN518]
Defense counsel alleged in pretrial motions that after the shooting at the Y, Hunt falsely reported to his superiors and to other law enforcement agencies that the marshals who remained with Degan's body were "pinned down in a fire fight." [FN519] We did not find any evidence that Hunt or any of the marshals claimed that they were receiving continual fire well after the exchange at the Y.
The debate focuses on Hunt's use of the phrase "pinned down." This inquiry has determined that "pinned down" is not a term of art in law enforcement with a universally accepted meaning. Although Hunt used the words "pinned down" in his first call for help to the Boundary County Sheriff's Office shortly after the shooting, he also repeatedly advised Marshal Service Headquarters as the day progressed that there was no "continuing fire fight." Less than an hour after his first call for help, Hunt notified his superiors at Marshal Service Headquarters that the marshals were not receiving continual fire. He also reported this to other law enforcement officers arriving at the scene. [FN520]
Officials from many different law enforcement agencies were told throughout the remainder of the day that the marshals were "pinned down." [FN521] If they concluded that the marshals were under constant fire, that was the result, in our view, of miscommunication or misunderstanding. [FN522] Hunt's reports to the Crisis Center are consistent with the accounts given by the marshals on the mountain. They believed they were "pinned down" in the sense that they were "outflanked" by the Weavers and might come under fire if they moved. [FN523] We conclude that the marshals did not deliberately attempt to mislead other law enforcement agencies about the events at the Y or the condition of the marshals still on the mountain.
Our investigation found that the HRT was properly deployed to Idaho to address this crisis, a deployment, which, in accordance with FBI policy, had received specific approval from the Assistant director of the Criminal Investigative Division at FBI Headquarters.
The training of HRT members and its ability to be deployed quickly made HRT a reasonable choice in this instance.
Furthermore, jurisdiction for the investigation of assaults on federal officers ("AFO") rests with the FBI. Although this began as a Bureau of Alcohol, Tobacco and Firearms case and became a Marshals Service case, the Marshals Service does not have primary jurisdiction for investigating AFOs. In addition, Marshals Service supervisors were understandably concerned that action by the Marshals Service would appear to have been taken in retaliation.
The federal law enforcement response to the crisis at Ruby Ridge has been seen by some as an inappropriate insertion of the federal government into a local matter, which would have been better left to the state and local authorities to resolve. In particular, the federal government has been criticized for overreacting and overwhelming the area. As evidence of the ability of local and state forces to have handled the crisis, we not the rapid response they made to the stranded marshals and the successful night rescue.
Various state and local law enforcement agencies were included in the early stages of intelligence gathering, and they played a continuing critical role in controlling the perimeter and keeping the peace during this controversial siege. However, it appears that they were not part of strategy and planning sessions as the siege continued.
We can understand the opinion that Idaho State and local law enforcement should have led the efforts to resolve the crisis. However, it appears this is an after-the-fact view of events. Arguably, if the federal government had not responded to the crisis at Ruby Ridge, that inaction would also have been criticized. This situation had been generated by a federal warrant based on a federal indictment involving federal law enforcement agencies. In attempting to effectuate a federal arrest, a federal officer had been killed, and the subjects of that shooting and the outstanding warrant remained at large. In light of these circumstances and the resources available to the federal response teams, we find reasonable and appropriate the decision to send FBI SWAT teams, the HRT, and the Marshals Service SOG to resolve this matter.
In this section we discuss what the FBI did in the first 36 hours to verify the information it had obtained and to secure the best and most current information. Our investigation addressed criticism concerning the failure of Special Agent in Charge Glenn and HRT Commander Richard Rogers during their first hours at the site to update intelligence from more knowledgeable people present.
