DOJR - IV. Specific Issues Investigated (Part F)

DEPARTMENT OF JUSTICE REPORT ON INTERNAL REVIEW REGARDING THE RUBY RIDGE HOSTAGE SITUATION AND SHOOTINGS BY LAW ENFORCEMENT PERSONNEL

IV. SPECIFIC ISSUES INVESTIGATED

F. FBI's Rules of Engagement and Operations on August 21 and August 22, 1992

1. Introduction

The issues addressed in this part of our inquiry concern the initial response to the crisis by law enforcement agencies directed by the FBI and the decisions made to resolve the crisis.

During the early hours of the crisis, in addition to the movement of personnel and equipment, the primary concerns were to stabilize the situation and to gather intelligence. Throughout this early period, FBI officials were formulating a proposed plan of action -- also referred to as an "operation plan" or "operational plan" -- and specialized "Rules of Engagement" ("Rules").

It has been alleged that during this initial period negotiations were ignored as a strategy and that only tactical responses were considered. Indeed, the FBI has been criticized for its failure to contact the occupants of the Weaver residence until Saturday evening, after the sniper shots had been fired and Vicki Weaver had been killed. We have been told by observers on the scene that law enforcement personnel made statements that the matter would be handled quickly and that the situation would be "taken down hard and fast." [FN528] Some individuals have contended that the helicopter flights over the Weaver compound were designed to lure the subjects out so that they could be targets for the snipers who were under orders to shoot and kill armed adult men.

Furthermore, it has been alleged that the FBI's operations plan and Rules of Engagement were developed to eliminate witnesses to the shootout on August 21 in retaliation for the death of Deputy Marshal Degan. Of particular concern are the Rules of Engagement, which instructed the FBI Hostage Rescue Team ("HRT") sniper/observers that they "can and should" use deadly force against any armed adult male, even before a surrender announcement had been made to the subjects or notice given that law enforcement was present. The Rules have been interpreted as unlawful "orders to shoot" by their severest critics and as being inappropriate for the situation or being unartfully drafted by others. It has been charged that the Rules used at Ruby Ridge were orders to shoot, which violated federal and state law and the FBI's own standard policy on the use of deadly force.

In this section we examine the factors considered in the formulation of the Rules and the reasonableness of some of these considerations, including the belief that the Weaver/Harris group was aware of law enforcement's presence and that every armed individual in the Weaver compound intended to cause bodily harm to law enforcement personnel. We also examine the intent of those who reviewed and approved the Rules and whether the Rules and the procedures used to develop and authorize their use conformed with FBI policy.

Finally, we evaluate those who operated under the Rules of Engagement and the actions they took while at Ruby Ridge. This portion of the report examines the circumstances surrounding the two rifle shots fired by HRT member Lon Horiuchi on August 22, 1992 and whether the ensuing death and injuries were the result of lawful acts.

2. Statement of Facts

a. The Formulation of Rules of engagement En Route to Idaho on August 21, 1992

When FBI tactical teams, such as HRT or SWAT, are deployed and confrontations are a possibility, Rules of Engagement are commonly established. Rules of Engagement are described as instructions to deployed units or individuals that clearly indicate what action should be taken when confronted, threatened, or fired upon by someone. They are intended to provide a context within which decisions about the use of deadly force are to be made. They serve two purposes: to restrict the application of the standard FBI deadly force policy or to heighten the awareness of tactical personnel regarding the threat level of individual situations. Formulation and approval of the Rules of Engagement are the responsibility of the on- scene commander. [FN529]

The need for special Rules of Engagement for the Ruby Ridge crisis was discussed and agreed upon at an early point. While en route to Northern Idaho, Richard Rogers, Commander of the HRT, and Assistant Director Larry Potts had a series of conversations in which Potts advised Rogers of intelligence received. [FN530]

[FN531]

Rogers explained his initial thoughts about the Rules of Engagement:

In this particular situation, after hearing the description of what had taken place, specifically the fire-fight, the loss of a marshal, it was clear to me that there was a shooting situation taking place at this location. It appeared to me that it would have been irresponsible for me to send my agents into the situation without at least giving them a set of rules within the greater framework of the standard FBI rules, that would allow them to defend themselves. With that in mind, I proposed that the rules be that if any adult is seen with a weapon in the vicinity of where this fire-fight took place, of the Weaver cabin, that this individual could be the subject of deadly force... [A]ny child is going to come under standard FBI rules, meaning that if an FBI agent is threatened with death or some other innocent is threatened with death by a child, then clearly that agent could use a weapon to shoot the child... that's the way it's stated, but quite frankly, we try to prevent ourselves from being put in positions where children can threaten us and where we would have to use deadly force. [FN532]

When asked if he had considered the possibility that an adult might be seen with a weapon slung on his shoulder or carried in a nonoffensive way, Rogers replied:

Yes, it was considered, and it's always my knowledge that my sniper observers and my other team members are clearly going to make a judgmental call as to whether to employ deadly force, and based upon the training, based upon the experience of these men, I know that they have absolutely the best judgment when it comes to use of deadly force. [FN533]

Rogers acknowledged that the Rules of Engagement he proposed specified that any adult with a weapon observed in the vicinity of the Weaver cabin or in the firefight area "could and should be the subject of deadly force." [FN534] According to Rogers he discussed this rule with FBI Assistant Director Larry Potts who concurred fully. [FN535]

[G.J.] [FN536]

Potts considered the information provided by the Marshals Service to be the basis of the proposed Rules of Engagement. He recalled the proposed Rules of Engagement as providing that:

Any adult with a weapon who was observed in the vicinity of Randall Weaver's cabin or the fire fight area, COULD be the subject of deadly force. All efforts should be made to avoid any confrontation with children, but if such a confrontation became unavoidable, that faced with the threat of death or grievous bodily harm, the standard FBI use of deadly force policy would be in effect. [FN537]

According to Potts, he and Coulson believed that this crisis was the most dangerous situation into which the HRT had ever gone. Potts recalled that:

I was extremely fearful of sustaining casualties while attempting to establish a perimeter at the crisis site, since the subjects possessed every tactical advantage. I was concerned that the subjects had been reinforced by others, and I considered every armed adult in the vicinity of the Weaver cabin to be potentially hostile and a threat to HRT personnel. I believed that Randy Weaver knew that a warrant existed for him, and knew a DUSM had been killed, he would have known that law enforcement personnel would be in the vicinity. I was also concerned that the deceased DUSM may not have made and immediate determination of the threat and had lost his life as a result...

These ROE were established to assist the HRT personnel in making a determination regarding what constituted a threat to them in this extraordinary circumstance. The ROE were not intended to supersede the FBI standard deadly force policy. The final determination regarding such implementation of deadly force must always remain with the individual... and each individual must make an individual, final determination of threat. [FN538]

Potts did not discuss the Rules of Engagement with the FBI's Legal Counsel Office during this crisis. He noted that legal review is not usually solicited because Rules of Engagement are written to fall within the bounds of the FBI's standard deadly force policy.

