A state cannot prosecute a federal law enforcement agent who acted “honestly and reasonably” when shooting at a fleeing suspect, a sharply divided federal appeals court ruled Wednesday in a closely watched case stemming from the 1992 siege at Ruby Ridge, Idaho.
By a 2-1 vote, the U.S. 9th Circuit Court of Appeals ruled that FBI sharpshooter Lon T. Horiuchi was entitled to immunity from criminal prosecution. Idaho authorities had sought to prosecute Horiuchi for a shot he fired that killed the wife of white separatist Randy Weaver and wounded Weaver’s friend, Kevin Harris.
In his strongly worded dissent, Judge Alex Kozinski said that the court majority set a “007 standard for the use of deadly force” in a nine-state region covered by the court.
Horiuchi killed Vicki Weaver as she was holding the couple’s baby girl, Elisheba. Federal agents had converged on the Weavers’ remote mountain cabin to arrest her husband on a federal weapons trafficking charge and shots had been exchanged, resulting in the deaths of Weaver’s son and a federal marshal.
In response, Horiuchi arrived later that day with a group of federal agents. He has consistently maintained that he did not see Vicki Weaver when he fired at Harris, who was armed and trying to flee into the Weavers’ cabin.
After the Justice Department concluded in 1997 that there was insufficient evidence to file federal criminal charges against Horiuchi, Boundary County prosecutor Denise Woodbury charged him with involuntary manslaughter. She alleged in court papers that Horiuchi had been grossly negligent and “showed utter disregard for other human life.”
The appellate court upheld a federal district judge’s dismissal of charges against Horiuchi. But the clash between the appellate judges Wednesday is likely to add further fuel to the controversy precipitated by the FBI’s actions at Ruby Ridge, an event that became a key symbol for anti-government activists, including the bomber of the Oklahoma City federal building, Timothy J. McVeigh.
A U.S. Senate subcommittee that reviewed the Ruby Ridge incident said in 1995 that it had “helped to weaken the bond of trust that must exist between ordinary Americans and our law enforcement agencies.”
On the other hand, the Horiuchi case was considered sufficiently important by the federal government that the Justice Department filed a friend-of-the court brief in support of the position advocated by Horiuchi’s private attorney: Federal officials are entitled to broad protection from state prosecution in the performance of their federal duties.
In addition, former FBI Director William H. Webster and four former U.S. attorneys general--Griffin P. Bell, Benjamin R. Civiletti, Richard L. Thornburgh and William P. Barr--filed a friend-of-the-court brief supporting immunity from prosecution for Horiuchi.
Webster, now a private attorney in Washington, applauded the ruling, saying that if the case had gone the other way it would have been an untenable precedent--subjecting federal law enforcement agents to different standards of conduct in different states.
“The sniper’s job in law enforcement requires split-second judgment that must depend exclusively on his/her federal training and policy,” the brief for Webster and the former attorneys general stressed. “To subject the performance of that function to second-guessing in the context of a state criminal action is to severely undermine, if not cripple, the ability of future attorneys general to rely on such specialized units in moments of crisis such as hostage taking and terrorist acts.”
The siege at Ruby Ridge began when U.S. marshals seeking to arrest Randy Weaver came upon Harris, Weaver and his 14-year-old son, Sammy, and their dog Striker at an intersection near the Weaver property. A marshal fired, killing the dog--prompting Sammy to return fire. Soon thereafter, another marshal shot and killed the teenager. In an ensuing gun battle, U.S. Marshal Michael Degan was shot and killed. Hours later, the team of FBI sharpshooters from the agency’s Hostage and Rescue Team arrived.
That day, the federal law enforcement agents created special rules of engagement providing that “any armed adult male observed in the vicinity of the Weaver cabin could and should be killed.” Generally, law enforcement agents may not shoot to kill unless the suspect poses an immediate threat or is fleeing and his escape will result in a serious threat.
