by Paul Blackman & David Kopel
A slightly different version of article was pulished in the Las Vegas Review-Journal, Aug. 31, 1997
Which is better: letting criminals go free, or prosecuting both a crime victim and a criminal? Folks who just want to let the criminals go should applaud the federal Department of Justiceís decision not to prosecute any of the federal officials involved in the fatal shootings of Vicki and Sammy Weaver, in Ruby Ridge, Idaho. Folks who like seeing the innocent and the guilty prosecuted simultaneously, though, should enjoy the decision of the Boundary County, Idaho, prosecutor to bring charges against both Lon Horiuchi (who killed Vicki Weaver) and against Kevin Harris (who has already been tried and acquitted for defending himself against an attack by federal agents).
Unfortunately, the decisions of both the federal and state prosecutors mean that several of the criminals at Ruby Ridge will never be charged with anything.
Consider Larry Potts, the Washington FBI headquarters man in charge of Ruby Ridge.
The prosecutors investigated Larry Potts for approving the dramatic change in the "rules of engagement" for the FBIís siege of the Weaver familyís remote Idaho cabin in August, 1992. According to the official FBI guidelines, deadly force is allowed only when necessary to protect someone against immediate danger. The rules of engagement are not based on the whims of FBI officials, or even on the acts of Congress. Instead, the limits on deadly force are implicit in the Constitution, and therefore decreed by the Supreme Court.
At Ruby Ridge, Idaho, the normal, constitutional rules of engagement were changed; the new rules were orders to kill any armed adult male seen on the Weaversí property. The non-prosecution of Larry Potts is based on a disputed fact: it cannot be proven that Potts approved the order saying FBI agents "can and should" shoot.
But there is no real dispute that Potts approved an earlier change in the rules of engagement, saying the FBI "could" shoot any armed adult male. (Randy Weaver and his friend Kevin Harris often carried guns on their own property, as is completely legal under Idaho law.) Even if Potts didnít approve the "order to kill" rules of engagement, he clearly did approve a "license to kill" rule, which is illegal and unconstitutional. But heís getting away with it.
FBI sniper Lon Horiuchi-- who shot Vicki Weaver in the head while she was standing in the cabin doorway, holding her baby in her arms--is being charged with voluntary manslaughter by the local Idaho prosecutor. The federal government, though, is leaping to Horiuchiís defense, because he was obeying an order. But the Nuremberg and My Lai prosecutions have established that "I vas just following orders" is no excuse for killing innocent people. The license-to-kill orders were so outrageous that other FBI snipers at the scene -- for example, the SWAT team from Denver -- agreed among themselves that the license-to-kill order should not be obeyed. The Denver agents chose to disobey the unconstitutional order, and instead to stick with the traditional rules of engagement.
Besides choosing to obey an illegal assassination order, Horiuchi lied under oath at Randy Weaverís trial. Horiuchi claimed that he opened fire on Randy Weaver and Kevin Harris because the two men were threatening to shoot an FBI helicopter. But the trial judge found this testimony so blatantly false that he ordered the charges related to the testimony to be dismissed. (The helicopter was nowhere near where Weaver or Harris could have shot at it.)
Moreover, sniper Horiuchi violated even the illegal rules of engagement. True, he did obey the illegal orders when he shot at Randy Weaver and Kevin Harris, who were outside their cabin carrying guns.
But Horiuchiís second shot violated even the license to kill rules; the second shot was the one that killed Vicki Weaver, as she was standing in the doorway of her cabin, holding her baby.
The rules prohibited firing a shot if it would endanger any children.
Horiuchi claims that he never saw Vicki Weaver standing in the doorway, and his shot that killed her was really intended to kill Kevin Harris, who was running back into the cabin. Letís assume that Horiuchi was telling the truth about what he saw. (Letís also ignore the substantial evidence that the FBI had plans to kill Vicki Weaver--who was not accused of any crime--because she was the "dominant" member of the family.)
Even Horiuchiís version of the facts shows that he violated the rules. After the shooting, Horiuchi drew a diagram of the target he had aimed at. His drawing shows that he was aiming at a part of the door approximately ten inches above where he thought 16-year-old Sara Weaver was crouching. She wasnít there, to be sure; but thatís where Lon Horiuchi was aiming -- just above the head of someone the rules of engagement prohibited him from endangering.
And when he fired, in violation of the rules of engagement, he killed Vicki Weaver and injured Kevin Harris.
This is the basis for the manslaughter charge against Horiuchi: his second shot was so reckless that he is culpable for the death that resulted.
True enough, but what about Horiuchiís first shot: his intentional, illegal attempt to kill Randy Weaver? Why no charge for this crime? And why no charge for all the FBI officials--from field commanders all the way up to Larry Potts, who authorized the FBI snipers to shoot people illegally?
The FBI came on the scene a few hours after a shoot-out between a squad of U.S. Marshals and the Weaver family. Why are no charges being filed against the United States Marshal who shot fourteen-year-old Sammy Weaver in the back, as the unarmed Sammy was running home, away from the confrontation?
Amazingly, the only person being charged by the Idaho prosecutor for the initial shoot-out is the Weaversí friend Kevin Harris. During that shoot-out, Harris killed a United States Marshal, and said he was acting in self-defense. The federal government prosecuted him for the killing in 1993, and he was acquitted.
The Constitution outlaws prosecuting a person twice for the same crime. But the Supreme Court has gutted this rule, by allowing separate prosecutions by the state and federal governments.
Given the strange decisions of the federal and Idaho prosecutors, Congress and the state legislatures should promptly take two steps: First, enact legislation barring double state/federal prosecution for the same alleged crime. Second, pass resolutions calling for a special prosecutor to investigate the federal officials responsible for the deaths at Ruby Ridge.
Paul Blackman and David Kopel are the authors of "No More Wacos: Whatís Wrong with Federal Law Enforcement and How to Fix It" (Prometheus Books, 1997).