Michael Kahoe, Section Chief of the Violent Crimes and Major Offenders Section FBI Criminal Investigative Division at FBI Headquarters, spoke to John Sauls, Supervisory Special Agent with the Legal Instruction Unit at the FBI Academy, on August 21 at approximately 5:00 p.m. (EDT) about the Rules for the crisis in Idaho. Sauls told Kahoe that two primary assessments needed to be made. First, there should be a determination of "dangerousness," that is, whether there was probably cause to believe that someone had caused or attempted to cause death or serious bodily harm to agents or other persons. According to Sauls, the fact that the subjects had apparently intentionally fired upon and killed a marshal indicated that they were dangerous. Second, Sauls spoke of the need to assess the "necessity" to use deadly force to resolve the crisis situation and to gain "control" of the situation or to protect the lives of other individuals. [FN539]

Sauls told Kahoe that the element of dangerousness could be assessed by persons who were not at the scene. However, the second element of necessity could be determined only by on-scene personnel. Sauls defined having control of the situation as being when a subject was "in custody" and not merely forced into a position where movement was restricted, such as in a fortified house. [FN540]

Kahoe asked Sauls "if agents encounter armed adults in the compound (around the Weaver house), would deadly force be permitted?" Sauls responded that deadly force would be permitted "if they refuse to surrender." However, Sauls stressed that he meant that on-scene personnel had permission to use deadly force, but that it was certainly not required. According to Sauls, only the agents at the scene could decide whether deadly force was necessary. [FN541]

Around 6:30 or 7:00 p.m. (EDT) on August 21, Kahoe told Sauls that a plan was being formulated to permit snipers to fire at Randy Weaver and Kevin Harris from concealed positions around the Weaver cabin. Sauls explained that, as long as there was a "continued demand for surrender which the subjects continued to ignore, and they maintained themselves in a barricaded situation" the use of the tactics described by Kahoe would be permissible and within the FBI's deadly force policy. [FN542]

No additional legal advice regarding the Rules was solicited from within the FBI. The legal advisor from the FBI's Salt Lake City Division was not at the scene. He reported that after the first few days all legal advice came from the Office of Legal Counsel, FBI Headquarters. Indeed, he was never consulted about the Rules of Engagement and was unaware of their existence until sometime after the siege had terminated. [FN543]

Nor did the FBI officials drafting the Rules consult with the United States Attorney's Office having jurisdiction over the crisis. Assistant U.S. Attorney Ron Howen arrived at the crisis site shortly after the crisis began and remained there until the situation was resolved. While at the crisis scene, he provided legal advice and legal assistance regarding the preparation of legal documents, such as an affidavit supporting the government's request to obtain electronic surveillance of the cabin, and he forwarded information to the U.S. Attorney in Boise. Howen did not participate in any discussion about the operations plan or Rules of Engagement, and he was not involved in formulating or approving any of the operations plans or the Rules of Engagement. The local Boundary County prosecutor, who was also on site during the crisis, was also not consulted.

Coulson recalls that the proposed Rules of Engagement "were words to the effect of 'any armed adult outside the Weaver cabin or on Ruby Ridge could be the subject of deadly force.'" [FN544] The basis for these Rules was Coulson's belief that the subjects knew that law enforcement personnel were on the scene and that a marshal had been shot after the slain marshal had announced his presence. Furthermore, Coulson believed that a "call out" or surrender announcement was not feasible in the early stages of the operation. Coulson reasoned:

If the subjects had retreated and had barricaded themselves in the Weaver cabin, it was my belief that the only reason for this could be for an armed confrontation with law enforcement officers. It was my belief that as soon as the HRT personnel arrived in the area, they would be in grave peril.... It was also my belief that it was a possibility that supporters of Randy Weaver would attempt to reinforce him and assist in armed resistance. Due to the uncontained and remote nature of the crisis site, I was gravely concerned that this either had occurred or would occur. I was concerned that Weaver and or his associates would tactically move about in order to ambush law enforcement personnel. I believed that HRT personnel might observe subjects preparing to ambush law enforcement components who did not realize they were being threatened. [FN545]

Coulson considered the children in the Weaver cabin hostages because he assumed that they did not have the option of leaving voluntarily. Notwithstanding this belief, he feared that the children might shoot at law enforcement personnel, who attempted to rescue the marshals. In the early stages, Coulson did not know whether they might be captured if not immediately rescued. Coulson believed that Weaver's family and his associates would defend him and that Weaver's supporters would attempt to reinforce Weaver and assist in armed resistance. He believed that the subjects had already demonstrated their willingness and ability to kill law enforcement personnel because they had shot deputy Marshal Degan after he had identified himself as a marshal. Coulson believed that the individuals inside the Weaver cabin knew that law enforcement personnel were outside the cabin and, thus, he reasoned that if an armed adult appeared outside the Weaver residence with the weapon, it was reasonable to assume that the individual intended to commit hostile acts against law enforcement personnel.

In addition, Coulson was aware of the possibility that Randy Weaver had Explosives/Ordnance Device training due to his army experience, and believed that Weaver had received Special Forces training, designed to give a tactical advantage to small groups of highly trained people. Because of Weaver's Army experience and his history as a white separatist, Coulson expected that the Weaver property might contain fortifications and remote -controlled explosive devices. Coulson was aware that which separatists frequently armed family members, including wives and children, that they fortified their property against assault, engaged in tactical training with associates, usually belonged to highly trained, heavily armed groups, and were extremely dangerous and frequently willing to engage law enforcement personnel. [FN546]

After Potts had approved the Rules of Engagement, Rogers told Smith that HRT believed that the Rules should be modified because of the circumstances of which they were aware. Smith understood the Rules as allowing "any adult armed with a long arm outside of the cabin to be shot." Smith told this inquiry that he had never modified standard Marshals Service shooting policy, which, he noted, is similar to that of other law enforcement agencies and allows deadly force to be used when human life is in danger. He interpreted the FBI's Ruby Ridge Rules as more liberal than the Marshal Service's standard policy. Nevertheless, he thought the Rules were appropriate, reasonable, and necessary in this case because it was probably that a federal marshal or agent would be confronted by armed individuals. Smith was concerned that law enforcement personnel could be harmed during the operation.

Smith was not called upon to approve the Rules of Engagement because the FBI was responsible for the tactical operation. Nonetheless, he briefed the director Hudson and Twomey on the Rules and relayed them to Special Operations Group ("SOG") Commander John Haynes when he arrived at the command post. Smith intended that the marshals operate under the same Rules of Engagement as the FBI because the FBI was in charge of an operation, for which the Marshals Service would provide support.

Smith recalls that the Rules were changed, so that "any adult male who is armed with a rifle should be neutralized". He understood "adult males" to include Kevin Harris, Randy Weaver, and any other male carrying weapons whom the agents or marshals encountered on the mountain. [FN547] Although he did not recall the operative words "can and should" in the Rules, he did not interpret those words as mandating that marshals or agents shoot. Smith stated, "there was nothing said that would cause a deputy or agent to substitute these rules for good judgment." [FN548]

b. Formulation of the Rules of Engagement and Operations plan on August 22

When the remaining HRT members arrived, they went to the National Guard Armory in Bonner's Ferry, Idaho, where HRT Commander Rogers briefed them at 9:00 a.m. (PDT). [FN549] Rogers told the HRT members and SOG snipers that the Rules of Engagement had not yet been approved, and that HRT sniper/observer coordinator Lester Hazen would brief the sniper/observers before their deployment. The proposed Rules of Engagement provided at the initial briefing were:

Any adult with a weapon who was observed in the vicinity of Randall Weaver's cabin or the fire fight area, could and should be the subject of deadly force.

