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Playboy July 1995

HEADLINE: Overkill; the FBI’s gun battle with Randy Weaver

BYLINE: Bovard, James

The story has been told in The New York Times, The Washington Post and Soldier of Follune magazine. Somewhere you’ve read or heard about the 11-day stakeout that resulted in the death of a 14-year-old boy, a 42-year-old mother, a federal marshal and one yellow Labrador retriever. It is an American tragedy, one that must be retold until some sense of truth or justice emerges.

Randy Weaver lived with his wife and four children in a cabin in the rugged Idaho mountains 40 miles south of the Canadian border. The cabin had no electricity or running water, but the family survived, as had generations of pioneers. According to his lawyer, Weaver was “a little man who wanted to be left alone.”

According to the government, he was a heavily armed white supremacist, a former Green Beret, a member of a cult that believed a Jewish-led conspiracy controlled the government. He stood convinced that God had created separate races for a reason, and that the races should remain separate. Weaver was, said one agent, “extremely irritable, and saw people plotting against him.”

Weaver had every reason to be paranoid. People were plotting against him. No fewer than three government agencies targeted Randy Weaver.

ENTRAPMENT?

Agents of the Bureau of Alcohol, Tobacco and Firearms were the first to turn their attention on Weaver. In 1989 Kenneth Fadley, a BATF informant, persuaded Weaver to sell him two sawed-off shotguns, carefully pointing out where he wanted the barrels cut – one-quarter of an inch below the legal length.

Prior to the sting operation, Weaver had no criminal record. The agents had noticed Weaver and members of his family at a meeting of the Aryan Nation, a white supremacist movement based in the panhandle of Idaho. According to Weaver the BATF then threatened him, saying that unless he promised to infiltrate the Aryan Nation and turn informer, they would prosecute. He refused; charges were filed in December 1990.

A court date was set, then changed. A probation officer sent a letter to Weaver with yet another date. When Weaver failed to appear, a warrant was issued.

WYATT EARP MEETS RAMBO

Federal agents launched an elaborate 18-month surveillance of Weaver’s cabin and land. The agency this time was the U.S. Marshal. Service (headed by former Meese Commission star Henry Hudson), which is responsible for serving high-risk warrants. The service seems to take its cue not from the Constitution but from Hollywood. (As described in “One-Line Pedophiles” in the March Playboy Forum, Henry Hudson spent a small fortune trying to entrap two men to make snuff movies.) David Nevin, a lawyer involved in the subsequent court case, noted: “The marshals called in military aerial reconnaissance and had photos studied by the Defense Mapping Agency. They prowled the woods around Weaver’s cabin with night-vision equipment. They had psychological profiles performed and installed $130,000 worth of long-range solar-powered spy cameras. They intercepted the Weavers’ mail. They even knew the menstrual cycle of Weaver’s teenage daughter, and planned an arrest scenario around it. They actually bought a tract of land next to Weaver’s where an undercover marshal was to pose as a neighbor and build a cabin in hopes of befriending Weaver and luring him away.” All this despite the fact that the BATF had initially served Weaver a warrant without encountering violence (agents faked a car breakdown; when he stopped to help, they arrested him). According to several reports, Hudson’s Special Operations Group thought it was up against Rambo. Had the government bothered to look carefully at service records, it would have known better. According to Soldier of Fortune, Weaver never completed Special Forces training. He was an engineer in support personnel for the Green Berets.

“Although the marshals knew Weaver’s precise location,” reports Nevin, “throughout this elaborate investigation, not a single marshal ever met face-to-face with Weaver. Even so, Weaver offered to surrender if conditions were met to guarantee his safety. The marshals drafted a letter of acceptance, but the U.S. attorney for Idaho abruptly ordered the negotiations to cease.”

On August 21, 1992 six U.S. marshals outfitted in full camouflage and painted faces entered Weaver’s property. They carried automatic weapons. They had been told to avoid contact with the Weavers, but had visited a shooting range the night before to sight in their weapons. The group leader was familiar with the terrain: It was deputy marshal Arthur Roderick’s 24th visit to the cabin. One of the Weaver family’s dogs, Striker, caught scent of the agents and ran barking down the hill. Weaver’s 14-year-old son, Sammy, and Kevin Harris, a 25-year-old family friend who lived with the Weavers in the cabin, followed.

