Judge Kozinski dissented, writing that in an effort to protect Horiuchi, whose actions were patently unconstitutional, the majority opinion materially weakened the standard for the use of deadly force that heretofore had constrained law enforcement personnel in the Ninth Circuit.
[W]e conclude that the second shot violated the Constitution. We recommend that the circumstances surrounding the second shot be reviewed by the appropriate component of the Department of Justice for prosecutive merit.
U.S. Department of Justice, Office of Professional Responsibility.1
Besieged by a platoon of FBI agents with high-powered rifles, two armored vehicles and a helicopter, the suspects at Ruby Ridge posed no immediate danger. There was no chance they could escape and take hostages. There was plenty of time to call out a warning, and there were many occasions to give the suspects a chance to surrender. Instead, FBI Agent Lon Horiuchi shot and killed Mrs. Weaver.
A Senate Committee, the Justice Department's Office of Professional Responsibility and a prior panel of this court all have concluded the shooting was patently unconstitutional. See Harris v. Roderick, 126 F.3d 1189, 1203 (9th Cir. 1997), cert. denied sub nom. Smith v. Harris, 522 U.S. 1115 (1998). Because the majority's contrary ruling creates a square intra- circuit conflict and throws a monkey wrench into our law governing the proper use of deadly force, I strongly dissent.
The facts here are largely not in dispute.2 Six Deputy U.S. Marshals, dressed in camouflage gear and armed to the teeth, came onto the Weaver property in the dead of night, without announcing their presence or wearing visible identification. They got into a shootout which left one deputy and the Weavers' son dead. More than thirty hours later, FBI agents surrounded the Weaver cabin, which was located in the middle of the forest, far from any bystanders; they overflew the area by helicopter several times. The FBI agents did not announce their presence nor did they give the occupants an opportunity to surrender. Instead, the agents remained concealed and watched the cabin through the scopes of their rifles. Those in the cabin first learned of the FBI's presence when Horiuchi opened fire.
Horiuchi fired two shots. The first was arguably justified by what he claims was a menacing gesture from Mr. Weaver in the direction of the helicopter. How Horiuchi could tell the man was threatening the helicopter is a bit of a mystery, since Horiuchi admitted that he had no clue where the helicopter was.3
But Idaho is not prosecuting Horiuchi for that shot. Rather, it is the second shot--fired some twenty seconds later--that is the basis of the state's prosecution. When Horiuchi was taking aim for this shot, the three people who had ventured outside the cabin were running headlong toward it. They were facing the cabin and away from the helicopter. They were not aiming their weapons. They were making no menacing gestures. Running for their lives, they threatened no one. As the Department of Justice investigators observed: "[E]ven giving deference to Horiuchi's judgment, we do not find that the second shot was based on a reasonable fear of an immediate threat to the safety of officers or others." DOJ Report, note 1 supra, at Section IV.F.3.c.(3) (internal quotation marks omit- ted).4 Yet, Horiuchi calmly took aim and shot to kill. That he aimed at Harris, thinking it was Mr. Weaver, but actually killed Mrs. Weaver does not help Horiuchi. His confusion as to the target only proves he was reckless in pulling the trigger.
What justification can there be for shooting a man who is completely surrounded by heavily armed law enforcement agents? The sum and substance of the majority's reasoning is as follows: "Had [Horiuchi] hesitated for even a few seconds or called out a warning . . . Harris could have fled into the cabin, taking up a defensive, armed position." Maj. Op. at 6274 (emphasis added). See also id. at 6275 ("he was running to a place where he could rearm, regroup, and take up a defensive position"); id. at 6274 ("Once inside [the cabin] Harris could take up a defensive position where he could shoot out, but the officers could not shoot in without the danger of harming a child.").
Since when does taking up a defensive position justify the use of deadly force? Taking a defensive position may have kept the suspects from being apprehended right away, but it would have posed no immediate threat to the officers. Missing from the majority's justification for the shooting is any indication that, once inside the cabin, Harris would pose an immediate threat to life and limb. Absent a threat, the FBI agents were not entitled to kill; rather, they should have employed one of the many other measures at their disposal, such as:
Once the trigger is pulled and life is taken, all these options are foreclosed; the chance for a bloodless resolution is lost. Allowing the suspects to take a defensive position gives them time to think, to consider, to weigh their options, to calculate the risks to themselves and their children. It can lead to a peaceful surrender, as it did eight days later. It is therefore immensely troubling that the majority today holds--for the first time anywhere--that law enforcement agents may kill someone simply to keep him from taking up a defensive position. This conclusion runs contrary to a long line of deadly force cases, all of which hold that only an immediate threat to life and limb will justify an intentional killing by law enforcement agents. See, e.g., Graham v. Connor, 490 U.S. 386, 396 (1989) (review of officer's use of force requires "attention to the facts and circumstances of each particular case, including . . . whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."); Tennessee v. Garner, 471 U.S. 1, 11 (1985) ("Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."); see also Harris, 126 F.3d at 1201 (Police "may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officer or others, or is fleeing and his escape will result in a serious threat of injury to persons.").
