State v. Horiuchi, 215 F.3d 986 (9th Cir. 2000)

No. 98-30149.

Argued and Submitted June 9, 1999

Filed June 14, 2000

Denise Woodbury, Prosecuting Attorney, Boundary County, Idaho, Stephen Yagman, Special Prosecutor, Joseph Reichmann and Marion R. Yagman, Special Deputy Prosecutors, Yagman & Yag-man & Reichmann, Venice Beach, California, Ramsey Clark, Special Deputy Prosecutor (argued), New York, New York, for the plaintiff-appellant.

Earl J. Silbert, Adam S. Hoffinger, Robert A. Salerno, Piper & Marbury, Washington, D.C., for the defendant-appellee.

Before: KOZINSKI and FERNANDEZ, Circuit Judges, and SHUBB,* District Judge.

Opinion by Judge SHUBB; Dissent by Judge KOZINSKI.

SHUBB, District Judge:

The State of Idaho appeals from the judgment of the district court dismissing the criminal case against FBI Special Agent Lon Horiuchi. See Fed.R.Crim.P. 12(b). The criminal complaint, charging Horiuchi with the crime of involuntary manslaughter, was initially filed in Idaho state court. Specifically, the complaint alleged that Horiuchi:

Horiuchi removed the prosecution to federal court pursuant to 28 U.S.C. § 1442(a)(1). The district court dismissed the charge on the ground that the Supremacy Clause1 protected Horiuchi from prosecution because the criminal case sought to punish Horiuchi for actions taken in pursuit of his duties as a federal law enforcement officer. We affirm.

FACTUAL BACKGROUND

On August 21, 1992, there was an outstanding warrant for Randall Weaver, Vicki Weaver’s husband, based on weapons trafficking charges. On August 21, 1992,

several federal agents (Horiuchi not among them) went to serve the warrant at the Weaver Ranch at Caribou Ridge (a.k.a. “Ruby Ridge”). The agents encountered Randall Weaver, his teenage son Sammy, and friend Kevin Harris on the road leading to the ranch. A gun battle erupted during the encounter. Deputy Marshal Degan was shot and killed, as was Sammy Weaver.2 The federal agents did not know that Sammy was killed. Randall Weaver and Kevin Harris retreated to the ranch with Sammy’s body and placed it in the birthing shed, a structure on the Weaver property.3

That same day, the F.B.I. dispatched a response force to the area, including the Hostage Rescue Team to which Horiuchi belonged as a sniper. Horiuchi was a highly trained marksman qualified to hit a quarter of an inch target at 220 yards. He was also trained to hit a moving target. Upon arrival, Horiuchi was briefed. According to Horiuchfs trial testimony, the briefings included, among other things, that Deputy U.S. Marshal Degan had been shot and killed during a fire fight near the Weaver residence; that during the fire fight, the Marshals were pinned by indiscriminate fire; that either Harris, Randall Weaver or Vicki Weaver was involved in the shooting of Deputy Degan; that Randall Weaver had been in the military attached to a special forces unit; that the individuals in the cabin had a habit of coming out of the cabin armed;4 that whenever the dogs barked, Randall Weaver sent one of the Weaver children to a rock outcropping to look for the source of the disturbance and to report back to him; that Randall Weaver may have called in or had assistance from other individuals either living in the area or from outside the area moving into the location; that the Marshals had been attempting to effect an arrest of Randall Weaver for a firearms violation; and that the decision had been made that any team members going up the hill toward the cabin were in danger.

Finally, Horiuchi was briefed on the final rules of engagement that the FBI had developed for the Ruby Ridge crisis. The ordinary Rules of Engagement provide that an FBI agent may use deadly force only in self defense or with reason to believe that they or another are in danger of grievous bodily harm. The FBI modified these rules for the Ruby Ridge crisis. Originally, the team was told to shoot any armed adult if the shot could be taken without risk of harm to a child. Later that day, the rules were modified and restricted to advise that deadly force could be used against any armed adult male if the shot could be taken without a child being injured.

