Agent Can Be Tried in Ruby Ridge Death

An FBI sharpshooter can be prosecuted by the state of Idaho for the killing of white separatist Randy Weaver’s wife during the 1992 siege at Ruby Ridge, a sharply divided federal appeals court in San Francisco ruled Tuesday.

The 6-5 decision by the U.S. 9th Circuit Court of Appeals reversed two earlier rulings and held that sharpshooter Lon T. Horiuchi’s status as a federal agent did not protect him from prosecution because he has not demonstrated that his actions were objectively reasonable.

Tuesday’s ruling in the closely watched case opens the way for Idaho officials to bring Horiuchi to trial on manslaughter charges filed against him for firing a shot that killed Vicki Weaver and wounded her husband’s friend Kevin Harris during the bloody standoff. Idaho officials acted after the Justice Department concluded in 1997 that there was insufficient evidence to file federal criminal charges against Horiuchi.

The court’s decision returns to the spotlight a long-running controversy over the FBI’s actions at Ruby Ridge, an event that became a key symbol for anti-government activists, including Oklahoma City federal building bomber Timothy J. McVeigh, who is scheduled to be executed Monday.

A U.S. Senate subcommittee that reviewed the Ruby Ridge standoff said in 1995 that it had “helped to weaken the bond of trust that must exist between ordinary Americans and our law enforcement agencies.”

The ruling, which deals with critical issues concerning relations between state and federal authorities, may be appealed to the U.S. Supreme Court.

In its lengthy decision, the 9th Circuit was deeply split but not along traditional political lines. Three judges appointed by former President Clinton were in the majority and three dissented; two appointed by former President Bush were split, as were two appointed by former President Carter.

“When federal officers violate the Constitution, either through malice or excessive zeal, they can be held accountable for violating the state’s criminal laws,” Judge Alex Kozinski wrote in his majority opinion.

“When federal law enforcement agents carry out their responsibilities, they can cause destruction of property, loss of freedom, and as in this case, loss of life--all of which might violate the state’s criminal laws,” added Kozinski, the only panel member appointed by former President Reagan.

In his sharp dissent, Judge Michael D. Hawkins said the ruling would have a “chilling effect” on federal law enforcement personnel and have consequences well beyond subjecting Horiuchi to a trial.

“The inevitable result of the majority opinion is that federal agents will hesitate in precisely those highly charged situations in which their quick judgment is most critical to the effective enforcement of our nation’s laws,” wrote Hawkins, who was appointed by Clinton.

“Every day in this country, federal agents place their lives in the line of fire to secure the liberties that we all hold dear. . . . Today’s decision is a grave disservice to all these men and women, who knew until now that if they performed their duties within the bounds of reason and without malice that they would be protected from state prosecution by supremacy clause immunity and not subjected to endless judicial second-guessing.”

Horiuchi Still With FBI Hostage Unit

Responding to the decision, Horiuchi’s lawyer Adam S. Hoffinger said: “It is unfortunate that the majority chose to second-guess the split-second judgment of a law enforcement officer thrust into a dangerous situation. The case is not over, however, and at the end of the day, Mr. Horiuchi will be exonerated, as he has been in the past.”

Horiuchi remains an FBI agent and continues to work in the agency’s Hostage and Rescue Unit.

FBI Director Louis J. Freeh said Tuesday that “we continue to believe strongly Agent Horiuchi met the legal standard that protects law enforcement officers when they carry out their sworn duties, even when the consequence in hindsight is regrettable.”

It is unclear what precisely will happen next. The 9th Circuit sent the case back to a federal district judge in Boise, Idaho, with instructions to reinstate the criminal charges against Horiuchi and to hold further proceedings on the reasonableness of Horiuchi’s conduct.

If the judge decides that Horiuchi acted unreasonably, then the case could proceed to a state court trial before a jury.

Brett Benson, the Boundary County, Idaho, district attorney whose predecessor filed charges against Horiuchi, did not respond to calls seeking comment. But Los Angeles attorney Stephen Yagman, who was hired as a special prosecutor by the Idaho county, praised the ruling.