Almost within hours of setting up the command centers at Marshal Service Crisis Center and FBI Headquarters, both agencies had representatives at each other's command centers to aid communication. [FN524] The Crisis Center log reflects regular communications with the FBI SIOC. Although efforts to facilitate communications were made at Headquarters, we did not find intelligence gathering at the site to have been sufficiently thorough under the circumstances. Although Glenn spoke with the heads of the agencies at the scene, there were gaps in Glenn and Rogers' information about the underlying events caused by their failure to debrief the marshals involved in the shootout.
We not specifically Glenn's failure to discuss the situation with Deputy Marshal Hunt, who had been present at the command post until the marshals and Degan's body had been rescued from the mountain. Hunt had been the primary source of information to Marshal Service Headquarters throughout the day, and he was the link with the other marshals who had been eyewitnesses to the day's events. Moreover, Hunt had been the lead case agent in Boise since 1991 and would have been the most valuable resource for information on the Weavers background and their circumstances.
Rogers and Glenn also failed to discuss the situation with the other marshals at the site the next day. During this inquiry, we reviewed a videotape made at the site during Hunt's second briefing at the command post. The briefing contained valuable information based on intelligence the Marshals Service and especially Hunt had gathered over many months of surveillance. Significantly, Glenn admitted that when he was formulating the operational plan and Rules of Engagement, he was unaware that the Marshals Service had been on numerous missions to Ruby Ridge before August 21. [FN525]
When questioned about the failure to interview the marshals, Glenn asserted that they were not made available after his arrival. We find little support for this assertion. Duke Smith, who had arrived with Rogers and was at the command site most of the day, knew where the marshals were. We found no evidence that anyone denied the FBI access to the marshals after they had been taken to the hospital and allowed to rest. In fact, the marshals felt ignored by those who had taken command. This feeling may have been justified.
This inquiry also considered whether the Marshals Service tried to prepare the marshals for their interviews. FBI agents assigned to interview the marshals had been told to expect them the morning after the shooting. However, the marshals did not arrive until later in the day. Deputy Marshal Jurgensen, who had been ordered to look after the marshals once they were off the mountain, was not notified that the marshals were scheduled for interviews on Saturday morning. [FN526] We are satisfied that there was no impropriety regarding the timing of the marshals' appearance.
We also find no evidence that the marshals were coached before their interviews. We note that the marshals were kept together for several hours before giving their statements. We question the wisdom of keeping the marshals together at the condominium for several hours, while awaiting interviews with the FBI. Isolating them in that manner created the appearance and generated allegations that they were fabricating stories and colluding to coverup the true circumstances of the shootings at the Y. These allegations could have been avoided by separating the witnesses until their interviews and debriefings. However, we acknowledge that security and health interests may have made such an arrangement appear necessary on the first evening following the rescue. However, this investigation has found no proof that the Marshals Service or the marshals themselves coordinated or altered their individual accounts of the events on the mountain. Certainly, there are enough differences in the marshals' statements to diffuse an accusation of collusion.
Although the marshals had lengthy interviews on Saturday and Sunday with FBI agents and returned to the command post on Saturday and Sunday, none of them were interviewed by the FBI senior management team of Glenn, Rogers, or Fred Lanceley, the FBI's chief negotiator at the scene. In fact, Lanceley was not aware of the FBI interviews of the marshals until days later. It is not clear when the information developed in these interviews was shared with Glenn and Rogers.
This inquiry found no misrepresentation of the status of the marshals as they remained on the mountain. Glenn and FBI Headquarters knew that there had been no gunfire after the original shooting, with the exception of shots at a passing aircraft. The term "pinned down" was not understood or intended to indicate the marshals were taking continuous fire. [FN527]
It is difficult to estimate the impact additional intelligence gathering would have had on the decisions made during the crisis. Much of the information the FBI considered in assessing the danger and formulating Rules of Engagement and operational plans was consistent with what they would have heard from the marshals.
Marshals Service Headquarters files contained information from BATF and other sources during the threat assessment and the eighteen-month fugitive investigation by the Marshals Service. The files included information about Weaver's military experience, his stockpiling of weapons and ammunition, the arming of the Weaver family, his Aryan Nations affiliation, and his refusal to surrender. We found the background information on Weaver, which the Marshals Service have the FBI and which served as a basis for the HRT deployment and the development of plans to secure the site, consistent with the information that was available in the Marshals Service files before August 21.