The following day, Horiuchi, armed with a high-powered .308 caliber rifle with a ten power telescopic scope, took a position approximately two to three hundred yards from the Weaver ranch. From his position, Horiuchi had a direct view of the cabin’s side. He could also see the front porch and back deck of the cabin. He could not see the front door when it was closed. If the front door opened, he could see it, but could not see inside the cabin.

At Weaver’s trial, Horiuchi testified that at around 5:45 or 5:50 p.m., a young woman came out of the cabin and moved toward the rock outcropping. She remained outside for a few minutes before returning inside. Horiuchi did not fire at the young female because she was not armed and he assumed she was a child. Right after the female went back inside the front door, a male exited the back door of the cabin to

the back deck and appeared to be checking some ponchos or blankets before returning inside. Horiuchi did not fire at the male because he did not appear to be armed.

Horiuchi further testified that, a few minutes later, he heard a helicopter crank up on the valley floor, lift off, and then he saw it disappear behind the trees. Horiu-chi heard the helicopter flying either behind him or to his right or left, but he could not see it. The federal agents used helicopters to get an overview of the land.

Within ten seconds after the helicopter lifted off, two males and a young female (later identified as Harris, Randall Weaver, and Weaver’s teenage daughter Sara,) exited the cabin and ran toward the rock outcropping. This outcropping had been described to Horiuchi during his briefing as a lookout position. The three were dressed similarly, in dark clothing. The last individual out the door, a male, had a long gun held in a “high port” carry, meaning up high and near his chest. The three disappeared from Horiuchi’s view for about three to five seconds. They reappeared again past the rock outcropping for another three to five seconds and then disappeared again.

Horiuchi told his partner to stay on the front door of the residence while he looked through the trees to see where the three individuals had disappeared. Horiuchi thought they were moving to defensive positions located along the rock outcropping. Next, he saw the man carrying the long gun come around the corner of the birthing shed. The man picked up a stick, prodded the ground, and looked in the air in the area above and to the right of Horiuchi. Horiuchi heard the helicopter in the area where the man was looking, and thought the man was looking at the helicopter. The man moved out of Horiuchi’s sight for a few more seconds. His partner remained on the front door.

When the man reappeared, he carried the weapon in the high port position and scanned the area above and behind Horiu-chi’s location. Horiuchi assumed the man was looking at the helicopter. The man continued to move along the side of the building with the gun in a high port carry “like he was getting ready to use it.” Hor-iuchi believed the man would try to take a shot at the individuals in the helicopter so he fired at the armed man. At the time, Horiuchi believed that he had missed, but he in fact had lightly wounded the man. The man turned the comer behind the birthing shed.

Within ten to twenty seconds of Horiu-chi’s first shot, the three ran back to the cabin. A man carried the rifle and followed about ten yards behind the other man and the teenage girl, who ran together.5 Horiuchi assumed that the man with the rifle was the same man who he believed was attempting to shoot at the helicopter and who he had shot at earlier. In fact, the first man Horiuchi shot at was Randall Weaver and the man now carrying the rifle was Kevin Harris. Horiuchi assumed that this man was moving back to the house to get in a more protected location, and decided to shoot him. He knew that once the man reached the house, the man could shoot at Horiuchi, his fellow agents, or the helicopter, but the agents could not shoot back because of the children. Horiuchi was trying to prevent the man from getting back into the house.

Horiuchi testified that Harris ran at a high rate of speed toward the cabin, slowed down, paused, and then continued through the door. Specifically, Horiuchi testified that, “He [Harris] had his weapon in his right hand and he was reaching out with his left hand. It appeared to me like he was trying to hold the door open or moving somebody out of the way, and that’s the time I shot.” Harris flinched

and disappeared in the house. It was approximately 6:00 p.m.

Horiuehi had “led” Harris to account for the distance that Harris would move while the bullet traveled the intervening two hundred yards. Consequently, the cross hairs of the rifle were on the open door a few inches ahead of Harris. Unfortunately, unbeknown to Horiuehi, Vicki Weaver was on the far side of the door, holding it open, out of Horiuchi’s view. The bullet struck her in the head, killing her. It then struck Harris in the shoulder.

