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The gunfire ended eight years ago, but FBI sharpshooter Lon Horiuchi is not yet clear of a thicket of legal issues arising from a deadly standoff with white separatists at a woodsy homestead near Ruby Ridge, Idaho. On Wednesday, the 9th U.S. Circuit Court of Appeals, in a rare en banc hearing, listened to arguments over whether states may bring charges against federal agents for actions taken in the line of duty, whether those actions violated the Constitution or not. An earlier and divided three-judge panel ruled that Horiuchi is protected from prosecution by the Supremacy Clause, which holds that federal laws supersede state laws. Several judges on Wednesday’s 11-judge 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. A lawyer for Horiuchi, along with the Solicitor General of the United States, Seth Waxman, argued that even if Horiuchi was wrong when he inadvertently killed Vicki Weaver, wife of separatist Randy Weaver, the only place he could ever stand trial is in a federal court. What Horiuchi did, argued Waxman, “is precisely the type of decision that federal law enforcement officers are trained and required to make. “State prosecution of federal officers is terribly chilling in all but the most extreme cases, and this one is not,” Waxman said. But former U.S. Attorney General Ramsey Clark, arguing the state of Idaho’s case alongside Venice Beach, Calif., lawyer Stephen Yagman, said that Horiuchi should be held liable for his actions. “What do you do when there’s summary execution?” asked Clark. “We can’t be afraid of the states.” In August 1992, federal agents attempted to serve a warrant on Weaver for weapons and trafficking charges. A melee of gunfire and the ensuing standoff left Weaver and his friend Kevin Harris suffering from gunshot wounds. His wife, Vicki, their son, Sammy, the family dog and Deputy Marshall Michael Degan were killed. It was the shooting of Harris that led to Wednesday’s hearing. From 200 yards, Horiuchi fired at Harris as he retreated into Weaver’s home, but the bullet passed through the front door and struck Vicki Weaver in the head as she cradled her infant daughter in her arms. She had been holding the door open for Harris. Lawyers for Horiuchi argue that he was following orders. The rules of engagement for Ruby Ridge had been changed on-site, and agents were given the go-ahead to shoot any armed adult male. Harris was carrying a rifle. When the standoff ended eight days later, the court and public opinion battles began. Harris stood trial for killing agent Degan. He was acquitted. Congress investigated, and FBI Director Louis Freeh conceded that — with the benefit of hindsight — the FBI’s conduct was “clearly an overreaction.” The Department of Justice’s Office of Professional Responsibility also investigated, concluding that the shot that killed Vicki Weaver violated the Constitution and should be reviewed by the appropriate branch of the DOJ for “prosecutive merit.” The government never brought charges against Horiuchi. The en banc panel had several questions for both sides. For instance, several questioned whether there were factual disputes that should have gone to a jury. Waxman said the Supremacy Clause ends the case even if the facts are construed against Horiuchi. Adam Hoffinger, Horiuchi’s attorney, maintained there were “a defined set of undisputed facts” that the trial court judge used in throwing out the case. While Waxman and Hoffinger, a partner at Piper Marbury Rudnick & Wolfe, trounced Yagman and Clark in the clarity of their presentations, it may not be enough to keep Horiuchi out of court. An exchange between Hoffinger and Judge Alex Kozinski provided the highlight of the hour-long hearing. Kozinski attacked Hoffinger’s assertion that there was an undisputed set of facts on which the case rests, pointing out that one prong of the test for determining whether law enforcement agents receive immunity is a subjective issue — of whether Horiuchi honestly believed his actions were necessary — and is best put before a jury. Hoffinger said the state needed facts to back up that point. “Telepathy? A mind reader? What kind of facts?” Kozinski asked, throwing up his hands. Kozinski later asserted that there were, in fact, several disputed points. “When you want to believe your client, it is fact,” he told Hoffinger. RULES OF ENGAGEMENT More questions centered around whether Horiuchi was acting within the scope of the expanded rules of engagement established for Ruby Ridge. Again the argument was made that Horiuchi was acting within the scope of his order, which drew an indignant response from Judge Andrew Kleinfeld, speaking by telephone from Alaska. He pointed out that soldiers in war should not follow orders to raze a village of innocents. “The private is supposed to know that he commits a crime” if he follows the order, Kleinfeld said. It has been reported that some agents at Ruby Ridge decided not to follow the engagement rules. Kleinfeld and Kozinski are two of the court’s more conservative members, although both have libertarian streaks. Swing judges on the panel, including Judge Michael Daly Hawkins and Judge Susan Graber, seemed split on the issue. Perhaps more telling was the silence of the panel’s more liberal judges, including Richard Paez and Sidney Thomas, both of whom uttered not a word. The case could help determine how much states can oversee the actions of federal law enforcement agents within their boundaries. That question has elicited a strong response both from the government, which intervened, and four former United States attorneys general and a former director of the FBI and CIA (two of whom were also federal judges), who filed an amicus curiae brief. Their brief points out that federal programs aren’t subject to state scrutiny, and neither should federal agents be subject to state prosecution. “If the power to tax is the power to destroy, the power to prosecute is doubly so,” wrote O’Melveny & Myers partner James Asperger. The earlier 9th Circuit panel decision affirmed an Idaho federal judge’s decision to throw the case out based on the Supremacy Clause. The June opinion was written by visiting judge William Shubb of the Eastern District of California. Kozinski wrote the dissent. “Since when does taking up a defensive position justify the use of deadly force?” he asked. To say that this could justify federal officers squeezing off a few rounds, he added, was wrong. “This has never been the law in this circuit, or anywhere else I’m aware of — except in James Bond movies. 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.” It was the second time the court addressed the incident at Ruby Ridge. The two opinions conflicted, if not in law, then certainly in spirit. In 1997′s Harris v. Roderick, Judge Stephen Reinhardt denied FBI agents qualified immunity in a civil suit brought by Harris. Reinhardt’s majority opinion matched Kozinski’s later dissent in its barely contained anger, and seemed to open the door to the criminal case against Horiuchi, filed five weeks after the Harris decision was issued. “It is extremely doubtful … that Horiuchi will ever be able to establish that he is entitled to qualified immunity for his conduct in shooting Harris,” Reinhardt wrote. Harris was not mentioned at Wednesday’s hearing. When the state of Idaho decided to charge Horiuchi with involuntary manslaughter, Yagman was enlisted as a special prosecutor for a $1 fee. Idaho’s Boundary County has only one prosecuting attorney. On appeal from the district court’s decision to throw the case out, Yagman and the state relied heavily on Reinhardt’s opinion, but Shubb drew a line between the two cases. “Supremacy Clause immunity needs to be more protective than qualified immunity because it protects federal agents from the severity of being criminally convicted and having to face state criminal sanction,” he wrote. Harris settled his civil case last month for $380,000 plus medical costs, said his Boise attorney, Ellison Matthews. The government earlier paid Weaver $3.1 million in a suit over the death of his wife.

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