Horiuchi claims he was entitled to kill Harris to prevent him from shooting at the helicopter from inside the cabin. But killing Harris was not even remotely necessary to ensure the safety of the helicopter. To begin with, while Horiuchi may have heard the helicopter's engine,5 he did not see it or know where it was;6 he had no reason to believe that it was hovering within range of small arms fire from the cabin. Quite the contrary: During a reconnaissance mission earlier that day, he had observed the helicopter pilot taking precautions. According to Horiuchi, the helicopter "popped over the hill low and then came back over." Horiuchi Testimony, note 3 supra, at 191 (June 4, 1993).7 The helicopter had also flown several other missions over the area without incident.
Moreover, Horiuchi was in radio contact with the FBI command center and could have called out a warning. 8 In the time it would have taken the three to run into the cabin, take positions at the windows and commence shooting, Horiuchi could have warned the helicopter to move out of range. While an officer need not exhaust remote alternatives before resorting to deadly force, see Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir. 1997), his failure to employ an obvious non-deadly alternative can make his use of deadly force unreasonable. See Brower v. County of Inyo, 884 F.2d 1316, 1317-18 (9th Cir. 1989) (inquiry into reasonable non-deadly alternatives is important to establishing that deadly force was necessary to prevent escape).
But put all else aside and consider only Horiuchi's admission that he made no separate decision whether to take the second shot: "I had already made that determination after that first shot, so if I saw him again[,] I was going to shoot at that individual again." Horiuchi Testimony, note 3 supra, at 107 (June 3, 1993). Horiuchi's testimony, which the majority overlooks, is crucial in light of Hopkins v. Andaya, 958 F.2d 881, 887 (9th Cir. 1992), where we held that the justification for the use of deadly force, once established, does not continue indefinitely. If circumstances change and the threatened danger abates, deadly force may cease to be reasonable. As the DOJ investigators observed, "the circumstances which justified the first shot were significantly changed by the time the second shot was taken. There had been no return of fire or further threatening action, there had been no surrender announcement, and most significantly, the targets were retreating into the cabin." DOJ Report, note 1 supra, at Section IV.F.4. The majority creates a direct conflict with Hopkins by holding that law enforcement officers are entitled to gun down a suspect even after he no longer poses an immediate danger to anyone.
There is another big problem with Horiuchi's second shot: He was aiming at the wrong target. The individual he claims to have observed holding a long gun and looking menacingly in the direction of the helicopter was Weaver, not Harris. Horiuchi then observed three people--two of them similarly dressed males--running toward the cabin. In his testimony, Horiuchi admits he could not tell the two men apart; in fact, he shot the wrong one.9 Any suspicion Horiuchi had that Weaver might shoot at the helicopter could not be attributed to Harris simply because he was nearby and dressed alike. The matter would be different if Horiuchi had reasonably believed he was in the grips of a firefight. See Clifton v. Cox, 549 F.2d 722, 729 (9th Cir. 1977). But Horiuchi makes no such claim, and by adopting its "defensive position" rationale, the majority recognizes that this was not a fire fight. While we will not lightly second-guess decisions made by law enforcement officers in the heat of battle, this was not the heat of battle and caution was therefore appropriate.10 A menacing gesture by one of the individuals outside the cabin did not give Horiuchi the right to gun all of them down in cold blood.
I also find it highly significant that Horiuchi, alone among the agents surrounding the cabin, considered the danger serious enough to open fire. Even after Horiuchi's first shot rang out, Harris and the Weavers were not peppered by bullets from the other sharpshooters hidden in the hills above the cabin. As the DOJ Report observed, "Many of the sniper/ observers saw three people running to the cabin after the first shot. None reported any action that could immediately be interpreted as threatening to the helicopter or the sniper/ observers." DOJ Report, note 1 supra, at Section IV.F.3.c.(3). If Horiuchi was justified in shooting, all the other FBI sharp-shooters must have been derelict in holding their fire.
Finally, I return to the immovable fact that the occupants of the cabin were given no opportunity to surrender before deadly force was unleashed against them. Giving a warning and opportunity to surrender is not just an aspirational goal; it is a required step before deadly force may be used. It is true that we have qualified this requirement with such phrases as "where feasible," see, e.g., Forrett, 112 F.3d at 420, but this does not mean warnings can be dispensed with whenever they would be inconvenient. A warning and an opportunity to surrender must always be given before deadly force is used, unless doing so would materially increase the danger to law enforcement personnel or bystanders. This contemplates a narrow class of cases, such as where the suspect has opened fire, pulled a gun, or credibly threatened vulnerable targets.
It is conceivable that Horiuchi was entitled to take his first shot without giving a warning,11 but thereafter neither Harris nor Mr. Weaver nor anyone else connected with the cabin was shooting or even aiming weapons at any vulnerable targets. To become a threat again, as Horiuchi supposedly feared, they would have had to enter the cabin, take their places at a window and start shooting. This interval gave Horiuchi plenty of time to shout out a surrender demand.12
Nor was this the only interval when a warning could--and should--have been given. FBI agents had staked out the Wea- ver cabin since earlier that morning, while the shooting took place in late afternoon. Obviously, those involved in the operation had ample time to give the necessary warning before deploying agents with shoot-on-sight orders.13 Even after Horiuchi and his team had taken their places around the cabin, approximately half an hour passed during which the Hostage Rescue Team members could have called out a warning and given those in the cabin a chance to surrender. It was wholly unreasonable for Horiuchi to open fire, knowing that the civilians at whom he was aiming were unaware of the danger and had no chance to surrender rather than die. Accord Harris, 126 F.3d at 1203. That all the other sharpshooters held their fire tells us all we need to know on this score.