Waco Verdict Challenges Government's Use of Force

AS applied to the tragic, frustrating conflict between federal agents and an armed religious sect outside Waco, Texas, a year ago today, words carry opposite implications of intention and responsibility. Government critics say the ``invaded'' Branch Davidians killed in self-defense. Federal lawmen say their ``ambushed'' agents were murdered.

In the five-week trial of 11 sect members in San Antonio, Saturday's verdict represents a middle position. All were found innocent of murder and conspiracy to murder; five were convicted of voluntary manslaughter and face possible prison sentences of 10 years, and two were also convicted of weapons charges.

``Their defense - that they had a `self-defense' right to kill federal agents - was obviously rejected,'' says Ron Noble, assistant secretary of enforcement for the Treasury, the department overseeing the Bureau of Alcohol, Tobacco and Firearms, which lost four agents during the Waco raid.

``I don't think, prior to Waco, law-enforcement officers truly contemplated that people might lie in wait to ambush them when they're there trying to enforce federal search or arrest warrants,'' Mr. Noble says. ``We are absolutely convinced ... the agents were murdered.''

But Robert Pugsley, a criminal-law professor at Southwestern University law school in Los Angeles, calls the acquittals ``a devastating stomach blow to the prosecution.'' He adds: ``The jury's message was: This was an abusive use of government force.''

``This was not a neutral prosecution of the law,'' says David Schultz, a constitutional-law expert at Trinity University in San Antonio. ``Given the severity of the criticism ... I think [the government] desperately needed this trial and a lot of convictions.'' Mr. Schultz says the government ``shouldn't try to make a political trial out of something it can't win.... Clearly, they have to rethink their strategy about whether or not armed force is going to be successful ... [and] how it's going to play out in court.''

``The facts do not sufficiently warrant a full acquittal based on self-defense,'' Mr. Pugsley says, explaining that the jury perceived mitigating factors - ``human frailty under extreme circumstances'' - to convict defendants of voluntary manslaughter. ``The test is what a reasonable person would do. Would you or I, acting reasonably, have acted differently? And the jury said: `No.' ''

Pugsley notes another case, the acquittal of Randy Weaver, whose home was staked out for 18 months by federal agents. Wanted for selling a sawed-off shotgun, he surrendered after his wife was killed in a shootout. ``[The two verdicts] begin to establish a pattern that is sending a message to the government,'' he says. ``The citizenry of the country will not, after the fact, validate the use of excessive or abusive force by governmental agents merely because it is directed at eccentrics....''

Derek Davis, director of church/state studies at Baylor University in Waco, criticizes government handling of the Waco raid from the standpoint of religious liberty. ``The government needs to understand what its relationship to religion is.... It's to be a facilitator to the free exercise of religion.

``They have made this group out to be a fanatical bunch of nuts who were bent on destroying people through use of their arsenal of weapons,'' Mr. Davis adds. ``Most people around here ... thought of them in very peaceful terms. Frankly, the government had no justification for invading a compound with a hundred armed agents to serve a search warrant. Just showing up on a Sunday morning when they're in the middle of worship, locked and cocked, as David Koresh liked to say, I just think is a travesty.''

Once the standoff began, officials disparaged the faith. President Clinton called members ``a bunch of religious fanatics,'' Davis says. ``[Government] should be completely neutral toward all religions and not make judgments about who has religious truth and who doesn't.''

The acquittals pleased Dean Kelly, a retired minister and the religious-liberty counselor to the National Council of Churches. ``It's not clear how [sect members] could have avoided bloodshed if they wanted to,'' he says. He reached that conclusion after reading Treasury and Justice Department reports on the event. The government ``should reexamine its rather arrogant approach to law enforcement,'' he says. ``I'm not sure [sect members] posed a threat to others even if they had weapons. Who doesn't in Texas?''

Counters Noble: ``[Sect members] were lying in wait ... when their illegal arsenal was threatened, look at how they reacted.''