What happened next is a horrible vision of law enforcement agents out of control. Lawyers, for the defendants say that Roderick shot the dog, shattering its haunches. Sammy, Weaver fired two shots at the man who had just killed his dog. Randy Weaver called out to his son. Sammy yelled, “I’m coming, Dad,” then turned to run to safety. A bullet from a U.S. marshal nearly tore off his arm; a second bullet entered his back, killing him.

At some point during the exchange deputy marshal William Degan stood up and yelled “Freeze.” Harris fired, killing the marshal. Federal agents testified in court that Degan had been killed by the first shot of the exchange, but were unable to explain how it was that the marshal had fired seven shots from his gun before he was shot.

Who was writing this script?

FBI MUTANT NINJAS

The surviving marshals trooped down the mountain and called for help. As Weaver retrieved his son’s body, the FBI’s elite paramilitary Hostage Rescue Team boarded a plane in Washington, D.C. Almost 400 state and federal agents surrounded the site of the standoff. Although no shots came from the cabin, FBI team commander Richard Rogers changed the standard rules of engagement. The HRT sharpshooters were told to shoot any armed adult male on sight, whether he posed an immediate threat or not.

The next day, August 22, Randy Weaver – with daughter Sara and Kevin Harris – walked from his cabin to the little shack where his son’s body lay. As he lifted the latch on the shack’s door, Weaver was shot from behind by FBI sniper Lon Horiuchi. Weaver struggled back to the cabin while his wife, Vicki, stood in the doorway, holding their ten-month-old infant in her arms and calling for her husband to hurry.

Horiuchi testified that after shooting Weaver in the back, he followed Kevin Harris through his telescopic sight, leading slightly. He fired as the man rushed through the door of the cabin. According to The New York Times, Horiuchi, who claimed he could hit a target at a distance of 200 meters within a quarter of an inch, said he had “decided to neutralize that male and his rifle.” Instead, he hit Vicki Weaver in the temple, killing her. The bullet that passed through Vicki Weaver’s skull wounded Harris.

The paramilitary team then switched to psychological warfare. As The Washington Times’ Jerry Seper reported, “Court records show that while the woman’s body lay in the cabin for eight days, the FBI used megaphones to taunt the family. Good morning, Mrs. Weaver. We had pancakes for breakfast. What did you have?’”

Weaver surrendered after 11 days.

At the subsequent trial, the government sought to prove that Weaver had conspired for nine years to have an armed confrontation with the government. An Idaho jury found Weaver innocent of almost all charges and ruled that Kevin Harris’ shooting of the U.S. marshal had been in self-defense.

Federal Bureau of Investigation Director Louis Freeh justified the FBI shooting of Randy Weaver because sniper Horiuchi saw one of the suspects raise a weapon in the direction of a helicopter carrying other FBI personnel. But other federal officials testified at Weaver’s trial that there were no helicopters in the vicinity of the Weavers’ cabin at the time of the shooting.

Freeh also said the FBI’s next shot – the one that killed Vicki Weaver – was justified and that the killing was accidental. Freeh declared, “The question is whether someone running into a fortified position who is going to shoot at you is as much a threat to you as somebody turning in an open space and pointing a gun at you. I don’t distinguish between those.” Not even when the fortified position is a cabin filled with children?

Freeh found 12 FBI officials guilty of “inadequate performance, improper judgment, neglect of duty and failure to exert proper managerial oversight.” However, the heaviest penalty that Freeh imposed was 15 days unpaid leave, and that for only four agents. As The New York Times reported, Freeh has imposed heavier penalties for FBI agents who used their official cars to drive their children to school.

One of the most disturbing aspects of Freeh’s actions has been his treatment of Larry Potts, Freeh’s pick as acting deputy FBI director. Potts was the senior official in charge of the Idaho operation and defended the shoot-to-kill orders. Despite the finding of a Justice Department confidential report that the orders had violated constitutional rights, Freeh recommended that Potts face only the penalty of a letter of censure. That is the same penalty that Freeh received when he lost an FBI cellular telephone.