Following he briefing, the HRT travelled to Ruby Creek at the base of the mountain on which the Weaver cabin was located and began to establish tactical operations centers. This involved unloading and erecting command and bunk tents, clerical equipment and supplies, and weapons systems. Some HRT members began to assimilate the massive amount of information provided by the Marshals Service and local law enforcement agencies. [FN550]

While these organizational activities were in progress, HRT supervisors were engaged in the drafting of the operational plan. McGavin prepared the original draft of the Rules. After reviewing this draft, Rogers told McGavin to scratch out what he had originally written and the proceeded to discuss with McGavin and Hazen what he wanted in the Rules. Rogers told McGavin to insert the "and should" clause into the Rules. McGavin believed that Rogers inserted those words to convey his perception, based on the briefing he had received, of the extreme risk posed by Weaver. [FN551] Hazen contributed the final paragraph to the Rules. Rogers testified that the words that comprised the Rules were his words and that McGavin and Hazen wrote them down to provide the sniper/observers and other team members with Rules that "clearly reflect what I know I had approved through our chain of command." [FN552] These rules were:

If any adult in the compound is observed with a weapon after the surrender announcement is made, deadly force can and should be employed to neutralize this individual.

If any adult male is observed with a weapon prior to the announcement deadly force can and should be employed if a shot can be taken without endangering the children.

If compromised by any dog the dog can be taken out.

Any subject other than R, V, + K, presenting threat of death or grievous bodily harm FBI rules of deadly force apply. [FN553]

Once at the site, Rogers proposed to Glenn that several things be done quickly. First, communication should be established with the people in the cabin or in bunkers, if there were any. Next, Rogers wanted to "call-out," to let the subjects know that the FBI was there and that there were warrants for their arrest. Finally, and most importantly, he wanted to ask them and give them the chance to surrender to law enforcement authorities, which, according to Rogers, is "standard procedure." [FN554] Since law enforcement personnel had not surrounded the cabin, Rogers also wanted to place sniper/observers around the site to cover law enforcement personnel and to cordon the site. [FN555]

Rogers testified that when the FBI makes an arrest, it tries to notify the subjects of the arrest that the FBI is present with a legitimate arrest warrant. This surrender announcement or "call-out" was going to be accomplished in this instance by agents going to the cabin area in armored personnel carriers and broadcasting the message with a megaphone or loud hailer. At the same time, the agents would drop off a phone at the site. [FN556] Rogers considered armored personnel carriers necessary protection for his agents. He saw no alternative to taking a phone to the cabin in the carrier beaus of the offensive posture the Weavers and Harris had taken. [FN557]

Along with these plans, Rogers submitted the proposed Rules of Engagement to Glenn at a morning meeting also attended by Gore, Rogers, Smith, and HRT and Marshals Service supervisors. At the meeting, a number of options were discussed. [FN558] One plan Rogers suggested involved the HRT first establishing a perimeter around the compound followed by the Marshals service making a tactical entry into the cabin. When this proposal was presented to Louis Stagg, Deputy Commander of the SOG, Stagg recused his personnel from this task because he was concerned that any injuries to or deaths of the subjects might be construed as retaliation by the Marshals Service. Thereafter, it was agreed that the HRT would perform the entry, if necessary, but that one marshal would participate in making the formal arrests. [FN559]

Glenn's assessment of the level of threat presented by the situation affected the development of the Rules of Engagement. He believed that Weaver's children were well trained and capable of firing at law enforcement and he knew at the same time that law enforcement officers are reluctant to fire at children, even when their own lives are in danger. Therefore, he was greatly concerned that tactical personnel on the inner perimeter and personnel attempting to assault the cabin might be exposed to serious injury from the children. Glenn was also extremely concerned that subjects leaving the cabin with firearms would pose a danger to law enforcement personnel because they were well versed on the terrain while the agents and officers had virtually no knowledge of the mountainous conditions or the "booby traps" possibly in place. Finally, Glenn worried that if any subjects entered the "bunker network" which might exist, they could fire on law enforcement officers in a manner that would make an effective response or defense impossible. [FN560]

[G.J.]

[G.J.] [FN561]

When the HRT is activated, a proposed operation plan is written for resolving the situation. According to Rogers, when the HRT faces "a hostage situation or a barricaded subject situation, such as at Ruby Ridge," the plan includes "a proposed tactical resolution" that includes an "assault" or "a plan to send people inside the building to effect an arrest." [FN562]

Any deliberate assaults must be approved by FBI Headquarters. The plan for such an assault is contained in an operations plan. At Ruby Ridge, McGavin prepared such a plan. McGavin discussed a deliberate assault with Rogers and told him he did not want to send a team into a situation in which an encounter with armed children seemed likely and agents might have to kill a child to defend themselves. Rogers agreed, but recognized that an operations plan had to be written. McGavin wrote a plan realizing that the crisis should be resolved, if at all possible, through action designed to minimize the prospect of armed engagement with the subjects. [FN563]

McGavin drafted a plan, which included the travel of armored personnel carriers ("APCs") to the Weaver compound, attempts to contact Weaver with a loudspeaker or hostage phone, and the establishment of a 360 degree perimeter. Glenn, with the understanding that the situation was "extremely dangerous and highly volatile," approved the following Rules of Engagement in the plan before sending the plan to FBI Headquarters for approval:

1. If any adult male is observed with a weapon prior to the announcement, deadly force can and should be employed, if the shot can be taken without endangering any children.

2. If any adult in the compound is observed with a weapon after the surrender announcement is made, and is not attempting to surrender, deadly force can and should be employed to neutralize the individual.

3. If compromised by any animal, particularly the dogs, that animal should be eliminated.

4. Any subjects other than Randall Weaver, Vicki Weaver, Kevin Harris, presenting threats of death or grievous bodily harm, the FBI rules of deadly force are in effect. Deadly force can be utilized to prevent the death or grievous bodily injury to oneself or that of another. [FN564]

According to the Marshals Service Crisis Center log, the operation plan was being assembled by HRT and SOG at 10:30 a.m. (PDT) on August 22. At noon, it was reported that the "operations plan [was] going forward to insert sniper team. Team should be in place in approximately two hours." [FN565] According to the plan, after the sniper teams were in position, the FBI negotiation team would move forward and attempt to contact the subjects. However, one half hour later, it was reported that the FBI was having difficulty obtaining armored personnel carriers. An entry in the crisis center log stated: "General Manning of the Idaho National Guard has refused to provide vehicle support to the FBI." [FN566] At 1:50 p.m. (PDT) U.S. Marshal Michael Johnson reported that SOG and HRT had completed the operational plan which he described as follows:

1. Contain perimeter of compound with HRT snipers.

2. Two armored personnel carriers will be deployed to the compound and loud speakers will be used to order the suspects to surrender.