We found no evidence that the Marshals Service intentionally covered up or exaggerated Weaver's background or the events that had occurred at the Y in order to obtain assistance from other law enforcement personnel. However, we did find that the initial intelligence gathering by the FBI lacked thoroughness because of its failure early in the crisis to seek information from the Marshals Service personnel who had been ion the mountain on August 21. Finally, this inquiry found that there was no abuse of discretion in the activation of the HRT in this situation. It was legally and factually justified and consistent with department of Justice policy and procedures. No evidence was discovered during this inquiry that the decision to deploy HRT was based on improper or personal motives.
Released through LEXIS COUNSEL CONNECT
LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media, L.P.
446 Hunt Sworn Statement, at 28; Thomas Sworn Statement, at 11. The Raus, who were Weaver's neighbors, had been aware of the marshals' presence.
447 Transcript of call by Hunt to "911," August 21, 1992. Ruth Rau said that during on phone call Hunt referred to the incident at the Y as an "ambush" and called Degan's shooting "cold-blooded murder." Rau also reported that Hunt said "that his team was receiving fire from Vicki and the girls." Ruth Rau FD-302, October 12 & 13, 1993, at 9-10. All references to time are given in Pacific Daylight Savings Time.
448 Perez FD-302. A little later, Hunt told John Twomey, Deputy Director of Administration, that he assumed that the marshals on the hill were still receiving fire. FD-302 Interview of Twomey, November 26, 1993. According to the Strategic Information Operations Center (SIOC) log, the call to Perez occurred at 11:25 a.m., PDT (2:25 p.m., EST).
449 FD-302 Interview of Ronald Navarro, October 22, 1993, at 2.
450 FD-302 Interview of Duke Smith, November 19 & 24, 1993, at 2; Perez FD-302; USMS "Crisis Center Log - Degan Incident", August 21, 1992, at 11:40 a.m. (herinafter cited as "Crisis Center Log").
451 Crisis Center Log, August 21, 1992, at 11:40 a.m. Smith FD-302, at 2-3; Perez FD-302, at 8-10.
452 Crisis Center Log, August 21, 1992, at 11:40 a.m. (Emphasis added.) At 1:05 p.m., Hunt again told the Crisis Center: "USMS personnel on mountain are not taking additional fire and detect substantial movement in the woods around them." Id. at 1:05 p.m. Hunt Sworn Statement, at 31; Ruth Rau FD-302, October 12 & 13, 1993, at 9.
453 FD-302 Interview of Donald J. Glasser, November 19, 1993.
454 Crisis Center Log, August 21, 1992, at 1:40, 2:00, 2:20, and 2:30 p.m.
455 FD-302 Interview of Dave L. Smith, October 12, 1993.
456 Mays FD-302, at 7. Not surprisingly, the affidavit contained some errors, such as a statement in paragraph 4 that the marshals "were fired upon by two or more individuals in a pickup truck." Affidavit of Warren Mays, August 22, 1992. Howen thought that this information had come to Mays directly from Hunt. When Howen had left Boise for Ruby Ridge, he asked Assistant U.S. Attorney Haws to complete the affidavit. Haws took no steps to confirm the information because he thought that Howen had corrected any factual inaccuracies. Almost immediately after the affidavit was transmitted to Howen, he told Haws that paragraph 4 was in error. Howen and Haw corrected the error in the next affidavit they filed on August 23, 1992. Howen Interview, Tape 4, at 32033; Tape 5, at 1-2; Memorandum of Interview of Marc Haws, December 17, 1993, at 2.
457 Hunt Sworn Statement, at 31. The Crisis Center Log reports, at 5:15 p.m., that:
DUSMs Roderick, Cooper, and Norris are still in position on the mountain.....DUSM Cooper reports that he believes that he wounded on of the two adult suspects.
