Rules of Engagement

When federal officials operate outside the Constitution, they operate outside any legal authority that makes them different from ordinary citizens

By Dave Kopel, research director of the Independence Institute, & Glenn Harlan Reynolds, professor of law, University of Tennessee. Messrs. Kopel and Reynolds are the coauthors of "The Evolving Police Power: Some Observations for a New Century," in the Hastings Constitutional Law Quarterly (2000). More by Kopel on Ruby Ridge and Waco.

National Review Online, June 13, 2001 9:20 a.m.

"When the president does it, it's not illegal, " Richard Nixon opined in his famous television interview with David Frost. Nixon's statement was widely derided as evidence of just how far his Imperial Presidency had strayed from the rule of law. The essential feature of the evolution of America's heritage of English liberty — capped by the Glorious Revolution of 1688 and the overthrow of the wicked Stuarts — was that the King was under the law, not above it.

But Clinton administration Solicitor General Seth Waxman did Nixon and the House of Stuart one better last year when he extended this above-the-law status to the entire federal law-enforcement apparatus: "Federal law-enforcement officials," he told the U.S. Court of Appeals for the Ninth Circuit, "are privileged to do what would otherwise be unlawful if done by a private citizen. It's a fundamental function of our government."

Waxman was talking about FBI sniper Lon Horiuchi's fatally shooting Vicki Weaver as she stood holding a baby in her arms. His characterization of federal power seemed a bit much to most people — including, as it turned out, a 6-5 majority of the U.S. Court of Appeals for the Ninth Circuit, in a decision handed down on June 5.

"If you tell soldiers in wartime to go into a village and kill every man, woman, and child — if the sergeant tells that to a private, the private's supposed to know it's an illegal order," Judge Andrew Kleinfeld had observed during oral argument. Judge Alex Kozinski was also puzzled by Waxman's stance, asking, "If the Constitution does not provide limitations for federal agents' actions, then what does?"

The 9th Circuit's dissenters assert that federal agents can be controlled by the risks of losing their jobs or careers. But this deterrent obviously failed in the Horiuchi case. Even though an internal Department of Justice report recommended that Horiuchi be considered for criminal prosecution, the Reno Department of Justice declined to act. The majority opinion, written by Kozinski, affirms that a federal law-enforcement badge does not place its holder above the law. And the beauty of our federal system is that no matter who steps over the line, someone is watching:

"We have grown accustomed to relying on the federal government to protect our liberties against the excesses of state law enforcement. Federal Prosecutors may bring criminal charges against state police who violate the rights of citizens. Those citizens may also seek redress by bringing private suits in court. While state prosecutions of federal officers are less common, they provide an avenue of redress on the flip side of the federalism coin. When federal officers violate the Constitution, either through malice or excessive zeal, they can be held accountable for violating the state's criminal laws."

In Horiuchi's case, even the federal government knew something was wrong. As the court noted, the Rules of Engagement at Ruby Ridge ordered snipers to shoot "any armed adult," without regard to whether such persons posed an immediate threat. Such a rule is clearly unconstitutional; under the U.S. Supreme Court's opinion in Tennesseev. Garner, law enforcement officers may use deadly force only to protect themselves or others from serious and imminent harm, or to prevent certain especially dangerous felons from escaping. The FBI doesn't argue with this. The majority opinion notes: "The Rules present another mystery. Everyone now seems to agree that they were clearly unconstitutional. But on the day of the shooting no one voiced any objection. And, no one now admits to having approved the rules." The "Not Me" ghost from the Family Circus cartoon was apparently running the FBI when the Rules of Engagement were approved.

It is not the badge that federal law-enforcement officers carry, but rather the delegated constitutional authority that they wield, that makes them special. When federal officials operate outside the Constitution, they operate outside any legal authority that makes them different from ordinary citizens. An ordinary citizen who fires on someone who isn't reasonably seen as a threat faces prosecution for murder, or at least manslaughter ("Reasonable mistakes" are okay — everyone understands that law-enforcement officials, or ordinary citizens for that matter, can get things wrong under pressure. But as the Ninth Circuit's majority noted, "This is not a case where a law enforcement agent fired his weapon under a mistaken belief that his fellow agents or members of the public were in immediate danger.") An FBI sniper who shoots when there is no immediate threat is outside the Constitution and deserves no special protection from the law.

Unsurprisingly, the Justice Department has spared no effort to keep state prosecutors from putting the story before a jury. The Horiuchi case is not simply a case of Clinton-era cover-ups. The Ruby Ridge killings took place in September 1992, under the first Bush administration. Four former attorneys general joined in the amicus brief of the United States government, arguing for nearly limitless federal-agent immunity from state criminal law.

Fortunately, our federal form of government was created so that state government could check the abuse of federal power, as a slim majority of the Ninth Circuit remembered.

Ironically, a careful reading of the majority and dissenting opinions in the Horiuchi case suggests that the Idaho prosecutor's biggest mistake may have been not bringing greater charges against Horiuchi. Horiuchi is charged under Idaho law with manslaughter — that is, an illegal killing, but without malice. The theory is that when Horiuchi shot at Randy Weaver and Kevin Harris (Horiuchi's testimony changes regarding whom he was shooting at) as they ran back into their cabin, Horiuchi recklessly fired the shot that instantly killed Vicki Weaver as she was standing in the cabin door. The dissenters make much of the fact that Horiuchi is charged with killing "without malice" — and from this, they infer that Horiuchi is being criminally prosecuted for a simple mistake of judgment.

The majority opinion, however, goes through the facts in detail, and — although the majority does not draw conclusions — it is perfectly plausible that a reasonable jury could conclude that Horiuchi has lied about almost every material fact at Ruby Ridge, and that his story changes to fit his legal needs. The dissent's belief that Horiuchi made merely "honest mistakes" depends on the fairly implausible premise that Horiuchi is honest.

A jury could also conclude that Horiuchi opened fire on Weaver and Harris because he was following the plainly unconstitutional and illegal Rules of Engagement, which FBI headquarters had created for Ruby Ridge. Indeed, Horiuchi had ordered his sniper team to follow those rules. Accordingly, a jury could find Horiuchi guilty of attempted murder for his two illegal shots at Weaver and Harris, and guilty of murder when one of those shots killed Vicki Weaver. As the majority opinion points out, the prosecutor's decision to bring only a charge of manslaughter does not preclude the prosecution from presenting evidence of murder.

The federal execution of Timothy McVeigh shows that sometimes the American criminal justice system really does punish a notorious killer. McVeigh's infamous crime was perpetrated and 1995, and execution came in 2001. Lon Horiuchi killed Vicki Weaver in 1992; it is long past time for his trial to begin.

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