BACK TO RUBY RIDGE: Why Idaho Shouldn't Be Prosecuting FBI Agent Lon Horiuchi

Ten days ago, the U.S. Court of Appeals for the Ninth Circuit heard oral argument, again, in the State of Idaho's misguided attempt to prosecute FBI sharpshooter Lon Horiuchi for manslaughter in the tragic shooting of Vicki Weaver. Horiuchi killed Weaver during the 1992 standoff between federal agents and the Weaver family at Ruby Ridge. Horiuchi has so far successfully argued that he is immune from state prosecution because he was a federal officer acting within the scope of his duties; now the entire Ninth Circuit is revisiting the issue. If allowed to proceed, Idaho v. Horiuchi would be the first state prosecution of a federal agent for an alleged crime committed during a federal law enforcement operation.

Whatever the legal merits of Horiuchi's immunity defense, the decision to prosecute Horiuchi is a mistake. Boundary County District Attorney Denise Woodbury is wrong to try to subject a highly trained and regulated federal officer -- already subject to the criminal laws of the United States -- to the criminal laws of Idaho.

Any recitation of the "facts" of Ruby Ridge could easily start a fight in any bar in Idaho, but a short sketch is necessary. In 1992, U.S. Marshals tried to serve a warrant on Randy Weaver, who was on his property at Ruby Ridge in Boundary County, Idaho. The Weavers spotted the marshals and started a firefight that left Weaver's son and a U.S. Marshall dead. During the ensuing armed stand-off, FBI supervisors issued unusual rules of engagement: the snipers could fire at any armed adult.

On day two of the standoff, FBI sharpshooter Lon Horiuchi fired twice at Weaver friend Kevin Harris while Harris was running toward Weaver's cabin carrying a rifle. At the time, Horiuchi knew that one marshal was dead, and he had heard the rotors of an FBI helicopter nearby. Horiuchi feared that once inside the cabin, Harris would be able to fire at the helicopter unimpeded.

Vicki Weaver, Randy's wife, was standing in the cabin's doorway as Harris ran toward it. The open door apparently blocked Horiuchi's view of her (though an FBI re-enactment later questioned whether Horiuchi's view was actually obstructed). Horiuchi's second shot killed Vicki Weaver and wounded Harris.

The Department of Justice has acknowledged that the rules of engagement for Ruby Ridge were improper. Two Departmental investigations faulted Horiuchi but recommended against prosecuting him. A federal grand jury declined to indict. And this fall, the federal government settled the last of the civil suits brought by the Weavers and Harris. Eight years of investigations, congressional hearings, and private lawsuits should have been enough.

But when the federal government decided, for the second time, not to prosecute, D.A. Woodbury brought manslaughter charges. That's manslaughter, not murder: Woodbury does not contend that Horiuchi was trying to kill Vicki Weaver, only that his split-second decision to shoot was grossly negligent.

Claiming that her office lacks the resources to try Horiuchi properly, Woodbury hired as a special prosecutor California plaintiff's lawyer Stephen Yagman, who specializes in police brutality cases. Yagman has little prosecutorial experience.

Unable so far to try their case in court, Woodbury and Yagman have tried it in the press. Between them, they have expressed their personal views on Horiuchi's guilt (flatly forbidden for prosecutors), commented that Horiuchi could be tried for murder, and trumpeted the prosecution as a trial of Janet Reno, Louis Freeh, and the federal government's handling of Ruby Ridge. Their statements have provoked a rare written rebuke from the trial judge, who said they bordered on the unethical.

Underlying the prosecution is a dangerous failure to understand the role of federal law enforcement. A web of complex but uniform rules governs the conduct of every federal law enforcement officer. These rules begin with the U.S. Constitution and federal criminal and civil laws. They include the regulations of the various federal law enforcement agencies (for sheer volume, the FBI's written regulations put to shame those issued by any metropolitan police force). And any specific operation may have its own rules, like the rules of engagement at Ruby Ridge.

Every time a federal agent like Horiuchi acts — levels his rifle, questions a suspect, executes a warrant — he must filter all his skills and training through this web of constraints. For violating any of these rules, the agent can be prosecuted, fired, disciplined, sued, or a combination of all these. Of course, these federal agents work in all fifty states, and frequently work in different states during the same investigation.

Federal agents have to cross state lines to do their jobs, and they should not be subject to new rules whenever they are required to do so. Every state's criminal law is different from every other's; no one could possibly master all the variations. The line between murder and manslaughter, for example, is different everywhere, but the differences count: murder can be a capital offense, while manslaughter may involve only a couple of years in jail. Federal agents should be prosecuted under federal law, which can account for any crimes they may commit in the course of their jobs. Federal law is what they're trained in, what they work with, and what they should be responsible for. The alternative is simply unfair.

The dangers here go well beyond unfairness to individual agents. Will local authorities follow Boundary County's lead when it comes to the Secret Service snipers responsible for protecting the president in all fifty states? Should we give those marksmen reason to pause, even for an instant, to consider whether they are on the Kansas or the Missouri side of Kansas City, and whether it makes a difference?

Individual agents are supposed to investigate crime zealously from sea to shining sea. The threat of local prosecution, and the impracticality of trying to avoid it, will inevitably dampen that zeal. The price will be paid by us all.

Boundary County's prosecution of Lon Horiuchi has inevitably become another skirmish in the campaign being waged against the federal law enforcement community. Ruby Ridge, Waco, Oklahoma City — for most of us these are tragedies, but for a disaffected minority they are battlefields. On that Idaho hillside eight years ago, Lon Horiuchi no doubt believed he was fighting the good fight in the borderless war on crime. There was no way to know he had crossed over enemy lines.