Number range CHAPTER*[Note: After this decision, the prosecution decided
to dismiss the case and this opinion, along with the district court
opinion, was vacated as moot. MJ]{.underline}*.

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

253 F.3d 359

253 F.3d 359, 1 Cal. Daily Op. Serv. 4557, 2001 Daily Journal D.A.R.
5623

**(Cite as: 253 F.3d 359)**

\<RED FLAG\>

**Briefs and Other Related Documents**

United States Court of Appeals,

Ninth Circuit.

**State of IDAHO, Plaintiff-Appellant,**

**v.**

**Lon T. HORIUCHI, Defendant-Appellee.**

**No. 98-30149.**

Argued and Submitted Dec. 20, 2000

Filed June 5, 2001

Federal agent involved in confrontation with suspected weapons
trafficker and his associate was charged with involuntary manslaughter
after shot which he had fired at retreating suspect struck innocent
third party, as she was standing just inside doorway, holding door ajar.
Action was removed from state court to the United States District Court
for the District of Idaho, Edward J. Lodge, Chief Judge, which granted
agent\'s motion to dismiss based on his Supremacy Clause immunity. State
appealed. The Court of Appeals, 215 F.3d 986, Shubb, Circuit Judge,
affirmed. On state\'s petition for rehearing en banc, the Court of
Appeals, Kozinski, Circuit Judge, held that material questions of fact
existed as to whether federal agent, who was involved in confrontation
with suspected weapons trafficker and his associate at ranch where
family members were also present, acted reasonably in trying to kill
trafficker in order to keep him from harming the law enforcement agents
on the scene so as to entitle agent to immunity under Supremacy Clause.

Reversed and remanded with directions.

William A. Fletcher, Circuit Judge, filed concurring and dissenting
opinion in which Thomas, Circuit Judge joined.

Michael Daly Hawkins, Circuit Judge, filed dissenting opinion in which
Schroeder, Chief Judge, Rymer, Silverman, and Graber, Circuit Judges,
joined.

West Headnotes

**\[1\] United States k52**

393k52

To be immune from state prosecution under Supremacy Clause, a federal
officer must do no more than is necessary and proper in the performance
of his duty; for an agent\'s actions to be adjudged necessary and
proper, he must show that he had an honest and reasonable belief that
what he did was necessary in the performance of his duty. U.S.C.A.
Const. Art. 6, cl. 2.

**\[2\] Arrest k68(2)**

35k68(2)

Use of deadly force to apprehend a suspect is a seizure under the Fourth
Amendment. U.S.C.A. Const.Amend. 4.

**\[3\] Arrest k68(2)**

35k68(2)

Law enforcement agents may use deadly force only if they reasonably
believe that killing a suspect is necessary to prevent him from causing
immediate physical harm to the agents or others, or to keep him from
escaping to an area where he is likely to cause physical harm in the
future; even then, deadly force may not be deployed until the suspect
has been given a warning and an opportunity to surrender, unless giving
a warning will materially increase the risk of bodily injury or escape.

**\[4\] United States k52**

393k52

Material questions of fact existed as to whether federal agent, who was
involved in confrontation with suspected weapons trafficker and his
associate at ranch where family members were also present, acted
reasonably in trying to kill trafficker in order to keep him from
harming the law enforcement agents on the scene so as to entitle agent
to immunity under Supremacy Clause from state prosecution from having to
stand trial on involuntary manslaughter charges arising from shooting of
innocent family member while attempting to prevent armed suspect from
reentering cabin, from which he would be able to fire at officers
without risk of drawing return fire into structure. U.S.C.A. Const. Art.
6, cl. 2.

**\[5\] United States k52**

393k52

It was appropriate for federal judge to determine whether federal agent,
who was involved in confrontation with suspected weapons trafficker and
his associate at ranch where family members were also present, was
entitled to immunity under Supremacy Clause from state prosecution from
having to stand trial on involuntary manslaughter charges arising from
shooting of innocent family member while attempting to prevent armed
suspect from reentering cabin, from which he would be able to fire at
officers without risk of drawing return fire into structure. U.S.C.A.
Const. Art. 6, cl. 2.

**\*361** Stephen Yagman, Special Prosecutor for State of Idaho, on the
brief and argued, Marion R. Yagman, Special Deputy Prosecutor, Joseph
Reichmann, Special Deputy Prosecutor, Kathryn S. Bloomfield, Special
Deputy Prosecutor, on the brief, Venice Beach CA, Ramsey Clark, Special
Deputy Prosecutor, New York, NY, argued, for plaintiff-appellant.

Adam S. Hoffinger, Earl J. Silbert, Piper & Marbury, L.L.P., Washington,
D.C., for defendant-appellee.

Seth Waxman, Acting United States Solicitor General, Washington, D.C.,
for United States of America, as amicus curiae for defendant-appellee.

George Culvahouse, O\'Melveny & Myers, Washington, D.C., Griffin B.
Bell, Benjamin Civiletti, William Barr, and William Webster, as amici
curiae for defendant-appellee.

Appeal from the United States District Court for the District of Idaho;
Edward J. Lodge, Chief District Judge, Presiding. D.C. No. CR-97-00097-
EJL.

Before: SCHROEDER, Chief Judge, and HUG, KOZINSKI, RYMER, KLEINFELD,
HAWKINS, THOMAS, SILVERMAN, GRABER, W. FLETCHER and PAEZ, Circuit
Judges.

Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by
Judge WILLIAM A. FLETCHER; Dissent by Judge MICHAEL DALY HAWKINS.

KOZINSKI, Circuit Judge:

It was, in the words of Justice Kennedy, the genius of the Founding
Fathers to \"split the atom of sovereignty.\" *U.S. Term Limits, Inc. v.
Thornton,* 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995)
(Kennedy, J., concurring). What this means in practical terms is that,
within the territory of every state, two sovereigns-the state government
and the federal government-reign cheek to jowl. From the dawn of the
Republic, this unusual arrangement has led to a fair degree of conflict,
as the actions of one sovereign have encroached on the prerogatives of
the other. *See, e.g., McCulloch v. Maryland,* 17 U.S. (4 Wheat.) 316, 4
L.Ed. 579 (1819). This conflict reflects, not the defects of the system,
but its virtues, because the beneficiaries of these competing
sovereignties are the citizens of the United States. As Alexander
Hamilton foresaw:

Power being almost always the rival of power, the general government
will at times stand ready to check the usurpations of the state
governments, and these will have the same disposition towards the
general government\.... If \[the people\'s\] rights are invaded by
either, they can make use of the other as the instrument of redress.

*The Federalist* No. 28, at 181 (Alexander Hamilton) (C. Rossiter ed.,
1961).

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. *See, e.g., Koon v. United States,* 518 U.S. 81,
116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Those citizens may also seek
redress by bringing private suits in federal court. *See* 42 U.S.C. §
1983. While state prosecutions of federal officers are less common, they
provide an avenue of redress on the flip **\*362** 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.

If federal agents are to perform their duties vigorously, however, they
cannot be unduly constrained by fear of state prosecutions. Accordingly,
the Supreme Court has held that the Supremacy Clause cloaks federal
agents with immunity if they act reasonably in carrying out their
responsibilities. *See In re Neagle,* 135 U.S. 1, 75, 10 S.Ct. 658, 34
L.Ed. 55 (1890). We explore the outer bounds of Supremacy Clause
immunity in the context of Idaho\'s attempt to prosecute FBI Special
Agent Lon T. Horiuchi for killing Vicki Weaver during the infamous Ruby
Ridge incident.

**I**

In the early morning hours of August 21, 1992, six Deputy United States
Marshals, using night vision equipment and dressed in camouflage gear,
conducted a reconnaissance mission on the Weaver property in preparation
for serving an arrest warrant at a later date. The officers were armed
but wore no visible law enforcement identification. They were still on
the property at about 10:20 a.m., when they were detected by a party
consisting of Kevin Harris, Randy Weaver, his son Samuel and their dog
Striker. Accounts of what followed differ, but we know that a firefight
erupted during the course of which the marshals killed Striker and
Samuel Weaver. Samuel was shot twice, once in the arm and once, fatally,
in the back. One of the Weaver party, probably Kevin Harris, shot and
killed Deputy Marshal William Degan. \[FN1\] Randy Weaver and Harris
retreated to the Weaver cabin. Later, Weaver and his wife retrieved
Samuel\'s body and placed it in a structure near the cabin referred to
as the birthing shed.

FN1. Who fired the first shot, which precipitated this tragic series of
events, remains a mystery. The Senate subcommittee which investigated
the matter concluded as follows:

The Subcommittee concludes that Harris shot Deputy Marshal Degan.
Although we cannot conclude with certainty that \[Deputy Marshal\]
Roderick shot the dog first, the scenario testified to by Harris does
seem more plausible than the testimony of the Marshals. If the very
first shot that was fired was Harris\' mortal wound to Deputy Marshal
Degan, Deputy Marshal Degan would have had to have fired all of his
seven shots after he was mortally wounded. Although there was expert
testimony at the trial that this was possible, it seems unlikely.

In addition, if Deputy Marshal Degan was shot first, it is hard to
understand why neither \[Deputy Marshal\] Cooper nor Roderick
immediately shot Harris, who was standing in the Y-clearly visible-and
had just shot a Deputy U.S. Marshal. Finally, once the shooting started,
it seems less likely that Roderick would have wasted a shot on the dog
whose back was to him as the dog was walking up the hill.

It seems plausible that a 14-year old boy, on seeing his dog shot, would
have opened fire at the person who shot his dog. At that point, it was
likely that the Marshals would shoot back at the two people who were
firing on them. In the course of the gunfire, Marshal Degan was shot by
Harris and Sammy Weaver was shot in the arm and in the back.

That the first shot was Roderick\'s shooting of the dog is consistent
with the early reports from the scene. An Idaho State Police Captain
reported that he understood from talking to Roderick on the night of
August 21 that he shot the dog first. *The Federal Raid on Ruby Ridge,
ID: Hearings Before the Subcomm. on Terrorism, Tech., and Gov\'t Info.
of the Senate Comm. on the Judiciary,* 104th Cong. 1107 (1995)
(Appendix, Ruby Ridge: Report of the Subcommittee) \[hereinafter Ruby
Ridge Report\] (citations omitted).

Special Agent Horiuchi and the other members of the FBI\'s Hostage
Rescue Team arrived on the scene the following morning and were briefed
on the situation. **\*363** Part of the briefing concerned the Rules of
Engagement. The Rules initially authorized agents to fire at any armed
adult if the shot could be taken without endangering the children in the
cabin. The Rules were later revised to authorize firing only at any
armed adult *male,* subject to the same caveat. The agents were
forbidden from firing into the cabin because of the risk of hitting the
Weaver children who were inside. \[FN2\]

FN2. The Rules present another mystery. Everyone now seems to agree that
they were clearly unconstitutional. *See, e.g., Harris v. Roderick,* 126
F.3d 1189, 1205 (9th Cir.1997); Ruby Ridge Report, n. 1 *supra,* at 1111
(reporting the subcommittee\'s agreement with the conclusion reached by
the Justice Department Task Force Report, as well as by FBI Director
Louis Freeh and Deputy Attorney General Jamie Gorelick). But on the day
of the shooting no one voiced any objection. And, no one now admits to
having approved the Rules. *See id.* at 1112-13.

Sometime during the afternoon, Agent Horiuchi and his team of snipers,
guided by a deputy marshal familiar with the area, ventured on foot into
the hills surrounding the Weaver cabin. The agents made their way slowly
up the steep and rocky terrain and only came within view of the cabin at
5:30 p.m. Once there, the agents broke into teams of two and three along
a ridge overlooking the cabin. Horiuchi, armed with a high-powered rifle
and scope, took a position about 200 yards from the cabin.

At around 6 p.m., Kevin Harris, Randy Weaver and Weaver\'s
sixteen-year-old daughter, Sara, walked out of the Weaver cabin towards
the birthing shed, where Samuel\'s body was located. Horiuchi did not
know the identities of the individuals, but he determined that at least
one of them was holding a \"long gun.\" \[FN3\] At the same time,
Horiuchi says he heard the engines of the FBI helicopter in the general
vicinity, although he was uncertain as to its location. According to
Horiuchi, he saw the armed individual (later identified as Randy Weaver)
look up to the sky as if he might fire at the helicopter. \[FN4\]
Horiuchi fired once, wounding Weaver and causing him to drop from sight.

FN3. While the term \"long gun\" is not explained in the record, we
presume it refers to a rifle or a shotgun, rather than a handgun. There
is no indication that this was a long-range gun.

FN4. Horiuchi does not claim that the individual pointed the gun or put
it up to his shoulder. Rather, he testified that Weaver \"was carrying
it in a high port carry.\" He explained that high port is a military
term used to describe the carrying of a rifle or shotgun up near the
chest with both hands.

Horiuchi\'s shot alerted the Weavers and Harris to the presence of
snipers, and they took cover behind the nearest object, the birthing
shed. They remained there for ten to twenty seconds, at which point they
started running back toward the cabin. Horiuchi watched through his
rifle\'s scope as Randy and Sara Weaver ran into the cabin through a
door which opened outwards, perpendicular to Horiuchi\'s line of sight.
Harris was the last of the three to disappear behind the cabin door and,
as he did, Horiuchi pulled the trigger. The bullet penetrated the glass
pane of the door and eventually found its mark. Before hitting Harris,
however, it struck Randy\'s wife, Vicki, who had been standing behind
the door cradling an infant in her arms. Shot through the head, Vicki
Weaver died instantly.

After investigating the incident, the Department of Justice decided not
to prosecute Horiuchi. The DOJ issued a press release announcing that a
case of \"willfulness, or knowing, intentional use of unreasonable force
cannot be made out against **\*364** FBI Agent Lon Horiuchi.\" \[FN5\]
Idaho thereupon charged Horiuchi with involuntary manslaughter, in
violation of Idaho Code § 18-4006(2). The complaint alleged that
Horiuchi:

FN5. The investigation was conducted by a task force of the Department
of Justice\'s Office of Professional Responsibility (OPR), which issued
a lengthy report. That report was released to the public, but later
withdrawn. Nevertheless, it can still be found online. *See* United
States Dep\'t of Justice, Report of the Ruby Ridge Task Force to the
Office of Professional Responsibility of Investigation of Allegations of
Improper Governmental Conduct in the Investigation, Apprehension and
Prosecution of Randall C. Weaver and Kevin L. Harris (June 10, 1994),
*available at* http:// web3.foxinternet.net/djf/ruby010.htm. The
Department of Justice, apparently, did not endorse the views of the OPR
Task Force, which had concluded that \"\[Horiuchi\'s\] second shot
violated the Constitution. We recommend that the circumstances
surrounding the second shot be reviewed by the appropriate component of
the Department of Justice for prosecutive merit.\" *Id.* Section IV.F.4.

did unlawfully, but without malice, kill Vicki J. Weaver, a human being,
in the operation of a firearm in a reckless, careless or negligent
manner, to wit: discharging the firearm through the front door of the
Weaver residence in an attempt to shoot Kevin Harris as he entered the
door from the outside, without first determining whether any person
other than his intended target was present on the other side of the
door.

State Magistrate Judge Quentin Harden held a preliminary hearing and,
after taking live testimony and considering transcripts from Weaver\'s
criminal trial, \[FN6\] found sufficient evidence to support the
complaint. The state then issued an information and, a week later,
Horiuchi removed the case to federal district court pursuant to 28
U.S.C. § 1442(a)(1).

FN6. After the standoff, Randy Weaver was charged with failing to appear
and various firearms violations, all from a previous warrant, as well as
murder, conspiracy to commit an offense against the United States and
use of a firearm in connection with a violent crime for his actions
during the initial encounter with the marshals. The jury acquitted him
of all charges except failure to appear. *Weaver v. United States,* 37
F.3d 1411, 1412 (9th Cir.1994).

Both Harris and the Weavers subsequently brought civil suits against the
agents involved in the standoff and their superiors. The Weaver family
settled its suit for \$3.1 million. *See* Betsy Z. Russell, *FBI Sniper
Still Faces Idaho Trial,* Spokesman Rev. (Spokane), Sept. 15, 1999, at
B3. After we held that the agents, including Horiuchi, were not entitled
to qualified immunity, *see Harris,* 126 F.3d 1189, the government
settled with Harris for \$380,000. *See U.S. Settles With Man Injured at
Ruby Ridge,* L.A. Times, Sept. 24, 2000, at A15.

Once in district court, Horiuchi moved to dismiss the indictment on
grounds of Supremacy Clause immunity. The district court granted
Horiuchi\'s motion without an evidentiary hearing and Idaho appealed. A
panel of this court affirmed, *see* 215 F.3d 986 (9th Cir.2000), and we
granted Idaho\'s petition for rehearing en banc. *See* 228 F.3d 1069
(9th Cir.2000).

**II**

**A.** The Supremacy Clause of the United States Constitution, at its
textual core, provides that states are bound by federal law, and
nullifies any inconsistent state laws. *See* U.S. Const. art. VI, cl. 2.
However, it became clear from the early days of the Republic that states
could interfere with the operation of the federal government in ways
much subtler than passing inconsistent laws. In response, the
*McCulloch* Court read the Supremacy Clause broadly as prohibiting any
action by the states that would interfere with the operation of the
federal government. *See* 17 U.S. (4 Wheat.) at 427 (\"It is of the very
essence of supremacy, to remove all obstacles**\*365** to its action
within its own sphere, and so to modify every power vested in
subordinate governments, as to exempt its own operations from their own
influence.\"). Over the years, the federal courts have been vigilant in
protecting the federal government from interference by the states in
many areas of its operations. *See, e.g., Crosby v. National Foreign
Trade Council,* 530 U.S. 363, 120 S.Ct. 2288, 2290-91, 147 L.Ed.2d 352
(2000) (foreign relations); *Ridgway v. Ridgway,* 454 U.S. 46, 54, 102
S.Ct. 49, 70 L.Ed.2d 39 (1981) (insurance); *Bryan v. Itasca County,*
426 U.S. 373, 376-77, 376 n. 2, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976)
(relations with Indian tribes).