3. If Weaver or his older son (sic) Exit the residence armed the snipers will neutralize them.

4. If there is no contact, then the APCs will retreat leaving the snipers in place.

5. The following day the APCs will return and again order the suspects to surrender.

6. If no compliance, the APCs will begin dismantling the outlying buildings by ramming them.

7. If no compliance, tear gas will be deployed into the main house. [FN567]

Gore believed that the operational plan that he, Glenn, and Rogers developed fully considered the merits of a negotiation strategy as opposed to a tactical resolution of the situation. He explained:

our objective was clearly the peaceful resolution of the crisis. A means of delivery of a hostage telephone to the Weaver compound, to secure a telephonic link between the command post and the crisis site could not be established prior to the deployment of sniper observers, and prior to the actual placement of the telephone, the negotiation strategy was not made a part of the initial operational plan.... [FN568]

After the initial plan had been drafted, Gore and the others consulted with Johnson, Smith, and Stagg of the Marshal's Service, who opposed the plan. [FN569] At approximately 2:40 p.m. (PDT) on August 22, an operations plan, which included the Rules of Engagement, was sent by facsimile to FBI Headquarters and the Marshals Service for review. The Rules in the operations plan as submitted to the Bureau for review stated:

If any adult in the compound is observed with a weapon after the surrender announcement is made, deadly force CAN AND SHOULD be employed to neutralize this individual. If any adult male is observed with a weapon prior to the announcement, deadly force CAN AND SHOULD be employed, if the shot can be taken without endangering any children. [Emphasis added.] [FN570]

FBI Deputy Assistant Director Coulson received the operations plan at the FBI Headquarters' Strategic Information and Operations Center; he did not approve the draft plan because it lacked a negotiations option. Coulson stopped reviewing the plan once he realized a negotiation option was absent. Thus, he never saw or reviewed the Rules of Engagement in the plan which appeared after the section in which a negotiations strategy should have appeared. [FN571]

After completing his partial review of the operations plan, Coulson made certain observations and raised certain questions in a facsimile to Glenn:

1. No mention is made of Sniper Observer deployment as of 5:30 p.m. EST 2:30 PST (sic).

2. What intelligence has been gathered from the crisis point?

3. There is no mention of a negotiation strategy to secure release of individuals at the crisis point.

4. There is no mention of any attempt to negotiate at all.

5. SAC Salt Lake is requested to consider negotiation strategy and advise FBIHQ.

Coulson informed Glenn that Headquarters was "not prepared to approve the plan as submitted."

The 6:30 p.m. entry on the SICC log reads:

SAC Glenn advised DAD Coulson that Portland SWAT team had contact with who (sic) they believed was subject approximately 1/4 mile "up canyon" from home. He used profanity and told the to get off property. SAC WAS REMINDED OF RULES OF ENGAGEMENT AND TO TREAT SUBJECT AS THREAT IF CONFRONTED OUTSIDE HOME. SAC IS WORKING ON NEGOTIATION PLAN. [FN572]

Coulson told this investigation that the entry refers to the Rules of Engagement that he and Potts had formulated. WE found no other entry in the SIOC log or situation reports approving either the operational plan as a whole or the Rules of Engagement set forth by Glenn. [FN573]

Gore believed the tactical plan included incremental increases of tactical pressure on the subjects, to be effected only if the Weavers failed to enter into negotiations. Gore told us that FBI Headquarters refused to approve the operations plan because a negotiation strategy was not part of it. [FN574]

When the operations plan was rejected, Frederick Lanceley, the FBI chief negotiator, was asked to write a negotiation addendum. Before this, Lanceley had played no role in developing an operations plan. He had attended Rogers' 9:00 a.m. briefing of the sniper/observers and heard Rogers tell the group that there would be "no long siege" and that the "Rules of Engagement" were to shoot armed adult males, if there was a clear shot. After attending this briefing, Lanceley concluded that a tactical solution would be sought without negotiations. [FN575] While en route to the crisis site, Lanceley told Rogers that he would work with HRT Intelligence because there was not going to be a negotiation effort. When Rogers said, "Good," Lanceley felt that his impression had been confirmed. Consequently, Lanceley did not participate in the planning on Saturday, August 22, until he was told in early afternoon that Headquarters had rejected the operations plan because a negotiation effort had not been included. [FN575]

Lanceley wrote the follow-up negotiation addendum to the operations plan. This addendum provided:

Crisis Negotiation Annex To Ops Plan

A negotiator wll [sic] go forward to the residence in the APC [Armored Personnel Carrier]. When the APC is in view of the house, it will stop and the negotiator will make the following statement:

'Mr. Weaver, This is Fred Lanceley of the FBI. You should understand that we have warrants for the arrest of yourself and Mr. Harris. I would like you to accept a telephone so that we can talk and work out how you will come out of the house without further violence. I would like you or one of your children to come out of the house, unarmed, pick up the telephone and return to the house.'

At the conclusion of this statement, the APC will proceed forward, drop the hostage phone and withdraw. If Weaver or a child retrieves the telephone, the negotiator will attempt to initiate a dialogue. [FN577]

This addendum was sent to FBI headquarters and received the following response:

FBIHQ agrees with negotiation annex as submitted. Salt Lake should Proceed with this negotiation plan on his [sic] own initiative. [FN578]

Eugene Glenn, in a signed sworn statement given to the FBI team [FN579] that reviewed the shooting incident following the resolution of the crisis stated that, "[o]n August 22, 1992, at 12:30 p.m. PDT, FBI Headquarters approved the operations plan which included ... Rules of Engagement." Glenn is the only person who has stated that an operations plan was ever approved.

[GARRITY] [FN580]

In a statement given during this inquiry, Glenn recalled that, although FBI Headquarters did not approve the proposed operations plan, Potts told him that the Rules of Engagement had been approved as formulated and could be put into effect. Glenn told Rogers about this approval. [FN581]

The Rules of Engagement remained in effect until they were replaced by the FBI standard deadly force policy on August 26, 1992. Although Rogers testified that the operations plan was modified in the ensuing days and submitted to FBI Headquarters, he stated that it was never approved and never implemented. fn 582 The only written operations plan provided to this investigation, the prosecutors, and defense counsel is dated August 23, 1992.

c. Interpretation of rules of Engagement by Law Enforcement Personnel

both Assistant Director Larry Potts and former Deputy Assistant Director Danny O. Coulson have stated that the Rules of Engagement were merely a means of identifying the level of risk presented by the situation and were not intended to change or modify the FBI's Standard Deadly Force Policy. Potts explained:

These ROE [Rules of Engagement] were established to assist the HRT personnel in making a determination regarding what constituted a threat to them in this extraordinary circumstance. The ROE were not intended to supercede [sic] the FBI standard deadly force policy. The final determination regarding such implementation of deadly force must always remain with the individual faced with the actual choice, and each individual must make an individual, final determination of threat.... I was acutely aware that HRT personnel could encounter armed subjects, and as a result of the events leading to and resulting in DUSM Degan's death, it was my intention to ensure that HRT personnel in the area of the crisis were fully aware of a heightened degree of threat. [FN583]

Similarly, in Coulson's view, the Rules of Engagement:

were never intended to change or modify the FBI's Deadly Force Policy. They were intended to heighten the sense of awareness to the dangers presented to our personnel. I have personally issued Rules of Engagement on numerous occasions, both in real life tactical situations and in training exercises. They do not take away the judgment factor of those who implement them, nor do they change established FBI policy. [FN584]

Special Agent in Charge, Eugene Glenn, believed that the Rules of Engagement were "within the Bureau's standard deadly force policy, but that they [were] an expansion of that policy." [FN585] He explained that during the initial stages of the standoff:

[W]e were completely unable to communicate with the individuals in the Weaver compound, we had no current intelligence information as to the nature of the tactical preparations they were making to engage law enforcement personnel, and I wanted to make sure that the Agents who were moving into close proximity to the compound were clearly aware that they had been given MORE LATITUDE regarding their application of deadly force, if necessary, to ensure maximum safety of law enforcement officers approaching the compound. [FN586]

Glenn intended the Rules of Engagement to decrease the reaction time in which deadly force is normally initiated by a FBI special agent. In Glenn's words:

I believed that this heightened level of awareness (reflected in the Rules of Engagement) was absolutely essential to preclude further death or serious injury to law enforcement personnel responding to this crisis. By issuing these Rules of Engagement, I was indicating to all tactical personnel the serious nature of this situation and the necessity that they be ready to immediately employ deadly force, should be appropriate. [FN587]

With regard to the phrase "can and should," Glenn intended this language to indicate clearly to all tactical personnel that they were fully authorized to utilize deadly force against the Weaver/Harris group if appropriate. He did not intend to remove the individual agent's responsibility to determine whether deadly force was necessary, but simply to advise personnel that action by individuals within the Weaver compound that jeopardized law enforcement personnel could be addressed with deadly force to prevent additional law enforcement casualties. Glenn stated that, although the Rules of Engagement were not a "license to kill, " as some have alleged, they probably put HRT personnel in a more "offensive mode." [FN588]

This investigation also discovered several different interpretations of the terms "adult" and "adult male," as contained in the Rules of Engagement. Glenn told us he intended that these terms apply only to Randy Weaver, Kevin Harris, Vicki Weaver (as appropriate), and sympathizers who entered the Weaver compound to prevent law enforcement officers from resolving the crisis. [FN589] As is more fully explained below, other law enforcement officials who were questioned about the Rules stated that only Randy Weaver, Kevin Harris, and Vicki Weaver were included in the category "adult" while adult sympathizers would fall under the standard FBI deadly force policy.