At the Weaver trial, Horiuehi testified that he could not see through the door, did not know if someone was behind the door, had not seen Vicki Weaver, and only intended to hit Harris. He did not consider his shot a shot into the house.

The front door to the cabin opens out. The bullet went through the lower right-hand pane of glass on the top half of the cabin’s front door. The top half of the door was glass with six divided panes. There were denim curtains that could be pulled over the window. It is disputed whether the curtains over the glass portion of the door were open or closed at the time of Horiuchi’s shot. Sara Weaver testified at the preliminary hearing that her family never closed the curtains. However, it was determined at Randall Weaver’s trial that the bullet hole in the curtain lines up with the bullet hole in the glass only if the curtain is pulled across the glass.

The witnesses testify differently as to where Vicki Weaver was standing right before and when Horiuehi fired the fatal shot. Horiuehi says he did not see her. Randall Weaver testified at the preliminary hearing that Vicki Weaver had been standing three or four feet beyond the porch holding the baby just after he was shot at the birthing shed, but that he had not seen her until he had been shot. However, when questioned regarding Vicki Weaver’s location when she was shot, Randall Weaver testified that, “She came out of the house with the baby- — she might have been on the porch. I don’t know to be honest with you. I know that she had the baby when she hollered at me and she was holding the baby when we went through the door.”

Sara Weaver testified at the preliminary hearing that her mother was holding the door open as Sara, Randall Weaver, and Harris were running for the door. During direct examination, Sara testified that after the first shot her mother stepped out of the door and yelled “what happened?” Sara further stated that, as she stumbled into the house, her mother was standing right in front of the doorway. However, in cross-examination, she clarified her earlier testimony and stated that she does not remember if Vicki Weaver was outside the threshold of the door. Neither Randall nor Sara Weaver saw the bullet hit Vicki Weaver.

After a review of the record, the district court concluded:

Based on these conclusions, the district court held that Horiuehi was entitled to immunity from criminal prosecution under the Supremacy Clause of the Constitution of the United States, and dismissed the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(1). See Fed. R.Crim.P. 12(b)(1).

DISCUSSION

Because the district court neither held an evidentiary hearing nor purported to resolve any disputed issues of fact, and the critical facts necessary to resolve the legal issues are not in dispute, our stan

dard of review is de novo. See United States v. Head, 783 F.2d 1422, 1423 (9th Cir.1986).

In the leading case of Cunningham v. Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890) (also known as In re Neagle), the Supreme Court considered a petition for writ of habeas corpus filed by Deputy United States Marshal Neagle. Sarah and David Terry had publicly threatened the life of Justice Field, who had presided over a case involving them in his capacity as Circuit Justice for the Ninth Circuit. Consequently, Neagle had been assigned to protect Justice Field during his travels in California, the Terrys’ home state. While briefly stopped in Fresno en route from Los Angeles to San Francisco, the Terrys boarded the train carrying Justice Field. David Terry attempted to provoke a fight with Justice Field, and when Terry appeared to reach for a knife, Deputy Neagle shot him to death. The State of California brought criminal charges against Neagle.

The Supreme Court granted the petition for writ of habeas corpus. In considering the “supremacy of the government of the United States,” the Court held:

Neagle, 135 U.S. at 62, 75, 10 S.Ct. 658.

Subsequent cases have developed this holding into a doctrine of immunity. See Kentucky v. Long, 837 F.2d 727 (6th Cir.1988); Morgan v. California, 743 F.2d 728 (9th Cir.1984); Baucom v. Martin, 677 F.2d 1346 (11th Cir.1982); Clifton v. Cox, 549 F.2d 722 (9th Cir.1977); see also Connecticut v. Marra, 528 F.Supp. 381 (D.Conn.1981); In re McShane, 235 F.Supp. 262 (N.D.Miss.1964); In re Lewis, 83 F. 159 (D.Wash.1897). To be entitled to immunity under this doctrine, the defendant must show two elements: first, the act must have been within the scope of official authority; second, the defendant must have honestly and reasonably believed the act to have been necessary and proper under the circumstances. See Clifton, 549 F.2d at 726, 728. The second element of the test thus has both objective and subjective elements. See id. at 728.6