458 Hunt told the officers:
This case is unique and complicated because of all the juvenile people that [Weaver] has up there.....For the last two years we have looked at this situation trying to come up with a way to separate him from his children. his defensive tactics have basically always been to keep the kids around.....[O]ur tactics on him have been to figure out a way to watch him, observe, figure out a way that we could get him without confronting, the juveniles with weapons.
Transcript of Hunt Video Tape, August 21, 1992, at 7-9, 13-15, 19.)
459 Twomey FD-302, at 2-3. Hudson reports that Twomey told him that Sammy Weaver may have been wounded. Hudson FD-302, at 4-5. However, Twomey reports that he told Hudson there was no information that Sammy had been shot. Twomey FD-302, at 3.
460 Sworn Statement of W. Douglas Gow, January 4, 1994, at 2; Hudson FD-302, November 15, 1993, at 4-5. The Marshals Service first learned of the shooting when Deputy Marshal hunt called Marshals Service headquarters in Washington, DC The first entry in the Marshals Service Crisis Center Log noted: "The initial reports indicate that the USMS surveillance team came under fire from occupants of the Weaver compound and are still pinned down in defensive positions." Entry for August 21, 1992, at 2:40 p.m. (EDT). Soon thereafter the log states: "The rest of the team is still located on the mountain, but not under fire, unable to withdraw without exposing themselves to hostile fire." Id. at 3:05 p.m. (EDT). This was confirmed one hour later: "USMS personnel on mountain are not taking additional fire and detect substantial movement in the woods around them." Id. at 4:05 p.m. (EDT).
461 Sworn Statement of Eugene Glenn, January 12, 1994, at 2; Sworn Statement of E. Michael Kahoe, January 4, 1994, at 2-3.
462 Glenn Sworn Statement, January 12, 1994, at 3.
463 Id. at 3-4.
464 Sworn Statement of Larry Potts, December 17, 1993, at 4. The HRT is comprised of approximately 50 members with specialized skills and training. The HRT has been utilized in a variety of high risk situations since its formation in 1993, ranging from international antiterrorist operations to prison uprisings, arrest/search operations against white separatist organizations, and hostage situations.
465 [G.J.]
466 Gow Sworn Statement, January 4, 1994, at 2-3.
467 Sworn Statement of Danny O. Coulson, November 3, 1993, at 3-4)
[Editor's Note: Footnotes 468 to 472 are unavailable.]
473 Id. at 3.
474 Gow Sworn Statement, January 4, 1994, at 3-4.
475 Potts Sworn Statement, December 17, 1993, at 4-5. Coulson viewed HRT as well suited for crises of this sort because:
The HRT could better function in such a severe environment, and was highly trained in winter and rural operations. The HRT can deploy a sophisticated communications system, including satellite communication, which would be necessary in this remote rural mountainous environment. The HRT also provides and deploys with medical support which would be a necessity in such a dangerous operation . . . . FBI field office SWAT Teams could not have enough personnel to handle a situation such as this.
Coulson Sworn Statement, November 3, 1993, at 7.
476 Gow recalled that an earlier agreement with the military to provide transportation for HRT had expired and that the current arrangement was for the military to provide transportation on an "as needed" basis. Gow Sworn Statement, at 4.
477 FD-302 Interview of Brenda McGill, Dispatcher/ISP, October 22, 1992, at 5; Transcript of Hunt Videotape, August 21, 1992, at 11, 22.
478 See McGill FD-302, at 6.
479 FD-302 Interview of Cpt. David Neal, October 7, 1993, at 2; FD-302 Interview of Sgt. Michael Nauman, October 7, 1993, at 2.
480 Neal FD-302, at 3. Later, at trial, much controversy surrounded this statement. Neal told Assistant U.S. Attorney Howen that it was his impression that Roderick had shot the dog first before anyone in the Weaver family had fired. Howen gave this information to defense counsel almost one month after first learning it. The media reported that Roderick had admitted shooting the dog first. See discussion in Section IV (o), infra.
