Posted Monday, October 2, 2000

[This was originally posted Saturday, September 30, 2000, and has been revised.]

On Sept. 30, Associated Press reported: Ruby Ridge shooting reconsidered -- "A federal appeals court will reconsider its decision that an FBI sharpshooter cannot be prosecuted for manslaughter in the shooting death of white separatist Randy Weaver's wife during a 1992 standoff."

I read the short piece and found myself bothered by the subtle messages in the choice of wording, and also by its brevity, since it seemed to omit a few important matters in a case that has become a cause celèbre in certain conservative quarters.

Weaver is referred to as a "white separatist," which, although arguably technically accurate, conveniently casts him as a fringe person. His religious beliefs were definitely not mainstream, but I find no reference to his belonging to any of the demonized "militia" or "hate" groups which command the headlines.

The article also refers to "weapons trafficking" as the basis for the original federal response, language which is indeed found in written court decisions, but which, to the casual reader, seems to marginalize Weaver as some sort of gun-runner and cast him as a criminal/whacko.

Specifically, he was indicted for possession of two sawed-off shotguns in violation of 26 U.S.C. 5861(d) & (f). However, the weapons in question were modified (one-quarter inch shorter than allowed by law) after repeated requests and cajoling (entrapment) by an undercover BATF (Bureau of Alcohol, Tobacco & Firearms) agent who had befriended Weaver.

Weaver was then reportedly threatened with prosecution if he did not become an informant for the federal government, seeking someone to infiltrate local "militia" groups. He refused, and was subsequently charged in the matter of the bogus weapons violation.

Failing to appear in court for that charge, a large contingent of federal agents were dispatched to his remote Idaho home. Unannounced, masked and camouflaged federal agents, hidden several hundred yards from Weaver's cabin, shot the family dog, which had sniffed them out. Weaver's 14-year-old son, outdoors at the time, apparently fired in the hidden agents' direction upon seeing the dog killed.

Federal fire was returned, first wounding the boy, then striking him in the back and killing him as he fled towards the cabin. Things went downhill from there. A U.S. marshall was dead, and Weaver's wife was unintentionally killed (according to the federal agent's testimony) as an FBI sniper tried to shoot another household member who was fleeing to the cabin.

Weaver was subsequently acquitted of all charges, except failure to appear in court on the initial set-up weapons violation.

The real basis for the raid is arguably retribution for the fact that Weaver refused to become an informant for the federal government in their quest to infiltrate local "militia" groups.

The Department of Justice's own investigation of the matter, as well as congressional hearings, were highly critical of the raid, including the field decision to dramatically alter the FBI's rules of engagement. Yet no legal action was taken beyond that involving the FBI sniper.

The FBI sniper who killed Weaver's wife was found by the Ninth Circuit Court of Appeals (June, 1999) to be protected (immune) under the Supremacy Clause of the U.S. Constitution, since his actions occurred during the conduct of his duty and were found by the court's majority opinion to be "necessary and proper." (See STATE OF IDAHO v HORIUCHI 9830149 STATE OF IDAHO, No. 98-30149 <http://laws.findlaw.com/9th/9830149.html>, which also provides background on the case.)

Circuit Judge Alex Kozinski's dissent [see above link] is scathing and is worth reading. Kozinski expressed grave reservations over the "necessary and proper" issue. He also took exception to the majority opinion that killing a suspect merely for "taking a defensive position" was acceptable, realizing that this set a frightening precedent for increased use of deadly force by law enforcement personnel.

I decided to write this expanded piece because of pervasive disdain for Weaver and others like him, and a too-common willingness by the public to overlook abuses by federal law enforcement. Some individuals have virtually implied that Weaver deserved what he got due to some nebulous "group affiliation" or because he had a radical interpretation of Scripture.

This is tantamount to damning the different. These dismissive critics see no potential relevance to their lives, since they are "normal." Overlooked in this narrow view, in my opinion, is the fact that case law is indeed what sets legal precedent, and that affects all of us -- something that Judge Kozinksi obviously took seriously in writing his dissent.

For other background information, see FBI Assault at Ruby Ridge, a site which is fairly moderate in tone compared to others on the same subject; and Abuses of the BATF.