Metropolitan News-Enterprise


Wednesday, June 6, 2001


Page: 1


En Banc Court Reinstates Prosecution of Agent in Ruby Ridge Case


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals reversed itself yesterday and ruled that an FBI sharpshooter may be tried for manslaughter in the shooting death of the wife of white separatist Randy Weaver during the 1992 Ruby Ridge standoff.

Sitting en banc, the court reversed a three-judge panel opinion from a year ago ruling that the U.S. Constitution’s Supremacy Clause protected agent Lon Horiuchi from prosecution under Idaho criminal law, whether or not the agent was deemed to have used excessive force in shooting Vicki Weaver.

“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 for the divided appeals court. Kozinski authored a strongly worded dissent from last year’s ruling.

The court agreed with Ramsey Clark, the U.S. attorney general during the Lyndon Johnson administration, who argued in December that immunity cannot be granted until trial is held to determine whether Horiuchi acted unlawfully. Clark represented Boundary County, Idaho, which looks to prosecute Horiuchi.

Arguing alongside Clark was Los Angeles attorney Stephen Yagman, who is best known for excessive force lawsuits and other legal challenges to law enforcement agencies.

Yagman called the decision a “significant victory for individual rights and states rights.” He said it “puts another nail in the open coffin ... of the FBI.”

The Justice Department said it is studying the decision and would not comment on whether it would ask the U.S. Supreme Court to intervene.

“We’re going to review the court’s decision today and make a determination to what will be our next step in the future,” department spokesman Charles Miller said.

Decade of Embarrassments

The Ruby Ridge incident was the first in what has become a decade of embarrassments for the FBI. The agency also has been criticized for its handling of the Branch Davidian siege near Waco, Texas, and for failing to disclose to defense lawyers more than 4,000 documents pertaining to the Oklahoma City bombing and the subsequent prosecution of Timothy McVeigh.

There also was the recent indictment of FBI agent Robert Hanssen, accused of giving U.S. secrets to the Soviet Union and later to Russia in return for $1.4 million.

The 1992 standoff in northern Idaho prompted a nationwide debate on the use of force by federal agencies. Ruby Ridge, where the Weaver family lived, has become synonymous with high-profile clashes between militants or separatists and the federal government.

But the Horiuchi case also is unusual in that county prosecutors have attempted to take on federal officials. The Boundary County prosecutor hired Yagman as a special deputy to try the case, which was then removed to federal court under a statute dealing with criminal prosecutions of federal officers.

Clark joined the case after Yagman was suspended for a year by the State Bar of California.

Arrest Attempt

The standoff began after federal agents tried to arrest Randy Weaver for failing to appear in court to face charges of selling two illegal sawed-off shotguns.

The cabin had been under surveillance for several months when the siege began with the deaths of Deputy U.S. Marshal William Degan, Weaver’s 14-year-old son, Samuel, and the Weaver family dog, Striker.

Part of a hostage rescue team, Horiuchi fired through a door at Kevin Harris, a friend of Weaver who was armed, and hit Vicki Weaver in the head as she carried an infant in her arms.

Lawyers arguing on behalf of the federal government said Horiuchi was simply following special rules of engagement authorizing the use of deadly force against any armed adult male spotted in the open.

Horiuchi maintains he didn’t see Vicki Weaver when he fired at Harris. He also has said he fired to protect a government helicopter overhead. A wounded Harris later surrendered, as did Weaver.

Both men were acquitted of murder, conspiracy and other federal charges. Weaver was convicted of failing to appear for trial on the firearms charge.

In last year’s opinion by Chief Judge William Shubb of the Eastern District of California, sitting by designation, the Ninth Circuit on a 2-1 vote affirmed a trial court order dismissing a charge of involuntary manslaughter.

On rehearing en banc, the court appeared troubled with the case, and voted 6-5. Judge Michael Daly Hawkins said in dissent that the majority was playing Monday-morning quarterback by “dissecting the mistakes” of Horiuchi, and said the majority’s opinion was a “grave disservice” to FBI agents.

“Every day in this country, federal agents place their lives in the line of fire to secure the liberties that we all hold dear,” Hawkins wrote. “There will be times when those agents make mistakes, sudden judgment calls that turn out to be horribly wrong.

“We seriously delude ourselves if we think we can serve the cause of liberty by throwing shackles on those agents and hauling them to the dock of a state criminal court when they make such mistakes.”

Kozinski was joined by Judges Procter Hug Jr., Andrew J. Kleinfeld, Sidney R. Thomas and Richard Paez.

Factual Disputes

Hawkins was joined by Chief Judge Mary Schroeder and Judges Pamela Ann Rymer, Barry G. Silverman and Susan Graber. But Graber distanced herself from a Hawkins footnote asserting that all factual disputes already had been decided in the district court.

Judge William A. Fletcher issued a partial dissent. But his partial concurrence was enough to reverse the panel.

The Justice Department last summer settled the last lawsuit stemming from the standoff. The government admitted no wrongdoing, but paid Harris $380,000 to drop his $10 million civil damage suit.

In 1995, the government paid Weaver and his three surviving children $3.1 million for the killings of Weaver’s wife and son.

The case is Idaho v. Horiuchi, 98-30149.