Justia Federal District Court Opinions

7

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

8

At the time, killing a fleeing suspect was lawful. See Drury, 200 U.S. at 8. The law has changed in this regard, so that killing a fleeing suspect is legal only in limited circumstances. See pp. 6945-6 infra.

9

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 ("[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.").

10

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 6987. 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 6987-8. 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. 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 pp. 6952 infra. Unlike the dissent, we do not see these differences from past cases as cutting in Horiuchi's favor.

11

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 (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.

12

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.

13

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.

14

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.

15

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 6991-2. 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 6972 n.1, 6990. 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 (1949) (Frankfurter, J., dissenting).

16

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.

17

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.

18

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.

19

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.

20

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 6996 ("[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.

21

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.

22

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.

23

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.

24

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 7002. 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.

25

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.

26

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.

27

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.

28

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.

W. 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 873-874. 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. Johnson, 515 U.S. 304 (1995)); Robinson v. Via, 821 F.2d 913, 921 (2nd 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.

In United States v. Bailey, 444 U.S. 394 (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.

Bailey, 444 U.S. at 416.

The Supreme Court also emphasized the importance of the jury in United States v. Gaudin, 515 U.S. 506 (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. 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. 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 (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 selfdefense. 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.

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.

HAWKINS, Circuit Judge, with whom Chief Judge SCHROEDER, RYMER, SILVERMAN, and GRABER,* Circuit Judges, join, dissenting:

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.1

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, 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 (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 (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 (1890). Neagle established that federal officers were immune from state prosecution for acts committed within the reasonable scope of their duties.2 The case began in a squalid dispute over the legitimacy of a purported California marriage between 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.3 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. 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. 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.

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. 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. The state of California then charged Neagle with murder; he in turn sought habeas corpus relief from the federal courts.4

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. The Court explained that this was emphatically not a question that was appropriate for a jury: "The circuit court 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 (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.

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 entrusted 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 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 (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 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 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 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 (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 (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).5

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.6 None of these four cases bears any resemblance to this one.

In the first case, United States ex rel. Drury v. Lewis, 200 U.S. 1 (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. 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. This presented a substantial conflict in the testimony, suggesting that the officers may have acted with deliberate criminal intent.7 The Supreme Court stressed that habeas relief was "an exceedingly delicate jurisdiction," id. at 7, and concluded that the trial court did not abuse its discretion in denying habeas relief, id. at 8.

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 734.8

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.9 Where precisely these contours lie it is not necessary to decide.10 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.

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 (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 they should not be held personally liable for their mistakes. Id. at 641 (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 (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 (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.11

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.12

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, 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.