In a letter to Attorney General Janet Reno, Idaho Senator Larry Craig asked: “When does the Department of Justice consider it acceptable to fire on an armed citizen first – even if he or she is not threatening the life of any other person – and ask questions later? I am not alone in believing that firearms restrictions do not prevent violent crime; it is appalling that in this case, the enforcement of such restrictions actually led to the sacrifice of three lives. In this sense comparisons drawn between the north Idaho action and the Waco case are inevitable and deeply troubling.”

The Weaver case presents a great challenge to the competency and courage of the congressional leadership now in Washington. If Congress is not willing to look into such misconduct, who will protect the Constitution? Will Congress let the Justice Department and the FBI get away with murder?

James Bovard is author of “Lost Rights: The Destruction of American Liberty.”

**********

The Wall Street Journal
January 10, 1995
No Accountability at the FBI
By James Bovard

FBI Director Louis Freeh last week announced that no FBI agents would be fired or severely punished for their role in the botched attack on Idaho white separatist Randy Weaver and his family in 1992, which led to the death of Mr. Weaver’s son and wife. The announcement, which drew denunciations from both the American Civil Liberties Union and the National Rifle Association, is the conclusion of a patchwork of deception that has continued for more than two years.

Mr. Freeh, in his statement on Friday, declared that “the [Randy Weaver case] crisis was one of the most dangerous and potentially violent situations to which FBI agents have ever been assigned.” But this is patent nonsense. Given the growing importance of this case, a review of the facts is in order.

Randy Weaver lived with his wife and four children in an isolated cabin on Ruby Ridge in the Idaho mountains, 40 miles south of the Canadian border. Mr. Weaver did not favor violence against any other race, but believed that the races should live separately. Because of his extreme beliefs, he was targeted for a sting operation.

In 1989, an undercover agent of the Bureau of Alcohol, Tobacco and Firearms approached Mr. Weaver and pressured the mountain man to sell him sawed-off shotguns. Mr. Weaver at first refused, but the agent was persistent and Mr. Weaver eventually sold him two shotguns — thereby violating federal firearms law. A court official sent Mr. Weaver a notice to appear in court on the wrong day; after Mr. Weaver did not show up on the correct date, a Justice Department attorney (who knew of the error) got a warrant for his arrest. Federal agents then launched an elaborate 18-month surveillance of Mr. Weaver’s cabin and land.

David Nevin, a defense lawyer involved in the subsequent court case, noted later: “The U.S. marshals called in military aerial reconnaissance and had photos studied by the Defense Mapping Agency. . . . They had psychological profiles performed and installed $130,000 worth of solar-powered long-range spy cameras. They intercepted the Weavers’ mail. They even knew the menstrual cycle of Weaver’s teenage daughter, and planned an arrest scenario around it.”

On Aug. 21, 1992, six heavily armed, camouflaged U.S. marshals sneaked onto Mr. Weaver’s property. Three agents threw rocks to get the attention of Mr. Weaver’s dogs. As Mr. Weaver’s 14-year-old son, Sammy, and Kevin Harris, a 25- year-old family friend living in the cabin, ran to see what the dogs were barking at, U.S. marshals killed one of the dogs. Sammy Weaver fired his gun in the direction the shots had come from. Randy Weaver came out and hollered for his son to come back to the cabin. Sammy yelled, “I’m coming, Dad,” and was running back to the cabin when a federal marshal shot him in the back and killed him.

Kevin Harris responded to Sammy’s shooting by fatally shooting a U.S. marshal. Federal agents falsely testified in court that the U.S. marshal had been killed by the first shot of the exchange; evidence later showed that the marshal had fired seven shots before he was shot himself.

After the death of the U.S. marshal, the commander of the FBI’s Hostage Rescue Team was called in, and ordered federal agents to shoot any armed adult outside the Weaver cabin, regardless of whether that person was doing anything to threaten or menace federal agents. (Thanks to the surveillance, federal officials knew that the Weavers always carried guns when outside their cabin.)

With the massive federal firepower surrounding the cabin — the automatic weapons, the sniper rifles, the night vision scopes — this was practically an order to assassinate the alleged wrongdoers. Four hundred government agents quickly swarmed in the mountains around the cabin. Most important, the federal agents at that time made no effort to contact Mr. Weaver to negotiate his surrender.