One potential area of tension is law enforcement, where the states and
the federal government sometimes have concurrent jurisdiction. When
federal law enforcement agents carry out their responsibilities, they
can cause destruction of property, loss of freedom and, as in this case,
loss of life-all which might violate the state\'s criminal laws. More
than a century ago, in *Neagle,* 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55,
the Supreme Court recognized the Supremacy Clause as a source of
protection for federal agents facing state criminal charges for actions
taken in the course of their duties. In that case, the Court held that a
Deputy United States Marshal was immune from state prosecution for
killing a man he suspected was about to stab Justice Field. \[FN7\]

FN7. The deputy turned out to be mistaken; the suspect was unarmed. *See
Neagle,* 135 U.S. at 53, 10 S.Ct. 658.

The question that commanded the Court\'s attention in *Neagle* was
whether the deputy marshal was authorized to protect Justice Field even
though \"\[no\] special act of Congress exists which authorizes the
marshals or deputy marshals of the United States in express terms to
accompany the judges of the Supreme Court through their circuits, and
act as a body-guard to them.\" *Id.* at 58, 10 S.Ct. 658. The Court
concluded that Neagle did have such authority and found it appropriate
to \"extend in a liberal manner the benefit of the writ of *habeas
corpus* to persons imprisoned for the performance of their duty.\" *Id.*

*Neagle* addressed only whether the deputy marshal acted in a way that
was generally authorized by federal law. Though Deputy Marshal Neagle
killed a man who did not pose a deadly threat to Justice Field, *see* n.
7 *supra,* the Supreme Court appeared convinced that Neagle acted
reasonably in light of what he knew. *See Neagle,* 135 U.S. at 53-54, 10
S.Ct. 658. *Neagle* therefore had no occasion to address the more
difficult question of whether a federal agent will lose his immunity if
he carries out his responsibilities in an unreasonable manner.

The Court answered this question sixteen years later in the case of two
soldiers who were charged in state court with the murder of a civilian.
*See United States ex rel. Drury v. Lewis,* 200 U.S. 1, 26 S.Ct. 229, 50
L.Ed. 343 (1906). The soldiers claimed the civilian was fleeing arrest
when they shot him, \[FN8\] but witnesses testified that he was shot
after he had surrendered. The Court noted that shooting a suspect after
he surrenders was unlawful and so, if the allegations were true, the
officers could not claim they were reasonably discharging their duties
under federal law. *See id.* at 8, 26 S.Ct. 229. Because the soldiers
may have acted unlawfully, depending on whose testimony was believed,
**\*366** the Court held that the state could prosecute them for murder.

FN8. At the time, killing a fleeing suspect was lawful. *See Drury,* 200
U.S. at 8, 26 S.Ct. 229. The law has changed in this regard, so that
killing a fleeing suspect is legal only in limited circumstances. *See*
p. 367 *infra.*

\[1\] *Drury* squarely holds that a state may prosecute federal agents
if they have acted unlawfully in carrying out their duties. \[FN9\]
Cases since *Drury* have refined the standard applicable to the immunity
inquiry. To be immune from state prosecution, \"a federal officer \[must
do\] no more than is necessary and proper in the performance of his
duty.\" *Clifton v. Cox,* 549 F.2d 722, 730 (9th Cir.1977). For an
agent\'s actions to be adjudged necessary and proper, he must show \"
\'that he had an honest and reasonable belief that what he did was
necessary in the performance of his duty.\' \" *Id.* at 729 (emphasis
omitted) (quoting *In re McShane,* 235 F.Supp. 262, 274
(N.D.Miss.1964)); *see also Whitehead v. Senkowski,* 943 F.2d 230, 234
(2d Cir.1991) (Supremacy Clause immunity applies if the agent shows he
\"reasonably believed that his actions were necessary to perform that
job and had no motive other than to do his job\" (citation omitted));
*Kentucky v. Long,* 837 F.2d 727, 745 (6th Cir.1988) (\"the agent must
have an honest belief that his action was justified\" and \"his belief
must be reasonable\"). \[FN10\] Federal agents will be immune from state
prosecution if they acted in an objectively reasonable manner in
carrying out their duties. \[FN11\]

FN9. *Drury* actually holds more than this: Even if it is *not* clear
that the federal agents acted unlawfully, the state may proceed with the
prosecution if it has evidence which, if believed, would render the
federal agents\' conduct unlawful. *See Drury,* 200 U.S. at 8, 26 S.Ct.
229 (\"\[T\]here was a conflict of evidence as to whether Crowley had or
had not surrendered, and it is conceded that if he had, it could not
reasonably be claimed that the fatal shot was fired in the performance
of a duty imposed by the Federal law, and the state court had
jurisdiction.\").

FN10. The dissent reads previous Supremacy Clause immunity cases as
suggesting that so long as an officer is not on a \"frolic and detour,\"
courts may only deny the immunity claim where the officer acted with
malice or other criminal intent. *See* Diss. Op. at 389. We are
obviously not free to add a \"malice\" requirement where the Supreme
Court has not done so, nor would such an addition be warranted. There
are, of course, numerous ways a federal officer might abuse his
authority, without exhibiting a bad intent. For instance, an agent may
not torture a kidnapper to reveal the whereabouts of his victim, even
though he believes it necessary to perform his job. Closer to home, 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.

The dissent suggests that denying immunity where the officer acted in
the scope of his official duties and without deliberate malice would be
unprecedented. *See* Diss. Op. at 389. What\'s unprecedented about this
case is that the taking of human life was pre-planned. Deputy Marshal
Neagle wasn\'t ordered to kill David Terry; he fired only after Terry
assaulted Justice Field and after issuing a warning. *See Neagle,* 135
U.S. at 52-53, 10 S.Ct. 658. Agent Clifton wasn\'t executing a plan when
he shot the fleeing suspect. *Clifton,* 549 F.2d at 724. Nor was Cyrus
Gillette. *United States v. Lipsett,* 156 F. 65, 65-66 (W.D.Mich.1907).
In contrast, Horiuchi commanded his squad under orders to shoot any
armed males he saw, regardless of whether they posed any danger. He
testified that the issue of danger had already been decided by his
superiors before his men ascended the hill. Horiuchi instructed his men
to wait until a number of suspects had emerged from the cabin so that
they could be sure to shoot several at the same time. *See* p. 370
*infra.* Unlike the dissent, we do not see these differences from past
cases as cutting in Horiuchi\'s favor.

FN11. Supremacy Clause immunity cases hold that the test is both
objective and subjective: The officer is denied immunity unless he
demonstrates that he believed both reasonably *and* honestly that his
conduct was lawful. However, none of these cases consider the impact of
*Harlow v. Fitzgerald,* 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982), which rejected the subjective prong for the qualified
immunity defense and held that immunity requires only a showing that the
conduct was objectively reasonable. *Harlow* \'s reasoning would seem to
apply equally to Supremacy Clause immunity. Because it makes no
difference on this appeal, we leave the issue for consideration where it
matters.

**\*367** \[2\]\[3\] **B.** The use of deadly force to apprehend a
suspect is a seizure under the Fourth Amendment. *See Tennessee v.
Garner,* 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Law
enforcement agents may use deadly force only if they reasonably believe
that killing a suspect is necessary to prevent him from causing
immediate physical harm to the agents or others, or to keep him from
escaping to an area where he is likely to cause physical harm in the
future. Even then, deadly force may not be deployed until the suspect
has been given a warning and an opportunity to surrender, unless giving
a warning will materially increase the risk of bodily injury or escape.
*See id.* at 11-12, 105 S.Ct. 1694.

We applied this standard in *Forrett v. Richardson,* 112 F.3d 416 (9th
Cir.1997), where we upheld the police shooting of a fleeing suspect.
Forrett had committed a vicious assault during a home invasion robbery,
was identified by police with reasonable certainty, was known to be
armed and had been running loose in a densely populated area for almost
an hour. *See id.* at 420-21. We held that the shooting was justified
because the police reasonably feared that Forrett \"would seize an
opportunity to take an innocent bystander hostage.\" *Id.* at 421.
Forrett was also given a chance to surrender: \"The officers approached
to within 20-30 feet and shouted at Forrett to stop and surrender,\" but
he refused. *Id.* at 418. Under *Garner,* as applied in *Forrett,* an
officer may respond with deadly force to the attenuated threat presented
by a fleeing suspect only if two conditions are met. First, there must
be reasonable cause to believe that the suspect is dangerous and will
escape to a location where he will be able to cause physical harm to
others. And, second, the officers must identify themselves and give the
suspect a chance to surrender, unless giving the warning would itself
risk serious harm to the officers or to members of the public, or
materially increase the likelihood of escape.

**C.** Horiuchi raised his Supremacy Clause immunity defense by way of a
motion to dismiss; while he submitted a variety of materials in support
of his motion-including transcripts of prior proceedings-the court held
no evidentiary hearing. \[FN12\] In such circumstances, the district
court may grant the motion only if the facts supporting the immunity
claim are not in dispute. *See, e.g., Long,* 837 F.2d at 752 (the court
will not grant the motion where the evidence \"raise\[s\] a genuine
factual issue whether the federal officer was acting pursuant to the
laws of the United States and was doing no more than what was necessary
and proper for him to do\" (emphasis omitted)); *cf. Morgan v.
California,* 743 F.2d 728, 732 (9th Cir.1984) (\"\[A\] grant of a writ
of habeas corpus prior to a state criminal trial is inappropriate when
there are material factual disputes\" over the claim of Supremacy Clause
immunity.). In determining whether material facts are in dispute, the
district court must give the non-moving party the benefit of all doubts,
both as to the basic facts and the inferences to be drawn from those
facts. *See, e.g., United States v. Jensen,* **\*368** 93 F.3d 667, 669
(9th Cir.1996); *Jensen v. City of Oxnard,* 145 F.3d 1078, 1082 (9th
Cir.1998).

FN12. Horiuchi requested an evidentiary hearing, but the district court
concluded that the factual record was complete and so the immunity
question might be decided as a matter of law. The State of Idaho argued
that an evidentiary hearing was unnecessary under the (mistaken) belief
that factual disputes could only be resolved by the jury. *See* Part IV
*infra.* Of course, as the nonmoving party, the State had no obligation
to seek an evidentiary hearing.

**III**

\[4\] Horiuchi claims he acted reasonably in trying to kill Harris in
order to keep him from harming the law enforcement agents on the scene,
specifically those in the helicopter. \[FN13\] He points to his initial
briefing, which depicted Randy Weaver as a Rambo-like figure, commanding
an unknown number of heavily armed white separatists who had fired
indiscriminately at the deputy marshals the previous day, killing Deputy
Marshal Degan. *See* Excerpt of Testimony of Lon T. Horiuchi at 198,
*United States v. Weaver,* No. 92-080-N-EJL (D. Idaho June 3, 1993)
\[hereinafter Horiuchi Testimony\]. \[FN14\] At Weaver\'s criminal
trial, Horiuchi also testified that he saw three individuals step out of
the cabin, at least one of them armed with a long gun; at the same time,
he heard the FBI helicopter in the area. Horiuchi saw the man with the
long gun (Weaver) make a threatening gesture towards the helicopter.
*See id.* at 87-90. Responding to this threat, Horiuchi took aim and
fired once, striking Weaver in the shoulder. Based on what he saw of
Weaver\'s reaction, Horiuchi believed he had missed. *See id.* at 91.
Ten to twenty seconds later, Horiuchi observed the same three
individuals running toward the door of the cabin, which stood open
outwards, perpendicular to Horiuchi\'s line of sight. One of the men
(Harris) was carrying a gun, and Horiuchi believed it was the same man
he had seen threatening the helicopter. Without first calling out a
warning, Horiuchi shot Harris; he did so in order to keep him from
reaching the safety of the cabin, from where he could shoot at the
helicopter or escape. Horiuchi did not see Mrs. Weaver standing behind
the door, nor was he aware that she had stepped out of the cabin. Were
we to accept Horiuchi\'s story at face value, as the dissent does, we
too would conclude that he was entitled to immunity. However,
Horiuchi\'s explanation hinges on a series of explicit or implicit
factual assertions, and we cannot accept the explanation unless we find
that the underlying assertions are established beyond dispute. Broken
into its constituent parts, Horiuchi\'s explanation consists of six key
factual elements:

FN13. While Horiuchi\'s second shot was aimed at Harris, it killed Vicki
Weaver, and it is with that killing that Horiuchi is being charged. In
resolving the question of immunity, we consider only whether Horiuchi
was justified in trying to kill Harris. Horiuchi\'s criminal
responsibility, if any, for killing Mrs. Weaver is a matter of state law
to be determined by a jury after trial.

FN14. While this description of the August 21 incident is a material
exaggeration, *see* pp. 362-63 *supra,* there is no dispute that this is
what Horiuchi was told. Because Horiuchi was entitled to rely on
information given to him by his superiors, we accept this description
for purposes of determining whether Horiuchi acted reasonably.

1\. Horiuchi heard the FBI helicopter and believed that it was
positioned so that it could be brought down by rifle fire from the
Weaver cabin.

2\. Horiuchi shot Harris, and by extension Mrs. Weaver, in order to
eliminate an imminent risk to the helicopter and not because he was
following the Rules of Engagement.

3\. Horiuchi had reasonable cause to believe that giving a warning and
opportunity to surrender before taking the second shot would have been
futile or dangerous.

4\. At the time Horiuchi shot Harris, he believed him to be the same man
who had made threatening gestures at the helicopter 10 to 20 seconds
earlier.

**\*369** 5. Horiuchi did not know, and had no reason to believe, that
Mrs. Weaver (or some other person) was standing behind the cabin door at
the time he shot at Harris through the door.

6\. Horiuchi had reason to believe that, once the armed man reached the
safety of the cabin, he would be able to escape and cause harm to
others.

We consider which, if any, of these components of Horiuchi\'s story were
established beyond doubt. \[FN15\]

FN15. The dissent recognizes that \"Idaho argued strenuously in the
district court that there were multiple disputed issues of material
fact,\" but would forbid us from considering factual disputes that it
claims were not raised in the State\'s opposition papers. Diss. Op. at
391-92. Yet the very case the dissent relies on in support, *Carmen v.
San Francisco Unified Sch. Dist.,* 237 F.3d 1026 (9th Cir.2001), held
that in considering whether factual disputes preclude summary judgment,
the district court \"has discretion in appropriate circumstances to
consider other materials\" in the record, although \"it need not do
so.\" *Id.* at 1031. Of course, we conduct de novo review, so we have
exactly the same discretion as the district court. In a case as unusual
as this one, where the procedural boundaries are so unclear, it seems
particularly appropriate to exercise that discretion-if necessary.

The dissent also makes much of a remark made by the author of this
opinion in dissenting to the original panel decision; it\'s so important
it\'s quoted it twice. *See* Diss. Op. at 380 n. 1, 390. As Justice
Frankfurter observed, \"Wisdom too often never comes, and so one ought
not to reject it merely because it comes late.\" *Henslee v. Union
Planters Nat\'l Bank & Trust Co.,* 335 U.S. 595, 600, 69 S.Ct. 290, 93
L.Ed. 259 (1949) (Frankfurter, J., dissenting).

**1. The location of the helicopter.** We start with Horiuchi\'s own
statements about the helicopter. In his testimony at Weaver\'s trial,
Horiuchi admits that he never actually saw the helicopter, and he gave
inconsistent answers about where he believed it was. On direct
examination, Horiuchi testified that the helicopter was behind him.
*See* Horiuchi Testimony, p. 368 *supra,* at 83 (Weaver \"looked up at
the helicopter or what I perceived to be a helicopter *somewhere behind
my location.*\" (emphasis added)). But Horiuchi\'s first shot hit Weaver
in the back. On cross-examination, Horiuchi was asked, if Weaver was
looking at a helicopter that was hovering *behind* Horiuchi, then Weaver
would have been facing him; how then could Horiuchi have shot Weaver in
the back? At this point, Horiuchi backpedaled and said that he didn\'t
know where the helicopter was, and \"I would be guessing if I told you
where it was.\" *Id.* at 259. But if Horiuchi did not see the helicopter
and did not know where it was, it is difficult to conclude that a
reasonable agent in his position would have believed it to be in danger.
\[FN16\]

FN16. Randy Weaver testified before the Senate Subcommittee that at the
time of the shooting, there was no helicopter in the area at all. He
said \"all was quiet,\" and \"had they heard a helicopter at this
moment, they all would have run back to the cabin immediately.\" Ruby
Ridge Report, n. 1 *supra,* at 1115. This congressional testimony, of
which we may arguably take judicial notice, suggests additional
uncertainty about the location of the helicopter-that it may not even
have been in the area at the time of the shooting.

And, indeed, neither Horiuchi nor any of the other agents on the scene
reacted as if they thought the helicopter was in danger. The agents on
the ridge were in radio contact with the FBI command center and were
reporting significant developments. Thus, when the three individuals
strayed outside the cabin, one of the agents promptly reported it. *See
id.* at 77 (\"I believe it was Special Agent Love in Sierra 1 position
who saw them coming out at the same time, pretty much the same time I
did, and he radioed back to the command **\*370** post that three
individuals had come out of the building.\"). If Horiuchi and the other
agents thought the helicopter was in danger from the man with the long
gun, one would have expected them to warn the pilot to move out of rifle
range. Assuming there had been no time to do so before the first shot,
there would have been ample time afterwards, when Horiuchi thought his
bullet had missed, leaving the man with the long gun at large and
presumably still dangerous. \[FN17\]

FN17. Had any of the agents thought that the helicopter could be shot
from the cabin, they would probably have called in a warning even if
they thought Horiuchi *had* killed the man with the long gun. After all,
Horiuchi and the other agents had been told that there were numerous
people with guns in the cabin, *see* p. 368 *supra,* and so killing one
of them would not have eliminated the danger. It seems highly unlikely
that a squad of FBI agents would observe an FBI helicopter in danger of
being shot down, yet none of them would warn it to get out of harm\'s
way.

