- The Washington Times - Tuesday, June 12, 2001

Ruby Ridges law enforcement debacle by the federal government has given birth to an even more disturbing evil: namely, a threatto the robust execution of federal power from fear of state criminal charges fueled by parochial extremism or passions.
The U.S. 9th Circuit Court of Appeals held last week in State of Idaho vs. Horiuchi (June 5, 2001), that a special agent of the FBIs Hostage Rescue Team could be subject to an Idaho involuntary manslaughter prosecution for killing Vicki J. Weaver during the Ruby Ridge standoff featuring semi-crazed or deluded misfits. Writing for a 6-5 majority, Judge Alex Kozinski concluded that agent Lon T. Horiuchi would forfeit a customary federal constitutional shield from state punishment if Idaho proved before a federal district court that his shooting of Mrs. Weaver constituted an unreasonable overreaction to the danger he confronted.
According to Judge Kozinski, constitutional federalism celebrates sovereign combat between the federal and state governments to check abuses by either authority. He enlisted Alexander Hamiltons observation in The Federalist No. 28: "Power being almost always the rival of power, the general government will at times stand ready to check the usurpations of state governments, and these will have the same disposition towards the general government… . If rights are invaded by either, they can make use of the other as the instrument of redress."
Both history and Ruby Ridge, however, teach a constitutional subordination of states to the federal government when the assertion of federal power is at stake. We are not a collection of Balkan nations squeezed under a single constitutional roof. As Justice Benjamin Cardozo lectured in Baldwin vs. G.A.F. Seelig (1935): " was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division."
Unreflective wrath or alienation chronically find expression in the United States by violent resistance to law. This rabble neither plays by Queensbury rules nor respond to reason. So it was with the cast of characters hiding in a remote cabin from federal criminal charges at Ruby Ridge: Randy and Vicki Weaver, their son Samuel and daughter Sara, and Kevin Harris. On Aug. 21, 1992, six deputy United States marshals surveyed the Weaver property in anticipation of serving an arrest warrant on Mr. Weaver for an alleged firearms crime. A firefight erupted. One deputy marshal, Samuel Weaver, and his dog Striker were all killed.
The next day, the marshals were fortified by the FBIs hostage rescue team, including Mr. Horiuchi. Armed with a high-powered rifle and scope, he positioned himself 200 yards from the cabin then housing the Weavers and Mr. Harris. All but Vicki emerged and then began a retreat. One brandished a "long gun." Mr. Horiuchi fired as Mr. Harris disappeared behind the cabin door.
The bullet found its mark, but also struck Vicki, who was cradling an infant.
She died instantly.
Both the Congress and the executive branch responded with alacrity to public criticism of the killings at Ruby Ridge. The Justice Department investigated Mr. Horiuchis conduct, but found proof of willfulness or intentional use of unreasonable force wanting. Both are necessary elements of a criminal violation of the Fourth Amendments prohibition on deadly force by law enforcement officials. The Senate Judiciary Committee conducted extensive oversight hearings. The FBIs Rules of Engagement were tightened to adhere to constitutional requirements. Both Mr. Harris and the Weavers brought civil suits against the agents involved in the standoff and their superiors under federal law. The Weaver family struck a $3.1 million settlement, and Mr. Harris settled his constitutional damage claim for $380,000.
States collectively, through their senators and delegations to the House of Representatives, did not clamor for broadening the federal criminal statute against deadly force by the FBI to reach reckless or negligent misconduct. That option remains open. The prevailing national consensus, however, is that the existing combination of criminal, civil, administrative sanctions properly balances fearless law enforcement under dangerous conditions against citizen protection from a federal Gestapo.
Idaho dissents. Thus, it charged Mr. Horiuchi with involuntary manslaughter under state law for an alleged negligent discharge of a firearm that killed Vicki Weaver. The state crime and prosecution were pure Idaho handiwork. No federal or sister state jurisdiction participated. But Mr. Horiuchi was performing a federal duty supervised by federal authorities on behalf of all United States citizens. His actions aimed to deter federal crimes for the nation as a whole. The Idaho prosecution driven solely by Idaho concerns permitted by the 9th U.S. Circuit decree thwarts that goal. FBI agents must now consider not only federal constitutional, statutory, and administrative obligations in tempering aggressiveness, but also what some maverick state responding to local prejudices might demand.
The latter is no illusion. During the civil rights movement, for instance, Mississippi endeavored to prosecute James McShane, the chief of the executive office of United States marshals, for his exemplary role in enforcing James Merediths right to attend the University of Mississippi.
The attempt was quashed by the United States District Court for the Northern District of Mississippi (In re McShane ). The contemporary "Sagebrush Rebellion" among Western states betrays comparable local antipathies toward federal officials enforcing federal land use restrictions.
The Horiuchi case is too important to be left to a razor-thin 9th Circuit majority. It should be reviewed and reversed by the U.S. Supreme Court. Absent proof of malice, FBI agents should not be accountable to state prosecutors for actions taken in the line of duty.

Bruce Fein is general counsel for the Center for Law and Accountability, a public interest law group headquartered in Virginia.

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