A. Immunity is Properly Decided on a 12(b) Motion

Horiuchi brought this motion to dismiss based on Supremacy Clause immunity under Federal Rule of Criminal Procedure 12(b). We must first decide if immunity is properly decided on such a motion. Rule 12(b) provides for pretrial motions to dismiss raising “[djefenses and objections based on defects in the indictment or information....” Fed.R.Crim.P. 12(b)(1). The Advisory Committee Notes to this provision, adopted in 1944, state that such “objections and defenses” include “all defenses and objections which are capable of determination without a trial of the general issue ... [including] ... former jeopardy, former conviction, former acquittal,

statute of limitations, immunity, lack of jurisdiction, failure of indictment or information to state an offense, etc.” Fed. R.Crim.P. 12(b)(1) and (2) Advisory Committee Notes.

When possible, Supremacy Clause immunity is an issue that should be determined before trial in order to avoid making the federal officer go through an entire state criminal procedure if he is immune. See Long, 837 F.2d at 752. We thus agree with the Sixth Circuit’s holding in Long that “as a general proposition ... a Rule 12(b) motion is a proper vehicle by which to assert the defense of immunity under the Supremacy Clause of the United States Constitution.” Id. at 750.

B. Scope of Authority

The district court found that the State has conceded that Horiuchi was acting within the scope of his duties at the time of the shooting of Vicki Weaver. The State does not dispute this issue on appeal.

C. Necessary and Proper

We therefore turn to the question of whether Horiuchi’s actions were “necessary and proper” under the circumstances. This determination requires an inquiry into whether Horiuchi honestly (subjective standard) and reasonably (objective standard) believed his actions to be necessary and proper. See Clifton, 549 F.2d at 728-29. Horiuchi does not have to “show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be.” Id. at 728.

The district court found that Horiuchi honestly and reasonably believed that the intentional shooting of Mr. Harris was necessary and proper based upon existing circumstances at Ruby Ridge on August 22, 1992. The record supports this finding.

First, there is nothing in the record to dispute the district court’s finding that Horiuchi’s subjective belief that his actions were necessary and proper was honestly held. The State has presented no evidence of evil or malicious intent, nor has the State shown any facts to dispute Hori-uchi’s state of mind. In fact, the state only charged Horiuchi with manslaughter, a crime that is specifically charged as being “without malice.”

Second, the record supports the district court’s finding that Horiuchi’s belief was objectively reasonable. The entire period of time between when Horiuchi took the first shot at Randall Weaver and the second shot at Harris lasted only a few seconds. During these few seconds, he saw two men come out of the cabin who he assumed correctly were Randall Weaver and Kevin Harris. Horiuchi had been briefed that either Harris or Weaver had killed a federal agent just the day before. He knew at least one of them was armed, as he saw one carrying a rifle. He had been briefed that the residents of the cabin always were armed. While carrying the rifle in a “high port” position, “like he was getting ready to use it,” the armed man scanned the sky looking toward the area where the helicopter filled with federal agents hovered. Horiuchi took his first shot at the armed man, so the men were aware that he was nearby. All three disappeared from view for a few seconds, and then Horiuchi saw all three individuals running back to the cabin. One of the men (Harris), hung back slightly from the other two, carrying a rifle. Horiuchi fired his second shot.

We have previously addressed the question of when a law enforcement officer may use deadly force against an escaping felon. In Forrett v. Richardson, 112 F.3d 416 (9th Cir.1997), we interpreted the Supreme Court’s holding in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), regarding the constitutional use of deadly force. Gamer held:

threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Garner, 471 U.S. at 11, 105 S.Ct. 1694. In Forrett, we held that, under Garner, it was reasonable for officers to shoot Forrett, a suspect in a vicious assault during a home invasion robbery, to prevent his escape. Forrett had eluded officers for over an hour, vaulting fences and removing clothing. He was fleeing into a residential area where he could easily have taken hostages. We held that even if his capture were inevitable, deadly force was still reasonable because there was a substantial risk that Forrett would cause death or serious bodily harm if his apprehension were delayed. See Forrett, 112 F.3d at 420-421.