There is other evidence that a reasonable officer in Horiuchi\'s
position would not have believed that the helicopter was within rifle
range of the cabin. This was not an aircraft piloted by a civilian who
might have stumbled into the danger zone; Horiuchi knew that the FBI
pilot was aware of the danger and was taking appropriate precautions.
Earlier that day, Horiuchi had been aboard on a reconnaissance mission
and noted that the pilot \"popped over the hill low and then came back
over\" so as not to present a clear target to the armed and presumably
dangerous people in the Weaver cabin. *Id.* at 191. Horiuchi first
testified that during his flight, the helicopter \"wasn\'t necessarily
well out of rifle range\" of the cabin. *Id.* at 258. But he was
impeached by his prior testimony, where he had stated unequivocally,
\"\[w\]e stayed well out of range of the cabin during the flight.\"
*Id.* Horiuchi also knew that the helicopter had taken several other
flights over the area, all without incident. By returning to the cabin,
the two men and the young girl restored the situation to precisely where
it had been before they exited.

Finally, Horiuchi himself admitted that he did *not* fire the second
shot because he believed the man with the long gun would pose a threat
to the helicopter if he reached the safety of the cabin. At the Weaver
criminal trial, Horiuchi testified that he decided to kill the man as
soon as he saw him looking menacingly at the helicopter, and did not
reconsider this decision before taking the second shot: \"I had already
made that determination after that first shot, so if I saw him
again\[,\] I was going to shoot at that individual again.\" *Id.* at
107. \[FN18\] If accepted at face value, this statement suggests that
Horiuchi had decided to shoot the man with the gun, whether or not he
continued to be a threat to the helicopter.

FN18. Of course, a law enforcement officer must justify *every* use of
deadly force as necessary and proper; he may not keep pulling the
trigger, regardless of changed circumstances. We confronted precisely
this situation in *Hopkins v. Andaya,* 958 F.2d 881, 887 (9th Cir.1992),
where the officer kept shooting after the suspect ceased being
dangerous. We rejected the officer\'s claim of qualified immunity,
holding that the justification for the use of deadly force does not
continue indefinitely. If circumstances change, and the danger abates,
it will be unreasonable to continue using deadly force.

On this record, it seems highly debatable whether a reasonable agent in
Horiuchi\'s position would have believed that the helicopter would be
endangered if the man with the gun reached the cabin.

**2. The Rules of Engagement.** There is also doubt about whether
Horiuchi is making up the helicopter story to cover up his real reason
for the shooting, which was **\*371** to follow the orders he had been
given to shoot any armed man on sight. Horiuchi testified that he
believed he had the authority to shoot an armed man without making any
judgment about the existence of an immediate threat. \"\[T\]he decision
that we were already in danger had already been made for us prior to
going up the hill.\" *Id.* at 159. When asked on cross whether he
intended to shoot the men \"irrespective of a threat,\" he replied,
\"\[b\]ased on the Rules of Engagement, sir, we could.\" *Id.* at 264.

Horiuchi, as leader of the sniper team, instructed his men about how
they should carry out their mission. His instructions did not reflect
our constitutional rules as to the use of deadly force-such as shooting
only in case of a threat. Rather, Horiuchi\'s instructions closely
mirrored the Rules of Engagement:

I said what we wanted to do was to try and get as many people, both of
the subjects out before we take the shot. In other words, if only one
subject had come out \[of the cabin\], we were going to pretty much wait
maybe wait a minute, 30 seconds, maybe more before anyone took the shot
to try and eliminate having taken one shot and then the rest of them
pretty much all inside. We wanted them all outside if we were going to
shoot the two subjects.

*Id.* at 203-04.

Horiuchi also described his decisions at the scene in terms of the Rules
of Engagement, rather than any independent assessment of a threat. Soon
after he reached his position, he watched Sara Weaver exit, move towards
the shed and then return to the cabin. He testified that he didn\'t
shoot her because \"the female was not armed at that time, and I was
assuming she was a child because of the size of the stature.\" *Id.* at
62. A few minutes later, Horiuchi saw a man come out on the back porch.
He decided against shooting him because \"\[t\]he individual did not
appear to be armed, there was nothing in his hand, and I did not see any
weapons around or on his person.\" *Id.* at 64-65. Horiuchi did *not*
testify that he decided against shooting because these individuals posed
no threat. Instead, he focused on their age and sex, as well as the
absence of weapons, precisely as specified in the Rules of Engagement,
which directed him to shoot only at armed men. This is also consistent
with the fact that, as soon as he had a clean shot at an armed man,
Horiuchi aimed and fired.

This evidence suggests that Horiuchi shot Harris because he was
following the unconstitutional Rules of Engagement, not because he
thought Harris would pose a danger to the helicopter if he reached the
cabin. \[FN19\] If a trier of fact finds that Horiuchi lied about his
motives, this would undermine other portions of his story as well, such
as his description of the location and vulnerability of the helicopter.
\[FN20\]

FN19. The Senate Subcommittee that investigated the same matter shared
our concerns: \"\[T\]here is a reasonable basis to conclude that the
Rules of Engagement, more than any fear for the safety of the
helicopter, prompted Horiuchi to take the first shot.\" Ruby Ridge
Report, n. 1 *supra,* at 1118.

FN20. The dissent contends that Idaho is foreclosed from arguing that
Horiuchi followed the Rules of Engagement because the criminal complaint
charges him with involuntary manslaughter, not murder. *See* Diss. Op.
at 394 (\"\[T\]hat argument is squarely foreclosed by the criminal
complaint. If such conduct was the factual predicate of the complaint,
Horiuchi should have been charged with murder.\"). But the State has no
obligation to bring the maximum charges supported by the evidence, nor
does its decision to charge manslaughter preclude it from presenting
evidence that might also support a murder charge. Horiuchi obviously
cannot defend against a manslaughter charge by taking the stand and
swearing he acted maliciously. Thus, the state criminal complaint has no
bearing on whether disputed material facts prevent Horiuchi from
establishing federal immunity as a matter of law.

**\*372 3. Would a warning have been futile or dangerous?** Giving a
warning is a condition on the use of deadly force, *except* in those
rare circumstances where doing so would materially increase the danger
to law enforcement personnel or bystanders. *See Garner,* 471 U.S. at
11-12, 105 S.Ct. 1694 (\"deadly force may be used if necessary \... if,
where feasible, some warning has been given\"). This contemplates a
narrow class of cases, such as where the suspect has opened fire, or
pointed a gun at vulnerable targets. \[FN21\]

FN21. The warning requirement ensures that law enforcement agents only
employ deadly force as a last resort. If the suspects fail to surrender
after police make their presence known and assert their lawful
authority, this makes it reasonable to believe the suspects plan to flee
or fight. But when no warning is given, and the suspects don\'t know
they are under police surveillance, failing to surrender cannot
automatically be construed as a threat. Of course, police sometimes run
into situations where the danger is so obvious and severe that giving a
warning is superfluous or even dangerous; in that situation, deadly
force may be used even without a warning.

The FBI had been in the area for a full day, and had deployed snipers to
within 200 yards of the cabin, yet the occupants were never alerted or
warned to surrender. The first they learned that they were under siege
was when Horiuchi\'s bullet struck Randy Weaver. Had Horiuchi identified
himself as a law enforcement officer and ordered them to surrender, it
is entirely possible they would have come out with their hands in the
air, and the tragedy could have been averted. But when the two men and
young girl found themselves the targets of an unseen, unidentified
sniper, what were they to do? Not hearing the kind of warning and
surrender demand one has come to expect from law enforcement officers,
they could not be sure who was shooting at them, or that a surrender
would be accepted. By failing to give a warning, Horiuchi left Harris
and the Weavers no option except to fight or flee, escalating an already
dangerous situation. Having used deadly force without a warning,
Horiuchi is only entitled to immunity if he could have reasonably
believed that giving a warning in this case would be futile or
dangerous. To prevail on the motion to dismiss, he has to show that
there is no material dispute on this point. \[FN22\]

FN22. In *Harris v. Roderick,* 126 F.3d 1189 (9th Cir.1997), we reviewed
the facts surrounding Agent Horiuchi\'s shooting in order to determine
if he was entitled to qualified immunity. *Id.* at 1192-94. In holding
that Horiuchi was not entitled to such immunity, the opinion focused, in
part, on the absence of any warning: \"Horiuchi gave him no warning and
no opportunity to surrender or to otherwise cease his resistance to the
exercise of lawful authority.\" *Id.* at 1203.

Assuming that Horiuchi reasonably believed Weaver was about to shoot at
the helicopter, he would have been entitled to take his first shot
without giving a warning because the danger appeared to be direct and
immediate. But after that first shot, neither Harris nor Randy Weaver
nor anyone else connected with the cabin was shooting or aiming weapons
at any vulnerable targets. At first they were hiding, for a period of up
to twenty seconds, then they were running, giving Horiuchi ample time to
shout a surrender demand. \[FN23\] It is possible **\*373** that giving
a warning at that point would have been futile or dangerous, but
Horiuchi has presented no factual basis for so concluding. At the very
least, the point is in dispute. *Accord Harris,* 126 F.3d at 1203. On
the evidence before us, we cannot hold that Horiuchi has established
that he reasonably believed giving a warning, as required by *Garner,*
was not feasible.

FN23. Horiuchi testified that he was near enough to hear voices from
inside the cabin, *see* Horiuchi Testimony, p. 368 *supra,* at 13
(testifying that the agents heard \"screaming, a single male voice\"
from their positions). A shouted warning from one or more of the agents
would therefore have been audible to the three as they were hiding
behind the birthing shed.

**4. Was Horiuchi reasonably sure of his target?** Even if Horiuchi\'s
story about his concern for the helicopter is believed, it still does
not explain why he shot Harris rather than Randy Weaver. After all,
Horiuchi only observed one of the two men holding a rifle and making
menacing gestures toward the helicopter. This observation might have
justified shooting that man, certainly not the other one. Knowingly
shooting the man who did not threaten the helicopter, just because he
was armed and in the vicinity, would not have been constitutionally
permissible. Indeed, Horiuchi does not attempt to justify shooting
Harris on this basis. Rather, he claims that he made a mistake-that he
shot Harris when he meant to shoot Weaver.

Horiuchi, once again, contradicts himself. During the Weaver criminal
trial, he testified that the two men were dressed in similar black
clothing and he could not tell them apart. *See* Horiuchi Testimony, p.
368 *supra,* at 238-39. If this testimony is credited, then Horiuchi
would have had no cause to believe that Weaver was the second man
running into the cabin, rather than the first. At most, it would
establish that Horiuchi thought there was a 50/50 chance the man he was
shooting was the one he had seen threatening the helicopter. This is far
less certainty than an officer must have before taking human life.

Before using deadly force, the officer must be reasonably certain that
his target is, indeed, the one who is posing the threat. If Horiuchi was
unable to tell the two men apart, as his testimony suggests, then he
could not be reasonably certain of his target and he had no
justification for taking the second shot. Pulling the trigger based on a
fifty-percent probability of killing the wrong person does not fall into
the realm of the reasonable.

Given the current record, we have no way of ascertaining what factual
basis Horiuchi had for believing, to a reasonable certainty, that he was
shooting the man he had observed looking menacingly at the helicopter.
As best the record discloses, this was not a case of mistaking one man
for the other, but of shooting in the face of major uncertainty about
the identity of the target. This is more akin to recklessness than
reasonable conduct.

**5. The position of Vicki Weaver.** Horiuchi claims he was unaware that
Mrs. Weaver was standing behind the door when he shot through it at
Harris. Yet again, Horiuchi\'s testimony on this point has been less
than consistent. Horiuchi testified that, when he fired at Harris, he
thought someone else might be standing behind the door, because Harris
\"was trying to hold the door open or moving somebody out of the way.\"
*Id.* at 108. Other witnesses, too, contradict Horiuchi\'s claim. Sara
Weaver testified that the curtain on the door was open, *see*
Preliminary Hearing Testimony at 21, and so Horiuchi could have seen her
mother through the glass pane on the door. Both Sara and Randy Weaver
testified that, after the first shot, Vicki Weaver came onto the porch
and called out, and so Horiuchi could have seen or heard her. *See id.*
at 10, 92. Of course, there is evidence that supports Horiuchi\'s
version as well. But there remain disputed facts on this issue. If
Horiuchi shot through the door knowing, or having reason to believe,
someone else was standing behind it, then his second shot could not be
deemed reasonable.

**\*374 6. The danger of escape.** At oral argument before us,
Horiuchi\'s lawyer suggested that the armed man could have fled out the
back door of the cabin and made his way to a populated area. We have
examined the record and find no support for this contention. This was
not a situation, as in *Forrett,* where the use of deadly force was
justified by the need to avert danger to the public from a fleeing
suspect. Forrett was loose in a residential neighborhood where he could
have taken a hostage at any time. By contrast, Harris was running toward
a cabin in the middle of nowhere, and the cabin itself was under siege
by nine federal agents armed with M-16 rifles, and with backup that
included a helicopter, an armored personnel carrier and a gun-toting
robot. So far as the record discloses, there was no material risk that
he would make his way to a populated area where he could harm somebody
or take hostages. \[FN24\] On the record before us, we cannot say that a
reasonable agent in Horiuchi\'s position would have concluded that
Harris presented the kind of immediate danger that made the use of
deadly force reasonable. At the very least, the matter is in dispute.

FN24. Horiuchi testified that he was able to see and shoot any person
who left the cabin by the back door. Horiuchi had already seen a man
walk on to the back deck; he stated that he could have shot the man but
decided against it because the man was unarmed. *See* Horiuchi
Testimony, p. 368 *supra,* at 63-65. Thus, if anyone tried to escape
through the back door, Horiuchi would have been able to shoot him.

The dissent goes even farther than Horiuchi\'s counsel, suggesting that
the man in the cabin might have escaped through a window, or through
some undefined opening on the other side of the cabin. *See* Diss. Op.
at 397. The dissent makes this statement based entirely on Horiuchi\'s
statement that the cabin was not surrounded. Nothing in the record
addresses what Horiuchi knew or didn\'t know about any potential escape
routes; the dissent can only reach its conclusion by drawing inferences
in favor of Horiuchi, something plainly inappropriate on a motion to
dismiss.

**IV**

\[5\] Because we find that there are material questions of fact in
dispute which, if resolved against Horiuchi would strip him of Supremacy
Clause immunity, we must reverse the district court\'s order dismissing
the case. The question remains: What next? Presuming that Horiuchi
wishes to press his immunity claim, a trier of fact will have to resolve
these factual issues. Will this be the district judge, hearing the
matter on a renewed motion to dismiss, or the jury during the course of
the trial?

While there is practically no law, and very little guidance, we conclude
that if Horiuchi renews his motion to dismiss, factual issues must be
resolved by the district court prior to trial; and if there continues to
be conflicting evidence pertaining to key aspects of Horiuchi\'s
immunity claim, as we expect there will be, the factual disputes must be
resolved by the district court.

The only case to speak directly to this issue comes from the early part
of the last century. In *West Virginia v. Laing,* 133 F. 887, 891 (4th
Cir.1904), the court concluded that \"Congress certainly intended, in
cases of this character, that the judges of the United States should
hear the evidence, and without a jury proceed in a summary way to pass
upon the federal question involved.\" \[FN25\] *But cf. United States v.
Lipsett,* 156 F. 65, 71 (W.D.Mich.**\*375** 1907) (suggesting that had
there been facts in dispute, the court would let the state jury decide
them). \[FN26\]

FN25. The only other case of which we are aware is more in the nature of
legal lore than precedent. Following the fabled shootout at the O.K.
Corral, in Tombstone, Arizona, Deputy Marshal Virgil Earp, and his
deputized brothers Wyatt and Morgan, along with J.H. \"Doc\" Holliday,
were charged with murder. A month-long evidentiary hearing was held
before a Territorial Justice of the Peace, who dismissed the prosecution
on the ground that Virgil Earp and his deputies reasonably carried out
their duty as law enforcement officers:

In view of all the facts and circumstances of the case, considering the
threats made, the character and positions of the parties, and the tragic
results accomplished in manner and form as they were, with all the
surrounding influences bearing upon the res gestae of the affair, I
cannot resist the conclusion that the defendants were fully justified in
committing these homicides-that it \[was\] a necessary act, done in the
discharge of an official duty.

Steven Lubet, *The Forgotten Trial of Wyatt Earp,* 72 U. Colo. L.Rev. 1
(2001) (quoting Judge Wells Spicer) (alteration in original). While
clearly not binding on us, the Earp case does support the notion that
disputed facts concerning a law enforcement officer\'s claim that he was
acting within the scope of his duty should be resolved by the court
before the officer is exposed to the expense, risk and personal
apprehension of a criminal trial.

FN26. The force of *Lipsett* \'s statement is somewhat in doubt because
this was a state habeas case, and all the district judge could do is
grant or deny the habeas petition. Had he denied the petition, the
district judge could not decide whether the state court would submit the
question to a jury or decide it for itself. *Lipsett* \'s statement
about sending the case to a state jury is probably best read as
hyperbole.

