Idaho can't prosecute Horiuchi, court rules

An FBI agent who killed the wife of North Idaho white separatist Randy Weaver during the Ruby Ridge standoff is immune from state prosecution, a federal appellate court panel ruled Wednesday.

But that may not be the end of the story for FBI sharpshooter Lon Horiuchi, who shot Vicki Weaver on Aug. 22, 1992, while she was holding her baby.

The full appeals court could rehear the 2-1 decision of its three- judge panel, which included a sharply worded dissent. And federal Judge Lynn Winmill ruled this week that Horiuchi and four other defendants must face trial in Boise this summer in a multimillion- dollar civil suit filed by Weaver associate Kevin Harris.

Federal agents were converging on the family's remote North Idaho cabin to arrest Randy Weaver on a weapons trafficking charge when Vicki Weaver was killed.

Horiuchi said he did not see Vicki Weaver standing behind the cabin door when he fired at Harris, an armed associate of Randy Weaver's who was ducking into the cabin.

Boundary County prosecutors pursued a manslaughter charge against Horiuchi, but the charge was dismissed by a federal judge. A panel of the 9th U.S. Circuit Court of Appeals upheld the dismissal, ruling that the U.S. Constitution gives supremacy to federal laws, making Horiuchi exempt from criminal prosecution by the state.

Horiuchi was entitled to immunity because, it said, he was acting in his official duty as a federal law enforcement officer and reasonably and honestly believed that shooting Harris would prevent him from taking an armed and defensive posture.

"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,'" U.S. District Judge William B. Shubb said in the majority decision as he quoted from a previous appellate decision. Shubb is assigned temporarily to the appeals court.

In the dissent, Circuit Judge Alex Kozinski said he sides with others who consider the shooting "patently unconstitutional," including, he said, a Senate committee, the U.S. Justice Department's Office of Professional Responsibility and a prior panel of the 9th Circuit Court.

"Since when does taking up a defensive position justify the use of deadly force? Taking a defensive position may have kept the suspects from being apprehended right away, but it would have posed no immediate threat to the officers," Kozinski wrote.

Boundary County Prosecutor Denise Woodbury, who pressed the case, said Wednesday she hadn't seen the decision and couldn't comment. "No decisions regarding a possible appeal will be made until I've had sufficient time to study the decision," she said in a statement.

Adam Hoffinger, attorney for Horiuchi, said he was "delighted" by the ruling.

"We now have really two independent decisions by two courts, one by the district court and one by the 9th Circuit, exonerating Lon Horiuchi," Hoffinger said. "From our point of view, we'd like to see it be the end." The ruling disappointed Michael Mumma, Weaver's attorney in Jefferson, Iowa, where Weaver now lives.

"I think all along there's been disappointment by the family that no one was held responsible for Vicki's death. It's just one more thing," Mumma said.

The August 1992 standoff was started by a gunbattle that left two people dead - the Weavers' 14-year-old son, Samuel, and U.S. Marshal William Degan.

Randy Weaver was acquitted of murder and conspiracy charges in Degan's death, but was convicted for failing to appear in court on a previous weapons charge.

After his release from prison in December 1993, Weaver returned to Iowa with his three daughters, Sara, Rachel and Elisheba. He has since remarried, to the former Linda Gross, a legal secretary, and speaks at gun shows.

Weaver and his daughters filed a civil suit against the federal agents and settled for $3 million, but Harris' civil suit is still in court.

Winmill, in his ruling this week, dismissed three defendants from the Harris case - Wayne "Duke" Smith, associate director of the U.S. Marshal Service; Eugene Glenn, the on-scene FBI commander at Ruby Ridge; and William Gore, Glenn's assistant. None of the three was responsible for formulating the controversial "rules of engagement" that the FBI used at Ruby Ridge, which amounted to a shoot-on-sight order for any armed male at the cabin, Winmill wrote.

Horiuchi and FBI Deputy Director Larry Potts are among the defendants who will face trial this summer.

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