The next day, Aug. 22, Randy Weaver walked to the little shack where his son’s body lay. As he was lifting the latch on the shack’s door, he was shot from behind by FBI sniper Lon Horiuchi. As he struggled back to the cabin, his wife, Vicki, stood in the doorway, holding a 10-month-old baby in her arms and calling for her husband to hurry. The FBI sniper fired again and hit Vicki Weaver in the temple, killing her instantly. (Mr. Horiuchi testified in court that he could hit within a quarter inch of a target at a distance of 200 yards.)

Reuters reported on Aug. 25, three days after the shooting: “FBI Agent Gene Glenn said that the law enforcement officers were proceeding with extreme care, mindful that Weaver’s wife Vicki and three remaining children . . . were also in the cabin. ‘We are taking a very cautious approach,’ he said in a statement to reporters.” An internal FBI report completed shortly after the confrontation justified the killing of Mrs. Weaver by asserting that she had put herself in harm’s way, the New York Times reported in 1993.

Though federal officials now claim that the killing of Vicki Weaver was an accident, the Washington Times’s Jerry Seper reported in September 1993: “Court records show that while the woman’s body lay in the cabin for eight days, the FBI used microphones to taunt the family. ‘Good morning, Mrs. Weaver. We had pancakes for breakfast. What did you have?’ asked the agents in at least one exchange.”

Neither Randy Weaver nor Mr. Harris fired any shots at government agents after the siege began. Mr. Weaver surrendered after 11 days. An Idaho jury found him innocent of almost all charges and ruled that Kevin Harris’s shooting of the U.S. marshal was self-defense. Federal Judge Edward Lodge condemned the FBI and issued a lengthy list detailing the Justice Department’s and FBI’s misconduct, fabrication of evidence, and refusals to obey court orders.

Justice Department officials launched their own investigation. A 542-page report was completed earlier this year that recommended possible criminal prosecution of federal officials and found that the rules of engagement “contravened the Constitution of the United States.” Yet Deval Patrick, assistant ttorney general for civil rights, rejected the findings last month and concluded that the federal agents had not used excessive force.

FBI Director Louis Freeh concluded that there was no evidence to show that Mr. Horiuchi intended to shoot Mrs. Weaver. Yet Bo Gritz, the former Vietnam War hero who represented the government when it finally negotiated Randy Weaver’s surrender after the death of his wife, declared that the government’s profile of the Weaver family recommended killing Mr. Weaver’s wife: “I believe Vicki was shot purposely by the sniper as a priority target. . . . The profile said, if you get a chance, take Vicki Weaver out.”

Mr. Freeh justified the FBI shooting of the Weavers because sniper Horiuchi “observed one of the suspects raise a weapon in the direction of a helicopter carrying other FBI personnel.” But other federal officials testified at the trial that no helicopters were flying in the vicinity of the Weavers’ cabin at the time of the FBI sniping.

One of the most disturbing aspects of Mr. Freeh’s slaps on the wrist last week is his treatment of Larry Potts, Mr. Freeh’s pick as acting deputy FBI director. Mr. Potts was the senior official in charge of the Idaho operation and signed off on the shoot-without-provocation orders. Despite the finding by the Justice Department that the orders violated the Constitution, Freeh recommended that the only penalty Mr. Potts face be a letter of censure — the same penalty Mr. Freeh received when he lost an FBI cellular telephone.

The Weaver case is by far the most important civil-rights/civil-liberties case the Clinton administration has yet resolved — and it resolved it in favor of granting unlimited deadly power to federal agents. If the new Republican congressional leaders let the Justice Department and the FBI get away with what may have been murder, they will be accomplices to a gross travesty of justice.

—

Mr. Bovard writes often on public policy.
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The Wall Street Journal
Copyright (c) 1995, Dow Jones & Co., Inc.
Thursday, January 26, 1995
Letters to the Editor: No Coverup at the FBI

On Jan. 10, you published an editorial-page piece by James Bovard entitled “No Accountability at the FBI” concerning my decision to discipline FBI employees for their actions associated with the crisis at Ruby Ridge, Idaho, in 1992. I am disappointed that Mr. Bovard would write an article that contained misstatements and distorted facts.