The FBI Special Agent in Charge, William Gore, believed that the Rules of Engagement seemed appropriate to the situation at Ruby Ridge. He understood that the Rules made any adult male with a weapon in the Weaver compound the object of deadly force. It was clear to him that Harris and Weaver were the adult males specified by these Rules. He understood that Vicki Weaver was excluded from the pre-announcement Rule because there was no probable cause to believe that she posed a deadly threat to law enforcement. However, before an announcement to surrender had been given, Gore believed that "any armed adult [who] emerged from the cabin... would be displaying clear disregard for the lawful demand to lay down arms and surrender." [FN590]

Gore understood the Rules of Engagement as a "broadening of the FBI's deadly force policy ... based upon these specific subject having demonstrated their willingness to kill a Federal official to avoid capture." [FN591] Gore believed Rogers and Smith had formulated the Rules during their trip to Idaho and that they had been approved by FBI Assistant Director Potts.

Supervisory Special Agent John G. Sauls, Legal Instruction Unit at the FBI Academy, noted that the nonspecific character of the terms "adult" and "adult male" made the Rules of Engagement too broad for the FBI's standard deadly force policy, unless HRT had also been given instructions as to who fell into these categories. He also found the word "should" inappropriate inasmuch as the final determination as to whether to use deadly force must be made by the agent. He added, however, that, with appropriate additional information simultaneously provided, the Rules could be brought within the requirements. [FN592]

John C. Hall, also a Supervisory Special Agent with the Legal Instruction Unit at the FBI Academy, was similarly critical of the Rules of Engagement. In an "informal analysis" that was not an official opinion of the FBI's Legal Counsel division, he concluded that the portion of the Rules stating that deadly force could and should be used against any armed adult male before the surrender announcement could be misread to direct agents to use deadly force without first giving the subjects an opportunity to surrender. He raised the possibility that the Rules could have been misread to permit the use of force beyond that which is permitted by the Constitution or FBI policy. Hall was adamant, however, that, despite the language of the Rules, the decision of HRT sniper/observer Lon Horiuchi to use deadly force on August 22, did not violate either the Constitution or FBI policy. [FN593]

Assistant U.S. Attorney Kim Lindquist, one of the two prosecutors in the federal case against Randy Weaver and Kevin Harris, asserted that he had "struggled" with the Rules of Engagement. He asked Lon Horiuchi during trial preparation whether the HRT sniper/observers interpreted the word "should" to mean that they must shoot, if they saw an adult male with a weapon in the compound area. [FN594] According to Lindquist, Horiuchi said that he retained a great deal of discretion and that he and the other HRT members approached the situation according to the FBI's standard policy on the use of deadly force. [FN595]

Frederick Lanceley, the FBI Hostage Negotiator, who participated in the negotiations with the Weaver/Harris group, was surprised and shocked by the Rules of Engagement. The Rules were the most severe he had ever seen in the approximately 300 hostage situations in which he had been involved. He characterized the Rules as inconsistent with the FBI standard policy on the use of deadly force. [FN596]

HRT Commander Richard Rogers acknowledged that neither he nor any member of the HRT during his tenure had ever operated under Rules of Engagement such as those employed during the Ruby Ridge crisis. [FN597] He testified that under the standard FBI policy on the use of deadly force the FBI "ask[s] our agents for more-- we're asking that they wait a little longer to ensure that these individuals basically are going to employ some kind of deadly force against them." [FN598] At Ruby Ridge, he said, "we already know that the subject -- in this case, the males from the Weaver compound -- had already employed deadly force against the law enforcement officers, so they had clearly crossed that threshold in killing an officer already." [FN599] Rogers explained that the Ruby Ridge Rules told the HRT sniper/observers that they could wait a little less before employing deadly force. According to Rogers, the determination of how long to wait is left to the individual's discretion. [FN600]

By the phrase, "can and should," Rogers meant that the sniper/observers had the authority to utilize deadly force and should utilize it, if an opportunity presented itself. The Rules did not refer to the agents' judgment because judgment "is understood by every FBI agent, and clearly understood by every member of HRT.... [T]hey should use deadly force in order to protect themselves or other individuals." [FN601] He testified that he did not explain his understanding of the phrase "can and should" to the HRT snipers because:

[T]hey understood what I was talking about... [and] I trained with them every day, and we discussed -- I mean, an FBI agent, from the time he goes through training at Quantico, has the standard rules of engagement drilled into his head.... I also have a sign with the standard FBI rules printed on it, hanging in the classroom at the hostage rescue team. [FN602]

HRT supervisor, Stephen McGavin, drafted the Rules of Engagement based on his understanding of the Rules as described by Rogers. He believed that the Rules were restrictive, as well as cautionary. according to McGavin, the Rules address the application of deadly force in terms of the identity of the subjects and impose certain age and gender restrictions. McGavin believed that the Rules of Engagement were intended to alert the HRT members to the extreme danger they faced and to inform them that they might or would probably encounter circumstances which might call for the use of deadly force. According to McGavin, regardless of the Rules' restrictive or expansive character, they were not intended to replace the FBI's deadly force policy. [FN603]

McGavin explained that in the Ruby Ridge crisis, the perception of deadly threat, coupled with the fact that Weaver and Harris had demonstrated a willingness to kill a federal official, produced grave concern that HRT members needed to be made aware of the extreme danger. According to McGavin, individuals react differently in perceiving threatening action and deciding whether deadly force is necessary. He reasoned that the failure to react or a delayed reaction to a threat in an extremely dangerous situation could have deadly consequences for the individual confronted with the threat or for another team member who might be unaware of the threat. Thus, the Rules of Engagement "used in this cries" were designed to give the HRT a clear idea and understanding when a shot could or could not be taken. [FN604]

Rogers told McGavin to insert the phrase "and should" into the Rules. [FN605] McGavin viewed the "can and should" terminology not as an order to shoot, but as a reminder that the lives of the sniper/observers and the lives of perhaps many more of their numbers might depend upon reacting quickly to the danger known to exist on the mountain. According to McGavin, "Deadly force 'should' be employed against a dangerous individual who poses a deadly or grievous bodily threat. The determination that it 'must' be employed is the sole responsibility of the person who perceives the threat and acts on that perception." [FN606]

According to McGavin, "The 'any adult males' terminology in the second Rule of Engagement which applied to the time period before the surrender announcement, excluded Vicki Weaver from coverage because of uncertainty about her involvement in the shootout with the [Deputy marshals on August 21]." [FN607] McGavin explained that the qualifier, "'any' reflects our lack of information about the crisis site, and addresses the possibility that we could encounter Weaver supporters in the compound." McGavin believed that the supporters would have to display further actions of a threatening nature to be subjects of deadly force." [FN608]

