Idaho prosecutors have not decided whether to pursue charges against an FBI agent who killed white
separatist Vicki Weaver during a 1992 standoff, despite an appeals court ruling
paving the way for a trial.
A spokeswoman for Boundary County, Idaho, Prosecuting
Attorney Brett Benson said yesterday no decision had yet been made on whether
to bring manslaughter charges against Agent Lon T. Horiuchi, as authorized
Tuesday by the U.S. Circuit Court of Appeals in San Francisco on a 6-5 vote.
Mr. Benson told reporters in Idaho on Wednesday
it would be "inappropriate" for him to comment on what he intended to
do in the case, which was begun in 1997 by his predecessor, Denise Woodbury.
Mr. Benson won election in November with 73 percent of the vote after defeating
Mrs. Woodbury in the May Republican primary.
On Tuesday, the appeals court said Idaho
prosecutors could bring manslaughter charges against Mr. Horiuchi in the August
1992 death of Mrs. Weaver. The ruling reversed an earlier decision by a three-judge
panel of the same circuit, which said 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 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.
The majority opinion, written by Judge Alex
Kozinski, said Mr. Horiuchi could be held accountable in the death if state
prosecutors show he violated the Constitution "either through malice or
excessive zeal."
But Judge Michael Daly Hawkins, writing for the
minority, 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."
FBI Director Louis J. Freeh said yesterday he was
"very disappointed" with the ruling, "especially given the prior
court decisions in favor of Agent Horiuchi." He said the bureau had
"the utmost respect for the process" but would "continue to
support Agent Horiuchi and his family, as this litigation continues."
"As so often happens in law enforcement,
split-second life-and-death decisions must be made by those sworn to enforce
the law," he said. "We continue to believe strongly Agent Horiuchi
met the legal standard that protects law enforcement officers when they carry
out their sworn duties, even when the consequence in hindsight is
regrettable."
John Sennett, president of the FBI Agents
Association, said yesterday he "couldn´t express" his disagreement
with the appeals court decision "any better than Judge Hawkins, who wrote
the dissenting opinion."
"We hope that Idaho prosecutors will have
the good sense to drop this matter and that the Justice Department will seek
further judicial review in any event," he said.
At the time of the Aug. 22, 1992, shooting, Mr.
Horiuchi was one of 10 FBI hostage rescue team members on a mountainside
overlooking the remote Weaver cabin near Ruby Ridge, Idaho.
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 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 team members 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 Mrs.
Woodbury with being negligent, reckless and careless. She said 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."
Mrs. Weaver was the third person to die in two
days of gunfire. 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 sought to
arrest Randy Weaver on a fugitive warrant. FBI agents responded after Mr. Degan
was killed. The standoff ended Aug. 31, 1992, when Mr. Weaver surrendered.
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.