by
Matt Giwer (c) 1995 <9/21>
I have received quite a surprising number of messages in response to a statement in one of my articles pointing out that the Davidians were under no obligation to surrender to the Government. The common assertion is that they were resisting arrest. This obviously needs some clarification.
The power of an officer to arrest are limited to those crimes he actually witnesses. And, yes, an officer can arrest a person fleeing the scene of a crime he did not witness. That is because he is witnessing another crime, fleeing the scene of a crime.
Fleeing to avoid arrest is also a different crime from resisting arrest. An arrest consists of announcing to the person that he is in fact under arrest. Fleeing to avoid hearing those words is therefore a separate crime.
Resisting arrest consists effectively of refusing to do what the officer says after the arrest announcement. Thus both passive resistance and violent resistance are both resisting. The former is rarely prosecuted as no one is harmed by it. Should resistance include attacking the officer that is another separate crime.
In the absence of the officer witnessing the crime there is another procedure used. The victim or witness swears a complaint against the person who committed the crime. Then the police seek an arrest warrant for that person specifically naming the person(s) to be arrested.
Thus both the constitutional requirements of an oath and naming are satisfied. The police then serve the warrant and make the arrest. Absent a specific name, a John Doe warrant can be issued.
In Waco no one with authority to arrest for murder witnessed the alleged crime. Of course anyone, and particularly a law enforcement officer, could have held the perpetrators under warrants could be obtained. However, in Waco it was the other way around, the Davidians had captured four BATF agents inside.
And they did follow the alternate procedure. The BATF swore out a complaint and the FBI obtained an arrest warrant based upon that complaint. As they lacked the names of those firing this was effectively a John Doe warrant although I believe the form of it was "David Koresh and others."
This permitted the FBI to arrest anyone who surrendered and to hold them until specific charges were filed against individuals, such as attempted murder against the seventy year old woman. What the FBI did not do is get on the loudspeaker and announce "you are all under arrest" and then order them to surrender. Why not?
Most simply a John Doe warrant can not be used indiscriminately. Arresting everyone inside because they were inside would be no different from arresting every black male because that fits the description. Clearly all of the children could have suits on their behalf for false arrest as could probably all the women and most of the men. And whether the suits were dismissed or not, it would clearly be a violation of their constitutionally protected rights even if they were released immediately.
Further there is no way to discriminately use a John Doe warrant. They would have to say something like, "All of you who murdered agents are under arrest and are ordered to come out." Clearly "coming out" would be self incrimination and no person can be compelled to offer evidence against themselves in any criminal case.
And then there is the issue of disobeying the lawful orders of a police officer. The crux there is lawful, it is not every order. A lawful order is where there are laws permitting the police to give such orders. These are limited to areas that are generally considered matters of public safety, such as traffic control, emergency situations, and the like.
And thus the issue of a lawful order must be satisfied by finding a federal law that requires people to obey the orders of the FBI in such a situation. That law does not exist.
Thus absent someone pointing out specifically what I have missed and why it applies to Waco, there was no lawful requirement for any of the Davidians to have surrendered to anyone at any time. I invite substantive disagreement.
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