The HRT sniper/observers saw the Rules as not merely heightening their sense of danger, but as modifying the usual deadly force policy. For example, Dale Monroe interpreted the Rules as a "green light" to use deadly force against armed adult males. [FN609] Edward Wenger believed that, if he observed armed adults, he could use deadly force, but standard FBI shooting policy was to be applied to all others at the cabin. [FN610]

Another sniper/observer, Warren Bamford, recalled that an arrest team was to be sent to the cabin to demand that Weaver and Harris surrender, but, under the Rules of Engagement, deadly force could be used against armed, adult males outside the cabin before the team arrived. Bamford found the Rules "not consistent with the Standard FBI Deadly Force policy, in that the obvious and imminent threat of death or grievous bodily harm had been predetermined," but he believed that the threat was severe enough to warrant such Rules. [FN611]

Mark Tilton remembered:

As a part of the briefing, we were also given the rules of engagement which set forth the conditions under which we are authorized to utilize our weapons. These rules were reiterated in detail by SA Lester Hazen, Sniper coordinator, prior to our tactical deployment. We were told that the FBI's standard policy concerning the use of deadly force applied in this situation and that there were additional special rules of engagement WHICH WOULD APPLY IN THIS SITUATION. (EMPHASIS ADDED.) [FN612]

Similarly, Jerome Barker stated that, "[1]s part of the briefing given by Les Hazen, we were told that there were special rules of engagement WHICH WE WERE TO ABIDE BY." (Emphasis added.) [FN613]

Among the FBI SWAT teams deployed to the RUBY Ridge site, there was a wide variety of interpretations of the Rules of Engagement. Denver SWAT team leader Gregory Sexton recalled the Rules as, "[i]f you see Weaver or Harris outside with a weapon, you've got the green light." He had never seen such severe Rules of Engagement, and he believed that they were inappropriate because briefings about the subjects, Degan's death, and observation of the terrain would be sufficient to alert tactical personnel to the dramatically increased danger without superseding standard deadly force policy. [FN614]

Another member of the Denver SWAT team characterized the Rules as "strong" and as a departure from the FBI's standard deadly force policy. [FN615] A third member of Denver SWAT, who was briefed on the Rules by the Denver SWAT team leaders, remembered the Rules of Engagement as "if you see 'em, shoot 'em." this agent had never been given such Rules of Engagement before, and he felt that they were inappropriate. He said other SWAT team members were taken aback by the Rules and that most of them clung to the FBI's standard deadly force policy. [FN616] A fourth Denver SWAT team member's reaction to the Rules at the time was, "[y]ou've gotta be kidding." He viewed the Rules as an imperative without clarification and inconsistent with the FBI's standard deadly force policy. [FN617]

One of the members of the Marshals Service SOG, who was deployed to provide rear protection for the HRT personnel, was briefed in the HRT tent by the FBI on the Rules of Engagement. Although he did not disagree with the Rules because "they had drawn first blood," he would have been "full of questions about the Rules," had been in a position to take a shot. [FN618]

Most significant is the testimony of Lon Horiuchi, the sniper/observer who eventually fired at members of the Weaver/Harris group. Horiuchi conceded that the Rules were different from those in the FBI manual and the Rules under which the HRT usually operated. He had never before been asked to operate under such Rules, which differed from the standard deadly force policy in that "the decision that we were already in danger had already been made for us prior to going on the hill." [FN619] Horiuchi testified that this was the first time he had been asked to apply Rules that differed from the standard deadly force policy. Under the latter, he could not shoot a person, unless that person posed a threat to his or another person's safety, and the decision as to whether a person posed a threat was left to Horiuchi. Under the new Rules, the decision that there was a threat had already been made. [FN620] Horiuchi acknowledged that, under the Rules, he could and should shoot any adult male, if he had an opportunity. [FN621]

The following exchange during cross-examination summarizes Horiuchi's perception of the Rules:

Q: Were you advised that the folks there had a habit of coming out of the house with the weapons?

A: Yes sir, I believe that was one of the briefings.

Q: So you knew that sometimes they came out, the dogs barked, they came out with their weapons, you knew that, didn't you?

A: Yes, sir.

Q: Under your rules of engagement, you could then and should, if they came out of the house, you could and should use deadly force?

A: Yes, sir, it is true. [FN622]

d. Deployment of FBI HRT, SWAT and U.S. Marshals Service SOG Personnel at Ruby Ridge

On Saturday, August 22, 1992, at approximately 11:0 or 11:30 a.m. (PDT), FBI Special Agent Lester Hazen, the HRT sniper coordinator, ordered Lon Horiuchi, the HRT "Blue" sniper/observer team leader, to prepare his team for deployment. He also ordered Roger Love, the "Gold" sniper/observer team leader, to have his personnel assist in setting up the HRT's Tactical Operations Center (TOC). [FN623] The teams were told that an armored personnel carrier would be sent to the Weaver cabin to announce that the occupants should surrender. An HRT assault team would be inside the carrier to effect the arrest, if the subjects complied. The teams were instructed to establish positions so that they could provide observation and long range precision fire in accordance with the Rules of Engagement. According to HRT Commander Rogers, the sniper/observers knew that a surrender announcement was part of the plan, but:

[G.J.] [FN624]

[G.J.] [FN625]

Before the Rules of Engagement were given to the teams, McGavin, second in command of the HRT, brought the typed Rules to Rogers at the command trailer. When Rogers returned later with word that they had been approved by FBI Headquarters, the HRT and U.S. Marshals Service SOG sniper/observers were briefed on the Rules of Engagement. [FN626] [GARRITY] [FN627] Marshals Service SOG personnel were deployed behind the HRT personnel to protect the HRT sniper/observers from hostile action from the rear. SOG Deputy Commander Stagg told his sniper/observers to take orders from Hazen. [FN629]

The sniper/observers were deployed to the mountainside overlooking the Weaver cabin to provide security for tactical units, which, after the sniper/observers were in position, would form an inner perimeter around the Weaver compound. The sniper/observers were also deployed to be used to safeguard law enforcement officers attempting to establish communications with the cabin. Additionally, they were to be used to gather information about the terrain, armaments, and fortifications, along with information about those present at the crisis site. [FN630]

Hazen asked U.S. Deputy Marshal Ron Libby, who was familiar with the area, to identify observation positions and routes for HRT personnel to travel to those locations. The rough terrain made 4-wheel-drive vehicles necessary for transporting the HRT members; Hazen attempted to obtain these vehicles. [FN631]

After waiting several hours for the 4-wheel-drive vehicles, HRT Command decided, at approximately 3:00 p.m. (PDT), [FN632] to send the sniper/observer teams to their positions on foot. After briefing the teams on the Rules of Engagement, Hazen dispatched nine HRT sniper/observers in four groups. One "overwatch" group of two HRT sniper/observers was held back to wait for the vehicles.

