Federal and State Law
by
Matt Giwer (c) 1995 <3/5>

      After nearly two years of discussing Waco I find misconceptions about the law and the federal and state relationships between laws to be unbelievably common. At the risk of inciting the corrective ire of our resident attorneys I am going to try to lay out the basic, simplest principles that relate to this subject.
      But first there is an even more obvious point that many appear to have completely wrong. Rather than trying to describe the wrong point of view let me give the correct point of view. If there is no law, there is nothing to enforce, there is nothing for a law enforcement officer to do.
      I really can not find a way to paraphrase that to make it simpler. If something is not codified in law there is nothing any law enforcement person or agency can do. And by extension there is nothing the executive branch at any level can do, period.
      Specific to Waco, this means that if there was not an identified law against something the Branch Davidians were doing then violating a non-law was not justification for the attack upon them.
      Back to the top level discussion. There are federal laws and there are state laws. Only federal agencies can enforce federal laws and only state agencies can enforce state laws. Federal agencies can not enforce state laws and state agencies can not enforce federal laws.
      It is very clear in the Waco case that neither the BATF nor the FBI had any authority to deal with any violation of any aspect of any Texas law.
      The next point is that specific agencies are charged with the enforcement of specific laws. The BATF can not deal with immigration violations, the FBI can not deal with alcohol law violations and the BATF can not deal with kidnapping. The point is that when you hear of a "powerful multi-agency federal task force" what is means is that they had to form a committee because federal law enforcement is so bureaucratized. I will leave it up to the reader to reconcile "powerful multi-agency" and "committee."
      This is not to say there are not the inter-agency equivalent of the state and local "hot pursuit" agreements. One agency inadvertently discovering a crime over which they do not have jurisdiction can hold the person or persons until an officer from the proper agency shows up to make the arrest. This is general between federal, state and local agencies.
      But in these cases it is only a hold for an arrest by the appropriate bureaucrat not for any other purpose. Obviously the DEA is not going to say, "I thought you were smuggling drugs not alcohol, off you go." The person is going to be held for the BATF officer to show up and arrest.
      This is not to suggest agencies are limited to the items mentioned in their names. It was interesting to find the BATF that started the entire mess in Waco was displaced by the FBI because the FBI was in charge when federal agents are killed in the course of duty, only to find the BATF was in charge after the fire because they are charged with investigating fires related to federal crimes. It was also interesting to see the opportunity for a "you cover my ass, I'll cover yours" situation develop.
      And as in the beginning not one of these agencies or even an inter-agency committee can do anything unless it is with regard to some specific law that is on the books. Now I grant there are laws on the books to cover just about anything one can imagine but specific to the Waco case there are some seriously false assumptions being made.
      For example, the assumption that the BATF took action because of the large number of guns. False. There is no federal law regarding the number of guns any person or group can own and therefore the BATF had no power to do anything.
      The assumption that the BATF took action because of the large amount of ammunition. False. There is no federal law regarding the amount of ammunition a person or group can own therefore the BATF had no power to do anything.
      The assumption that the BATF took action because of child abuse and/or polygamy. False. There are no federal laws on these matter thus the BATF has no power to do anything.
      The assumption the BATF took action because Koresh was preaching the end times. False. There is no law against such preaching and therefore the BATF had no power to act.
      The (false) assumption that a combination of the above constituted a plan for the violent overthrown of the United States and therefore the BATF acted. False. There are such laws but the FBI, not the BATF, is charged with investigating such matters.
      The BATF was there for one and only one purpose, a (false) suspicion that there were unregistered weapons or devices being manufactured on the premises. I state this is false as the only justification for even being on the Branch Davidian property was contained in the search warrant. The search warrant contains no serious or credible suspicion of any such weapon or device.
      And one more point regarding this last paragraph, it is also true that only what is contained in a search warrant is justification and then only when it refers to a suspected violation of a law, in this case a federal law. A search warrant is not a fishing license and that it be specific is a federal constitutional requirement and that governs federal warrants. (State constitutions govern state warrants and when in compliance with USSC findings.)
      I doubt this will slow down those who do not understand this aspect of the law. I doubt they will even read this past the point where they find their particular false assumption. But it is something that needed to be written up.
      Thank you for your time.