- The Washington Times - Friday, June 8, 2001

Idaho prosecutors have not decided whether to pursue charges against an FBI agent who killed white separatist Vicki Weaver during a 1992 standoff, despite an appeals court ruling paving the way for a trial.

A spokeswoman for Boundary County, Idaho, Prosecuting Attorney Brett Benson said yesterday no decision had yet been made on whether to bring manslaughter charges against Agent Lon T. Horiuchi, as authorized Tuesday by the U.S. Circuit Court of Appeals in San Francisco on a 6-5 vote.

Mr. Benson told reporters in Idaho on Wednesday it would be "inappropriate" for him to comment on what he intended to do in the case, which was begun in 1997 by his predecessor, Denise Woodbury. Mr. Benson won election in November with 73 percent of the vote after defeating Mrs. Woodbury in the May Republican primary.

On Tuesday, the appeals court said Idaho prosecutors could bring manslaughter charges against Mr. Horiuchi in the August 1992 death of Mrs. Weaver. The ruling reversed an earlier decision by a three-judge panel of the same circuit, which said Mr. Horiuchi was immune from state charges because he was acting in the line of duty when he fired the shot that hit Mrs. Weaver in the head.

The Justice Department had argued that the agent was protected by an 1891 Supreme Court ruling preventing federal officers from being prosecuted by states for actions within the scope of their jobs.

The majority opinion, written by Judge Alex Kozinski, said Mr. Horiuchi could be held accountable in the death if state prosecutors show he violated the Constitution "either through malice or excessive zeal."

But Judge Michael Daly Hawkins, writing for the minority, called the ruling a "grave disservice" to federal law enforcement authorities, "who knew until now that if they performed their duties within the bounds of reason and without malice they would be protected … and not subject to endless judicial second-guessing."

FBI Director Louis J. Freeh said yesterday he was "very disappointed" with the ruling, "especially given the prior court decisions in favor of Agent Horiuchi." He said the bureau had "the utmost respect for the process" but would "continue to support Agent Horiuchi and his family, as this litigation continues."

"As so often happens in law enforcement, split-second life-and-death decisions must be made by those sworn to enforce the law," he said. "We continue to believe strongly Agent Horiuchi met the legal standard that protects law enforcement officers when they carry out their sworn duties, even when the consequence in hindsight is regrettable."

John Sennett, president of the FBI Agents Association, said yesterday he "couldn´t express" his disagreement with the appeals court decision "any better than Judge Hawkins, who wrote the dissenting opinion."

"We hope that Idaho prosecutors will have the good sense to drop this matter and that the Justice Department will seek further judicial review in any event," he said.

At the time of the Aug. 22, 1992, shooting, Mr. Horiuchi was one of 10 FBI hostage rescue team members on a mountainside overlooking the remote Weaver cabin near Ruby Ridge, Idaho.

Acting under modified rules of engagement by FBI supervisors saying they "could and should" shoot any armed male, Mr. Horiuchi was attempting to hit Weaver friend Kevin Harris when he shot Mrs. Weaver, 42, as she stood behind a cabin door. The same bullet also struck Mr. Harris as he ran behind the door.

The "could and should" rules were given to each of the team members as they proceeded toward the cabin. Standard rules of engagement allow agents to shoot suspects if their lives or the lives of others are in jeopardy.

Mr. Horiuchi was charged in August 1997 by Mrs. Woodbury with being negligent, reckless and careless. She said he acted in a reckless manner by firing through the cabin´s front door "without first determining whether any person other than his intended target was behind the door."

Mrs. Weaver was the third person to die in two days of gunfire. Her son, Samuel, 14, and Deputy U.S. Marshal William F. Degan died in a separate shootout a day earlier involving U.S. marshals who sought to arrest Randy Weaver on a fugitive warrant. FBI agents responded after Mr. Degan was killed. The standoff ended Aug. 31, 1992, when Mr. Weaver surrendered.

In 1995, the Justice Department settled a lawsuit by Mr. Weaver and his three surviving children for $3.1 million. Last year, the department gave Mr. Harris $380,000 to drop a pending $10 million civil damage suit.

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