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Ruby Ridge: The Coverup Continues

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THE DEVELOPMENTS IN THE RUBY RIDGE CASE during the past year further illustrate why this is a landmark case defining how much deadly, arbitrary power federal agents shall possess over private citizens.

The Ruby Ridge case involved the entrapment of Randy Weaver on firearms charges by an informant for the Bureau of Alcohol, Tobacco and Firearms (ATF), false ATF reports to federal prosecutors, and dozens of intrusions by U.S. marshals on Weaver’s land.

On August 21, 1992, three U.S. marshals dressed in ninja outfits with face masks ambushed Weaver’s 14-year-old son, Sammy, and 25-year-old family friend Kevin Harris, firing submachine guns at them as they came down a road in the woods. Marshal Arthur Roderick started the clash by shooting the boy’s dog. A firefight ensued in which Marshal William Degan was killed. As Sammy Weaver was leaving the scene and running back toward the family’s shack, Marshal Larry Cooper shot him in the back and killed him.

The next day, FBI snipers arrived on the scene and received “rules of engagement,” which declared that “any armed male adult observed in the vicinity of the Weaver cabin could and should be killed.” Within an hour of the snipers’ taking position, every adult in the cabin was either dead or severely wounded — even though they had not fired a shot at the FBI and even though the FBI never called out for them to surrender. FBI sniper Lon Horiuchi shot Randy Weaver in the back as he stood outside his shack and then fired a shot that killed Vicki Weaver as she stood in the cabin doorway holding their 10-month-old baby. The FBI initially proclaimed Ruby Ridge a great success. A brave-hearted Idaho jury rejected almost all the charges against Randy Weaver and Kevin Harris.

The coverup of the killing of Vicki Weaver in the last months of the first Bush administration is continuing into the second Bush administration. After a federal judge in Idaho ruled that FBI sniper Lon Horiuchi could not be prosecuted for the killing of Vicki Weaver, prosecutors working for Boundary County, Idaho, took the case to the Ninth Circuit Federal Court of Appeals. On June 14, 2000, a 2–1 ruling by the appellate court effectively created a new license for federal agents to kill private citizens.

Federal judges Ferdinand Fernandez and William Shubb ruled that Horiuchi’s actions were “objectively reasonable” and protected under the Supremacy Clause of the Constitution. Judge Shubb wrote, “Horiuchi does not have to show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be.” Shubb stressed that the prosecution “has presented no evidence of evil or malicious intent” by Horiuchi. Since prosecutors could not produce convincing evidence of what Horiuchi was thinking when he gunned down Vicki Weaver, federal judges are obliged to presume that he had no bad intent — and thus that neither he nor the federal government has any liability for the wrongful killing.

Federal Judge Alex Kozinski harshly dissented, declaring,

Law enforcement officials may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed.

He warned that the decision gives officers a license to kill even when there is no immediate threat to human life, so long as the suspect is retreating to “take up a defensive position.”

Kozinski declared that the decision created a new James Bond “007 standard for the use of deadly force” against American citizens. He warned that the new lax standard for lawmen’s shootings “now applies to all law-enforcement agencies in our circuit — federal, state and local.”

Boundary County, Idaho, appealed the decision to the entire Ninth Circuit, and the judges voted to rehear the case en banc (with all the judges of the circuit in attendance).

A license to kill

Preserving federal agents’ license to kill was a top priority for the Clinton administration. Seth Waxman, U.S. solicitor general, personally argued the case before the judges, appearing as a friend of the court in behalf of Horiuchi. Waxman sought to put the issue to rest by informing judges that “federal law-enforcement officials are privileged to do what would otherwise be unlawful if done by a private citizen. It’s a fundamental function of our government.” (Waxman’s devotion to principle was rewarded when, shortly after leaving office, he was made an honorary agent of the Federal Bureau of Investigation.)

On June 5, 2001, by a vote of 6 to 5, the Ninth Circuit reversed the original appellate ruling and remanded the case back to federal district court for further proceedings. Kozinski, writing for the majority, declared,

A group of FBI agents formulated rules of engagement that permitted their colleagues to hide in the bushes and gun down men who posed no immediate threat. Such wartime rules are patently unconstitutional for a police action.