Although this crisis occurred before I became director, I have made it a priority to ensure that all the allegations of misconduct by the FBI and its employees were examined and all necessary remedial action taken. Contrary to Mr. Bovard’s opening canard, there has been no “patchwork of deception” at the FBI. That I publicly announced that FBI employees had exhibited errors of judgment, neglect of duty, inadequate performance and failure to exert proper managerial oversight — within two weeks of completion of the administrative review I ordered on Oct. 31, 1994 — belies Mr. Bovard’s allegations that the FBI has sought to cover up any wrongdoing by the FBI or its employees.

The deaths of Deputy United States Marshal William Degan, Vicki Weaver and Samuel Weaver are undeniably tragic. Sadly, Mr. Bovard compounds the tragedy by mischaracterizing the circumstances surrounding these deaths.

Deputy Marshal Degan was shot and killed as he and fellow marshals were withdrawing from the area of the Weaver cabin after conducting a surveillance preparatory to executing the arrest warrant outstanding for Randall Weaver. Mr. Degan and his colleagues were acting under explicit orders not to engage the Weavers during the surveillance. Contrary to Mr. Bovard’s assertion, the deputy marshals did not try to provoke a confrontation; their intent was to retreat from the area without violence and they attempted to do so. Mr. Bovard’s unfair omission of facts misleads the reader and seeks to diminish the enormity of a tragedy that did not have to happen.

The circumstances of Vicki Weaver’s death are also grossly mischaracterized. Her death was accidental. The FBI sniper was firing at a person he reasonably believed had, only seconds before, threatened to shoot at a helicopter carrying fellow law enforcement officers. The shot was fired to prevent the armed subject from gaining the protective cover of the cabin from which it was believed that he and others could fire upon the law enforcement officers on the scene. Vicki Weaver was standing unseen on the cabin porch behind the outwardly opened door. Mr. Bovard fails to note that the bullet that wounded its intended target and that also accidentally struck and killed Vicki Weaver was fired along a path parallel to the front of the Weaver cabin and not at or into the cabin. Mr. Bovard’s inference that her death was intentional is clearly refuted by the conclusion of two offices within the Justice Department that Vicki Weaver’s death was accidental and not criminal conduct.

I support the public’s right to know about the workings of its government and the integral role the press plays in ensuring an informed public. The FBI should be held accountable for its actions. I do not believe, however, that articles such as Mr. Bovard’s, which ignore or twist the truth, further the important objective of public accountability.

Louis J. Freeh
Director
Federal Bureau of Investigation
Washington
++++++++++++++++++++++++++++++++++++++++++++++++++++++

The Wall Street Journal
Monday, February 27, 1995
Letters to the Editor: The FBI Should Face the Facts

Federal Bureau of Investigation Director Louis Freeh, in his Jan. 26 Letter to the Editor, denies the allegations from my Jan. 10 editorial-page article that the FBI has engaged in a coverup regarding its actions at Ruby Ridge, Idaho, in 1992. Unfortunately, Mr. Freeh’s comments indicate that his agency is not yet willing to face the facts.

Regarding the shooting of the U.S. marshal, Mr. Freeh asserts that “the deputy marshals did not try to provoke a confrontation; their intent was to retreat from the area without violence and they attempted to do so.” This is the same explanation that U.S. marshals on the witness stand first offered to the Idaho jury. After hours of cross-examination, a U.S. marshal admitted that the conflict began when a marshal shot and killed one of the Weaver’s dogs. Most American dog-owners would consider the shooting of their dog a provocation. And this is a peculiar way to “retreat from the area without violence.” Mr. Freeh does not even attempt to refute the fact that a U.S. marshal shot 14-year-old Sammy Weaver in the back as the boy was running away from the scene of the clash with the marshals.