The sniper/observers took several hours to work their way up the mountain to the observation posts. At 3:45 p.m. (PDT), during a reconnaissance flight, someone in the HRT helicopter warned the sniper/observers by radio of movement outside the Weaver cabin and in the compound area. The sniper/observer group halted until it was reported that the individuals had returned to the cabin. the group then continued up the hill. [FN633]

e. Use of the Helicopter

HRT helicopter pilot, Frank Costanza, flew six reconnaissance missions on August 22, 1992, from the staging area at the command post to an area above and around the hilltop where the Weaver cabin was located. He believed that the purpose of the flights was to afford FBI, Marshals Service, and U.S. Attorney's Office personnel the opportunity to assess the area and the terrain around the Weaver residence. Costanza tried to avoid hostile fire during the flights by remaining at least 200 yards away from the cabin. He described the weather conditions as a mixture of rain and snow and noted that visibility was limited. [FN634]

According to Glenn, the helicopter was used to fly over the area to identify possible sites for the sniper/observer teams. Aerial operations were severely hampered by inclement weather. The low cloud ceiling made it impossible to operate the helicopters out of range of the weapons thought to be in the Weaver cabin. Accordingly, the helicopters were utilized at low altitudes, and they weaved "around the crisis site.....to avoid being an obvious target." Glenn took one flight that was within range of a rifle shot, but the helicopter never flew directly over the Weaver cabin. [FN635]

A member of the Marshals Service SOG reported that, while he was at the command post area on Saturday, August 22, he saw the helicopter fly toward the cabin and return very quickly. He heard that the Weavers had come out of the cabin and had acted in a hostile manner toward the helicopter but that they had not fired at the helicopter. [FN636]

f. Placement of HRT Sniper/Observers in Area Surrounding the Weaver Cabin

Because of the rugged terrain and deteriorating weather conditions, HRT sniper/observers began arriving at positions on the ridge overlooking the Weaver cabin approximately two to two and one half hours after setting out from the command post/staging area. [FN637]

At 5:07 p.m., the HRT sniper/observer team designated as Sierra 4, of "S-4," arrived at its position. this team consisted of Lon Horiuchi and Dale Monroe. At 5:20 p.m., the HRT team designated Sierra 2, consisting of Edward Wenger and Warren Bamford, arrived at its position. At 5:52 p.m., Sierra 3, consisting of Jerome Barker and Christopher Curran, arrived at its position. Between 5:52 p.m. and 5:57 p.m., S-1, consisting of HRT members Christopher Whitcomb, Roger Love, and Mark Tilton, arrived at its position. [FN638]

Horiuchi's "Sierra 4" position was the closest of the four positions, almost due north of the cabin in a line almost parallel to the front wall. He was at a slight angle above the cabin, approximately 646 feet from the front door and approximately 579 feet from the outbuilding known as the "birthing shed." There was a ravine between Horiuchi and the cabin. [FN639] Horiuchi could see the top of the front porch of the cabin and straight through the porch. He could see the front of the door as it opened and when it was in an open position. Horiuchi could not see the front door when it was closed, nor could he see into the cabin. He could also see the deck at the back of the cabin. [FN640]

g. Circumstances Involving the Two Rifle Shots Taken by HRT Member Lon Horiuchi

(1) The First Shot

At approximately 5:45 p.m., Horiuchi saw an unarmed, young female, slight of build, with a ponytail, run from the front of the Weaver cabin toward a rocky outcropping.

[G.J.] [FN641]

[GARRITY]

[FN642]

After viewing this female with the naked eye, Horiuchi observed her through his rifle scope and determined that she was a child. Although he could have fired at her, he did not because "the female was not armed at that time and [he] was assuming she was a child because of the size of the stature." [FN643] Horiuchi could not recall whether the front door was open when the child was outside the cabin, but after she returned to the cabin, the door was closed. [FN644]

Within a minute after the girl returned to the cabin, Horiuchi observed an unarmed male on the back deck. The man moved to the back corner of the deck where ponchos or blankets were hanging on a string. "It seemed like he just felt them to see if they were dry and then he went back in." [FN645] The man was in Horiuchi's vision for perhaps ten seconds, an, although Horiuchi could have both fired and hit the person, he did not because "the individual did not appear to be armed, there was nothing in his hand, and I did not see any weapons around or on his person." [FN646] HRT sniper.observer Whitcomb, from his Sierra-1 position, the highest and farthest away from the Weaver cabin of the four positions, could vaguely observe this individual on the back porch. [FN647] The other HRT sniper/observers did not report that they saw a man on the back porch.

At 5:57 p.m., the HRT helicopter took off for its sixth observation mission of the day. HRT Commander Rogers, Marshals Service Deputy Director Smith, Marshals Service SOG Commander Haynes, and HRT pilot Frank Costanza were aboard. [FN649] Haynes observed someone outside the cabin, but he could not identify the person or see whether the person was armed. [FN650] Rogers and Smith recall that someone aboard the helicopter reported seeing two persons outside the cabin, armed with rifles, although none of the other people in the helicopter recalls observing anyone outside the cabin. About the time the helicopter landed, Costanza recalls hearing radio reports that two shots had been fired. [FN652]

Horiuchi heard the helicopter and the armored personnel carriers start their engines, and he saw the helicopter take off from the command post to the left of the Weaver cabin, circle to his left and out of his sight. [FN653] Within five to ten seconds after the helicopter engine started, Horiuchi saw two males and the female he had seen earlier come out of the front door of the cabin and run toward the "rocky outcropping" a defensive position near the front of the cabin. [FN654] [G.J.]

[G.J.] [FN655]

[G.J.] [FN656]

[FN657]

Horiuchi saw the three people run behind the "birthing shed,"a wooden building close to the cabin and disappear from his view. Horiuchi focused on the person he believed to be Harris because he was carrying a "shoulder weapon" at "port arms." [FN658] [G.J.]

[FN659] and because the person was not making and threatening movement, [FN660]

[G.J.] [FN661]

Jerome Barker at the Sierra 3 position saw two adult males and one adult female, carrying "long barreled weapons," move from the cabin toward the birthing shed. [FN662] He perceived their movements as rapid, evasive, and indicative of a confrontational posture. [FN663] He lost sight of the second male who exited the cabin, and he saw the other male and the female move toward his position and the Sierra 4 position. He lost sight of these people as they entered a ravine, less than two hundred yards from Barker's position. Barker prepared to "encounter" the two individuals whom he considered a threat. [FN664]

Horiuchi continued to concentrate on the person who had rounded the rear corner of the birthing shed. As he came back into view, Horiuchi believed that the man was the armed individual he had initially seen running from the cabin. [FN665] The man picked up a stick and appeared to be poking at the ground and looking up above and to the right of Horiuchi where Horiuchi sensed that the helicopter was flying. [FN666]

GARRITY]

[FN667]

When the person reappeared at the side of the shed from which he had disappeared, he held his weapon at high port and scanned above and behind Horiuchi's position. He seemed to be looking for the helicopter. The person was "watching the helicopter, and at times he would kind of bring his weapon up and [Horiuchi] perceiv[ed] that perhaps he was trying to get a shot off." [FN668]

[FN669] [GARRITY] Horiuchi fired one shot, just as the man suddenly moved along the side of the birthing shed out of sight.

When Horiuchi shot, the man was at the corner of the shed, with his back toward Horiuchi.