We also find persuasive modern courts\' practice of deciding factual
questions underlying criminal immunity claims, rather than submitting
them to juries. Having to live through the anxiety of a criminal trial
destroys most of the benefits of immunity, and so courts often dispose
of factual questions underlying immunity defenses prior to allowing the
jury to deliberate on criminal liability. We have recognized that courts
may decide the facts underlying a double jeopardy claim or the scope of
an immunity deal with the prosecution. *See, e.g., United States v.
Mendoza,* 78 F.3d 460, 464-65 (9th Cir.1996) (immunity deal); *United
States v. Gutierrez-Zamarano,* 23 F.3d 235, 237 (9th Cir.1994) (double
jeopardy). A defendant, such as Oliver North, who was given a grant of
immunity, is entitled to a *Kastigar* hearing, where the district court
makes determinations about whether the government has made its case
based on immunized testimony. *See Kastigar v. United States,* 406 U.S.
441, 461, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); *United States v.
North,* 920 F.2d 940, 941-42 (D.C.Cir.1990) (per curiam). And, of
course, courts routinely decide any factual disputes underlying
attorney-client privilege, executive privilege, probable cause and other
evidentiary matters.

We recognize that none of these provides a perfect analogy because a
claim of Supremacy Clause immunity is much more central to the subject
matter of the criminal case than, for example, a claim of double
jeopardy. Nevertheless, we find significant policy reasons supporting
our decision. To begin with, the question of Supremacy Clause immunity,
while very similar to the issues presented in the criminal case, is
nevertheless quite distinct. While the jury must decide the case under
state law, Supremacy Clause immunity is a matter of federal law. The
state standard for justification may or may not be the same as the
federal standard, and asking the jury to apply two similar-yet
distinct-legal standards to the same set of facts can only lead to
confusion. \[FN27\] By contrast, federal **\*376** judges, versed in the
subtleties of federal immunity law, are well equipped to make factual
findings and legal conclusions. These rulings can then be reviewed on
appeal much more easily than a jury verdict which, after all, is almost
entirely opaque.

FN27. Even if the district court decides against immunity, the officer
may argue before the criminal jury that his conduct was justified under
state law. For instance, under Idaho law, a homicide is justified when
it is \"necessarily committed in attempting, by lawful ways and means,
to apprehend any person for any felony committed.\" Idaho Code § 18-
4009(4). Thus, if Horiuchi is unable to convince the district court that
he is entitled to immunity, he may nonetheless escape criminal liability
if a jury believes that the shooting was justified as a matter of state
law.

Perhaps most significant, however, is the fact that having the district
court hear the evidence and make factual findings before the state
prosecution can go forward will act as a substantial safeguard against
frivolous or vindictive criminal charges by states against federal
officers. As experience with qualified immunity cases shows, if merely
presenting a disputed issue of fact were sufficient to get to a jury,
then state prosecutions of federal agents could become quite common.
Such prosecutions-whether successful or not-place a heavy burden on the
agent charged and the agency that employs him.

It\'s true that, in the civil context, we have held that the disputed
factual issues underlying the immunity defense must be put to the jury.
*See, e.g., Act Up!/Portland v. Bagley,* 988 F.2d 868, 873 (9th
Cir.1993). But criminal liability threatens the officer personally in a
way that civil liability does not and so calls for a more cautious
approach. In the civil context, the government agency may indemnify an
officer against suits, and agencies regularly do so. *See, e.g.,* John
C. Jeffries, Jr., *In Praise of the Eleventh Amendment and Section
1983,* 84 Va. L.Rev. 47, 50 & n. 16 (1998). Thus, the principal aim of
civil suits is not to punish the officers as much as it is to force law
enforcement agencies to internalize social costs imposed by its
officers, so that the agency will weigh those costs against the benefits
it seeks to achieve. In other words, civil damages against law
enforcement officers are as much about enterprise accountability, as
they are about personal blame.

Criminal liability is quite another matter. The sanction is more severe,
and the law enforcement agency cannot pay it. The agency can\'t serve
prison time for the officer; nor can it restore voting or other civil
rights, or make up for the shame that results from a criminal
conviction. Because an employing agency cannot protect the officer from
criminal punishment, criminal liability (unlike civil damages) is not
fundamentally about enterprise liability and internalizing costs;
rather, it is fundamentally about personal blame and accountability.

Because the criminal sanction weighs entirely on the officer, rather
than on the agency, we believe that the procedures we follow in the
civil context will not sufficiently protect officers from the risk of
state criminal prosecution. For this reason, as well as those stated
above, we believe interposing a federal judge between the state
prosecutor and the jury will provide a significant restraint on
overzealous state prosecutors and ensure such prosecutions remain an
avenue of last resort in our federal system.

**V**

The United States, as amicus curiae, cautions that subjecting federal
agents to the criminal laws of the various states could chill their
ability to carry out vital duties, such as guarding the President. But
Supremacy Clause immunity is not absolute and so presupposes that
federal agents can be prosecuted for violating state law. Had Congress
found that state criminal prosecutions posed an intolerable **\*377**
risk for federal agents, it could have tried to broaden the scope of
that immunity. Instead, Congress has acquiesced in state prosecutions of
federal agents and chosen to protect them by requiring that, when such
prosecutions go forward, they do so in federal court. *See* 28 U.S.C. §
1442(a)(1).

Nor do we believe that allowing this case to proceed will open the
floodgates to numerous state criminal prosecutions of federal agents,
hampering federal law enforcement efforts. Assuming the facts alleged by
the state, 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. Rather, 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. As
soon as the incident was over, the FBI disowned the rules and
disciplined the officers who approved them. The incident led to a
lengthy investigation by the DOJ Office of Professional Responsibility;
Congress itself conducted extensive hearings and published a bipartisan
report that was highly critical of the FBI in general and Horiuchi in
particular. \[FN28\] There is nothing run of the mill about this case,
and we cannot conceive that it will provide a precedent for state
prosecutions in more ordinary circumstances.

FN28. The Senate Subcommittee Report concluded as follows:

The Subcommittee concludes without reservation that the second shot
should not have been taken. We believe that under the circumstances on
August 22, as Randy and Sara Weaver and Kevin Harris ran back to their
cabin, there was not the kind of immediate or imminent threat of real
harm to others that could have justified deadly force. The snipers were
concealed and remote. Even if a helicopter was present, it could not
have been at risk from individuals fleeing headlong into a cabin after
they had been shot at. There was simply no justification then present
for the use of deadly force, while there was considerable risk of danger
to the Weaver children\....

It is not our purpose to urge (or to urge against) prosecution or other
sanction against Agent Horiuchi. But it is the Subcommittee\'s firm
purpose to make sure that in the future, in similar circumstances,
inappropriate and unconstitutional deadly force like the second Ruby
Ridge shot will never again be used.

Ruby Ridge Report, *supra* n. 1, at 1119-20.

**Conclusion**

In keeping with the constitutional allocation of powers between the
federal government and the states, federal agents enjoy immunity from
state criminal prosecution. That immunity has limits. When an agent acts
in an objectively unreasonable manner, those limits are exceeded, and a
state may bring a criminal prosecution.

After carefully reviewing the record, we cannot agree with the district
court that Agent Horiuchi\'s use of deadly force against Harris and, by
extension, Mrs. Weaver, was objectively reasonable as a matter of law.
Accordingly, Agent Horiuchi is not entitled to dismissal on the ground
of Supremacy Clause immunity at this stage in the proceeding. On remand,
the district court may conduct an evidentiary hearing to determine
whether the evidence supports Agent Horiuchi\'s entitlement to immunity
under the legal principles applicable to the use of deadly force. We
therefore **REVERSE** and **REMAND** with directions that the district
court reinstate the criminal complaint and information and for further
proceedings consistent with this opinion.

**\*378** WILLIAM A. FLETCHER, Circuit Judge, with whom Circuit Judge
THOMAS joins, concurring and dissenting:

I join in all but Part IV of the majority\'s opinion.

I concur in the majority\'s conclusion that there are disputed questions
of fact material to agent Horiuchi\'s defense of Supremacy Clause
immunity. I agree with the majority that these disputed questions
preclude a holding that agent Horiuchi is entitled, as a matter of law,
to a dismissal of the criminal prosecution brought by the State of
Idaho.

However, I dissent from the majority\'s conclusion that these disputed
questions of fact must be decided by a judge. I believe that a defendant
in the position of agent Horiuchi is entitled to have a jury decide
disputed issues of fact relevant to his immunity defense, for two
independently sufficient reasons. First, our practice in dealing with
the defense of qualified immunity in civil cases is to send disputed
questions of fact to the jury. Second, the Sixth Amendment guarantees a
jury trial.

We have held that a jury must resolve disputed questions of fact in
determining whether a law enforcement officer is entitled to qualified
immunity in a civil damages case. We held in *Act Up!/Portland v.
Bagley,* 988 F.2d 868, 873 (9th Cir.1993), that where the relevant facts
are undisputed, the district judge rules on the issue of qualified
immunity on summary judgment. However, when those facts are in dispute,
the case must proceed to trial. If the case is tried to a jury, the jury
determines those facts. Once it does so, the district judge decides the
reasonableness of the officer\'s behavior based on those facts. *Id.* at
873-74. I note that the Ninth Circuit appears to be unique in holding
that the jury is only to resolve factual disputes. Other circuits give
to the jury not only questions of disputed fact but also questions of
reasonableness. *See, e.g., Hurlman v. Rice,* 927 F.2d 74, 78-79 (2d
Cir.1991); *Santiago v. Fenton,* 891 F.2d 373, 386-87 (1st Cir.1989);
*Brandenburg v. Cureton,* 882 F.2d 211, 215-16 (6th Cir.1989); *Melear
v. Spears,* 862 F.2d 1177, 1184 (5th Cir.1989); *Turner v. Dammon,* 848
F.2d 440, 444 (4th Cir.1988), *abrogated on other grounds by Johnson v.
Jones,* 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); *Robison
v. Via,* 821 F.2d 913, 921 (2d Cir.1987); *Fludd v. United States Secret
Service,* 771 F.2d 549, 554 (D.C.Cir.1985); *McSurely v. McClellan,* 697
F.2d 309, 321 & n. 20 (D.C.Cir.1982).

I am, of course, bound by our holding in *Act Up!/Portland,* although I
also feel bound (in a different sense) to say that I disagree with it.
*See Act Up!/Portland,* 988 F.2d at 874 (Norris, J., dissenting). The
classic role of the jury, in both civil and criminal cases, is not only
to resolve disputed questions of fact, but also to determine
reasonableness based on the facts. But even taking *Act Up!/Portland* as
good law, it is clear that in this circuit disputed questions of fact
relevant to a defense of qualified immunity are to be resolved by a
jury. I see no reason why disputed questions of fact concerning
Supremacy Clause immunity should be treated differently.

Further, the Sixth Amendment guarantees a jury trial. Supremacy Clause
immunity is an affirmative defense that can, and in this case does,
involve disputes about whether the officer had an honest belief that
what he did was necessary to perform his duty, and whether the officer
was reasonable in his belief and actions. Where material facts are in
dispute that prevent the summary resolution of these questions as a
matter of law, the Sixth Amendment requires that they be sent to a jury.

**\*379** In *United States v. Bailey,* 444 U.S. 394, 100 S.Ct. 624, 62
L.Ed.2d 575 (1980), the Court emphasized the importance of the jury\'s
role in deciding questions of fact relevant to affirmative defenses. The
Court held that before a defendant is entitled to a jury instruction on
a defense, the judge must make a threshold determination that some
evidence supports each element of the defense. The Court took pains to
point out that its ruling was designed to strengthen, not weaken, the
jury\'s role:

The requirement of a threshold showing on the part of those who assert
an affirmative defense to a crime is by no means a derogation of the
importance of the jury as a judge of credibility\.... On the contrary,
it is a testament to the importance of trial by jury and the need to
husband the resources necessary for that process by limiting evidence in
a trial to that directed at the elements of the crime or at affirmative
defenses.

*Id.* at 416, 100 S.Ct. 624.

The Supreme Court also emphasized the importance of the jury in *United
States v. Gaudin,* 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).
The Court held that due process and the Sixth Amendment right to a jury
trial require, in a prosecution for making material false statements,
that the jury determine whether a statement is material. In so holding,
the Court rejected the Government\'s position that the jury should only
decide the factual components of elements of criminal offenses. *Id.* at
511, 115 S.Ct. 2310. The Court observed that \"the
application-of-legal-standard-to-fact \... commonly called a \'mixed
question of law and fact,\' has typically been resolved by juries.\"
*Id.* at 511-12, 115 S.Ct. 2310. Because a materiality ruling involves
\" \'delicate assessments of the inferences a \"reasonable
\[decisionmaker\]\" would draw from a given set of facts and the
significance of those inferences to him,\' \" it \"\[is\] peculiarly
on\[e\] for the trier of fact.\" *Id.* (quoting *TSC Industries, Inc. v.
Northway, Inc.,* 426 U.S. 438, 450, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976)
(alterations in original)). Judgments about what inferences a reasonable
decisionmaker would make, and how that decisionmaker would understand
those inferences, are equally critical to the question of whether a
defendant is entitled to Supremacy Clause immunity.

The majority does not discuss the Sixth Amendment, but it notes, without
reference to the Amendment, that a jury is not required to resolve
disputed questions of fact on a number of issues that can arise during
the course of a criminal prosecution. The majority lists double
jeopardy, immunized testimony and the scope of an immunity deal with the
prosecution, attorney-client privilege, executive privilege, probable
cause, and other evidentiary issues. In all of those cases, however, the
judge decides issues that are collateral to the defendant\'s guilt.

In a case involving Supremacy Clause immunity, disputed questions of
fact go directly to what the defendant did, and to whether the defendant
honestly and reasonably believed that his or her actions were justified.
I see no difference, from the standpoint of the Sixth Amendment, between
a defense based on Supremacy Clause immunity and one based on
self-defense. Both defenses concern justifications for a defendant\'s
action; and both are based on assertions of an honest and reasonable
belief held by the defendant which, if believed by the factfinder,
require a verdict of not guilty. Neither is collateral to a defendant\'s
guilt. Rather, both go directly to the question whether the defendant\'s
conduct is, or can be, criminal under the law of the prosecuting
authority.

**\*380** The majority justifies remanding this case to the district
judge to resolve the disputed questions of fact on the ground that it
believes that judges, rather than juries, will better protect defendants
asserting a defense of Supremacy Clause immunity. I do not know whether
that is true in this case. I also do not know whether it is likely to be
true in Supremacy Clause immunity cases generally. I do know, however,
that it is not for us to make that assessment.

The Sixth Amendment guarantees a criminal defendant a right to a jury
trial, and Federal Rule of Criminal Procedure 23(a) does not allow it to
be waived inadvertently or easily. This rule requires that a criminal
defendant waive it in writing, and that he have the approval of the
court and the consent of the government. Ostensibly acting on behalf of
defendants asserting a Supremacy Clause defense, the majority today
chooses to waive for such defendants the jury trial right guaranteed by
the Sixth Amendment and protected against waiver by Rule 23(a). A
criminal defendant may sometimes waive his right to a jury trial. We may
never do so.

MICHAEL DALY HAWKINS, Circuit Judge, with whom Chief Judge SCHROEDER,
RYMER, SILVERMAN, and GRABER, \[FN\*\] Circuit Judges, join, dissenting:

FN\* Judge Graber concurs in all but footnote 12 of the dissent.

This case involves the application of well-settled law to the 1992 Ruby
Ridge incident in Idaho. Both the district court and the panel majority
correctly recognized that under the Supremacy Clause of the United
States Constitution, FBI Special Agent Lon T. Horiuchi cannot be
prosecuted for involuntary manslaughter by the state of Idaho for his
role in this unfortunate affair.

In an effort to avoid the obvious import of over a century\'s
jurisprudence on state prosecution of federal officers, the majority
confuses disputes about the reasonableness of conduct with disputes
about issues of material fact and conjures up issues of material fact
that the state of Idaho never raised below and that even the author of
the majority opinion has conceded do not exist. \[FN1\]

FN1. *See Idaho v. Horiuchi,* 215 F.3d 986, 998 (9th Cir.2000)
(Kozinski, J., dissenting) (\"The facts here are largely not in
dispute.\"). The majority approach brings Ogden Nash to mind: \"If we
had some ham, we could have some ham and eggs, if we had some eggs.\"

Despite the majority\'s protestations, there are no disputed issues of
material fact in this case, and 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 might make when carrying out their federal duties.

**I. The Law of Supremacy Clause Immunity**

As with many legal issues, historical context is critically important in
understanding the nature and purpose of the Supremacy Clause defense
raised by Horiuchi. For more than a century, in a virtually unbroken
line of cases in which federal officers have faced state criminal
charges for actions arising out of the performance of their official
duties, United States courts have invoked the Supremacy Clause of the
Constitution to shield federal agents from criminal liability. As John
Marshall recognized, \"there is a plain repugnance in conferring on one
government a power to control the constitutional measures of another,
**\*381** which other, with respect to those very measures, is declared
to be supreme over that which exerts the control.\" *McCulloch v.
Maryland,* 17 U.S. (4 Wheat.) 316, 431, 4 L.Ed. 579 (1819). Whether
protecting judges from the threats of dissatisfied litigants, revenue
agents from local moonshiners, unpopular prisoners from intimidating
mobs, wartime shipbuilders from striking workers, or a child from a
volatile crowd protesting court-ordered school desegregation, federal
agents enforcing the laws of the nation can, on thankfully rare
occasions, come into conflict with those who enforce the criminal laws
of the states. When that occurs and when the federal agent is acting
reasonably within the broad contours of official duty, and without
malice, the courts have employed the Supremacy Clause to protect the
agent from prosecution.