Kozinski ruled that “Horiuchi’s criminal responsibility, if any, for killing Mrs. Weaver is a matter of state law, to be determined by a jury after a trial.”

The dissent, written by Judge Michael Daly Hawkins, proclaimed,

Every day in this country, federal agents place their lives in the line of fire to secure the liberties that we all hold dear. There will be times when those agents make mistakes, sudden judgment calls that turn out to be horribly wrong. We seriously delude ourselves if we think we serve the cause of liberty by throwing shackles on those agents and hauling them to the dock of a state criminal court when they make such mistakes, especially when the prosecuting state concedes they acted without malice. None of us on this court, thankfully, knows what it is like to be engaged in an altercation with armed and dangerous criminals. Special Agent Lon Horiuchi does, as do the thousands of other federal officers who daily risk their lives to protect ours.

The dissent invoked humanitarian concerns to justify dropping all charges:

The majority’s insistence on sending this case back for still more proceedings frustrates the clear intent of the law that Horiuchi and other federal officers be free from the harassing threat of state criminal prosecution for honest mistakes of judgment they make when carrying out their federal duties.

The dissenting judges fretted more about federal agents’ being subjected to legal procedures than about private citizens’ being slain by federal bullets. According to them, the key to preserving liberty is to give federal agents life-and-death power over every citizen.

Kozinski criticized the dissent: “An officer may not raise a Nuremberg Defense and claim that he shot a suspect who posed no threat because he believed his duty required him to follow orders.”

Former U.S. Attorney General Ramsey Clark, who argued the case as an unpaid volunteer for Boundary County observed,

We won because a courageous court carefully considered a difficult case and stood up for the rule of law and the individual’s right to freedom. You’ve got a right not to be shot for nothing, you know. And Mr. Horiuchi can have his day in court like anybody else.

Steven Yagman, a Los Angeles lawyer who also volunteered his time to serve as prosecutor for Boundary County, said after the verdict,

This is a significant victory for individual rights and for states against an often evil federal government. I think it’s time the federal government put the FBI out of business and built from the ground up a competent federal law enforcement agency.

FBI Director Louis Freeh said, “We are very disappointed … and will continue to support Agent Horiuchi and his family as this litigation continues.”

The court decision evoked hand-wringing from conservative defenders of Leviathan. Bruce Fein, a former Reagan appointee and head of the Center for Law and Accountability,

Ruby Ridge’s law enforcement debacle by the federal government has given birth to an even more disturbing evil: namely, a threat to the robust execution of federal power from fear of state criminal charges fueled by parochial extremism or passions.

In other words, regardless of how many citizens perish from the “robust execution of federal power,” state criminal charges are an even more disturbing evil.

Kozinski’s opinions on Ruby Ridge exemplified a principled approach to law enforcement — one that recognizes that blind deference to government badges is the route to tyranny.

All to no avail

Unfortunately, Boundary County prosecutor Brett Benson wasted no time after the federal appellate decision to request a federal judge in Idaho to dismiss the manslaughter charge against Horiuchi. (Benson was elected as county prosecutor in 2000, defeating incumbent prosecutor Denise Woodbury, who had courageously stood up to the federal government in earlier Horiuchi proceedings.)

Federal judges cannot force state officials to prosecute, and the Justice Department announced in 1994 and 1997 that Horiuchi would face no federal charges. Benson issued a Clintonesque explanation of his decision:

The Ruby Ridge incident was a tragedy that deeply affected and divided many citizens of this county and country. It is our hope that this decision will begin the healing process that is so long overdue and so much deserved.

Apparently, justice is not part of the healing process.

President Clinton declared on April 6, 1998, “The real measure of our progress is whether responsibility and respect for the law are on the rise.” How can Americans respect either the law or federal agents when the federal government exerts so much effort to the triumph of the principle that “federal law-enforcement officials are privileged to do what would otherwise be unlawful if done by a private citizen”? Until the government comes clean on Ruby Ridge — until justice is done — it deserves no more respect than any other suspected murderer.

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    James Bovard serves as policy adviser to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.