- The Washington Times - Wednesday, June 6, 2001

An FBI sniper who killed the wife of white separatist Randy Weaver during a 1992 Idaho standoff can be tried for manslaughter, a federal appeals court ruled yesterday.

In a stunning and closely-divided decision, the U.S. Circuit Court of Appeals in San Francisco agreed 6-5 that Idaho prosecutors can bring charges against Agent Lon T. Horiuchi, a member of the FBI´s hostage-rescue team, in the August 1992 death of Vicki Weaver.

The ruling reverses an earlier decision by a three-judge panel of the same circuit, which said Mr. Horiuchi, a graduate of the U.S. Military Academy at West Point, 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 argued 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.

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

The majority said there were "material questions of fact in dispute" concerning Mr. Horiuchi´s actions.

"When federal law enforcement agents carry out their responsibilities, they can cause destruction of property, loss of freedom and, as in this case, loss of life all of which might violate the state´s criminal laws," Judge Kozinski wrote.

Judge Michael Daly Hawkins, writing for the minority, called the ruling a "grave disservice" to federal law enforcement authorities.

"Every day in this country, federal agents place their lives on the line to secure liberties that we all hold dear," Judge Hawkins wrote. "There will be times when those agents make mistakes, sudden judgment calls that turn out horribly wrong.

"Today´s decision is a grave disservice to all these men and women, 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," he wrote.

The case had been argued before the court for the Idaho prosecutors by former Attorney General Ramsey Clark, who now lives in Idaho. He told the court Mr. Horiuchi could not be granted immunity until a trial determined whether he had acted unlawfully.

At the time of the Aug. 22, 1992, shooting, Mr. Horiuchi was one of 10 FBI snipers on a mountainside overlooking the Weaver cabin near Ruby Ridge, Idaho a remote area near the Canadian border.

They were 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, who was armed with a rifle, 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 sharpshooters 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 Boundary County, Idaho, prosecuting attorney Denise Woodbury with being negligent, reckless and careless.

The state said he used his weapon 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 at the cabin. 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 had gone to the site to arrest Mr. Weaver on a fugitive warrant. FBI agents responded after Mr. Degan was killed.

The standoff ended Aug. 31, 1992, when Mr. Weaver surrendered.

He and Mr. Harris, both of whom were wounded, were acquitted in July 1994 on murder charges in the Degan death. An Idaho jury said the two men had acted in self-defense. The jury also rejected charges that the two conspired to provoke a confrontation with federal officers.

Mr. Weaver was convicted of failing to appear for trial on weapons charges and of committing an offense while on release from a federal court. He served 18 months in prison and now lives in Iowa. He told reporters yesterday he was "happy with the decision."

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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