**A. Origins**

The origins of an explicit Supremacy Clause immunity defense can be
traced to *Tennessee v. Davis,* 100 U.S. 257, 25 L.Ed. 648 (1880), which
concerned the federal government\'s long-standing efforts to protect its
agents from prosecution in state courts. In *Davis,* a United States
revenue agent was charged with murder in Tennessee state court. The
agent contended that he was acting in self-defense in the scope of his
duties as a revenue agent, and sought removal of his case to federal
court. *Id.* at 259. Against Tennessee\'s challenge, the Supreme Court
affirmed the legitimacy and importance of the federal-officer removal
statute. The Court noted that, as early as 1815, Congress had provided
for removal of state prosecutions against federal officers. *Id.* at
267. The current act dated from 1833 and had been enacted in response to
South Carolina\'s attempt to nullify federal law by criminalizing the
collection of tariff duties by United States officers. *Id.* at 268.
Invoking the Supremacy Clause, the Court stated, \"The founders of the
Constitution could never have intended to leave to the possibly varying
decisions of the State courts what the laws of the government it
established are \... and what protection shall be extended to those who
execute them.\" *Id.* at 266. Such a situation would have been
antithetical to the basic principles of American federalism:

\[The federal government\] can act only through its officers and agents,
and they must act within the States. If, when thus acting, and within
the scope of their authority, those officers can be arrested and brought
to trial in a State court, for an alleged offence against the law of the
State, yet warranted by the Federal authority they possess, and if the
general government is powerless to interfere at once for their
protection \... the operations of the general government may at any time
be arrested at the will of one of its members.

*Id.* at 263.

Although *Davis* did not explicitly recognize a Supremacy Clause
immunity defense, the Court relied heavily on *Davis* in the landmark
case of *In re Neagle,* 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890).
*Neagle* established that federal officers were immune from state
prosecution for acts committed within the reasonable scope of their
duties. \[FN2\] The case began in a squalid dispute over the legitimacy
of a purported California marriage between **\*382** Sarah Hill and
William Sharon, a wealthy United States Senator from Nevada. After
Sharon\'s death, Hill married her attorney, David S. Terry, a former
Chief Justice of the California Supreme Court. \[FN3\] After
considerable legal wrangling, Hill\'s case was heard before a
three-judge panel that included United States Supreme Court Justice
Stephen J. Field, who had previously served with Terry on the California
Supreme Court. Abjuring the subtler arts of appellate advocacy for a
more direct entree to the judicial mind, Mrs. Terry found one of the
other panel members on a train and \"pulled his hair with a vicious
jerk.\" *Id.* at 44, 10 S.Ct. 658. When Justice Field later announced
the panel\'s unsurprising decision against her, the courtroom
degenerated into chaos and violence. A U.S. marshal attempted to escort
Mrs. Terry out of the courtroom after she repeatedly interrupted the
justice, but her husband announced that \"no man living should touch his
wife\" and slugged the marshal in the face, knocking out a tooth. *Id.*
at 45, 10 S.Ct. 658. Mr. Terry then drew a bowie knife and was finally
subdued by officers, one of whom was Deputy Marshal David Neagle, a
lawman who had spent his early days in Tombstone, Arizona.

FN2. The historical background to the *Neagle* case, a classic of law
and order in the wild west, is explored in Paul Kens, *Justice Stephen
J. Field: Shaping Liberty from the Gold Rush to the Gilded Age* (1997);
and Carl Brent Swisher, *Stephen J. Field: Craftsman of the Law* (photo.
reprint 1963) (1930).

FN3. Terry is the subject of a book-length biography, A. Russell
Buchanan, *David S. Terry of California: Dueling Judge* (1956). During
his tenure on the California Supreme Court, Terry stabbed a San
Francisco city official in a fit of temper. After his resignation from
the court, he killed a United States Senator in a duel and then fought
for the Confederacy in the Civil War.

Both husband and wife served contempt sentences for this incident, which
apparently made their resentment toward Justice Field fester even more.
They made repeated threats on his life, threats that were so visible
that \"the press of California was filled with the conjectures of a
probable attack by Terry on Justice Field, as soon as it became known
that he was going to attend the Circuit Court in that year.\" *Id.* at
47, 10 S.Ct. 658. The Attorney General recommended heightened protective
measures for the justice, and David Neagle was given special
instructions to guard the justice against attack.

Traveling with Justice Field on a train from Los Angeles to San
Francisco, Neagle learned that Terry and his wife had boarded the train.
Terry seems to have staked out Justice Field in the dining car, sending
his wife back to their compartment to retrieve a revolver. Before she
returned, Terry approached the justice from behind and struck him twice
on the head. When Neagle ordered him to stop, Terry appeared to reach
for a bowie knife, and Neagle fired two shots from his revolver, killing
Terry. *Id.* at 52-53, 10 S.Ct. 658. The state of California then
charged Neagle with murder; he in turn sought habeas corpus relief from
the federal courts. \[FN4\]

FN4. California officials also arrested Justice Field for his role in
Terry\'s death, although the charges were soon dropped. *See* Swisher,
*supra* note 2, at 351-55.

The Supreme Court forcefully rejected the state\'s attempt to prosecute
Neagle and clearly established the immunity of federal officers under
the Supremacy Clause from state prosecution. If the officer had
performed \"an act which he was authorized to do by the law of the
United States, which it was his duty to do as marshal of the United
States, and if in doing that act he did no more than what was necessary
and proper for him to do, he *cannot* be guilty of a crime under the law
of the state of California.\" *Id.* at 75, 10 S.Ct. 658. The Court
explained that this was emphatically not a question that was appropriate
for a jury: \"The circuit court **\*383** of the United States was as
competent to ascertain these facts as any other tribunal, and it was not
at all necessary that a jury should be impaneled to render a verdict on
them.\" *Id.* The immunity provided by the Supremacy Clause is an
immunity from prosecution itself, and this determination is to be made,
as \"under all systems of criminal jurisprudence,\" by a \"committing
magistrate, or some similar authority, as to whether there is an offence
to be submitted to a jury.\" *Id.*

The Supreme Court reaffirmed these principles nine years later in *Ohio
v. Thomas,* 173 U.S. 276, 19 S.Ct. 453, 43 L.Ed. 699 (1899). In
*Thomas,* the Court rejected an attempt by the state of Ohio to
prosecute the director of a federal soldiers\' home for violating a
state statute relating to the use of oleomargarine. Federal officers,
the court explained, \"when discharging \[their\] duties under federal
authority pursuant to and by virtue of valid federal laws, are not
subject to arrest or other liability under the laws of the state in
which their duties are performed.\" *Id.* at 283, 19 S.Ct. 453.

The *Thomas* court relied on *Davis, Neagle,* and, most heavily, on an
important district court decision, *In re Waite,* 81 F. 359, 363-64
(N.D.Iowa 1897), *aff\'d sub nom. Campbell v. Waite,* 88 F. 102 (8th
Cir.1898). In *Waite,* a federal pension examiner, in the course of
investigating fraudulent pension applications, was charged under a state
statute with maliciously threatening \"to accuse a person of a crime in
order to compel him to do an act against his will.\" 81 F. at 361-62.
The district court granted habeas relief, explaining:

If in the performance of these duties the officer so acts as to violate
his duty to the United States, that government, and not the state, is
the proper party to call him to account. If the acts done are violative
of the rights of individuals, a civil action for damages may be
maintained, or protection may be sought under the laws of the United
States, and thus a remedy may be afforded to the citizen without
bringing the federal and state governments into conflict, or without
unduly interfering with the operations of that government under whose
authority the officer is acting.

*Id.* at 363-64. The court recognized that \"it certainly is the law
that the officers and agents of the United States, such as the marshals,
the deputy marshals, post-office inspectors, pension examiners, and the
like, cannot be called to account before the courts of the states for
the manner in which they perform the duties intrusted to them.\" *Id.*
at 370. If states could hold \"officers and agents of the United States
\... responsible, under the criminal statutes of the state, for acts
done in their official capacity,\" the states could \"control or nullify
the action of the authorities of the United States.\" *Id.* at 371.

*Waite* was in accord with another early application of *Neagle* in
recognizing that Supremacy Clause immunity provided a broad defense
against state criminal prosecution. A federal court in Washington
explained the doctrine this way:

\[W\]here an officer, from excess of zeal or misinformation, or lack of
good judgment in the performance of what he conceives to be his duties
as an officer, in fact transcends his authority, and invades the rights
of individuals, he is answerable to the government or power under whose
appointment he is acting, and may also lay himself liable to answer to a
private individual who is injured or oppressed by his action; yet where
there is no criminal intent on his part he does not become liable to
answer to the criminal process of a different government. With our
complex system **\*384** of government, state and national, we would be
in an intolerable condition if the state could put in force its criminal
laws to discipline United States officers for the manner in which they
discharge their duties.

*In re Lewis,* 83 F. 159, 160 (D.Wash.1897); *see also In re Fair,* 100
F. 149, 151 (C.C.D.Neb.1900) (noting that it was \"well and firmly
established\" that an \"act done by an officer or agent of the United
States in and about a matter solely within federal control, and in
pursuance of an authority given by the laws of the United States, is not
an offense against the laws of the state\").

**B. Applications**

In 1920, Justice Oliver Wendell Holmes explained the Supreme Court\'s
understanding of *Neagle:* \"\[E\]ven the most unquestionable and most
universally applicable of state laws, such as those concerning murder,
will not be allowed to control the conduct of a marshal of the United
States acting under and in pursuance of the laws of the United States.\"
*Johnson v. Maryland,* 254 U.S. 51, 56-57, 41 S.Ct. 16, 65 L.Ed. 126
(1920). Holmes recognized that the power of federal agents to employ
deadly force can result in the loss of life. Federal courts have
repeatedly granted Supremacy Clause relief to officers accused of
unlawfully taking human life, even in situations in which differing
conclusions could be drawn about the reasonableness of the agent\'s
conduct.

Our most recent affirmation of this principle is *Clifton v. Cox,* 549
F.2d 722 (9th Cir.1977). Like this case, *Clifton* concerned an
altercation between federal officials and criminal suspects at a remote
cabin. Federal officers arrived by helicopter to execute federal search
and arrest warrants at an alleged illegal drug manufacturing site. As
the helicopter landed, one agent tripped and fell. Agent Lloyd Clifton,
believing that his comrade had been shot, rushed to the cabin and kicked
in the door. He did not knock, identify himself, or announce his
authority before entering. As he entered, the subject of the arrest
warrant jumped over a bannister into the backyard and began running
toward a nearby wooded area. When the unarmed subject refused to halt,
Clifton shot him in the back. He died shortly thereafter. *Id.* at 724.

We concluded, despite suggestions that Clifton\'s conduct violated
internal regulations, that Clifton was entitled to Supremacy Clause
immunity from state prosecution for second-degree murder and involuntary
manslaughter. We emphasized that immunity depended on \"whether the
official employs means which he cannot honestly consider reasonable in
discharging his duties or otherwise acts out of malice or with some
criminal intent.\" *Id.* at 728. \"Proper application of this standard
does not require a petitioner to show that his action was in fact
necessary or in retrospect justifiable, only that he reasonably thought
it to be.\" *Id.*

The facts in that case showed that a reasonable officer in Clifton\'s
situation might have acted in the manner that he did. Clifton had an
arrest warrant for the suspect. He \"had been informed that the suspects
might be armed and dangerous.\" *Id.* at 729. We therefore agreed with
the district court that Clifton\'s conduct was \"both honest and
reasonable,\" in light of his belief that the occupants of the cabin
were \"potentially armed and dangerous\" and his belief that the
suspect\'s \"escape into the woods would pose a danger to the lives of
the pursuing officers.\" *Id.* at 729.

Other cases dealing with the use of deadly force are in accord with
*Clifton.* The case most closely analogous to this **\*385** one is
*United States v. Lipsett,* 156 F. 65 (W.D.Mich.1907). *Lipsett*
involved a military sentry, Cyrus Gillette, who was supervising two
military prisoners, one of whom, Hodsdon, escaped. Gillette chased after
Hodsdon, loading his gun as he ran. Gillette initially held his fire
because of some children in the street, but eventually decided to fire
at the escapee. \"The bullet passed over Hodsdon\'s head and
accidentally struck and killed Miss Elizabeth Cadenhead, who, with
friends, was returning from a visit to Ft. Brady, and was walking along
the street on which Gillette and Hodsdon were running.\" *Id.* at 66.
State officials subsequently charged Gillette with manslaughter.

The district court held that Gillette was entitled to Supremacy Clause
immunity and to habeas relief. The court noted, \"No claim is made on
the part of the state authorities that Gillette had any malice or ill
will towards either Hodsdon or Miss Cadenhead, or that the homicide was
other than accidental; and there is nothing in the evidence presented on
the hearing reasonably tending to show, nor is it asserted, that
Gillette, in firing the shot, did not act in good faith and in the
supposed performance of his duty.\" *Id.* at 67. The state contended,
however, that there was a question of fact \"whether there was any other
possible means of preventing the escape of the fugitive than by firing,
and whether Gillette exercised due care \... the street being
unobstructed, and it thus having been possible to discover that Miss
Cadenhead and her companions were in the line of fire.\" *Id.*

The court held that the reasonableness of Gillette\'s conduct, and thus
his immunity, was properly decided by the court, and not by the jury.
\"\[T\]he suggestion that different minds might draw different
inferences from undisputed facts furnishes no reason why I should
abdicate my responsibility to decide in this proceeding whether the
guard, in shooting at the fleeing deserter, acted in the supposed
discharge of his duty.\" *Id.* at 71. In this case, if the \"guard, in
shooting as he did, was acting in the supposed exercise of his duty,
*without malice or criminal intent* \... *he is not liable to
prosecution in the state court from the fact that from misinformation or
lack of good judgment he transcended his authority,* even though he
might be liable to a civil action at the suit of the injured party.\"
*Id.* (emphasis added). The court concluded, \"Even though it might have
been more prudent for the guard to have exercised still greater care in
the prevention of this deplorable accident, such fact would not convert
this accident into a crime.\" *Id.* at 72.

In *Ex parte Warner,* 21 F.2d 542 (N.D.Okla.1927), the court granted
Supremacy Clause immunity to a prohibition agent who accidentally shot
and killed a man whom he was trying to arrest. The case was \"extremely
unfortunate,\" but \"federal courts will not permit a federal officer or
agent to be restrained of his liberty by state authority for an act done
in pursuance to federal law.\" *Id.* at 544, 543.

In *West Virginia v. Laing,* 133 F. 887 (4th Cir.1904), federal marshals
enlisted local citizens as a posse comitatus to help serve a federal
arrest warrant. John Harless, the subject of the warrant, ran toward the
officers carrying a pistol. He then turned toward a large tree, and two
of the citizens opened fire, killing him instantly. *Id.* at 888. The
court found that this incident was \"unfortunate, and the result \[was\]
greatly to be deplored.\" *Id.* at 889. However, the court noted that
\"there was no feeling of animosity on \[the citizens\'\] part towards
Harless, and no motive existed because of which either of them would
have been induced to do him **\*386** harm.\" *Id.* at 890. They knew
that Harless was \"a dangerous and desperate character,\" and they
reasonably believed that, when he turned to the shelter of the tree, he
was intending to open fire on them. *Id.* at 890-91. Accordingly, they
were entitled to Supremacy Clause immunity. The court rejected the
state\'s claim that the case ought to go to a jury, stating, \"Congress
certainly intended, in cases of this character, that the judges of the
United States should hear the evidence, and without a jury proceed in a
summary way to pass upon the federal question involved.\" *Id.* at 891.

*In re Fair,* 100 F. 149 (C.C.D.Neb.1900), involved soldiers who shot
and killed a deserter. After a military court found the soldiers not
guilty of manslaughter, the state of Nebraska instituted criminal
proceedings against them. *Id.* at 151. The federal court granted habeas
relief on the ground of Supremacy Clause immunity. The evidence revealed
no malice, and, accordingly, if the soldiers \"acted without any
criminal intent, but in an honest belief that they were only discharging
the duties of a soldier,\" they could not be guilty of a crime against
the state. *Id.* at 155.

Of course, the importance of Supremacy Clause immunity is not restricted
to the regrettable situations in which there is a loss of life. It
matters in all kinds of cases in which federal agents are attempting to
enforce federal law in the face of local intransigence. A good example
of this is the case of *In re McShane,* 235 F.Supp. 262 (N.D.Miss.1964).
In *McShane,* the state of Mississippi attempted to prosecute James
McShane, the Chief of the Executive Office of the United States
Marshals, for his role in enforcing James Meredith\'s right to attend
the University of Mississippi. A large crowd had gathered to challenge
Meredith\'s admission, and McShane ordered his marshals to use tear gas
on the crowd, provoking a tumultuous riot. *Id.* at 269. The state
charged McShane with breach of the peace and unlawful and felonious use
of force. *Id.* at 264. McShane sought relief in federal court.

The district court noted that the parties disputed the reasonableness of
McShane\'s conduct. McShane contended that the crowd was \"fast getting
out of hand,\" that the use of tear gas was proper, and that the gas
used \"was a safe and proper kind for use against crowds.\" *Id.* at
269. Mississippi contended that the crowd was not out of control, that a
\"wrong and dangerous type of gas was used indiscriminately and
recklessly,\" and that the firing of tear gas into a group of students
\"was wholly unnecessary.\" *Id.* There was also evidence that the
Deputy Attorney General disapproved of the use of gas and felt that
\"somebody jumped the gun.\" *Id.* at 270.