The next day, Weaver, his daughter Sarah and Harris left the cabin and headed for a shed to prepare Sammy’s body for burial. Soon thereafter, Horiuchi shot and wounded Weaver. When Weaver and the others ran back to the cabin, Horiuchi fired at Harris. But the bullet hit Vicki Weaver in the head--killing her instantly--passed through her and hit Harris in the upper arm and chest.
In his majority opinion, Judge William B. Shubb, said Horiuchi acted reasonably because if Harris, who was armed, had made it into the cabin, he would have posed a greater threat. That, Shubb wrote, was because he could have fired out at the agents, who would have had to act with restraint because of the presence of children in the cabin.
“Horiuchi does not have to show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be,” wrote Shubb, a federal district court judge from Sacramento serving on special assignment. His opinion was joined by appellate Judge Ferdinand Fernandez. The two jurists lamented the “tragic result” but emphasized that “the state has presented no evidence of evil or malicious intent” by Horiuchi.
In distinct contrast, Kozinski lambasted Horiuchi’s conduct, noting that a U.S. Senate committee and the Justice Department’s Office of Professional Responsibility had criticized the agent’s actions in formal reports.
“When Horiuchi was taking aim for this shot, the three people who had ventured outside the cabin were running headlong toward it,” Kozinski wrote. “They were facing the cabin and away from the [FBI] helicopter. They were not aiming their weapons. They were making no menacing gestures. Running for their lives, they threatened no one. As the Department of Justice investigators observed: ‘Even giving deference to Horiuchi’s judgment, we do not find that the second shot was based on a reasonable fear of an immediate threat to the safety of officers or others.’ ”
Kozinski also blasted the majority’s rationale that Harris would have posed a greater threat once he got inside the cabin. “Since when does taking up a defensive position justify the use of deadly force? Taking a defensive position may have kept the suspects from being apprehended right away, but it would have posed no immediate threat to the officers. . . . Absent a threat, the FBI agents were not entitled to kill,” Kozinski concluded.
He also said the FBI should have used other measures at its disposal, such as demanding a surrender, commencing negotiations, waiting until the suspects ran out of food or shutting off water and electrical service to the cabin.
“It is . . . immensely troubling that the majority today holds--for the first time anywhere--that law enforcement agents may kill someone simply to keep him from taking up a defensive position,” Kozinski wrote. “This conclusion runs contrary to a long line of deadly force cases, all of which hold that only an immediate threat to life and limb will justify an intentional killing by law enforcement agents.”
Eight days after his wife was killed, Randy Weaver and the others surrendered. Subsequently, Weaver and Harris were acquitted on federal charges of killing Marshal Degan.
Weaver filed a federal civil suit against the government and settled that case for $3.1 million.
Harris’ federal civil suit against Horiuchi, other agents and the Justice Department is scheduled to go to trial in Boise in August.
In Wednesday’s ruling, the appellate judges also debated the differences between civil and criminal immunity.
In his dissent, Judge Kozinski said the ruling is directly at odds with a 1997 decision by the 9th Circuit, which said that Horiuchi and other FBI agents were not immune from facing a civil damage suit filed by Harris.
Shubb countered that a different type of immunity--under the supremacy clause of the U.S. Constitution--afforded protection to Horiuchi from state criminal prosecution.
The judicial conflict raises the possibility that the case may be reconsidered by a larger 9th Circuit panel.
Idaho prosecutor Woodbury issued a statement saying she had not yet been able to read the decision and consequently would not comment.
Horiuchi’s attorney, Adam Hoffinger of Washington, called the ruling “wonderful. It’s the second opinion which analyzes the facts and found that Lon Horiuchi’s conduct was reasonable under the circumstances.”
An FBI spokesman said that Horiuchi was still a member of the Hostage and Rescue Team but would provide no details on where he is stationed.
Weaver’s attorney, Michael Mumma, said that “although the family has settled their civil case with the U.S. government, there always has been the feeling that no individuals at Ruby Ridge--neither the agents in charge or Mr. Horiuchi, who fired the shot that killed Vicki--were held personally accountable for their actions. There always has been that disappointment on the family’s part.”