Court weighs bid to try FBI agent: He
killed separatist's wife at Ruby Ridge

By Claire Cooper
Bee Legal Affairs Writer
(Published Dec. 21, 2000)

SAN FRANCISCO -- An 11-member panel of federal circuit judges gave
no indication Wednesday whether it will allow Idaho to prosecute an FBI
sharpshooter who killed a woman during the 1992 Ruby Ridge standoff.

As two of the nation's top legal talents presented sometimes emotional oral
arguments, the judges of the 9th U.S. Circuit Court of Appeals struggled with
concepts of official immunity and federal supremacy.

Arguing on the side of Idaho officials, former U.S. Attorney General Ramsey
Clark called FBI agent Lon T. Horiuchi's killing of Vicki Weaver a "summary
execution," a classic case of excessive force by police that's well within the
scope of the state courts to prosecute.

Seth Waxman, the U.S. solicitor general, countered that the freedom of
federal agents to act in crises is "a principle of surpassing importance." He
argued, "State prosecution of federal officers is terribly chilling in all but
extreme cases, and this is not one of them."

The case grew out of the fatal shooting of Weaver, the wife of separatist
leader Randy Weaver, as she stood holding her baby during the second week
of a standoff at the couple's Idaho cabin. Federal agents were attempting to
serve a weapons trafficking warrant. Horiuchi opened fire to keep the
Weavers' friend, Kevin Harris, from taking cover in the cabin.

Local prosecutors in Boundary County, Idaho, charged Horiuchi with
involuntary manslaughter after the U.S. Department of Justice announced it
would not prosecute him or his superiors.

A judge in Idaho threw out the case. A three-judge panel of the 9th Circuit
upheld that action last June, saying Horiuchi made "an objectively reasonable
decision" to shoot. But the full 9th Circuit sent the case to an 11-judge panel
for a fresh look.

During Wednesday's arguments, only one judge, Andrew Kleinfeld of
Fairbanks, Alaska, appeared firmly to take Idaho's side, saying Horiuchi
should not be able to escape prosecution by claiming he was following orders.

But even Judge Alex Kozinski of Pasadena, who dissented strongly from the
ruling in June, was hard to read, challenging the lawyers on both sides.

"It is troubling," he said, to let 50 states "trump" the authority of federal agents
by applying their criminal laws.

Judge Pamela Rymer, also of Pasadena, said Horiuchi could not be
prosecuted if he had a "reasonable belief" that the shooting was necessary to
protect federal officers who were in danger.

Clark responded that the facts did not support any such belief, and much of
the oral argument session was devoted to questions and answers about
circumstances surrounding the shooting.

There is no deadline for the court's decision.
SOURCE:
http://www.capitolalert.com/news/capalert08.html 

APFN