481 McGill FD-302, at 6.
482 Norris Sworn Statement, at 13.
483 The marshals talked at the condo about hearing the vehicle noise, and tried to figure out where it came from. They also became emotional and reminisced for awhile before retiring. Cooper Sworn Statement at 12; Hunt Sworn Statement, at 35; Jurgensen Sworn Statement, at 13.
484 Jurgensen FD-302, August 22, 1992, at 2-3. The marshals were surprised that Degan's gun had been fired because no one had seen Degan shoot. Norris Sworn Statement, at 16; Cooper Trial Testimony, April 15, 1993, at 192, April 16, 1993, at 318.
485 [G.J.]
486 Rogers Trial Testimony, June 2, 1993, at 16-17.
487 Sworn Statement of Duke Smith, January 6, 1994, at 4.
488 [G.J.]
489 Rogers Trial Testimony, June 2, 1993, at 18, 184, 187.
490 [G.J.]
491 Sworn Statement of David Hunt, February 5, 1994, at 33.
492 Glenn Sworn Statement, January 12, 1994, at 5
493 Id. at 7-8
494 Id. at 8.
495 Id.
496 Sworn Statement of William D. Gore, November 3, 1993, at 3.
497 Id. at 5.
498 Glenn Sworn Statement, January 12, 1994, at 9. Gore also did not see the marshals after the Idaho State Police SWAT team returned to the command post. He stated:
[W]ithin a few minutes of their return, the rescued marshals were whisked away from the area of the command post to a location unknown by me. The decision to remove the marshals involved in the shooting was made by the Marshals Service. I did not have an opportunity to see any of them and I do not believe any of them had been debriefed for benefit of intelligence purposes with respect to the shooting and related events that day.
Gore Sworn Statement, November 3, 1993, at 4.
499 Glenn Sworn Statement, January 12, 1994, at 5-6.
500 Id. at 10-11.
501 Roger Trial Testimony, June 2, 1993, at 26.
502 Id. at 190-91.
503 Id. at 192.
504 [G.J.]
505 [G.J.]
506 [G.J.]
507 This failure to speak to the marshals was highlighted when Rogers testified that he did not know who David Hunt was nor did he know the identity of the source who had provided information about the previous day's events to Marshals Service Headquarters and Smith. Rogers Trial Testimony, June 2, 1993, at 189-90. Rogers also admitted during cross examination at trial that he had no information as to who killed Degan and that he had never spoken to Cooper or Roderick during his entire stay at Ruby Ridge.
508 Rogers assumed that Glenn had received his information from marshals on the scene and, therefore, did not inquire about the source or validity of the information.
509 Perez FD-302.
510 Smith Sworn Statement , January 6, 1994, at 6; FD-302 Interview of Duke Smith, November 19 & 24, 1993, at 6; Cooper Sworn Statement, at 12. Thomas described the conversation as mostly "small talk." Thomas Sworn Statement, at 15.
511 Roderick Sworn Statement (draft), at 29.
512 Smith Sworn Statement, at 6. Smith told the marshals that the agencies responding to the scene were going to "resolve this thing as soon as possible" and "go up there and take care of business." Cooper Sworn Statement, at 12; Roderick Sworn Statement (draft), at 29; Norris Sworn Statement, at 14-15. Thomas reported that Smith said that he had spoken with his FBI counterpart, who advised Smith that "this was not going to last long. That it was going to be 'taken down hard and fast'." Thomas Sworn Statement, at 15.
513 FBI agents had been told to expect the marshals at the Boundary County Sheriff's Office on Saturday morning, August 22. Hunt, Roderick and Cooper were not brought to the Sheriff's Office until that afternoon. FD-302 Interview of Gregory Rampton, October 18 & 19, 1993, at 3; FD-302 Interview of Timothy Kroupa, October 19, 1993, at 2.
