a
three-judge panel of the 9th Circuit Court ruled in June that Horiuchi couldn't
be charged. The county has asked the full federal appeals court to rehear that
2-1 decision, which included a sharply worded dissent.
Dissenting Judge Alex Kozinski wrote that the decision "throws a monkey
wrench into our law governing the proper use of deadly force." He added,
"Perhaps most troubling, the opinion waters down the constitutional
standard for the use of deadly force by giving officers a license to kill even
when there is no immediate threat to human life, so long as the suspect is
retreating to `take up a defensive position.' This has never been the law in
this circuit, or anywhere else I'm aware of, except in James Bond movies. I fear
this change in our long-standing law."
If the court agrees to rehear the case, it could take several months.
At the same time, Harris' $10 million civil lawsuit against the federal
government is also headed back to the 9th Circuit, after a U.S. district judge
ruled last month that five of the eight agents Harris sued, including Horiuchi,
must stand trial.
All five appealed that ruling, and Harris in turn appealed the decision to
release three of the eight defendants.
To complicate the issue further, the 9th Circuit has already ruled that the
agents aren't immune from Harris' lawsuit.
Horiuchi appealed that ruling to the U.S. Supreme Court, but the high court
declined to review it. The earlier ruling came in a slightly different legal
context, involving a motion to dismiss the case, while the current maneuver is a
motion for summary judgment.
Ellison Matthews, attorney for Harris, said, "I'm confident that we'll
prevail on appeal."
Harris' case had been scheduled to go to trial in Boise in two weeks. Now,
because of the appeals, it will be delayed until next year.
The 9th Circuit's Horiuchi ruling came under the Supremacy Clause of the
Constitution, saying the state couldn't prosecute Horiuchi for "actions
taken in pursuit of his duties as a federal law enforcement officer."
Its earlier decision in the Harris case dealt with "qualified
immunity," a similar concept. In the June ruling, the majority of the court
argued, "The two immunities are not the same, nor do they serve the same
purposes. Immunity under the Supremacy Clause from state criminal prosecution
may cover instances in which qualified immunity does not apply."
Kozinski responded, "This might be a plausible argument but for the fact
that precisely the same test applies as to both: Did the officer act
constitutionally? What protects an officer from civil and criminal liability is
the lawfulness of his actions." If the officer does something unlawful,
Kozinski said, states should be able to enforce their criminal laws.
Harris' lawsuit charges that federal agents violated his 4th Amendment right
to be free from unreasonable search and seizure and excessive force. He also
alleges battery and false imprisonment.
The agents first confronted Harris, Weaver and Weaver's 14-year-old son Sam,
who were all armed, at a crossroads near Weaver's cabin. The agents had Weaver
under surveillance because he had failed to appear in court on a weapons charge.
After an agent shot Sam's dog, a yellow labrador named Striker, a gun battle
erupted between three agents and the trio. Deputy U.S. Marshal William Degan and
Sam both died. The next day, at the cabin, Horiuchi shot and wounded Randy
Weaver and then fired the shot that killed Vicki Weaver and wounded Harris.
Harris lay wounded in the cabin for nine more days, begging Weaver and others
to kill him to end his suffering. After Weaver surrendered, both he and Harris
stood trial and were acquitted of killing Degan.
Harris was cleared of all wrongdoing, though he admitted he might have fired
the shot that killed Degan during the gun battle.
Weaver was convicted only of failure to appear in court, and served 16 months
in prison.
Weaver and his three daughters sued the federal government, which settled his
multimillion-dollar suit in 1995 for $3.1 million.
•Betsy Z. Russell can be reached at (208) 336-2854 or by e-mail at bzrussell@rmci.net.
Ruby Ridge in the courts
Boundary County is asking the full 9th Circuit Court of Appeals to allow
prosecution of FBI sniper Lon Horiuchi, who wounded Kevin Harris and killed
Vicki Weaver on the second day of the Ruby Ridge standoff. A 3-judge panel ruled
in June that Horiuchi could not be prosecuted.
•Harris's $10 million lawsuit charging violation of his 4th Amendment right
to be free from unreasonable search and seizure and excessive force is being
appealed to the 9th Circuit. A district court judge ruled that the agents,
including Horiuchi, must stand trial.
