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The FBI agent who killed the wife of separatist Randy Weaver at a remote homestead in Ruby Ridge, Idaho, is not immune from state manslaughter charges, the 9th U.S. Circuit Court of Appeals ruled on Tuesday. The 6-5 en banc decision remands the case against Lon Horiuchi, the sharpshooter who fired the fatal bullet during the infamous 1992 standoff, to the district court to resolve key factual disputes. As a federal official, however, Horiuchi does not enjoy immunity under the Supremacy Clause when accused of violating state law, the court ruled. “Assuming the facts alleged by the state,” Judge Alex Kozinski wrote, “this is not a case where a law enforcement agent fired his weapon under a mistaken belief that his fellow agents or members of the public were in immediate danger. Rather, 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.” Kozinski was joined by Judges Procter Hug Jr., Andrew Kleinfeld, William Fletcher, Sidney Thomas and Richard Paez. Joining Judge Michael Daly Hawkins in dissent were Chief Judge Mary Schroeder and Judges Pamela Ann Rymer, Barry Silverman and Susan Graber. “In an effort to avoid the obvious import of over a century’s jurisprudence on state prosecution of federal officers, the majority confuses disputes about the reasonableness of conduct with disputes about issues of material fact and conjures up issues of material fact that even the author of the majority opinion has conceded do not exist,” Hawkins wrote, pointing to Kozinski’s dissent in the earlier three-judge panel decision where he wrote “the facts are largely not in dispute.” The decision by the court to clear the way for Horiuchi’s prosecution turned on an interpretation of what happened that day at Ruby Ridge. If Horiuchi acted within the lawful bounds of his duties, he would not face a jury. After a federal agent and Weaver’s son had been killed in a gunfight, FBI agents at the scene enacted special rules of engagement calling for the use of force against any armed, adult male. Later, as another armed friend of Weaver’s, Kevin Harris, retreated into the house, Horiuchi fired at him. Cradling her infant child, Vicki Weaver held open the door for Harris, and the bullet struck her in the head. An internal Department of Justice report concluded that the shot “violated the Constitution” and should be investigated for “prosecutive merit.” Horiuchi never faced federal charges. The Boundary County prosecutor decided to pursue the case, and hired Venice Beach, Calif., lawyer Stephen Yagman, known for pursuing police misconduct cases, as a special prosecutor with an annual salary of $1. Yagman has since deputized his entire office (which includes former federal magistrate Joseph Reichmann). He also deputized former U.S. Attorney General Ramsey Clark, who helped argue the case before the 9th Circuit. “This is a significant victory for individual rights and for states against an often evil federal government,” Yagman said Tuesday, later adding that as a prosecutor he must be careful with his words. “It puts another nail in the coffin of a discredited … FBI,” Yagman said. “I think it’s time the federal government put the FBI out of business and built from the ground up a competent federal law enforcement agency.” The majority was split on one important aspect of the case. Four of the six voted to have the trial judge decide the disputed issues of fact — a variation from customary practice. Four of the five dissenting judges also would give the judge the power to decide the disputed issues. “We believe interposing a federal judge between the state prosecutor and the jury will provide a significant restraint on overzealous state prosecutors and ensure such protections remain an avenue of last resort in our federal system,” Kozinski wrote. Fletcher and Thomas, however, cited both traditional civil practice in qualified immunity cases and the Sixth Amendment in reasoning that those issues are for a jury to decide. Kozinski opened by quoting U.S. Supreme Court Justice Anthony Kennedy, an intriguing move given that Kozinski clerked for Kennedy when he was on the 9th Circuit and that Kennedy will sit in judgment of the case should the government appeal. “It is not coincidental that Kozinski begins his opinion by quoting Justice Kennedy. He knows where this is going and he knows who the fulcrum votes are. So I don’t think it’s over,” said Hastings College of the Law Professor Rory Little. Kozinski’s decision relied, in part, on United States ex. rel. Drury v. Lewis, 200 U.S. 1, a 1906 Supreme Court decision allowing the trial of two soldiers who killed a man witnesses said had already surrendered. There is some tension between that case and an even older case, In re Neagle, 135 U.S. 1, which held that a marshal who killed an attacker of Supreme Court Justice Stephen Field could not be brought up on state charges. That decision has been broadly interpreted to protect federal agents from state prosecutors. While the Ruby Ridge standoff ended in a way that scarred both Weaver and the FBI, a recent standoff not far from Ruby Ridge ended peacefully last weekend. After being holed up in an Idaho house near the Canadian border, five children, aged 8 to 16, surrendered without incident. The events took place in adjacent counties. Yagman said the difference between the two outcomes relates to the involvement of the FBI, which was not present at the latter. FBI director Louis Freeh said in a prepared statement he was “very disappointed” with the decision. “We have the utmost respect for the [legal] process, however, and will continue to support Agent Horiuchi and his family as this litigation continues,” he said. The case is obviously of great concern to the federal government. For the en banc argument, then-Solicitor General Seth Waxman made an unusual trip to a federal appellate court to argue the case alongside Piper Marbury Rudnick & Wolfe partner Adam Hoffinger, Horiuchi’s lawyer. Hoffinger did not comment, but said he would “examine” an appeal as an option. Upon remand, the court will analyze six issues Kozinski spelled out in the decision — issues the minority disputed tooth and nail. “Every day in this country, federal agents place their lives in the line of fire to secure the liberties that we all hold dear,” concluded Hawkins, a former U.S. Attorney in Arizona. “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 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.”

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