Like Forrett, Harris presented a greater danger to the officers and to others if he got back inside the cabin, in part because the cabin provided cover from the marshals. Once inside, 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. Further, Harris could rearm himself and regroup with the others in the cabin. Horiuchi had been briefed that Randall Weaver may have called on or had assistance from other individuals in the area. He knew that all of the Weavers were armed; in fact, the initial gun battle where Marshal Degan was killed occurred because the Marshals were trying to arrest Randall Weaver for a firearms violation. Finally, Horiuchi knew that either Randall Weaver or Harris had shot and killed a marshal and that the armed man had just threatened a helicopter filled with federal agents; clearly the armed man was dangerous.

Horiuchi knew it would be difficult, if not impossible, to apprehend the man once he re-entered the cabin, due to the presence of the Weaver children. Had he hesitated for even a few seconds or called out a warning (even assuming that Harris could have heard him from 200-300 yards away), Harris could have fled into the cabin, taking up a defensive, armed position.

Courts must avoid the temptation to dissect the events which flashed before a police officer in a matter of seconds and to over scrutinize the officer’s response to those events. It is all too easy for judges pondering a cold record in the sanctity of their chambers to second guess the split-second decisions of the officer on the scene. As Judge Trott recently observed: “In cold print, the events ... appear one way, but as they were unfolding ..., they surely had a different cast and immediacy.” LaLonde v. County of Riverside, 204 F.3d 947, 962 (9th Cir.2000) (Trott, concurring in part and dissenting in part).

Faced with a dangerous armed man who was running to an area where he would present a greater danger, Horiuchi had less than a few seconds to make a decision. In the words of Justice Holmes, “[d]e-tached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921). Harris was a suspect in the shooting of a federal marshal; he was threatening a helicopter; he was running to a place where he could rearm, regroup, and take up a defensive position. Horiuchi did not see Vicki Weaver standing behind the open door with the curtains closed. He had no reason to believe that a woman holding a baby would be standing outside the threshold of the cabin, but hidden by the open door, after her husband had been shot at by an unknown agent. Horiuchi saw no danger to others, and he shot. He only intended to hit Harris.

The district court’s finding that Horiuchi reasonably believed that shooting Harris was necessary and proper under the circumstances is supported by the evidence. Today, all must regret the tragic result. However, given the circumstances at the

time, Horiuchi made an objectively reasonable decision.

The facts in Clifton v. Cox, 549 F.2d 722 (9th Cir.1977) are closely analogous to the present situation. In Clifton, we considered murder charges brought by the State of California against Bureau of Narcotics and Dangerous Drugs agent Lloyd Clifton. Clifton had been involved in a helicopter raid on the cabin of Dirk Dickenson, a suspected manufacturer of drugs. As Clifton exited the helicopter, fellow agent Fil-ben crumpled to the ground. Believing that Filben had been shot, Clifton kicked in the door of the cabin and charged at Dickenson. Dickenson fled into the woods. Clifton called at him to halt; Dickenson did not. Believing that Dickenson had shot his fellow agent, and that Dickenson would pose a greater danger to the other agents if he reached the shadows of the woods, Clifton shot him. Dickenson died. He turned out to be unarmed, and Filben had simply tripped. Relying on Neagle, we found Clifton to be immune from state court prosecution. Clifton acted within the scope of his authority, and his conduct was necessary and proper under the circumstances. See Clifton, 549 F.2d at 728-29.

In Clifton we found that the agent’s behavior was objectively reasonable. Clifton incorrectly believed that a federal officer had just been shot, that the suspect was armed, and that the suspect, though fleeing, would present a greater threat to the pursuing agents if he reached the safety of the woods. Here, the facts are even more persuasive than in Clifton. Horiuchi knew a federal officer had been shot; he knew that Harris was armed; he thought that Harris had threatened the helicopter; and he thought that Harris would present a greater threat to the agents if he reached the safety of the house.