The district court readily granted McShane\'s petition, noting
McShane\'s uncontradicted testimony that he honestly felt his actions
were necessary to implement court-ordered integration. *Id.*
\"\[E\]stimating the temper of a crowd,\" the court noted, \"is a matter
of judgment. The difference between a mob and a crowd is gossamer
thin.\" *Id.* After an extensive review of the case law, the court
concluded that federal officers were to be denied immunity from state
prosecution only if they \"*employ means which they cannot honestly
consider reasonable in discharging their duties or who otherwise act out
of malice or with some criminal intent.*\" *Id.* at 273 (emphasis in
original). The substance of the standards applied in the case law was
\"that of honest and reasonable belief.\" *Id.* at 274.

If, as here, the petitioner shows without dispute that he had no motive
other than to discharge his duty under the circumstances as they
appeared to him and that he had an honest and reasonable **\*387**
belief that what he did was necessary in the performance of his duty
\... then he is entitled to the relief he seeks. *This is so even though
his belief was mistaken or his judgment poor.*

*Id.* (emphasis added). The court accordingly granted McShane Supremacy
Clause immunity.

*McShane* is typical of federal cases in which courts have invoked
Supremacy Clause immunity to protect the operations of the federal
government from state interference. *See, e.g., Hunter v. Wood,* 209
U.S. 205, 28 S.Ct. 472, 52 L.Ed. 747 (1908) (railroad official acting
under a federal injunction who was charged under state law with
overcharging for a railroad ticket); *Boske v. Comingore,* 177 U.S. 459,
20 S.Ct. 701, 44 L.Ed. 846 (1900) (Treasury official who, pursuant to
federal regulations, refused to produce records to state officials);
*Kentucky v. Long,* 837 F.2d 727, 745 (6th Cir.1988) (FBI agent who
allegedly committed a burglary as part of an undercover operation; \"a
mistake in judgment or a \'botched operation,\' so to speak, will not of
itself subject a federal agent to state court prosecution\"); *Baucom v.
Martin,* 677 F.2d 1346 (11th Cir.1982) (FBI agent who bribed a state
prosecutor in an undercover operation); *Texas v. Carley,* 885 F.Supp.
940 (W.D.Tex.1994) (Fish and Wildlife officer charged with criminal
trespass while making National Wetlands Inventory); *Connecticut v.
Marra,* 528 F.Supp. 381, 386 (D.Conn.1981) (Federal Informant who, in an
\"error\[ \] resulting from confusion or nervousness or bad judgment,\"
exceeded his authority and attempted to bribe a police officer); *Lima
v. Lawler,* 63 F.Supp. 446 (E.D.Va.1945) (naval shore patrolman charged
with assault for striking city policeman who interfered with arrest of a
serviceman); *Brown v. Cain,* 56 F.Supp. 56 (E.D.Pa.1944) (Coast Guard
official charged with quelling riots who shot and killed a man he
suspected had thrown a brick at him); *Ex parte Beach,* 259 F. 956
(S.D.Cal.1919) (customs agent who fired shots at the roadster of a
suspected opium smuggler); *In re Wulzen,* 235 F. 362 (S.D.Ohio 1916)
(National Guard officers who pushed people out of the way of a military
march); *In re Turner,* 119 F. 231, 235 (C.C.S.D.Iowa 1902) (federal
officer constructing sewer pipe to army base against prosecution for
violation of a state injunction; \"an officer of the United States \...
acting in obedience to commands \... is not subject to arrest on a
warrant or order of a state court\"); *United States ex rel. Flynn v.
Fuellhart,* 106 F. 911 (C.C.W.D.Pa.1901) (Secret Service agents charged
with assault and battery for arresting a counterfeiter); *In re Lewis,*
83 F. at 160 (Treasury agents who, with \"bad judgment,\" executed an
illegal search warrant); *United States ex rel. McSweeney v. Fullhart,*
47 F. 802 (C.C.W.D.Pa.1891) (U.S. marshals who drew their guns at state
constables while escorting a federal arrestee into custody). \[FN5\]

FN5. It strains all credibility to assert, as the state of Idaho did at
oral argument, that there is \"no such thing as Supremacy Clause
immunity.\"

Indeed, there appear to be only four instances in the entire history of
our nation in which federal courts have denied Supremacy Clause immunity
to an officer who has sought protection from state criminal prosecution.
\[FN6\] None of these four cases bears any resemblance to this one.

FN6. The defendant in *Arizona v. Manypenny,* 672 F.2d 761, 762 (9th
Cir.1982), also did not receive Supremacy Clause immunity, but this was
because he \"apparently made a strategic choice not to raise the federal
immunity defense.\"

In the first case, *United States ex rel. Drury v. Lewis,* 200 U.S. 1,
26 S.Ct. 229, **\*388** 50 L.Ed. 343 (1906), the Supreme Court affirmed
a trial court\'s denial of habeas relief to an Army officer and an
enlisted man who were indicted for homicide in a Pennsylvania state
court. The defendants were trying to stop thefts on a military base, and
they found \"three or four half-grown boys or young men\" congregated in
the street. *Id.* at 3, 26 S.Ct. 229. They contended that they fired at
one of the boys to prevent his escape. However, other witnesses
contended that the boy surrendered and begged the officers not to shoot
him, but they shot him anyway. *Id.* at 2-3, 26 S.Ct. 229. This
presented a substantial conflict in the testimony, suggesting that the
officers may have acted with deliberate criminal intent. \[FN7\] The
Supreme Court stressed that habeas relief was \"an exceedingly delicate
jurisdiction,\" *id.* at 7, 26 S.Ct. 229, and concluded that the trial
court did not abuse its discretion in denying habeas relief, *id.* at 8,
26 S.Ct. 229.

FN7. The lower court had found a \"serious conflict of evidence
involving an important issue of fact.\" *United States ex rel. Drury v.
Lewis,* 129 F. 823, 827 (C.C.W.D.Pa.1904).

The second case, *Castle v. Lewis,* 254 F. 917 (8th Cir.1918), concerned
federal officers who shot and killed a man they suspected was illegally
transporting whiskey into Indian country. The district court denied
habeas relief, and the circuit court reviewed for abuse of discretion.
*Id.* at 921, 926. The Eighth Circuit noted that there was \"a
substantial conflict\" in the evidence with respect to what happened.
*Id.* at 926. Moreover, the court imposed a novel requirement that
petitioners specifically show that trial of their case in state court
would \"seriously interfere with the enforcement of the laws of the
United States or the operations of its government.\" *Id.* at 921.

The third case, *Birsch v. Tumbleson,* 31 F.2d 811 (4th Cir.1929),
relied heavily on *Castle. Birsch* involved federal game wardens who
killed two hunters. The Fourth Circuit affirmed the trial court\'s
denial of habeas relief, since the only witness to the shootings (other
than the defendants), asserted that they had simply opened fire on the
hunters for no apparent reason. *Id.* at 812.

The fourth case, *Morgan v. California,* 743 F.2d 728 (9th Cir.1984),
was, until today, the only case in which a federal appellate court has
reversed a district court\'s holding that a defendant is entitled to
Supremacy Clause immunity. Like the other three cases, *Morgan* arose
from a habeas petition. Unlike the other cases, however, it was not
primarily about the reasonableness of an officer\'s conduct. Rather, it
addressed whether the officers were on official business or on what tort
scholars might term a \"frolic and detour.\" Two DEA agents, who by all
accounts were intoxicated, backed their car into another car and got
into an altercation with that car\'s owner. The agents later followed
the owner to a jewelry store, where, the owner alleged, the agents
assaulted him. *Id.* at 729-30. Although the agents claimed they were on
their way to meet an informant at the time of the accident, other
testimony suggested they were heading to the Police Academy for drinks.
*Id.* We reversed the district court\'s grant of habeas relief against
state prosecution for various misdemeanor offenses, concluding that
there was a substantial conflict in the evidence with respect to whether
the officers were engaged in official business at the time of the
incident. *Id.* at 734. \[FN8\]

FN8. We also noted in *Morgan* that federal courts can issue writs of
habeas corpus to federal agents if it appears that the prosecution is
designed \"to frustrate the enforcement of federal law.\" *Id.* at 733.
In such cases, the \"writ should be granted even if the judge has to
resolve factual disputes to arrive at that conclusion.\" *Id.*

**\*389** These four cases are instructive. Each involved a substantial
conflict in the evidence. In three cases, there was evidence suggesting
that the federal officers acted with deliberate malice. In the fourth,
there was evidence suggesting that the federal officers were not on
official duty at the time of the incident. Neither circumstance, of
course, is present here. Idaho\'s indictment alleges that Horiuchi acted
\"without malice,\" and there is no dispute that Horiuchi was acting
within his official duties. The majority therefore cannot point to any
case that is on all fours with this one-that is, a case in which a court
denies Supremacy Clause immunity based on a second-guessing of the
reasonableness of actions taken by an agent indisputably acting without
malice and while on official duty. This does not necessarily mean that
such a case might not exist, but it does suggest the unprecedented
nature of denying immunity on the facts of this case. The vast weight of
authority is that poor judgment, mistaken assumptions, and excessive
zeal alone are not sufficient to subject a federal agent to state
criminal prosecution.

**C. Standards**

The case law establishes that a federal agent is entitled to immunity
from state prosecution if he was acting within the scope of his official
duties and employing means that he honestly and reasonably considered
necessary to the discharge of those duties. *See, e.g., Clifton,* 549
F.2d at 726, 728.

As the majority properly points out, state criminal prosecution of a
federal agent is much more serious than an action against that officer
for civil damages. (Majority at 376.) The federal government cannot
indemnify prison time. This consideration warrants a strong inference
that Supremacy Clause immunity is broader than qualified immunity and
more protective of the federal officer. Indeed, no judicial decision has
ever equated the two forms of immunity. \[FN9\] Where precisely these
contours lie it is not necessary to decide. \[FN10\] At minimum,
Supremacy Clause immunity is at least as broad as qualified immunity,
which is itself broader than the scope of the underlying constitutional
right.

FN9. Early cases applying *Neagle* explicitly stated that civil
liability might lie in cases in which a federal officer was nonetheless
immune from state prosecution under the Supremacy Clause. *See, e.g.,
Lipsett,* 156 F. at 71; *Lewis,* 83 F. at 160; *Waite,* 81 F. at 363.

FN10. The majority\'s statement that we have previously held that
Horiuchi is not entitled to qualified immunity is simply wrong.
(Majority at 372 n. 22.) In a civil suit brought by Kevin Harris against
various federal officers, we denied the officers\' motion to dismiss on
the grounds of qualified immunity. *Harris v. Roderick,* 126 F.3d 1189
(9th Cir.1997). In ruling on the motion to dismiss, we merely held that
the officers could not establish qualified immunity on the bare facts
alleged in the complaint. The suggestion that the officers might never
establish this immunity was pure dictum, unnecessary to the resolution
of that appeal. *Id.* at 1202-05. The case was subsequently settled by
the government.

The Supreme Court has recognized that officers who violate a
constitutional provision are nonetheless entitled to qualified immunity
if they might have reasonably thought their actions were
constitutionally permissible. *Anderson v. Creighton,* 483 U.S. 635, 107
S.Ct. 3034, 97 L.Ed.2d 523 (1987). As the Court explained, \"We have
recognized that it is inevitable that law enforcement officials will in
some cases *reasonably but mistakenly* conclude that \[their action is
constitutional\]\" and that **\*390** they should not be held personally
liable for their mistakes. *Id.* at 641, 107 S.Ct. 3034 (emphasis
added). Under qualified immunity, an officer is protected if \"officers
of reasonable competence could disagree\" on an issue. *Malley v.
Briggs,* 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). In
immunity cases, the court \"should ask whether the agents acted
reasonably under settled law in the circumstances, not whether another
reasonable, or more reasonable, interpretation of the events can be
constructed five years after the fact.\" *Hunter v. Bryant,* 502 U.S.
224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). At
minimum, Supremacy Clause immunity provides this much protection to the
federal officer: He is entitled to immunity unless *no reasonable
officer* in the situation would have acted in that manner. We do not ask
whether every reasonable agent would have done precisely the same thing.
We do not ask whether the agent made an error of judgment. Nor need we
determine, with pinpoint precision, whether the acts were
constitutional. \[FN11\]

FN11. Not every constitutional wrong carries precisely the same set of
constitutional remedies. *See generally* John C. Jeffries, Jr., *The
Right-Remedy Gap in Constitutional Law,* 109 Yale L.J. 87 (1999). State
criminal law is certainly not the only mechanism by which federal
officers can be restrained from misconduct. Federal officers who violate
individual rights place their employment at jeopardy and risk the
disintegration of their entire careers. They also risk federal
prosecution, lawsuits, and public humiliation. In this case, although
officers were disciplined for their actions at Ruby Ridge, an extensive
federal criminal investigation cleared Horiuchi of any wrongdoing.

When a federal officer raises a Supremacy Clause immunity defense, the
burden shifts to the state \"to come forward with \[an\] evidentiary
showing that disputed issues of fact exist to rebut the claim of the
federal officer.\" *Long,* 837 F.2d at 751. If the state makes such a
showing, the disputed facts must then be resolved, either by a judge or
by a jury. We need not reach the issue of who resolves these disputes,
however, because in this case there are no disputed material facts.
\[FN12\]

FN12. Forced to confront the issue squarely, resolution of the factual
issues pertaining to immunity by the judge seems more consistent with
the protective purposes of Supremacy Clause immunity. In the procedural
posture of this case, however, the majority\'s remand for an evidentiary
hearing makes little sense. Idaho specifically opposed an evidentiary
hearing on Horiuchi\'s motion to dismiss, despite case law holding that
the state was obligated to \"come forward with \[an\] evidentiary
showing that disputed issues of fact exist to rebut the claim of the
federal officer.\" *Long,* 837 F.2d at 751. Granting a form of relief
that the appellant not only failed to request on appeal, but actively
opposed in the district court, turns appellate review on its head. In
effect, Idaho is being given a second bite at an apple that it
deliberately discarded when formulating its litigation strategy. Idaho
mistook the law, and it bore the risk of that mistake.

To the extent that the district court was required, under the
majority\'s view, to resolve disputed issues of fact, it has already
done so. The majority may not like it, but the district court\'s
conclusion that Idaho failed to present any significant factual disputes
effectively resolved any lingering factual issues against Idaho. \[Judge
Graber does not concur in this footnote.\]

With these principles in mind, we turn to the events of August 22, 1992.

**II. Special Agent Horiuchi\'s Conduct**

**A. Issues of Material Fact**

The majority asserts that there are six major disputed issues of
material fact in this case (Majority at 368-69.) Although we will
explain in some detail why none of these \"disputes\" constitutes a
disputed material fact under the governing case law, **\*391** the most
telling evidence about the existence of these \"disputes\" is that the
author of the majority opinion disavowed them in his dissent to the
panel opinion. The seventh sentence of that dissent announces, \"The
facts here are largely not in dispute.\" *Horiuchi,* 215 F.3d at 998
(Kozinski, J., dissenting). The author then drops a footnote that
states, \"The *one key factual dispute* cuts against the majority\'s
conclusion.\" *Id.* at 998 n. 2 (emphasis added). Indeed, the only
disputed factual issue argued by the state of Idaho in the district
court related to Horiuchi\'s knowledge of Vicki Weaver\'s position. The
dissent accordingly argued that Horiuchi\'s conduct was unreasonable as
a matter of law.

The panel had the benefit of full and extensive briefing and, in the
year that elapsed between oral argument and the filing of the decision,
had plenty of time to scour the record for disputed material facts. Yet
despite all that, the dissent could come up with only one possible
factual dispute. The dissent never argued that the factual record was
incomplete or that the district court needed to take another look at
what happened. The majority now dredges up five new purported factual
disputes that no one on the panel, including the dissent, ever noticed,
and that Idaho *never* argued below. No one noticed them because they
are not real disputes about material facts at all. They are primarily a
series of assertions and second-guesses about the reasonableness of
Horiuchi\'s conduct-the bread and butter of the dissent from the panel
opinion dressed up as disputes about material fact.

**1. The Location of the Helicopter**

The majority summarizes its contentions about the helicopter by noting,
\"it seems highly debatable whether a reasonable agent in Horiuchi\'s
position would have believed that the helicopter would be endangered if
the man with the gun reached the cabin.\" (Majority at 370.) Of course,
this is not an issue of material fact; it simply restates the basic
question whether Horiuchi acted reasonably-that is, the question whether
he is entitled to immunity. To show a genuine issue of material fact the
majority must do more than show that reasonable people in Horiuchi\'s
position might have acted differently. It must do more than make a
plausible argument that Horiuchi acted unreasonably. It must show some
substantial conflict in the evidence about a material fact.

The majority purports to identify a dispute about the precise location
of the helicopter. Although Idaho argued strenuously in the district
court that there were multiple disputed issues of material fact, it
never once challenged Horiuchi\'s account of the helicopter\'s location,
or even mentioned the helicopter at all. (In fact, the word
\"helicopter\" *never* appears in Idaho\'s opposition to Horiuchi\'s
motion for immunity.) Nor did Idaho mention the helicopter issue in its
opening brief to this court. Once Horiuchi raised the Supremacy Clause
immunity defense, the burden shifted to the state \"to come forward with
\[an\] evidentiary showing that disputed issues of fact exist to rebut
the claim of the federal officer.\" *Long,* 837 F.2d at 752. It is not
our role to litigate Idaho\'s case for it; that is why we require
\"\[p\]arties before district courts \... to prepare their cases in a
thorough manner.\" *United States v. Matthews,* 240 F.3d 806, 810 (9th
Cir.2001). Idaho\'s failure to come forward with specific evidence
challenging the location of the helicopter prohibits the majority from
relying on it on appeal.

As we have previously explained,

Requiring the district court to search the entire record for a genuine
issue of fact, even though the adverse party does **\*392** not set it
out in the opposition papers, is also profoundly unfair to the
movant\.... If the district court, *or later this court,* searches the
whole record, in practical effect, the court becomes the lawyer for the
respondent, performing the lawyer\'s duty of setting forth specific
facts showing that there is a genuine issue for trial. The movant is
then denied a fair opportunity to address the matter in the reply
papers.

