Idaho passes on prosecuting FBI agent

An Idaho prosecutor has decided not to bring manslaughter charges against an FBI agent who killed white separatist Vicki Weaver during a 1992 standoff.

Boundary County Prosecutor Brett Benson, in a brief statement issued yesterday by his office, said Agent Lon T. Horiuchi, a member of the FBI´s hostage rescue team, would not be tried in an Idaho court for the Aug. 22, 1992, death of Mrs. Weaver.

The statement gave no reason for the decision.

Last week, the 9th U.S. Circuit Court of Appeals in San Francisco, in a 6-5 vote, said Idaho prosecutors could bring involuntary manslaughter charges against Mr. Horiuchi, reversing a decision by a three-judge panel of the same circuit.

The panel had concluded , in a 2-1 ruling, that 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 Mr. Horiuchi, a graduate of the U.S. Military Academy at West Point, was protected by an 1891 Supreme Court ruling preventing federal officers from being prosecuted by states for actions within the scope of their jobs.

Writing for the majority, Judge Alex Kozinski, who was the dissenting member of the three-judge panel, said Mr. Horiuchi could be held accountable in the death if state prosecutors were able to show that he violated the Constitution "either through malice of excessive zeal."

But Judge Michael Daly Hawkins, in the minority opinion, 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."

Mr. Horiuchi´s attorney, Adam Hoffinger, was out of the country yesterday and not available for comment.

The veteran FBI agent originally was charged in the Weaver death in August 1997 by Boundary County Prosecutor Denise Woodbury. Mr. Benson won election in November with 73 percent of the vote after defeating Mrs. Woodbury in the May Republican primary.

Mr. Horiuchi was one of 10 FBI sharpshooters situated on a mountainside overlooking the remote Weaver cabin, located near Ruby Ridge, Idaho.

Acting under modified rules of engagement by FBI supervisors saying the sharpshooters "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 hostage rescue team members as they proceeded to the cabin. Standard rules of engagement allow agents to shoot suspects if their lives or the lives of others are in jeopardy.

Mrs. Woodbury accused Mr. Horiuchi in the original complaint of being negligent and careless, saying 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."

Mr. Horiuchi has said he did not see Mrs. Weaver, who was holding her 10-month-old daughter at the time of the shooting. Saying he was fearful Mr. Harris would use the safety of the cabin to shoot at the agents or a nearby FBI helicopter, he fired at Mr. Harris at a distance of about 225 yards and hit his intended target.

Moments earlier, he had wounded Randy Weaver, who was sought by federal authorities on weapons violations. U.S. marshals had had the Weaver cabin under surveillance for several months.

Mrs. Weaver was the third person to die in two days of gunfire at the remote 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 were on a reconnaissance mission outside the cabin. The FBI had responded to the site after Mr. Degan´s death.

In 1995, the Justice Department paid the Weaver family $3.1 million to settle a lawsuit in the case.