The first casualties at Mount Carmel were neither cult members nor federal agents: They were five dogs. The biggest one was an 80-pound brown malamute named Fawn. The rest were Fawn's 10-month-old puppies.
The animals' demise has become a central issue in the Branch Davidians' $675 million lawsuit against the federal government because the shooting of the dogs apparently led to the ferocious Feb. 28, 1993 gun battle that left 10 people dead, including four agents from the Bureau of Alcohol, Tobacco and Firearms and six Davidians. Ever since the shootout, the Davidians and the government have been arguing over which side shot first. And the picture emerging from the trial, now entering its third week, is that when the ATF began killing the dogs, the Davidians believed they were being attacked and began returning fire.
In testimony Wednesday, ATF agent Ken Latimer described the scene at Mount Carmel shortly after he exited a cattle trailer in front of the building. Latimer, who was riding in the second of the two cattle trailers used by the ATF, told the half-full courtroom that he heard sporadic gunfire near the entrance to the building shortly after he got out of the trailer. "At first I thought it was the dogs being shot," Latimer said. A few seconds later, Latimer said a volley of gunfire erupted from inside Mount Carmel.
Latimer's testimony is consistent with that of several other ATF agents who have testified during the government's defense presentation. The agents have all testified that they first heard a series of single shots and then a barrage of gunfire that included automatic weapons. The Davidians had a large number of automatic weapons at Mount Carmel that included AK-47s and M-16s. The ATF agents did not have any automatic rifles that day.
There has also been extensive discussion of the duties of the ATF's dog team, which was equipped with a fire extinguisher loaded with carbon dioxide intended to scare the dogs away. The dog team also carried shotguns loaded with buckshot. If the fire extinguisher didn't subdue the dogs, the team members were to kill the animals.
Just before Latimer took the stand, ATF agent Gerald Petrilli testified that he first heard a series of single gunshots shortly after he left the lead trailer. Seconds later, he told the court that as he approached the front door of Mount Carmel, he shot a "rather ferocious, large dog" with his 9mm pistol. But under cross-examination by Michael Caddell, the lead attorney for the Davidians, Petrilli, who was not part of the dog team, testified that he could not be certain that he had hit the dog with his 9mm sidearm. "Can I swear I hit the dog?" said Petrilli. "No. But I'd be surprised if I missed."
Other testimony came from ATF agent Gary Orchowski, who told the court that he heard intense gunfire seconds after leaving the first cattle trailer. But under cross-examination, Orchowski admitted that he first heard intermittent gunfire. And Caddell introduced a statement by Orchowski that he gave to the Texas Rangers on March 9, 1993. In that statement, Orchowski said that after he got out of the trailer, he saw a puff of smoke near the front door of Mount Carmel that looked like gas from a fire extinguisher being used by the dog team. "When that didn't work," Orchowski told the Rangers, "they were forced to shoot" the dogs.
Last week, Clive Doyle, one of just nine Davidians who escaped from the burning ruins of Mount Carmel on April 19, 1993, testified that when the ATF shot the dogs, the people inside the building became angry. "Shooting at our dogs is the same as shooting at us," Doyle said. "It was the beginning of a war."
While the dogs appear to be the reason the gun battle began, none of the witnesses who have yet testified has been able to say definitively which side was the first to shoot at humans.
Also on Wednesday, Dan Mulloney, a former photographer for KWTX-TV in Waco who was one of only two noncombatants to see the Feb. 28 shootout, told reporters that the government had subpoenaed him and planned to have him testify. But according to Mulloney, during a two-hour meeting with U.S. Attorney Michael Bradford on Tuesday night, Bradford changed his mind.
The reason, said Mulloney, is that he was going to tell the court that he saw one of the three National Guard helicopters used during the raid come within 75 yards of the building. He was also going to testify that one of the choppers hovered just a few feet off the ground near Mount Carmel shortly before the gunfire began. "They're hiding something about the helicopters," Mulloney told reporters outside the courthouse.
Mulloney's statements about the helicopters were partially supported by the KWTX reporter who was with him that day, John McLemore. Last Friday, McLemore testified that the choppers flew directly over Mount Carmel and came within 100 yards of the building.
Last week, the government put the three National Guard helicopter pilots who flew the aircraft on the witness stand. All three pilots testified that the choppers never flew directly over the building and all of them stayed at least 300 yards away from the building. They all testified there was never any gunfire from the helicopters. The Davidians have always insisted there was gunfire from the helicopters.
If there was gunfire, it would be a clear violation of the Posse Comitatus Act of 1878. The law prohibits the military from acting as a police force against civilians and authorizes fines and prison terms for anyone who "willfully uses any part of the Army or the Air Force as a posse comitatus to make arrests or otherwise to execute the laws."
After testimony ended for the day, U.S. Attorney Michael Bradford, who is leading the government's defense team, dismissed Mulloney's charges. "We didn't think his testimony was necessary," said Bradford. "So we decided not to use him."