States Can Protect Local Citizens from Federal Abuses

Paul Clark
(Coalition for Local Sovereignty)
June 2001

In a huge victory for local sovereignty and federal accountability to local communities, the US Ninth Circuit Court of Appeals on June 5 affirmed the authority of local governments to prosecute federal agents for crimes committed against local citizens, ruling that "a state may prosecute federal agents if they have acted unlawfully in carrying out their duties."

The Ninth Circuit decision in Idaho v. Horiuchi begins by quoting the famous words of Alexander Hamilton from the Federalist 28, about the role of local and federal governments to check each other to protect the liberty of citizens. Hamilton wrote that:

"Power being almost always the rival of power, the general [federal] 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."

This system of "check and balances" was seen as an essential feature of the American system by the Founders. These checks and balances had been under attack from the Clinton/Reno Justice Department which had argued that federal agents could never be prosecuted in state court, even when their actions were clearly unconstitutional and illegal under both state and federal law.

Such a system as supported by the Reno Justice Department would have left prosecution of federal agents entirely at the discretion of the Attorney General - the same person who commands the federal agents to begin with. The result of that would be a complete loss of checks and of separation of powers.

The case involves the now infamous FBI sniper Lon Horiuchi who at Ruby Ridge, Idaho shot and killed a woman at a remote cabin. If you are unfamiliar with the facts of the case, the FBI admits to the following:

The FBI ordered Horiuchi to shoot to kill any armed adult male - an order now acknowledged by all to have been illegal. Horiuchi was ordered not to attempt to shoot into the cabin due to the presence of a woman and children inside. When two men and a girl came out of the cabin (one of them carrying a rifle) Horiuchi, without warning, shot one of the men in the shoulder, and as the group fled back into the cabin, Horiuchi shot after them through the door of the cabin, striking Vicki Weaver through the head as she stood holding her baby.

After the Department of Justice refused to prosecute Horiuchi or take any real disciplinary action against him, the state of Idaho pressed charges against him for manslaughter, since Horiuchi disobeyed orders and fired a rifle into a crowded cabin knowingly endangering the woman and children inside.

Idaho's initial prosecution did not attempt to prosecute Horiuchi for any action that followed orders, but only for the act of firing into the cabin contrary to orders. The Ninth Circuit decision, however, declared that "a state may prosecute federal agents if they have acted unlawfully in carrying out their duties" whether or not they were following orders. Thus the Court noted that the evidence "might also support a murder charge." The decision also left open the possibility of the state prosecuting Horiuchi for perjury. The Court's opinion repeatedly suggests that Horiuchi may have perjured himself saying his testimony repeatedly "contradicts itself" and even asks openly if Horiuchi was "making up [a] story" to justify his actions.

In addition to the decision being simply common sense, and clearly in line with the intentions of the Founders, the decision is also supported by precedent. One case in particular is US v. Drury, a Supreme Court precedent from 1906, in which US soldiers were accused of having executed a civilian in their custody. In Drury, the Court ruled that any time there was an allegation that federal agents acted unlawfully in carrying out their duties that the state could prosecute.

The Court decision notes that it does not even go as far as Drury in saying that anytime there is an allegation of illegal action that a federal agent can be charged in state court. In Horiuchi the FBI acknowledges Horiuchi's actions were unlawful, but they maintain he cannot be prosecuted anyway.

The Ninth Circuit decision does have some problems. For example, over the objections of some dissenters, (and against the wishes of Idaho) the majority said that the trial should take place before a judge rather than before a jury of Idaho citizens.

As the distinguished Yale Constitutional scholar Akhil Reed Amar has shown, the Anglo-American tradition has always required that criminal offenses be tried before a "jury of the vicinage":

a jury of the `vicinage': one composed of citizens of the locality where the blood had spilled. The vicinage rule derived from the local community's right to self-government, a right to judge for itself, via the jury, what had happened and how to respond. . . . The basic idea of jury trial in cases like the Boston Massacre, the Rodney King beating, and the Diallo killing is that the people directly affected by government officers should be the ones who judge them.

The Ninth Circuit ruling on this issue seems to be wrong, and issues such as that make it likely to be reviewed by the US Supreme Court, before the Horiuchi trial actually begins. 

from eco logic

http://www.eco.freedom.org/el/20010602/clark.shtml

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