-Caveat Lector-
Government to unveil new details of fatal ATF raid
CATHY FRYE
ARKANSAS DEMOCRAT-GAZETTE
The federal government has agreed to release a more detailed account
of the
events leading to an Alcohol Tobacco and Firearms Bureau raid that left
a
man dead in his bedroom.
Carl Wilson, 60, was killed in a shootout with federal authorities when
they arrived before dawn on Jan. 12 at his rural Faulkner County home.
They
were searching for an old Winchester rifle.
The documents explaining why the ATF wanted the gun have
remained
sealed
in federal court. The Democrat-Gazette filed a motion Feb. 15, asking
that
the case file be made public. The government initially objected to the
newspaper's request.
But at a hearing before U.S. Magistrate J. Thomas Ray on Friday,
prosecutors agreed to unseal the documents. However, they want to
redact, or
"black out," portions of the file beforehand, saying witnesses and
informants need to be protected.
The judge's ruling, expected next week, will likely challenge the
constitutionality of the way in which search-and-seizure warrants are
handled in the Eastern District of Arkansas. It could eliminate the
automatic sealing of all warrants and accompanying documents, and
instead
require a specific request from prosecutors to keep the paperwork from
public view.
At Friday's hearing, attorneys haggled not only over the Wilson case
but also the First Amendment versus search warrants -- namely, how
much
information should remain secret and why.
"We are an open society," said lawyer Jess Askew, who is
representing
the Democrat-Gazette. "As Justice [Warren] Burger has said, 'People in
an
open society do not demand infallibility from their institutions, but it is
difficult for them to accept what they are prohibited from observing.'"
U.S. prosecutor Michael Johnson, citing concerns about the names of
witnesses that appear in some of the sealed documents, countered the
newspaper's argument: "The First Amendment is not the sole societal
interest at stake here."
The current debate over the secretive manner in which search
warrants
are obtained and filed in court emerged from what happened in the early
morning darkness when ATF agents carried out a surprise raid at
Wilson's
home.
They were looking for a .30-.30 Winchester rifle, model 94, serial
number NRA 8315.
Wilson's widow, Tammy, wants to know why her husband was being
investigated. And how, she asks, did the raid turn deadly? Much to her
anger, the answers have remained secret.
Until Friday, the only items that had been unsealed were the search
warrant and an inventory of what was seized at the Wilson home. Both of
those documents had been given to the family at the time of the raid.
Friday, the court unsealed two more documents -- the Jan. 10
application
for the search warrant and an exhibit, which was an aerial photograph of
Wilson's isolated home.
Still sealed, however, is the probable-cause affidavit, which would
explain what kind of investigation the ATF was conducting and why a
no-knock raid was necessary.
No-knock raids allow officers to enter a home without announcing
themselves. The Wilson raid was to occur "in the daytime," according to
the
warrant. Federal law defines "daytime" as between 6 a.m. and 10 p.m.
ATF agents raided Wilson's home at 6:30 a.m. Sunrise that day was
around
7:15 a.m.
In documents filed with the court, the Democrat-Gazette argues:
"A man was shot and killed in his own bedroom by state and federal
authorities with a federal search warrant, and the press wants to know
why
the authorities were there. The government seeks to conceal this
information. In doing so, the government seeks to avoid accounting to
the
people for its conduct in this most unfortunate episode.
"By failing to account, the government engenders dark suspicions
about
its conduct."
In its initial response to the newspaper's motion, the government
argued
that unsealing the case file would compromise confidential information
related to the investigation and make public the names of witnesses
involved in the ATF investigation.
They also cited an ongoing investigation into the shootout by state
police, arguing that this unfinished inquiry should be grounds for keeping
the documents sealed.
The judge said Friday, however, that the state police investigation has
no bearing on whether the case file should be made public.
Although prosecutors are withdrawing their objections to unseal the
file, they want the names of witnesses and any information that would
identify those witnesses blacked out before the documents are made
public.
The importance of these witnesses is unclear. Authorities have said
their investigation of Wilson ended with his death and that no one else
will be charged in the case.
Prosecutors' reasons for requesting that portions of the documents be
censored aren't known because the government's response to the
Democrat-Gazette's motion also has been sealed in federal court. This
situation made arguments at Friday's hearing vague but sharply worded
nonetheless.
The judge opened the proceedings by saying he took issue with the
wording in one particular sentence of the newspaper's motion. It reads:
"What's at stake here is not the fate of a federal investigation into Carl
Ray Wilson's hunting rifle, but the people's understanding and
acceptance
of the exercise of judicial power that permitted these authorities to break
down Mr. Wilson's door in darkness and shoot him."
Judicial power didn't kill Wilson -- a shootout with police did, the
judge said, adding that he was "personally shocked and deeply
saddened to
hear of Mr. Wilson's death."
But what happened after the warrant was granted "is something that
is
outside ... the power of this court," Ray said. "Absolutely nothing in the
search warrant could be blamed for what happened."
Johnson also was indignant, saying he thought the newspaper had
accused
the government of "trying to conceal untoward motives."
"I consider that salacious, and I consider that unjustified, to make
such an accusation."
Johnson argued that when authorities ask a judge for a search
warrant,
they have to be candid about why they want one. But not all of the
reasons
cited should be made public, he said.
Askew disagreed, arguing that once a case is closed, there's no
reason
to keep anything a secret. Wilson is dead, so there will be no trial,
Askew
said. Why then, he asked, do witnesses need to be protected? Askew
also
asked if witnesses had requested or been promised confidentiality.
"People who get involved in giving information to the government
ought
to know they may one day be identified or end up on the witness
stand," he
said.
The attorneys also debated the constitutionality of General Order
No.
22, which stipulates that all documents pertaining to a search or
seizure be
kept in a "miscellaneous" confidential file -- unless someone showing
"good
cause" files a motion with the court to unseal the documents.
Good cause is presumed when a request is made by someone
directly
affected by the execution of the warrant.
Ray told the lawyers that he sees several problems with General
Order
No. 22.
"I'm going to be candid," the judge said. "I think [the order] is
overbroad in every case. There are aspects of General Order 22 that
trouble
me greatly from a constitutional aspect."
Information for this article was contributed by Amy Upshaw and Jim
Brooks of
the Democrat-Gazette.
--Best Wishes
Woolybooger for the day:
If the personal freedoms guaranteed by the Constitution inhibit the
government's ability to govern the people, we should look to limit
those guarantees. - President Bill Clinton, August 12, 1993
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