Regarding the FBI sniper Lon Horiuchi’s killing of Vicki Weaver, Mr. Freeh asserts that the death was accidental and that “the FBI sniper was firing at a person he reasonably believed had, only seconds before, threatened to shoot at a helicopter carrying fellow law-enforcement officers.” The only thing that the FBI’s “helicopter rationale” for the shooting of Randy Weaver lacks is a helicopter. This was the same argument federal prosecutors made at trial in Idaho and it was thrown out of court by the federal judge. Other federal officials testified at the trial that no helicopters were flying in the vicinity of the Weavers’ cabin at the time of the FBI sniping. Chuck Peterson, an Idaho lawyer who was part of Mr. Weaver’s defense team, observed, “The Federal judge threw out the [federal charge that Weaver aimed at] the helicopter because it was so incredibly weak — it was not supported by anything.”

Mr. Freeh then states that the shot that killed Vicki Weaver “was fired to prevent the armed subject from gaining the protective cover of the cabin from which it was believed that he and others could fire upon the law-enforcement officers on the scene.” But Randy Weaver had never fired upon the FBI agents — he was merely a wounded man trying to struggle into his home and the arms of his family. Mr. Freeh’s doctrine essentially means that if a government agent shoots and wounds a private citizen, then the government agent must be presumed to have a right to kill the private citizen — because otherwise the citizen might shoot back at the government agent.

This is a peculiar guide for law enforcement in a free society, for a society in which lawmen are not supposed to be able to wantonly shoot private citizens based on mere suspicion.

Mr. Freeh mentions, regarding the shot that killed Vicki Weaver, that the shot “wounded its intended target and . . . also accidentally struck and killed Vicki Weaver. . . .” Mr. Freeh’s letter implies that the “intended target” was Randy Weaver; however, the sniper at trial claimed that he was shooting at Kevin Harris, a family friend staying in the cabin, who was near the door and was not even accused of aiming at the helicopter. Apparently, since he was in the vicinity of Randy Weaver, that was sufficient for the FBI to attempt to kill him. Mr. Freeh’s wording implies that the bullet first hit the “intended target” and then hit Vicki Weaver. However, the bullet first passed through Vicki Weaver’s head before hitting Kevin Harris. The sniper’s testimony at trial indicated that he may have thought that Vicki Weaver was actually Kevin Harris — but that is a lame excuse for shooting a mother who posed no threat to the federal agents.

Mr. Freeh seeks to justify the shot that killed Vicki Weaver by stating that she was standing (while holding her 10-month old baby) “unseen behind the outwardly opened door.” He claims that the shot was an accident, which others who have examined the case or were involved in the surrender negotiations deny. But what sort of hostage rescue team takes deadly shots by an open door of a single-room cabin occupied by a woman and children?

Mr. Freeh declares, “I support the public’s right to know about the workings of its government and the integral role the press plays in ensuring an informed public.” This is a fine sentence for a letter to the editor, but it is ironic that it comes just after a sentence in which Mr. Freeh invokes a confidential 542-page Justice Department report that he claims vindicates his agency. Why is the Justice Department refusing to allow the public access to its own review of the case? This confidential document reportedly concludes that the FBI rules of engagement “contravened the Constitution of the United States.”

In a case in which three people were shot dead, Mr. Freeh says he has taken “all necessary remedial actions” — i.e., “I publicly announced that FBI employees had exhibited errors of judgment, neglect of duty, inadequate performance and failure to exert proper managerial oversight. . . .” If this case was about how some city policeman’s negligence resulted in a major traffic jam, then Mr. Freeh’s action might be appropriate. But this is a case in which a federal judge and an Idaho jury basically found that the U.S. government was lying from top to bottom in the allegations it made in federal court. (The judge commented that 75% of the evidence that the U.S. government had presented at the trial had actually helped the defense.) Is it proper that FBI acting Deputy Director Larry Potts, the person in charge of the operation, received the same “penalty” (a letter of censure in his file) that Mr. Freeh himself received when he lost a cellular telephone?

Mr. Freeh claims there has been no “patchwork of deception” at the FBI regarding this case. But even the press statement issued on the day that Mr. Freeh announced the wrist-slaps on his subordinates contained false information. The FBI claimed that Mr. Weaver had been convicted of the original weapons violations charge. Actually, an Idaho jury ruled that Mr. Weaver had been illegally entrapped and instead convicted him only of failing to show up for the trial in 1991. The FBI claims to have been studying the Weaver case for more than two years — but still cannot even get the basic facts straight.

