Ruby Ridge Deaths Raise Problem of Whether States Can Prosecute Federal Agents

Citation upon Presentation of the Thomas Jefferson Memorial Foundation Medal in Law

Former U.S. Solicitor General Seth Waxman received the 2002 Thomas Jefferson Foundation Medal in Law.

Federal officials' immunity to state prosecution is in urgent need of definition by the legal academy, former Solicitor General of the United States Seth Waxman said in remarks April 11 on accepting the 2002 Thomas Jefferson Foundation Medal in Law. Issues of federalism were prominent in his four years as Solicitor General, the post that serves as the chief advocate for the U.S. government, its officers and agencies in cases before the U.S. Supreme Court and the federal appellate courts. The 26th recipient of the Law Medal, Waxman served in the Clinton administration and stepped down in 2001. He is now a partner in the law firm of Wilmer, Cutler & Pickering and the Distinguished Visitor from Practice at the Georgetown University Law Center. His speech was titled "On Ruby Ridge: Federalism, Law Enforcement and the Supremacy Clause."

The problem of balancing the rule of the supremacy clause and the powers of the states became manifest when the state of Idaho charged FBI Hostage Rescue Team sharpshooter Lon Horiuchi in the death of Victoria Weaver at her cabin on Ruby Ridge, Idaho. Weaver's husband, Randall, a white supremacist, had refused to appear in court to answer gun-trafficking charges. A special forces veteran, Weaver confronted law enforcement officers conducting surveillance of his cabin and a deputy U.S. marshal and Weaver's son Sammy were killed in a firefight.

Waxman (L) and Law School Dean John C. Jeffries, Jr. talk at the medal ceremony at the Rotunda.

The elite FBI team was rushed to the scene and in a later encounter, Horiuchi fired into the cabin from 200 yards away, intending to hit Randy as he went inside and instead killing Vicki Weaver, who had been standing behind the cabin door. Federal authorities argued that no charges were warranted because Horiuchi had not willfully intended her death. State prosecutors contended he had been reckless and negligent in shooting without knowing if anyone was behind the door.

Idaho ultimately dropped its charges against Horiuchi, but not before Waxman had to confront the question of whether it is within the power of states to hold federal officers accountable for actions undertaken as part of their federal duties. State lawyers claimed that immunity under the supremacy clause was an "archaic anomaly."

"The interrelationship of governmental authorities in law enforcement is legally undeveloped," Waxman said. Given that federalism's purpose is desirable—to prevent the consolidation of powers into a single government—how is the supremacy clause, which asserts the supremacy of the U.S. Constitution and federal law over laws passed by the states, to be practically reconciled with the 10th Amendment, which reserves to the states and the people those powers not expressly contained in the Constitution?

The "long doctrinal border" between the two principles has a higher profile recently because of Supreme Court "anti-commandeering" decisions that are "injecting vitality" into the 10th Amendment, he said.

"When, if ever, and to what extent may states hold federal officials responsible for actions undertaken in their official duties," he asked. "This could make it impossible for the federal government to function. But federal employment shouldn't mean immunity from state law. The 'etiquette of federalism' has got to leave states free to make their own laws except where they conflict with national laws."

In the only precedent for the issue, an 1890 California case in which a U.S. Marshal shot a man who appeared to be threatening to harm a Supreme Court Justice (who in those days still rode circuit to judge cases), the court found that an officer is immune so long as he was performing an authorized act and it was necessary as part of his duty. But because Horiuchi's case was never resolved, Waxman expects the matter of supremacy clause immunity to state criminal liability to reappear. He cited Reconstruction, the Prohibition era and the Civil Rights movement as periods where states manifested strong disagreements with federal policies and where they might again want to assert control over the actions of federal officers. Furthermore, he said, police power is the "traditional paradigmatic state power."

The Supreme Court's anti-commandeering rulings greatly complicate the United States' ability to enforce national law, he said, and the attacks of Sept. 11 bring that problem in to sharp relief.

Waxman challenged the faculty to heed the signs. "Next time, the legal academy should be ready for these issues," he said. "Ladies and gentlemen, start your search engines!"