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Citizenzhip Choose Who You Will Serve by Alfred Adask Several articles in Volume 10 The 9th Circuit Court of Ap- degree murder instead of man- No. 1 explored the concept of peals has answered that ques- slaughter. citizenship. This next article tion two different ways [crimi- Then why didnt they? Pro- continues that exploration with nally, he could not be pros- fessional courtesy for fellow gov- a series of email which express ecuted; civilly, he could] and ernment employees? common concerns about govern- its now being asked to rule When Horiuchi fired, he was ment abuse but neglect to con- again. mindlessly shooting to kill on sider the relevance of citizen- The case is highly signifi- sight, firing blindly a 200-yard ship. cant, and raises issues of the shot through a door, the peti- For example, the first seg- greatest importance and of na- tion states. Mrs. Weaver was ment of this article is based on tional concern, said Stephen killed by a wild-headed govern- an email entitled 9th Circuit Yagman, a Los Angeles attorney ment sniper in violation of our Rules Murder OK If Its Doing who is working with Boundary Constitution, and still is dead. Your Job from Jail4 Judges.1 County Prosecutor . to pros- The allegation that Horiuchi This email focused on the law- ecute FBI sniper Lon Horiuchi for was mindless and wild- suits and criminal charges that manslaughter. If Horiuchi cant headed justifies charging him have stemmed from the 1992 be charged, Yagman said, This with second-degree murder standoff between federal agents changes the entire law with re- rather than first-degree murder and Randy Weavers family at the spect to the use of force. since first-degree requires evi- Weavers Ruby Ridge cabin.2 Absolutely. If government dence of intent. That is, to con- I suspect that the Weaver agents are immune from pros- vict Horiuchi of first-degree mur- case may illustrate something ecution for shooting unarmed der, youd have to show he in- important about the nature of mothers holding babies, they can tended to kill Vickie Weaver and citizenship. Ive reprinted ex- get away with shooting anyone, did not shoot as a mindless, cerpts from the email below in anytime, for any reason. Of wild-headed sniper firing a ran- brown and interjected my own course, I dont mean they can get dom round in the general vicin- comments in black or [brack- away with shooting rich people, ity of the victims. Nevertheless, eted] text. judges, lawyers or government the prosecutors second-degree officials. But niggers, wetbacks, allegation is implausible. First, and po white trash who (in Horiuchi is reputed able to hit a governments opinion) comprise target the size of a quarter at 100 hould federal agents who about 80% of the population can yards. He is arguably one of the Skilled a woman and child surely be shot without legal re- finest hit men whos ever con- and wounded two men at Ruby percussion. tracted to kill for the FBI. His Ridge be immune from prosecu- In its petition for rehearing, reputation for accuracy belies tion or lawsuits simply because the county said it could have any claim that he accidentally they were doing their jobs? charged Horiuchi with second- shot Vickie Weaver in the head. AntiShyster Volume 10, No. 2 www.antishyster.com adask@ gte.net 972-418-8993 53 The shot was almost certainly wrench into our law governing munities are not the same, nor straight, true, intended and done the proper use of deadly force. do they serve the same purposes. on orders from his superiors. He added, Perhaps most trou- Immunity under the Supremacy Further, if it were true that bling, the opinion waters down Clause from state criminal pros- Horiuchi acted mindlessly when the constitutional standard for ecution may cover instances in he accidentally shot Vickie the use of deadly force by giving which qualified [civil?] immunity Weaver, Horiuchi shouldve been officers a license to kill even does not apply. relieved of duty by the FBI. In- when there is no immediate Judge Kozinski responded, stead, Horiuchi went on to play threat to human life, so long as This might be a plausible argu- a sniper role in the Waco siege. the suspect is retreating to `take ment but for the fact that pre- Its inconceivable that the FBI, up a defensive position. This has cisely the same test applies as having suffered serious adverse never been the law in this circuit, to both: Did the officer act con- public exposure by Horiuchis or anywhere else Im aware of, stitutionally? What protects an mindless, wild-headedness in except in James Bond movies. I officer from civil and criminal li- Ruby Ridge would risk being fear this change in our long- ability is the lawfulness of his badly exposed again by the same