The American people look forward to learning the truth of the Randy Weaver case. Unfortunately, that truth will have to come from someplace other than the Federal Bureau of Investigation.

James Bovard

Washington

*****

USA TODAY, November 9, 2015

End Federal Agents License to Kill

by James Bovard

Do federal agents need a license to kill in order to protect us?  Unfortunately, federal judges are giving law enforcement agents blanket immunity when they shoot Americans while the agents are on the job. It would be difficult to imagine a greater violation of equal rights under the law or a bigger mockery of due process.

After Larry Jackson, Jr., of Austin, Texas, was killed by a policeman in 2013, a local prosecutor indicted the policeman on manslaughter charges. Jackson’s family claimed that he had been executed by the policeman but a federal judge granted immunity from prosecution because the policeman “was acting in his capacity as a federal officer.” The ruling in the Austin case could extend federal immunity from prosecution for shootings to “hundreds, if not thousands, of state and local police officers who participate in federal task forces,” the Washington Post noted.

Federal officers have been involved in 33 killings so far this year. The Justice Department almost never prosecutes federal agents for shootings in the line of duty, and the feds have invoked the Supremacy Clause of the Constitution to block state and local prosecutions of federal agents in recent decades. The ruling in the Austin case “raises the question of when, if ever, a federal law enforcement officer can be charged with a crime for killing someone in the line of duty,” the Post noted.

The best-known case of immunity for federal officers involves Lon Horiuchi, the FBI sniper who in 1992 gunned down 42-year-old Vicki Weaver as she stood in a cabin doorway in Ruby Ridge, Idaho holding her 10 month-old-baby. Horiuchi previously shot her husband, Randy Weaver, who was outside the cabin and under indictment on a federal firearms charge. A confidential Justice Department report condemned Horiuchi for taking a shot with a high-powered rifle through a cabin door when he believed someone was standing behind it. But other Justice Department and FBI officials warned that permitting Horiuchi to be prosecuted would have “an enormously chilling effect on federal operations, especially law enforcement.” A local prosecutor indicted Horiuchi on manslaughter charges anyhow.

But federal judge Edward Lodge ruled in 1998 that Horiuchi could not be tried for killing Vicki Weaver because he was a federal agent on duty, and thus effectively exempt from any jurisdiction of state courts. Lodge focused on Horiuchi’s “subjective beliefs”: as long as Horiuchi supposedly did not believe he was violating anyone’s rights or acting wrongfully, then he could not be guilty. The judge even blamed Vicki Weaver for her own death. Lodge decreed 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.” Thus, if an FBI agent unjustifiably shoots one family member, the government apparently receives a presumptive right to shoot any other family member who fails to hide.

The U.S. Marshals Service has been involved in 18 killings this year — more than any other law enforcement agency in the nation. But U.S. marshals enjoy de facto immunity for any use of force in the line of duty. Marshals Service spokesman Drew Wade told the Washington Post that “he could not recall a case that led to criminal charges.”

Prior to Horiuchi killing Vicki Weaver, 14-year-old Sammy Weaver and a family friend encountered a team of three undercover U.S. marshals who had taken up a “defensive position” not far from the Weaver’s residence; one of the marshals fatally shot Sammy. According to the friend, Sammy was leaving the scene when he was shot.

Even though the marshals’ statements and testimony on the conflict were riddled with contradictions, the Marshals Service gave its highest valor award to the marshal who killed the young boy and the other undercover marshals who provoked a firefight (in which one marshal was killed).

Judges tend to presume that killings by federal agents are immune from prosecution even though agencies are notorious for covering up the confrontations. As the Post noted, “details about shootings involving federal officers tend to be particularly closely held.” It took the Post almost two months to simply learn the name of a man killed during a recent FBI pornography raid in Chester, Penn.

It is absurd to presume that police are guilty any time they shoot a private citizen during a confrontation. But it is equally absurd to presume that all law enforcement agents are sacrosanct and all their killings justified. America is at risk of becoming a two-tiered society: those whom the law fails to bind and those whom the law fails to protect.

James Bovard is the author of Attention Deficit Democracy and a member of USA TODAY’s Board of Contributors.