The State claims that here, unlike in Clifton, the evidence is “hotly disputed,” and thus, under Morgan v. California, 743 F.2d 728 (9th Cir.1984), the court should not have granted the motion to dismiss. Morgan is distinguishable. There, we considered whether the circumstances warranted a conclusion that the officers were in fact acting within the scope of their official duties at the time of the state-law violations. Several Drug Enforcement Administration agents had, apparently while drunk, backed their car into the car of a civilian couple. According to the couple, the agents brandished their guns and threatened the couple with arrest. The State of California charged the agents with several misdemeanor violations, including driving under the influence, assault with a deadly weapon, brandishing a firearm, and unlawful use of force.

The agents in Morgan petitioned for a writ of habeas corpus, claiming that when the incident occurred they had been en route to a meeting with an informant. The State, however, contended that the agents had merely been on their way to another bar. We reversed as an abuse of discretion the district court’s granting of the writ, on the ground that disputed issues of material fact rendered this particular controversy “hotly disputed.” Id. at 733. In reversing the order granting the writ of habeas corpus, we held that:

In the present case, unlike Morgan, the evidence is not “hotly disputed.” The State argues that it is unclear where Vicki Weaver was standing at the time of the fatal shot, and therefore it is disputed whether Horiuchi saw her. Horiuchi states that he did not see Vicki Weaver. The State has produced no evidence that is materially inconsistent with Horiuchi’s tes

timony. Although the State points to the testimony of both Sara Weaver and Randall Weaver that each saw Vicki Weaver come outside of the house, (thus implying that Horiuchi should have seen her), neither one can place her outside the threshold of the door in a location that Horiuchi could see, at the time the fatal shot was fired. Sara Weaver testified that as she stumbled into the house, her mother was standing right in front of the doorway. She did not, however, remember if Vicki Weaver was outside the threshold of the door.

Although Randall Weaver testified that Vicki Weaver had been standing three or four feet beyond the porch holding the baby just after he was shot at the birthing shed, when questioned regarding Vicki Weaver’s location when he was running back toward the house, Randall Weaver did not know where she was standing. “She came out of the house with the baby — she might have been on the porch. I don’t know to be honest with you. I know that she had the baby when she hollered at me and she was holding the baby when we went through the door.” Neither Sara nor Randall Weaver’s testimony is inconsistent with Horiuchi’s testimony that he did not see Vicki Weaver.

Horiuchi states that he never saw Vicki Weaver. Once Randall Weaver, Sara Weaver, and Kevin Harris came outside the cabin, he watched them, often through the narrow scope of his rifle. He told his partner to stay on the front door. Even taking as true Randall Weaver’s uncertain testimony that his wife might have been three to four feet off the porch at the time that he was shot, this testimony is not inconsistent with Horiuchi’s testimony that he never saw Vicki Weaver.

The State points to Horiuchi’s own testimony that as Harris ran toward the house, “[h]e [Harris] had his weapon in his right hand and he was reaching out with his left hand. It appeared to me like he was trying to hold the door open or moving somebody out of the way, and that’s the time I shot.” Although Horiuchi’s statement is not clear, it does not imply that Vicki Weaver was outside the threshold of the door, that Horiuchi saw her, or that he knew she was behind the door. The district court did not, as is argued by the State, improperly decide a disputed issue of fact; Horiuchi’s testimony that he never saw Vicki Weaver and did not know she was behind the door is not disputed.

Finally, the State would have us hold that it was objectively unreasonable for Horiuchi to shoot because the rules of engagement were obviously unconstitutional. We need not pass on the constitutionality of the rules of engagement as such. It is Horiuchi’s conduct, not the rules of engagement, which must be judged.

The State cites extensively to Harris v. Roderick, 126 F.3d 1189 (9th Cir.1997), where Kevin Harris filed a Bivens suit claiming that Horiuchi used deadly force unconstitutionally. The district court denied Horiuchi’s and the other agents’ motion to dismiss on the ground of qualified immunity. On interlocutory appeal, this court upheld the district court’s holding. With regard to Horiuchi’s claim for qualified immunity, this court stated: “[I]t is extremely doubtful ... that Horiuchi will ever be able to establish that he is entitled to qualified immunity for his conduct in shooting Harris ... as the record now stands, he cannot do so.” Id. at 1202.7

Although predicated on the same incident, this court’s decision in Harris is not applicable to the case before us now. The court there determined only that Horiuchi could not establish qualified immunity on a motion to dismiss. Accordingly, all state

ments made in Harris were based on the untested allegations of Harris’ complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999)(in determining qualified immunity the court must take the allegations in the plaintiff’s complaint as true). The court did not consider many facts apparent on the record in this case, such as Horiu-chi’s belief that the armed man was a threat to the helicopter. In the present case, the court must determine Horiuchi’s claim for supremacy clause immunity based on the evidence as presented here.