standing law. [Emph. add.] actions. If the officer does some- man in the super-sensitive stand- thing unlawful, Kozinski said, off at Waco. The 9th Circuit Courts rul- states should be able to enforce Boundary county tried to ing is being appealed. In the their criminal laws. prosecute Horiuchi for man- meantime, Harris $10 million Exactly! But while it may be slaughter for Vickie Weavers civil lawsuit against the federal civilly unlawful to damage an- death, but a three-judge panel of government is also headed back other 14th Amendment citizen- the 9th Circuit Court ruled 2-1 to the 9th Circuit, after a U.S. subject, it may not be criminally in June, 2000, that Horiuchi district judge ruled last month unlawful to kill the very same couldnt be charged. The 9th that five of the eight agents Har- 14th Amendment citizen-subject. Circuits Horiuchi ruling came ris sued, including Horiuchi, However, would it be criminal to under the Supremacy Clause of must stand trial. kill that same person if that indi- the Constitution, saying the state Thus, it appears possible vidual were not a 14th Amend- couldnt prosecute Horiuchi for that while Horiuchi is not person- ment citizen-subject? actions taken in pursuit of his ally liable for criminal prosecu- Harris lawsuit charges that duties as a federal law enforce- tion (under the common law?), federal agents violated his 4th ment officer. the government may be civilly Amendment right to be free from If the (corporate?) state cant liable (under the 14th Amend- unreasonable search and seizure prosecute, what about private ment?). and excessive force. He also alleges prosecution by the Weaver fam- Its earlier decision in the battery and false imprisonment. ily? Harris case dealt with qualified If you read the definition of In that decision, dissenting immunity, a similar concept. In Incorporation in the 7th Edition Judge Alex Kozinski wrote that the June ruling, the majority of of Blacks Law Dictionary, youll the decision throws a monkey the court argued, The two im- discover, In all Chicagoland . there’s only one STONEBRIDGE VILLAGE Magnus, Alexander paid 101-106 APARTMENTS5K each issue AND PENTHOUSES A complex of 586 large apartments . in a 45-acre, beautifully landscaped park-like setting. Ten minutes from con- venient shopping at Woodfield Mall. Only 45 minutes from the Chicago Loop. Luxurious and innovative living accommodations plus a full rage of recreational facilities for your to enjoy. and now offering 600 Rand Rd., Arlington Heights Il 60004 NEW REGAL SUITES (708) 394-3434 54 AntiShyster Volume 10, No. 2 www.antishyster.com [email protected] 972-418-8993 Constitutional law. The pro- Amendment and therefore Keven to kill civilians, and for civilian cess of applying the provisions Harris (presumably a 14th survivors to sue the federal gov- of the Bill of Rights to the states Amendment citizen) suit against ernment for abuse? Is there a by interpreting the 14th the government is lawful. But hypothesis that might explain Amendments Due Process note that if Mr. Harris had sued that seeming inconsistency? Clause as encompassing those under the 2nd or 5th Amend- Consider the farmers cows. provisions. In a variety of opin- ments, his suit mightve been The farmer can milk his cows; ions since 1897, the Supreme summarily dismissed since 14th take the cows calves and sell Court has incorporated all of the Amendment citizens claim to them for veal; he can even kill Bill of Rights except the follow- those rights cant fully sustained. his cows and butcher them into ing provisions: (1) the Second Point: there are two kinds of citi- steaks and roasts. Amendment right to bear arms, zenship, and your rights depend But what happens if I were to (2) the Third Amendment prohi- on which citizenship you claim. go to the farm and try to milk bition of quartering soldiers, (3) the cows? What happens if I try the Fifth Amendment right to to sell the calves or butcher the grand-jury indictment, (4) the n the face of it, its hard cows? The farmer will charge me Sevenths Amendment right to a Oto make sense of the with trespass or theft. jury trial in a civil case, and (5) courts seemingly inconsistent Why can the farmer milk, rob the Eighth Amendment prohibi- verdicts: The Weaver survivors or butcher the cows but I cant? tion of excessive bail and fines. can file civil charges against the Because theyre his cows. (Emph. add.) federal government for damages Likewise, why can govern- This doctrine of incorpora- theyve suffered due to Sam and ment kill Sam and Vickie Weaver? tion implies that only some of Vickie Weavers deaths, but the Perhaps because they were gov- the rights guaranteed in the Bill state cant file criminal charges ernment cows.
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