Appeals court hears Ruby Ridge case

The

9th U.S. Circuit Court of Appeals has heard arguments over whether states can charge federal agents and law enforcement personnel with crimes for actions taken in the line of duty, whether or not the actions in question were constitutional violations.

The case, heard Dec. 22 by an 11-judge panel in the federal appeals court, stems from an eight-year-old incident involving alleged "white separatist" Randy Weaver and the death of his wife, Vicki, who was shot by an FBI sniper as she stood in the doorway of the couple's remote Idaho cabin holding their infant daughter in August 1992.

The sniper, Lon Horiuchi, had already been cleared of any wrongdoing by a divided panel of three federal judges who ruled that he is protected from prosecution by the Supremacy Clause -- which states that federal laws supersede state laws.

But according to a report published last week on

Law.com, "several judges [on the appeals panel] seemed deeply troubled not only by Horiuchi's deadly marksmanship, but also the question of whether states have any right to prosecute him for involuntary manslaughter."

In earlier cases, Horiuchi's main line of defense has been that he was acting under orders from FBI officials in charge of the so-called "Ruby Ridge stand-off," and that in either case, his killing of Mrs. Weaver was an accident as he was aiming for Weaver family friend Kevin Harris.

A little more than eight years ago, as federal agents attempted to serve a warrant on Randy Weaver for alleged weapons charges, a gun battle broke out between the Weavers (and friends staying with them) and federal marshals who were serving the warrant.

In the immediate aftermath, Weaver and Harris were wounded, but Weaver's 14-year-old son, Sammy, and the family dog, were killed. Deputy Marshal Michael Degan was also killed.

The shootings touched off an 8-day stand-off, but it was the shooting of Mrs. Weaver by Horiuchi -- who fired from 200 yards away -- that led to the Dec. 22 hearing.

Attorneys for Horiuchi argued that the FBI sharpshooter was merely following orders, but the rules of engagement for Ruby Ridge had been changed on-site by agents-in-charge who had given the order to shoot any armed adult male seen outside the Weavers' remote cabin.

Under this order, Horiuchi has testified that he was attempting to shoot Harris as he ran back towards the cabin while Mrs. Weaver -- baby daughter in hands -- held the door open for him.

Eventually, Harris stood trial for killing Deputy Degan, but was acquitted. Weaver won a $3.1 million awards judgment against the federal government.

Congress also investigated the incident, and FBI Director Louis Freeh admitted that, in hindsight, the agency's conduct had "clearly" been "an overreaction."

Also, the Department of Justice's Office of Professional Responsibility investigated the incident, finding that Horiuchi's shooting of Mrs. Weaver "violated the Constitution and should be reviewed by the appropriate branch of the DOJ for 'prosecutorial merit,'" Law.com said.

Yet, the department never brought charges against Horiuchi and has defended him virtually every step of the way in the ensuing legal battles brought by the state of Idaho.

Though Horiuchi's lawyers maintained he was acting within the scope of the orders issued by FBI agents in charge at Ruby Ridge, one jurist -- Judge Andrew Kleinfield, who spoke via telephone during the hearing from Alaska -- became indignant.

Using the argument that soldiers are not bound to follow immoral orders or orders to raze a village of innocent civilians, Kleinfield said, "The private is supposed to know that he commits a crime" if he follows such an order.

And though there has been no direct corroboration, the court noted that some reports said other agents at Ruby Ridge had decided not to follow the rules of engagement set forth by senior agents.

Analysts said the case could help to define the parameters of state oversight in matters of federal law enforcement within the state's boundaries. But not everyone has agreed upon those boundaries.

In an amicus curiae ("friend of the court") brief filed with the 9th Circuit Court of Appeals, four former U.S. attorneys general, a former FBI director and a former CIA director, both of whom were also federal judges at one time, pointed out that federal programs aren't normally subject to state scrutiny. Also, they said, federal agents should not be subject to state prosecutions.

In an earlier 9th Circuit panel's decision in June to throw out the case based on the Supremacy Clause, Judge Alex Kozinski of the 9th Circuit wrote the dissenting opinion.

"Since when does taking up a defensive position justify the use of deadly force?" asked Kozinski. "To believe that could justify the shots federal agents fired off was wrong. This has never been the law in this circuit, or anywhere else I'm aware of -- except in James Bond movies," Kozinski added. "Because the 007 standard for the use of deadly force now applies to all law enforcement agencies in our circuit -- federal, state, and local -- it should make us all feel less secure."

Harris finally settled his civil suit against the government last month for $380,000 plus medical expenses.

The 9th Circuit gave no indication when the court would rule on the appeal.

Related columns:

The FBI's favorite hitman

No lesson learned from Ruby Ridge