Moreover, Harris was decided on the issue of qualified immunity, not supremacy clause immunity. The State wrongly attempts to collapse the standards of qualified immunity into the “objectively reasonable” prong of supremacy clause immunity. The two immunities are not the same, nor do they serve the same purposes. Immunity under the Supremacy Clause from state criminal prosecution may cover instances in which qualified immunity does not apply. Supremacy Clause immunity derives from a specific provision of the Constitution itself, the purpose of which is to establish that federal law is the supreme law of the land. Accordingly, a federal agent doing his job in a way that is necessary and proper should not be held to answer to a state court criminal charge. In Bivens claims, on the other hand, qualified immunity protects a federal agent from being sued in a civil case by an individual for violating the person’s constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800, 814-815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Katz v. United States, 194 F.3d 962, 967 (9th Cir.1999) (Qualified immunity analysis is the same for Bivens actions against federal officials as it is for claims against state officials under 42 U.S.C. § 1983.). Thus, the concern addressed by supremacy clause immunity— protecting a federal agent from being held to answer to state laws-is not at issue in qualified immunity.

Supremacy clause immunity needs to be more protective than qualified immunity because it protects federal agents from the severity of being criminally convicted and having to face state criminal sanctions. Qualified immunity simply protects against monetary sanctions in a civil suit. Further, the federal government itself, not just the agent, has a real stake in upholding supremacy clause immunity. In sum, the two immunities are separate and there are no grounds for collapsing the two.

The judgment of the district court dismissing the charge against Horiuchi is therefore AFFIRMED.

KOZINSKI, Circuit Judge, dissenting:

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, 118 S.Ct. 1051, 140 L.Ed.2d 114 (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.

I

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 Hori-uchi 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: “[Ejven 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 omitted).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 wp a defensive, armed position” Maj. Op. at 994 (emphasis added). See also id. at 994 (“he was running to a place where he could rearm, regroup, and take up a defensive position”); id. at 994 (“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, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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, 105 S.Ct. 1694, 85 L.Ed.2d 1 (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 Horiuehi’s admission that he made no sep

arate decision ivhether 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 swpra, 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 Hori-uchi’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. Hori-uchi then observed three people-two of them similarly dressed males-running toward the cabin. In his testimony, Horiu-chi 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 firelight. 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 Hori-uchi, alone among the agents surrounding the cabin, considered the danger serious enough to open fire. Even after Horiu-chi’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 sharpshooters 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 Weaver 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.

II

As the majority recognizes, the standard for granting a motion to dismiss on grounds of Supremacy Clause immunity is whether the officer’s actions were objectively reasonable. • Maj. Op. at 993. Precisely the same standard applies to qualified immunity claims in police' brutality cases. See LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir.2000) (“Under the Fourth Amendment, police may use only such force as is objectively reasonable under the circumstances.” (citing Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989))). The identity of language is no coincidence; it reflects the fact that the question, in both types of cases, is exactly the same: Did the agent’s conduct violate the Constitution? Our cases, as well as those from the Supreme Court, make it clear that law enforcement officers may not take human life unless they reasonably believe that doing so is necessary to prevent death or injury to officers or to bystanders. Here, there were no bystanders; the operation took place in the middle of nowhere. And there was no legitimate threat to the agents as they were concealed from view hundreds of yards away from the cabin.