*Carmen v. San Francisco Unified Sch. Dist.,* 237 F.3d 1026, 1031 (9th
Cir.2001) (emphasis added). The majority, without the slightest shred of
explanation, does precisely what *Carmen* squarely forbids: It finds
reversible error because a district court failed to search the record
for disputed facts that Idaho never raised and never argued and to which
Horiuchi has never had an opportunity to respond.

Even if the issue were properly before the court, the shred of testimony
upon which the majority relies is taken entirely out of context and does
nothing to advance its argument. Horiuchi testified on direct
examination that, prior to his first shot, he was searching \"this area
here with the naked eye.\" (Horiuchi Testimony at 83.) At that point, an
armed male \"stopped and prodded in the ground with a stick or something
and looked up at the helicopter or what I perceived to be a helicopter
somewhere behind my location.\" *Id.* Horiuchi did not fire a shot at
this point.

Horiuchi subsequently began looking through his rifle scope. *Id.* at
84. Horiuchi could hear the helicopter \"moving either somewhere behind
me or off to my right.\" *Id.* at 85. Horiuchi then observed the armed
male \"looking for the helicopter.\" *Id.* at 87. Through the scope,
Horiuchi could see the male \"watching the helicopter, and at times he
would kind of bring his weapon up.\" *Id.* at 88. \"His view, or his
facial view, was above and to the right of my location, and that is
where I heard the helicopter or where I perceived that the helicopter
was, and I\'m assuming that\'s what he was watching.\" *Id.* at 88. Then
the male began running, and \"evidently the helicopter popped up and
maybe he thought that he was seen by the people in the helicopter.\"
*Id.* at 89. Horiuchi then perceived that the male was \"getting ready
to take a shot at the individuals in the helicopter.\" *Id.* at 90.
Horiuchi subsequently fired his first shot. On cross-examination,
Horiuchi was asked where the helicopter was at the time of the shot. He
responded that \"I don\'t know where the helicopter was, sir, I would be
guessing if I told you where it was.\" *Id.* at 259.

The majority concludes that this testimony is \"inconsistent.\"
(Majority at 369.) It is nothing of the sort. Horiuchi freely admits
that at the time of the first shot, he did not know the precise location
of the helicopter. How could he? He was looking through his rifle scope,
as snipers must. His sense of the helicopter\'s location was based on
hearing the sound of the helicopter and on the armed man\'s reaction to
something in the air. There is nothing inconsistent between this
testimony and his testimony about what happened at an earlier point,
when he was *not* looking through his rifle scope. Between the time that
Horiuchi was observing the area with his naked eye and the time he fired
the first shot, the helicopter, quite simply, had moved. This is hardly
the stuff of which disputed material facts are made. \[FN13\]

FN13. The majority erroneously states that \"Horiuchi admits that he
never actually saw the helicopter.\" (Majority at 369.) In fact,
Horiuchi testified that he saw the helicopter as it lifted off.
(Horiuchi Testimony at 66.)

**\*393** In a final effort to create a disputed issue about the
helicopter, the majority cites Randall Weaver\'s testimony before a
Senate subcommittee. (Majority at 369 n. 16.) Idaho never submitted this
or similar evidence to the district court, and it has never been made a
part of the record. It is an elementary principle of law that disputed
facts must be part *of the record.* \[FN14\] *See Willis v. Pacific Mar.
Ass\'n,* 236 F.3d 1160, 1168 (9th Cir.2001) (\"The appellate court is
limited to evidence in the record.\"). Whether this testimony is
appropriate for judicial notice is beside the point: District courts do
not commit reversible error by failing to search the Internet sua sponte
for evidence a party might have, but failed, to submit.

FN14. The majority\'s use of this material is also highly selective.
*Compare* Majority at 369 (\"\[none\] of the other agents on the scene
reacted as if they thought the helicopter was in danger\") *with The
Federal Raid on Ruby Ridge, Idaho: Hearings Before the Subcomm. on
Terrorism, Technology and Gov\'t Information of the Comm. of the
Judiciary,* 104th Cong. 320-21, 331, 343-44, 353 (1995) (testimony that
two other Hostage Rescue Team members perceived a direct threat to the
helicopter at all times in the incident and that they held fire only
because they could not get a clean shot).

In sum, there is no evidence whatsoever in this record that the
helicopter was not where Horiuchi said it was-that is, that it was
flying in close vicinity of the cabin.

**2. The Rules of Engagement**

The majority here relies on vague suggestions that Horiuchi lied about
his motive and that he relied on the Rules of Engagement when he fired
his shots. Idaho never made any of these arguments in the district
court, but even assuming the issue was before us, the majority presents
no substantive dispute of *material fact.*

Horiuchi concedes that the Rules of Engagement permitted him to fire at
any armed male, and he concedes that the instructions he gave his men
prior to the beginning of the mission reflected those Rules. Horiuchi
has never argued that this conduct can be justified solely on the basis
of those Rules, and he has declined to rely on them in his defense of
this case.

The majority makes much of the fact that Horiuchi\'s conduct could be
consistent with the Rules of Engagement. However, at the beginning of
the incident, Horiuchi specifically declined to fire a shot at an armed
male because \"there was no really threatening movement at that time.\"
(Horiuchi Testimony at 84.) And Horiuchi did not fire at unarmed people,
because, obviously, unarmed people did not pose any threat. Horiuchi\'s
testimony is that he only fired when he observed what appeared to be a
genuine threat to the safety of the helicopter.

The majority\'s argument seems to suggest that once the Rules of
Engagement had been articulated, Horiuchi could never develop
independent grounds for employing deadly force. Of course, this argument
proves too much. Suppose a federal officer tells a subordinate, \"Shoot
and kill anyone on the street to whom you take a dislike.\" The officer
then observes an armed man firing an automatic weapon at a crowd of
schoolchildren, and the officer shoots and kills the armed man. No one
would contend that such an officer should be subject to state
prosecution, even if his conduct is fully consistent with
unconstitutional orders. \[FN15\] That is the issue presented **\*394**
here. Assuming, arguendo, that reliance on the Rules of Engagement might
be constitutionally troublesome, the issue is whether intervening
circumstances are sufficient that Horiuchi could have formed independent
grounds for firing his shots. That may be disputed, but it is not a
disputed issue of *fact.*

FN15. This is not to say that there is no subjective component to the
determination of immunity or that mental state is irrelevant. If, in the
example above, the officer shot the man, but was unaware that the man
was shooting at schoolchildren and simply saw the back of a man whose
shirt color he disliked, he could not have had an honest belief in the
reasonableness of his actions. Accordingly he would be denied immunity,
even though his conduct would be permissible if he had been aware of
additional facts.

Moreover, to the extent that Idaho or the majority is suggesting that
Horiuchi and his colleagues organized a summary execution and hunted
down their victims in cold blood, that argument is squarely foreclosed
by the criminal complaint. If such conduct was the factual predicate of
the complaint, Horiuchi should have been charged with murder. Instead,
Horiuchi was charged with \"unlawfully, but without malice,\" operating
\"a firearm in a reckless, careless, or negligent manner.\"

Under Idaho law, involuntary manslaughter is:

the unlawful killing of a human being, without malice \.... \[1\] in the
perpetration of or attempt to perpetrate any unlawful act, other than
arson, rape, robbery, kidnapping, burglary, or mayhem; or \[2\] in the
commission of a lawful act which might produce death, in an unlawful
manner, or without due caution and circumspection; or \[3\] in the
operation of any firearm or deadly weapon in a reckless, careless or
negligent manner which produces death.

Idaho Code § 18-4006. The complaint charges Horiuchi under the third of
these definitions. Specifically, the complaint states that Horiuchi
discharged \"the firearm through the front door of the Weaver residence
in an attempt to shoot Kevin Harris as he entered the door from outside,
without first determining whether any person other than his intended
target was present on the other side of the door.\" At oral argument,
Idaho\'s counsel stated that, at most, Horiuchi acted with \"excessive
zeal.\"

Idaho did not charge Horiuchi under the first of the three definitions
of involuntary manslaughter, which it could have easily done if it
believed Horiuchi\'s second shot was unlawful. Nor did it charge him
with murder. Idaho never argued in the district court that Horiuchi\'s
conduct was motivated by unconstitutional Rules of Engagement. In fact,
it never once questioned Horiuchi\'s motives for taking that shot. The
only issue it raised was the *manner* in which that shot was fired.
There is obviously no concept in the criminal law of a \"greater
included offense.\" Thus the only issue in this appeal is whether
Horiuchi\'s alleged \"excessive zeal\" can expose him to state criminal
prosecution for \"reckless, careless or negligent\" behavior. There
might be a dispute on this point, but it is not a disputed issue of
material fact.

**3. Feasibility of a Warning**

The majority contends that Horiuchi might have given a warning before
firing. The majority states, \"On the evidence before us, we cannot hold
that Horiuchi has established that he reasonably believed giving a
warning, as required by *Garner,* was not feasible.\" (Majority at
372-73.) The majority here abandons any pretense that material facts are
at issue. This is solely an issue about the reasonableness of
Horiuchi\'s conduct on the basis of undisputed facts, which is probably
why Idaho never raised this argument below. Since it does not present a
factual issue, it is **\*395** appropriate for resolution by this court.
*See Lipsett,* 156 F. at 71.

**4. Certainty of Target**

Again, the majority fails to discuss any disputed material facts and
advances an argument that Idaho never made below. The majority merely
notes that Horiuchi may not have been certain of his target and may have
acted unreasonably. (Majority at 373.) This is purely an issue about the
reasonableness of Horiuchi\'s conduct, which, in the context of
Supremacy Clause immunity, is a legal issue for the court to resolve.
The majority identifies no further factual inquiries that would be
necessary for proper resolution of this issue.

**5. Horiuchi\'s Knowledge of Vicki Weaver\'s Position**

The majority\'s cursory treatment of this issue is surprising given that
this is the only disputed material fact that Idaho relied on in opposing
Horiuchi\'s motion to dismiss. Horiuchi contends that he did not know
that Vicki Weaver was behind the door when he fired his second shot.
Idaho contends that he knew or should have known that she was standing
there. Both the district court and the panel majority correctly
concluded that Idaho had not presented a genuine issue of material fact
as to whether Horiuchi knew Vicki Weaver was behind the door. Whether he
*should* have known she was there if he had been more prudent is a
question of reasonableness, not an issue of material fact.

Idaho and today\'s majority rely on three pieces of evidence to show
that Horiuchi knew that Weaver was behind the door: the preliminary
hearing testimony of Sara and Randall Weaver and Horiuchi\'s testimony
in the Weaver and Harris criminal trial. None of this testimony creates
the disputed material fact that the majority contends it does.

The majority states, \"Both Sara and Randy Weaver testified that, after
the first shot, Vicki Weaver came onto the porch and called out, and so
Horiuchi could have seen or heard her.\" (Majority at 373.) This
seriously misstates the testimony. Although both Weavers testified that
each saw Vicki Weaver come outside of the cabin, neither one can place
her outside the threshold of the door at the relevant time period.

Randall Weaver testified that, right after he was shot, he saw Vicki
Weaver. When asked where she was, he stated, \"I\'m gonna guess three or
four feet from the porch.\" (Preliminary Hearing Testimony at 88.)
Weaver then began running back to the cabin. His testimony continues:

Q: So you\'re telling us she was carrying her baby in the middle of a
fire fight, knowing that a shot had rung out, she came running out of
the house holding her baby?

\[Objection and ruling omitted.\]

A: She came out of the house with the baby\--she might have been on the
porch. I don\'t know, to be honest with you.

(Preliminary Hearing Testimony at 92.) All this testimony shows is that
at some point Vicki Weaver was off the porch. There is nothing here that
shows that when Horiuchi later fired the second shot he *knew* that she
was behind the door.

Sara Weaver\'s testimony is even less supportive of the majority\'s
claims. She testified thus:

Q: Is it your testimony that your mother\--did your mother, did you ever
see your mother actually come beyond the doorway?

A: No.

**\*396** Q: Did you see her ever come as far as the doorway itself or
was she inside?

A: I don\'t remember.

(Preliminary Hearing Testimony at 51.) Sara\'s testimony therefore
cannot even establish that Vicki Weaver was *ever* in a position where
Horiuchi could see her.

The majority also asserts that \"Sara Weaver testified that the curtain
on the door was open, and so Horiuchi could have seen her mother through
the glass pane on the door.\" (Majority at 373 (citation omitted)).
Again, the majority misstates the testimony. Sara testified that the
curtains over a glass pane on the door were pulled open, but she *never*
testified that Horiuchi could see through the pane. In fact, when asked
about this specific issue, Horiuchi explained that he could not see
through the glass:

Q: Describe the glass window?

A: It appeared like a six-pane glass window with curtains or something
else on it, like plastic or something, on the door and even on the
glass.

Q: Could you see through the window of the door?

A: No.

(Horiuchi Testimony at 109-10.)

Idaho was required to come forward with \"disputed issues of fact.\"
*Long,* 837 F.2d at 752. There is no dispute here. Horiuchi did not
state that the curtain was closed, and Sara Weaver\'s testimony did not
establish, must less even assert, that a person in Horiuchi\'s position
would be able to see through the glass. Even if Idaho had presented the
tiniest shred of evidence that a person at Horiuchi\'s position under
those weather conditions would have been able to see through that type
of glass at that angle (which it has not), Horiuchi\'s failure to look
through it would at most go to the reasonableness of his conduct. It
would not create a disputed issue of fact.

Finally, the majority relies on Horiuchi\'s testimony from the Weaver
and Harris criminal trial. Horiuchi did not testify, as the majority
claims, that \"he thought someone else might be standing behind the
door.\" (Majority at 373.) The testimony, in context, is as follows:

Q: Describe the position of that second male adult in relation to the
open door of the house when you fired that shot?

A: He was basically taking the last step and again at that time I
didn\'t know what the landing looked like, or what the porch area looked
like, but he looked like he was taking a last leap trying to get into
the doorway at the last-you know, just before taking a jumping-trying to
jump into the doorway.

Q: Describe his body position in that connection?

A. He had his weapon in his right hand and he was reaching out with his
left hand. It appeared to me like he was trying to hold the door open or
moving somebody out of the way, and that\'s the time I shot.

(Horiuchi Testimony at 107-08.) This testimony describes the body
position of a running man about to leap onto a porch. At best for Idaho,
the testimony calls into doubt the reasonableness of Horiuchi\'s second
shot, which depended on his ability accurately to hit a moving target.
But nothing in this testimony contradicts Horiuchi\'s testimony that he
did not know Vicki Weaver was behind the door.

In sum, all the majority offers are suggestions that Horiuchi was
careless in firing the second shot. Those arguments go to the
reasonableness of Horiuchi\'s conduct, not to the threshold issue of
disputed material facts.

**\*397 6. The Danger of Escape**

The majority finally contends that it is at least \"in dispute\" whether
the suspects in the cabin posed any threat of escape. (Majority at 374.)
If that issue were in dispute, the majority may be correct in finding a
disputed issue of fact. However, it is irrelevant for purposes of this
case whether the suspects in fact had an avenue of escape. The only
issue, and a somewhat tangential one at that, is whether Horiuchi might
have reasonably thought that they did. Again, there are no disputed
material facts, only differences about the conclusions to be drawn from
those facts.

Horiuchi specifically testified that the cabin was not surrounded.
(Horiuchi Testimony at 250-51.) Although Horiuchi could see the back
porch of the cabin, he had no way of knowing whether a suspect might
escape through a window or other opening on the side of the cabin that
he could not see. Horiuchi knew that the suspects had a superior
knowledge of the surrounding terrain. There is nothing in the record
that suggests Horiuchi could not have concluded that the suspects might
be able to escape from the cabin and pose an even greater threat to the
other agents if their positions became known. Whether such a conclusion
accurately reflected the reality of the cabin is beside the point.
\[FN16\] Idaho has presented no evidence showing that Horiuchi could not
reasonably have thought that the suspects might have escaped from the
cabin.

FN16. The majority chides us for \"drawing inferences in favor of
Horiuchi.\" (Majority at 374 n. 24.) If we were stating that the
suspects had a clear avenue of escape, the majority\'s point would be
well taken. But we make no such claim. We merely note that Horiuchi
could have thought that there was an avenue of escape. This does not
require drawing any inferences in his favor. It is a simple statement of
fact that is apparent from the record.

\* \* \*

We now turn to the reasonableness of Horiuchi\'s conduct under the case
law of Supremacy Clause immunity.

**B. The Reasonableness of Horiuchi\'s Conduct**

**1. The Ruby Ridge Deployment**

Undisputed facts establish the following: Special Agent Lon Horiuchi is
a sniper observer in the FBI Hostage Rescue Team stationed in Quantico,
Virginia. This team is a highly trained, full-time tactical team whose
purpose is to handle sensitive, high-risk law enforcement operations. On
August 21, 1992, his group was deployed to Boundary County, Idaho, in
response to the shooting death of a Deputy United States Marshal in a
mountainous area. When he arrived on the scene, Horiuchi was briefed on
the day\'s events and advised that this mission was extremely dangerous.
He was told that federal marshals had been conducting surveillance of
the area near the Weaver property when they were attacked by armed men.
In the ensuing gunfight, a federal officer was killed. Other federal
agents were still believed to be pinned down on the hill. The suspects
in the killing of the marshal were Randall Weaver and Kevin Harris, who
were alleged to have ties with white separatist groups. Weaver had been
eluding arrest on federal weapons charges for more than a year. It
appeared that Weaver was an especially dangerous individual. He was
known to have had Special Forces training and expertise in weapons,
explosives, and military tactics. He always appeared armed and would
confront anyone he encountered. He established \"fighting positions\"
around his residence, and armed members of his family would man these
\"battle stations\" to challenge any stranger that approached. Weaver
and Harris **\*398** were known to be carrying handguns and long guns.