514 Roderick Sworn Statement (draft), at 30. Cooper reported that Haynes "blew me off," saying, "I've already heard your story." Cooper Sworn Statement, at 12-13.
On August 23, Cooper reviewed a draft report of his interview and found it full of inaccuracies. For instance, the draft stated that Cooper saw a second man chasing the marshals in the fern field, that Cooper saw Randy Weaver at the "Y" after Harris shot Degan, and that Cooper saw Harris running up the trail toward Weaver's cabin. Cooper asked that the draft be corrected. Because this had not been done when Cooper returned from Degan's funeral, Cooper dictated the FD-302 himself. Id. at 13.
515 Roderick Sworn Statement (draft), at 30.
516 Cooper and Roderick told Smith that Degan was shot by Harris after Degan announced "U.S. Marshals." Cooper thought he shot Harris because he saw Harris go down and never saw him again. Roderick returned fire and shot the dog and both mentioned they had seen Randy Weaver coming down the other trail. Roderick told Smith how he took a round through his shirt and that there were a lot of incoming rounds. Weaver had turned and gone back up the hill after the initial shots. One of the marshals mentioned seeing Sammy Weaver but there was no mention of him being injured in the gun fight. Smith Sworn Statement, January 6, 1994, at 6.
517 Id. at 8.
518 Briefly, our investigation found no intentional exaggeration of facts or a failure to disclose material facts. Moreover, we were unable to find any material representations made to FBI Headquarters which were unsupported by information in Marshals Service files. In our interviews, FBI Headquarters personnel and Marshals Service personnel did not report any significant incorrect information on the status of the marshals on the mountain, in contrast to media reports on the subject.
519 Defendants' Memorandum, at 8-10.
520 For instance, FBI Special Agent Larry Wages arrived at approximately 3:30 p.m. He had the impression from Hunt that the stranded marshals were "pinned down," though he does not recall whether Hunt used those words. He understood from Hunt that the marshals were not in an ongoing firefight. Wages surmised that anyone trying to approach the stranded marshals might receive gunfire. He also believed that the marshals could have come down had they been willing to leave Degan's body. Wages did not hear gunfire during his stay at the Rau field. FD-302 Interview of Larry Wages, November 29, 1993, at 2; McGill FD-302, at 3 (dispatcher notes time of Wages' arrival).
Sgt. Michael R. Nauman, a member of the Idaho State Police team that rescued the marshals, said that he knew during the rescue that no shots had been fired for several hours. He believed the marshals "felt they were pinned down because they did not know where Harris and Weaver were and believed that [Harris and Weaver] were watching their position." FD-302 of Sgt. Michael R. Nauman, October 7, 1993, at 2.
521 For example, at approximately 12:17 p.m.. (PDT), Perez told Kenneth E. Neu, Acting Chief of the FBI Fugitive Unit, that "the marshals were still on the mountain and were pinned down by gunfire." FD-302 Interview of Kenneth Neu, November 5, 1993. This was more than a half hour after Hunt advised the Crisis Center that marshals were "no longer taking fire." Crisis Center Log, August 21, 1992, at 11:40 a.m. PDT.
522 Twomey said that communications were bad and that it was "virtually impossible to get accurate information." Twomey FD -302, at 5. Hudson said that in the early hours of the crisis, "CNN appeared to obtain information faster than the Crisis Center or FBIHQ." Hudson FD-302, at 6.
523 Roderick Trial Testimony, May 24, 1993, at 128, 266.
524 Potts Sworn Statement, December 17, 1993, at 12.
525 Glenn Sworn Statement, January, 12, 1994, at 11-12.
527 Jurgensen Sworn Statement, at 13.
527 [G.J.] See Section IV E(2)(a), supra.
Released through LEXIS COUNSEL CONNECT
LEXIS COUNSEL CONNECT is a communications and information service for attorneys. LCC is managed by American Lawyer Media, L.P.