This case is therefore quite different from Clifton, on which the majority relies. In that case, federal agents stormed the cabin of a suspected drug dealer. Clifton, 549 F.2d at 724. During the raid, it looked as if the suspect had shot one of the agents. An agent who sees a colleague felled before his eyes obviously has a reasonable fear he might be next. Even then, Clifton gave the suspect an opportunity to surrender by twice shouting for him to halt and each time waiting to see if he would comply. Only when it looked like the suspect would reach the woods, where he might escape and take hostages, did Clifton fire. See id. Here, Horiuchi shot-and then shot again-without giving the suspects a chance to surrender. Nor did Horiuchi believe that the suspects had just shot a fellow officer; there had been no shooting on the property for over thirty hours. As the Senate Committee that spent many months investigating this incident concluded, Horiuchi’s second shot was objectively unreasonable:

Senate Report, note 5 supra, at 1119 (citations omitted) (emphasis added). The Department of Justice rejected Horiuchi’s justification for the second shot in even more categorical terms:

not believe it was reasonable to perceive an immediate threat as they ran back into the cabin. Once the family was back in the cabin, the potential threat to the safety of the helicopter and law enforcement personnel was more remote than when Horiuchi had earlier believed that the armed male was about to position himself to shoot at the helicopter. Although we believe Harris and the Weavers knew that law enforcement personnel were present, no call out or surrender announcement followed the first shot. The subjects were never given a chance to drop their arms to show that they did not pose a threat. The subjects simply did what any person would do under the circumstances: they ran for cover.

DOJ Report, note 1 supra> Section TV. F.3.c.(3) (footnotes omitted).

Our own court considered this question in Harris, a case involving the same incident. Harris was the Bivens action brought against Horiuchi and other federal agents for injuries suffered as a result of the shooting. Horiuchi argued that he was entitled to qualified immunity, raising the same “defensive position” argument the majority embraces here: “Horiuchi asserts that the shot he fired while Harris was trying to return to the cabin was objectively reasonable because Harris presented a greater danger when he was in the cabin than when he was outside.... ” 126 F.3d at 1203. Harris categorically rejected this argument:

Id. at 1204.

The majority tries in vain to distinguish Harris by arguing that the panel there “did not consider many facts apparent on the record in this case, such as Horiuchi’s belief that the armed man was a threat to the helicopter.” Maj. Op. at 1000. But any threat to the helicopter could justify only Horiuchi’s first shot-which he took after he allegedly saw one of the men look menacingly in the direction of the helicopter. Once the man started running toward

the cabin, the immediate threat to the helicopter ceased. The helicopter could have been warned to move out of range, if such warning were even necessary. See pp. 1000-01 supra. Neither this fact, nor any other, distinguishes this case from Harris.

The majority also suggests that Horiu-chi is entitled to more latitude because different standards should apply to claims of Supremacy Clause immunity than to those of qualified immunity. See Maj. Op. at 997. This might be a plausible argument but for the fact that precisely the same test applies as to both: Did the officer act constitutionally? I don’t understand how an officer could have acted unconstitutionally for purposes of qualified immunity and yet constitutionally for purposes of Supremacy Clause immunity. Either the officer’s actions complied with constitutional norms or they did not. Nor do I see how the standards can be disaggregated conceptually. What protects an officer from civil and criminal liability is the lawfulness of his actions. But if the officer’s actions are found to be unlawful, it is difficult to see how or why the Supremacy Clause would stand in the way of a state’s legitimate interest in the enforcement of its criminal laws.

The majority creates a square conflict with Harris, and with many of our other cases that strictly limit the circumstances under which an officer may use deadly force. See, e.g., Forrett, 112 F.3d at 420; Hopkins, 958 F.2d at 887. Perhaps most troubling, the opinion waters down the constitutional standard for the use of deadly force by giving officers a license to kill even when there is no immediate threat to human life, so long as the suspect is retreating to “take up a defensive position.” This has never been the law in this circuit, or anywhere else I’m aware of-except in James Bond movies. Because the 007 standard for the use of deadly force now applies to all law enforcement agencies in our circuit-federal, state and local-it should make us all feel less secure. In an effort to protect a defendant who lost his head and acted in a patently unconstitutional manner, the majority has materially weakened the standard that heretofore constrained all law enforcement personnel in the Ninth Circuit. Because I fear this change in our long-standing law, I must register my dissent.