Horiuchi was also told that the FBI had adopted special Rules of
Engagement for dealing with the situation. Under the Rules, officers
were authorized to employ deadly force against any armed adult male if a
shot could be taken without endangering the Weaver children. The Rules
of Engagement further alerted Horiuchi to the extreme danger presented
to himself and to fellow officers by Weaver and Harris. \[FN17\] On the
rainy, overcast afternoon of August 22, 1992, Horiuchi and other members
of the Hostage Rescue Team took up positions in sight of the cabin,
climbing several hours over steep, rocky terrain. However, they did not
surround the cabin, and Horiuchi did not know if there were any escape
routes from the cabin. Horiuchi\'s position directly faced the side of
the cabin, about 200 yards away. He could see a porch on the front of
the cabin. A door led from the cabin to the front porch. When the door
was opened outward, perpendicular to the front of the cabin, Horiuchi
could see the door. Otherwise, it was not visible.

FN17. It is not necessary for us to decide whether these Rules of
Engagement were constitutional. Neither Horiuchi nor the United States
argues that Horiuchi\'s conduct can be justified simply by referring to
these Rules.

However, the existence of the Rules cannot be ignored. They play a
critical role in explaining Horiuchi\'s mental state and the level of
danger that appeared to him. The fact that the FBI felt such rules were
necessary certainly implicates the reasonableness of Horiuchi\'s conduct
in this highly charged situation.

Shortly before 6 pm, Horiuchi observed an FBI helicopter lift off from
the law enforcement base in the valley below the Weaver cabin. A few
seconds later, he observed two adult males, at least one of whom was
armed, and a young female rush from the cabin to a rock outcropping that
had been described as the Weavers\' \"lookout.\" Horiuchi soon observed
one of the men point his rifle at the sky, appearing to aim at the FBI
helicopter. Horiuchi fired a single shot at the armed male. He believed,
erroneously as it turned out, that his shot had missed. The three
individuals then took cover behind a structure they termed the
\"birthing shed.\"

Seconds later, the three individuals ran toward the cabin. Horiuchi saw
the first male and the female run through the door into the cabin. The
last male was armed, and Horiuchi believed he was the man who had
threatened the helicopter. The male slowed before reaching the door and
looked toward the ridge where Horiuchi was located. From the cabin, the
male would be able to shoot at the helicopter without risk of the agents
returning fire, since the agents had been told not to fire into the
cabin. \[FN18\]

FN18. At oral argument, the state conceded that, if Harris got into the
cabin, he could shoot at the helicopter without risking returning fire.

Horiuchi fired one shot at the armed male before he stepped behind the
opened door. The shot went through the door, striking its target, as
Horiuchi intended. However, unknown to Horiuchi, Vicki Weaver was
standing behind the door, where Horiuchi could not see her. The shot
struck her before it hit the armed male. Weaver died immediately. The
shot was fired parallel to the front of the cabin, \[FN19\] which was
the only type of shot Horiuchi could take without firing into the cabin
itself. This second shot came approximately **\*399** twenty seconds
after the first shot.

FN19. There is no evidence that Horiuchi fired into the cabin or that
the bullet entered the cabin. Had the door not been open, the bullet
would have landed somewhere on the other side of the cabin.

**2. Reasonableness**

The standard we apply in determining Horiuchi\'s entitlement to immunity
from state criminal prosecution is perhaps the most deferential standard
known to the law. We are not here to assess whether Horiuchi is immune
from federal criminal liability or from civil liability. We need not
determine whether Horiuchi violated internal regulations or whether he
is fit for the position he holds. Our issue is a very narrow one: Did
Horiuchi lack an honest and reasonable belief that his actions were
necessary and proper in fulfilling his duties? Horiuchi\'s belief will
be reasonable unless *no* reasonable officer could have taken the
actions that he did.

Immunity attaches even if an agent\'s \"belief was mistaken or his
judgment poor.\" *McShane,* 235 F.Supp. at 274. If an officer \"was
acting in the supposed exercise of his duty, without malice or criminal
intent \... he is not liable to prosecution in the state court from the
fact that from misinformation or lack of good judgment he transcended
his authority.\" *Lipsett,* 156 F. at 71. \"Proper application of this
standard does not require a petitioner to show that his action was in
fact necessary or in retrospect justifiable, only that he reasonably
thought it to be.\" *Clifton,* 549 F.2d at 728.

As explained in the first part of this opinion, no federal officer has
*ever* been denied immunity because a court later second-guessed the
reasonableness of his conduct. The only cases in which immunity has been
denied are cases in which there is clear evidence of malice or evidence
that the officer was not on official duty.

In this case, there is no evidence that Horiuchi was not on official
duty at the time of the shooting. There is no evidence that Horiuchi
acted with malice. \[FN20\] There is no evidence that Horiuchi knew that
Vicki Weaver was behind the door. And there is no evidence that Horiuchi
did not fear for the safety of other officers when he fired his second
shot. All the majority can offer is a string of second-guesses: Horiuchi
should have done this. He should not have done that. He should have been
more careful. All of this may be true, but none of it will be sufficient
to meet the exceptionally high standards imposed by the Supremacy Clause
immunity cases. Considered carefully, the majority\'s arguments amount
to little more than assertions that this incident should have been
handled differently, a proposition with which no one will disagree.

FN20. To the contrary, Idaho has conceded in its indictment that
Horiuchi acted *without malice.* This is an essential element of its
case that it must prove at trial.

The majority first suggests that there was no real threat to the
helicopter or to the other agents when Horiuchi fired the second shot,
and that any fear he may have felt was not objectively reasonable.
(Majority at 368-69.) In this case, however, there were plenty of
signals indicating a serious threat to the agents and the helicopter.
The suspects were known to be armed and extremely dangerous. One federal
agent already lay dead. The cabin may have been stockpiled with weapons
and explosives. A suspect in the cabin could fire freely into the
mountains and into the sky, since the FBI agents could not return fire
into the cabin. It did not appear impossible that an armed suspect could
escape into the woods and use his superior knowledge of the surrounding
terrain to further endanger the lives of the agents and others. The
armed male had appeared poised to fire at the FBI helicopter. Nothing
about the incident suggested **\*400** that the agents were dealing with
normal, peaceful people. Under all those circumstances, Horiuchi made
the decision to shoot. Twenty/twenty hindsight may suggest that the
decision was erroneous or that Horiuchi exercised poor judgment in
making it. But that is not enough. The issue is whether it was so far
beyond the bounds of reasonableness at the time that no reasonable agent
would have done what Horiuchi did. Idaho has come nowhere close to such
a showing.

The majority\'s second suggestion is that no reasonable officer would
have acted as Horiuchi did because he failed to give a warning before
firing. (Majority at 372.) The Supreme Court has held that, when an
officer has probable cause to believe that a suspect \"poses a threat of
serious physical harm, either to the officer or to others, it is not
constitutionally unreasonable to prevent escape by using deadly force.\"
*Tennessee v. Garner,* 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1
(1985). \"\[I\]f the suspect threatens the officer with a weapon or
there is probable cause to believe that he has committed a crime
involving the infliction or threatened infliction of serious physical
harm, deadly force may be used if necessary to prevent escape, and if,
*where feasible,* some warning has been given.\" *Id.* at 11-12, 105
S.Ct. 1694 (emphasis added).

In *Garner,* a police officer fired at a suspect in a residential
burglary whom the officer was \"reasonably sure\" was unarmed. *Id.* at
3, 105 S.Ct. 1694. There was no likelihood of violence, and the officer
did not attempt to justify the shooting on any other ground than the
need to prevent an escape. *Id.* at 21, 105 S.Ct. 1694. Nonetheless, the
officer received qualified immunity in the lower court, and the Supreme
Court expressed no disapproval of that immunity. *Id.* at 5, 105 S.Ct.
1694.

In *Forrett v. Richardson,* 112 F.3d 416, 420 (9th Cir.1997), we held
that \"a suspect need not be armed or pose an immediate threat to the
officers or others at the time of the shooting.\" Because the officers
there had \"probable cause to believe \[that Forrett\] had committed a
crime involving the infliction of serious harm \.... \[they\] therefore
had probable cause to believe that Forrett posed a serious threat of
harm to them or others.\" *Id.* We further noted that the evidence did
not show that \"the police had actually established an *escape-proof*
cordon at the time Forrett was shot.\" *Id.*

In this case, Horiuchi knew that the armed man was wanted on federal
weapons charges, that he or a compatriot had already killed a federal
agent, and that he appeared to threaten officers in the helicopter with
a weapon. Here, Horiuchi reasonably could have thought that a warning
would expose fellow agents to danger, and that it would result in a shot
immediately being fired in his direction. The prior conduct of the
suspects would certainly support such an inference. He also could have
concluded that the suspects posed some danger of escape. These may have
been mistaken conclusions, and perhaps greater care might have led to a
different decision. But *Garner* contemplates that the feasibility
determination will be in the hands of the individual officer on the
scene. Surely a mistaken conclusion as to the feasibility of a warning
by a federal officer does not turn the officer into a common criminal. A
reasonable officer in Horiuchi\'s position could have made this
determination, even if in retrospect it may not be justifiable.
*Clifton,* 549 F.2d at 728.

The majority next suggests that Horiuchi may not have been certain of
his target and that he fired in the \"face of major uncertainty about
the identity of the target.\" (**\*401** Majority at 373.) This argument
rests on an entirely faulty premise. Horiuchi *never* testified, as the
majority claims he did (Majority at 373), that he could not distinguish
between the two adult males. When the three individuals came out of the
cabin, Horiuchi could see that the last one out was carrying a long
weapon. (Horiuchi Testimony at 69.) He could not see any weapons on the
other two individuals. (*Id.* at 69.) Horiuchi focused his attention on
the armed male. (*Id.* at 70.) This individual later appeared to
threaten the helicopter, and Horiuchi fired at him. After the shot this
individual disappeared behind the \"birthing shed.\" (*Id.* at 99.) The
three individuals then came out from behind the shed; they appeared to
be in the same order as when they left the cabin. (*Id.* at 99.)
Horiuchi saw that the second male was carrying a long weapon and he
focused on that individual. (*Id.* at 100-01.) He also testified that he
never saw a weapon in the hands of the other male. (*Id.* at 220.)
Horiuchi therefore assumed that the armed male he saw disappear behind
the shed was the same armed male he saw emerge from behind the shed, and
that the unarmed male he saw disappear behind the shed was the same
unarmed male he saw emerge from the behind the shed.

Horiuchi, however, was mistaken. The individuals had become confused.
When asked on cross-examination how this mistake could have happened,
Horiuchi explained, \"They appeared to be dressed similar, that
individual looked similar to the individual that initially came out as a
third person.\" *Id.* at 238. From this, the majority concludes that
Horiuchi fired in the face of known uncertainty about his target. The
testimony establishes nothing of the sort. Horiuchi used the presence of
the weapon to distinguish between the two individuals. He saw an unarmed
man and an armed man. The armed man appeared to threaten the helicopter.
Both disappeared, and Horiuchi again saw an armed man and an unarmed
man. It is certainly within the bounds of reasonableness to conclude
that the armed man was the same person. Perhaps Horiuchi could have
exercised more care, but this was a moment of extreme danger and it is
impossible to contend that Horiuchi\'s conduct here was so totally
unreasonable that no reasonable agent could have the drawn the
conclusion he drew.

The majority finally suggests that Horiuchi could not reasonably have
fired his second shot if he knew or should have known that someone was
standing behind the door. As we have already explained, there is no
evidence that Horiuchi knew someone was standing behind the door.
Horiuchi saw the first male and the female run quickly to the porch and
disappear behind the open door. (Horiuchi Testimony at 105.) It would
not be unreasonable for Horiuchi to conclude that these individuals ran
into the cabin and did not linger behind the open door. We also agree
with the district court that \"it would be objectively reasonable for
Mr. Horiuchi to believe that one would not expect a mother to place
herself and her baby behind an open door outside the cabin after a shot
had been fired and her husband had called out that he had been hit.\"

Moreover, Idaho\'s entire criminal complaint rests on Horiuchi\'s
failure to determine \"whether any other person other than his intended
target was present on the other side of the door.\" On this point, the
present case is indistinguishable from *Lipsett.* In *Lipsett,* a
federal agent fired his weapon at a suspect, despite the presence of
other people who were apparently on the other side of the suspect. The
agent missed, and an innocent bystander was killed. The state contended
that it was \"possible to discover that \[the victim\] **\*402** and her
companions were in the line of fire.\" 156 F. at 67. The court
nevertheless granted immunity, since a \"lack of good judgment\" does
not translate into a forfeiture of immunity. *Id.* at 71. Here, Horiuchi
assumed that no else was standing behind the door. His assumption was
wrong and may have been based on extremely poor judgment, but it was not
so unreasonable as to require the forfeiture of his immunity.

\* \* \*

In sum, there is nothing to place this case into the tiny category of
cases in which federal courts have denied Supremacy Clause immunity to
federal officers. The facts of this case fit squarely into the long line
of cases in which immunity has been granted, despite bad judgment on the
part of the officer. We can all agree that what happened at Ruby Ridge
was deplorable. Few people would contend that the FBI adopted an
appropriate strategy to handle the situation. In hindsight, Horiuchi
could have acted more carefully, and he probably made serious mistakes
in judgment. It is, however, one very large and unsupported leap to move
from that assessment to the conclusion that Horiuchi\'s conduct was so
objectively unreasonable that he must be called to account in a state
criminal dock. The Monday-morning quarterback can always perfectly
dissect the mistakes of the professional, can always point to decisions
erroneously made, and can always show, in retrospect, how things might
have been handled better. Our role is not to decide what should have
been done, but to determine whether the professional in the field acted
within the bounds of permissible authority in executing a quick judgment
call in a crisis situation.

As judges, we enjoy absolute immunity for our mistakes of judgment. We
do not risk imprisonment for reaching the wrong judgment in this case.
Special Agent Horiuchi does. After three rounds of litigation in federal
court, thousands of hours of legal work, extensive briefing and oral
argument, six judges of this court and two experienced United States
District Court judges have concluded that Horiuchi acted reasonably. Six
judges of this court apparently feel otherwise. Horiuchi, of course, did
not have the option of making a leisurely decision after carefully
examining a vast pile of papers on his desk. He had to make his judgment
in a matter of seconds on a dark, rainy day on a ridge in Idaho in the
aftermath of the slaying of a fellow federal agent. The very fact that a
majority of federal judges who have examined Horiuchi\'s conduct have
found his actions reasonable for Supremacy Clause immunity purposes
belies the majority\'s repeated suggestions that *no* reasonable agent
might have acted as he did.

The consequences of today\'s decision extend far beyond potentially
sending this FBI agent to trial under Idaho law. The majority contends
that this is an exceptional case that could not possibly chill law
enforcement efforts in more ordinary circumstances. (Majority at
376-77.) This confidence is not shared by those with lengthy experience
in law enforcement. In an amicus brief, four former Attorneys General of
the United States and a former Director of the FBI, from different
administrations, argue that it is \"impossible to imagine a more
chilling circumstance\" than the attempted prosecution of Agent Horiuchi
and that the majority\'s decision will \"severely undermine, if not
cripple, the ability of future Attorneys General to rely on specialized
units in moments of crisis such as hostage taking and terrorist acts.\"
As the Solicitor General of the United States explained in oral
argument, \"This case tests a principle of surpassing importance to the
United States\.... State **\*403** prosecution of federal officers is
terribly chilling in all but the most extreme cases, and this is not one
of them.\" If Lon Horiuchi were just some rogue agent who took the law
into his own hands, as the majority suggests, it is hard to imagine why
any of these people would jump to his defense. Their concerns are
unlikely to be assuaged by the thought that we can count on the good
judgment and discretion of state prosecutors not to interfere unduly
with federal law enforcement efforts.

The inevitable result of the majority opinion is that federal agents
will hesitate in precisely those highly charged situations in which
their quick judgment is most critical to the effective enforcement of
our nation\'s laws. Nothing, it has been said, focuses the mind like the
fear of being hanged. The great danger is that federal agents will focus
their minds, not on the immediate task at hand, but on the intricacies
of state and local law. As one court has recognized in these cases,
there is a real risk that the engagement \"would be turned into a
debating school, where the precious moment for action would be wasted in
wordy conflicts between the advocates of conflicting opinions.\" *Fair,*
100 F. at 154-55 (quoting *McCall v. McDowell,* 15 F. Cas. 1235
(C.C.D.Cal.1867) (No. 8673)).

***Conclusion***

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. Today\'s decision
is a grave disservice to all these men and women, who knew until now
that if they performed their duties within the bounds of reason and
without malice that they would be protected from state prosecution by
Supremacy Clause immunity and not subjected to endless judicial
second-guessing. The clear mandate of over a hundred years of Supremacy
Clause jurisprudence forbids the state of Idaho from prosecuting
Horiuchi for his mistaken judgment in this regrettable incident. Because
I cannot agree with the majority\'s attempt to thwart that law, I
respectfully dissent.

253 F.3d 359, 1 Cal. Daily Op. Serv. 4557, 2001 Daily Journal D.A.R.
5623

**Briefs and Other Related Documents (Back to top)**

. 1998 WL 34089894 (Appellate Brief) Brief for Appellee Lon T. Horiuchi
(Dec. 07, 1998)

. 1998 WL 34089683 (Appellate Brief) Plaintiff-Appellant\'s Opening
Brief (Oct. 16, 1998)

. 98-30149 (Docket) (Jun. 08, 1998)

END OF DOCUMENT