“This is a significant decision for individual rights and states against the might of an often evil federal government, and it puts yet another nail in an open coffin of a discredited, corrupt and incompetent FBI and its director, Louis Freeh,” Yagman said.

The ruling also was praised by Weaver, former U.S. Atty. Gen. Ramsey Clark, who argued for the state of Idaho, and the libertarian Cato Institute, a frequent critic of the federal government.

“Certainly, it has been his opinion all along that just because they are federal law enforcement officers they should not be held to a different standard” on when deadly force can be used, said Weaver’s attorney, Michael Mumma. With this decision, “there is some accountability for the actions of federal officers.”

“The law’s first obligation is protecting the public from excessive force by its own government,” Clark said. Clark’s position put him sharply at odds with the Clinton Justice Department, which filed a friend-of-the-court brief on Horiuchi’s behalf, as did former attorneys general Griffin B. Bell, Benjamin R. Civiletti, Richard L. Thornburgh and William P. Barr, joined by former FBI Director William H. Webster.

To subject the performance of FBI snipers who have to make split-second decisions 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 and terrorist acts,” the former federal officials maintained in their brief.

Idaho Standoff Began With Arrest Attempt

The siege at Ruby Ridge began when U.S. marshals seeking to arrest Randy Weaver came upon Weaver, his 14-year-old son, Sammy, their dog Striker and Harris at an intersection near the Weaver property in a remote area of Idaho. A marshal fired, killing the dog, prompting Sammy to return fire. Soon afterward, another marshal shot and killed the teenager.

In the ensuing gun battle, U.S. Marshal Michael Degan was shot and killed. A few hours later, a team of FBI sharpshooters from the agency’s hostage and rescue team, led by Horiuchi, arrived.

The team created rules of engagement providing that “any armed adult male observed in the vicinity of the Weaver cabin could and should be killed.” As a general rule, law enforcement agents may not shoot to kill unless a suspect poses an immediate threat or is fleeing and his escape would result in a serious threat.

The next day, Weaver, his daughter Sarah and Harris left their cabin and headed for a shed to prepare Sammy’s body for burial. Not long afterward, Horiuchi shot and wounded Weaver. When Weaver and the others ran back toward the cabin, Horiuchi fired at Harris. But the bullet hit Weaver’s wife, Vicki, in the head, and killed her instantly. The bullet passed through her and hit Harris in the upper arm and chest.

Eight days later, Weaver and the others surrendered. Weaver and Harris were later acquitted on charges of killing Degan.

Weaver settled a federal civil rights suit against the government for $3.1 million, and Harris settled his for $380,000.

The key issue in the case decided Tuesday (State of Idaho vs. Horiuchi, No. 98-30149) “is what is the appropriate standard for when a state can prosecute a federal officer,” said USC constitutional law professor Erwin Chemerinsky. “There is a huge gulf between the majority and the dissent, both in the legal rule and the attitude toward it.”

Issue of Immunity for U.S. Agents Debated

On the one hand, Kozinski wrote that “federal agents will be immune from state prosecution if they acted in an objectively reasonable manner in carrying out their duties.”

On the other hand, Hawkins’ dissent states that “a federal agent is entitled to immunity from state prosecution if he was acting within the scope of his official duties and employing means that he honestly and reasonably considered necessary to the discharge of those duties.”

Hawkins stressed, “No federal officer has ever been denied immunity because a court later second-guessed the reasonableness of his conduct. The only cases in which immunity has been denied are cases in which there is clear evidence of malice or evidence that the officer was not on official duty.”

Kozinski, however, specifically rejected the idea that the prosecution had to demonstrate that the officer acted with malice. “There are . . . numerous ways a federal officer might abuse his authority, without exhibiting a bad intent,” Kozinski wrote.

“A group of FBI agents formulated rules of engagement that permitted their colleagues to hide in the bushes and gun down men who posed no immediate threat. Such wartime rules are patently unconstitutional for a police action.”