[GARRITY]

[FN670] Horiuchi "assumed that he was raising [his arm] to grab inside the building to spin himself around the corner." [FN671] Horiuchi acknowledged that when he shot he was aiming at the man's back. [FN672]

Horiuchi assumed that he had hit the man or the edge of the birthing shed. [FN673] After he fired, the person "continued to move around the corner of the birthing shed, so -- without any effect, it didn't seem like he was hit at all, so that's why my assumption was that I had missed." [FN674]

Horiuchi assumed that the person at whom he had fired was Kevin Harris. [FN675] In fact, Horiuchi shot Randy Reaver. After the first shot, Horiuchi decided that he would shoot at this person again, if he got the opportunity. [FN676]

Harris has said that he, Randy Weaver, and Sara Weaver left the cabin with rifles and that he went to the rocks near the cabin to retrieve a battery, while Randy and Sara Weaver went to the birthing shed to see Sammy Weaver's body. After hearing a shot, Harris ran to the birthing shed where Weaver exclaimed, "I'm shot." [FN677]

Randy Weaver stated:

Kevin, Sara and I (Randy) left the house to check the North perimeter. We didn't see anything so I (R) was going into the guest shed where Sam was to see him one last time. As I (R) reached up to unlatch the door I was shot from the rear and hit in the upper right arm." [FN678]

(2) The Second Shot

According to Horiuchi, after ten to twenty seconds, the man he thought he had initially shot at came back into his view, joined by the other male and the female. Horiuchi observed the male and female run toward the cabin trailed by nine steps by the man Horiuchi thought had been the target of his first shot.

The first two people disappeared behind the open door, and, Horiuchi assumed, went inside the cabin. Horiuchi had determined after the first shot that he "was going to shoot at that individual again" because:

I believed he was the same individual that had attempted to shoot . . . at the helicopter, and therefore, I assumed that he was moving back to the house to get a more protected location inside the house and I didn't want him back in the house. . . . [K]nowing that the children were inside the house, that would have been my last opportunity to shoot him before he got into the house because I probably would not have shot at anyone inside the house for fear of shooting the children.....[H]e would have been more protected inside the house and he could have shot at either me or my fellow agents or the helicopter still flying around at that location, probably knowing that we couldn't shoot back in there without harming some of the children. [FN679]

Horiuchi fired as Harris approached the porch. Harris was reaching out with his left hand toward the door and taking a last step to the doorway, appearing to be holding the door open or moving someone out of the way.

[GARRITY]

[FN680]

Horiuchi was leading the running target, that is, aiming slightly in front of him as he ran, so that the target subject would, in effect, run into the bullet. The cross hairs of the rifle's scope were on the edge of the door or just on the wood portion of the door. [FN681] The door was fully open, and Horiuchi could see the entire front face of the door, except for the bottom portion. At the time of the shot, the target had his weapon in his right hand and was reaching out with his left hand. [FN682]

Horiuchi saw the individual flinch as if he had been hit and disappear into the doorway. The man reached like he had been "punched" or hit on the side; he fell behind the door. [FN683] Afterwards, Horiuchi heard a female scream for about 30 seconds. [FN684] He assumed that the female was screaming because Harris had been hit. [FN685] In fact, Vicki Weaver had been fatally shot.

Horiuchi assumed that the individuals preceding the person at whom he shot had gone inside the cabin. He has testified that he did not see anyone standing behind the door when he shot and that he did not intend to shoot Vicki Weaver. [FN686]

[GARRITY]

[FN687]

Horiuchi's report of the events and their sequence is compatible with the reports of the other sniper/observers on the scene. [FN688]

At the base command post, HRT sniper coordinator Hazen heard a radio report of "shots fired," followed soon thereafter by a report that "two friendly shots [had been] taken." He recalls transmissions about "armed subjects with long guns," "screaming," and a "possible hit." [FN689] The HRT "Sniper Log" reports at 6:01 p.m.: "Shots fired, screaming." Various other logs contain similar information and more confused accounts of the events. [FN690]

Harris has given a statement about the events of August 22. After the first shot, Harris says, he, Randy Weaver, and Sara Weaver ran to the cabin. Vicki Weaver held the door open while Randy Weaver entered first, followed by Sara. When Harris was almost at the doorway, at a point parallel with Vicki Weaver, he heard a shot, which penetrated the door window and hit Vicki Weaver in the head and Harris in the left arm and chest.[FN691]

Randy Weaver has reported that he was turning the latch on the birthing shed door when he was shot. When Vicki Weaver exited the cabin, Randy Weaver told her that he had been shot. Vicki Weaver then turned, told the children to go inside, and was putting the "babies" inside when she was shot. Randy Weaver said that Vicki Weaver was holding the baby when she was shot.[FN 692] None of the sniper/observers heard a baby cry during or immediately after the shooting incident.

h. Initial Surrender Announcement

Following the shots, the helicopter landed at the command post. HRT Commander Rogers ran to the Tactical Operations Center and received confirmation that Horiuchi had fired.[FN693]

Rogers and FBI Special Agent in Charge Eugene Glenn agreed to deploy the armored personnel carriers to establish communications with the Weaver cabin. [FN694]

The hostage telephone, telephone wire, and other necessary equipment were on the carriers. At approximately 6:15 p.m., the two carriers were driven to the cabin area with only visual contact between them because the agents had been unsuccessful in establishing radio communication. On the way up the mountain the armored personnel carriers encountered an obstruction on the road. While this initially caused great concern, it was ultimately determined that the obstruction was not a booby trap.[FN695]

Once they arrived at the cabin are, Frederick Lanceley, the FBI senior hostage negotiator, gave the prearranged surrender announcement. He told the cabin's occupants about the arrest warrants for Weaver and Harris and asked Weaver to accept the telephone so that negotiations for his surrender could proceed. [FN696] The announcement followed the script contained in the negotiations annex to the operations plan that Lanceley had prepared earlier. There was no response from the cabin.

The carriers withdrew, laying telephone line as they descended the mountain. At 9:45 p.m., the telephone was operational and five unsuccessful attempts were made to connect Weaver, with the last made at 11:30 p.m.[FN697]

3. Discussion

a. FBI Rules of Engagement

(1) Factors Considered in the Formulation of the Rules of Engagement

In our view, the information available to FBI supervisors justified their apprehension and their anticipation of extreme danger during the initial stages of the FBI response to the crisis at Ruby Ridge. However, we believe the Rules of Engagement formulated and implemented at Ruby Ridge were an extreme response to the perceived threat.

HRT Commander Rogers testified that the HRT did not know for certain that the Weaver/Harris group was inside the cabin when the snipers were deployed. Nor did he know whether Weaver knew of the presence of law enforcement or of the withdrawal of the marshals.[FN698] In crafting the Rules of Engagement, Rogers had to consider the possibility that the subjects were in firing position and that they were scattered around the area.

Rogers believed that the fact that the marshals had been rescued and that Degan's body had been taken off the mountain did not alter the potential danger. He found no evidence that the mind-set of the people who had killed Degan had changed. They had not surrendered or attempted any explanation for the death, and Rogers had no reason to believe that Degan's death had been accidental. As far as he knew, the Weaver/Harris group was prepared to kill other law enforcement officers.[FN699]

We believe that it is reasonable to assume that the occupants of the Weaver cabin expected law enforcement presence in response to the events of August 21. By the time the snipers arrived at their positions on August 22, it is inconceivable to us that the Weavers did not know that they were the focus of an intense law enforcement effort. Helicopters were circling the mountain area and sirens could be heard. The Weaver/Harris group knew that Harris and Sammy Weaver had been in a gun fight with federal law enforcement officials and that Harris had severely injured or killed a marshal.[FN700] Indeed, Harris and Randy Weaver's statements and Vicki Weaver's diary reflect their knowledge that the gunfight at the "Y" was with law enforcement.[FN701] In addition, the Weavers had a television and radio in their cabin and could have received reports about the incident.

However, knowledge of a law enforcement presence is different, in our opinion, from the specific knowledge that snipers had surrounded the cabin. We have not discovered any information establishing that the Weaver Harris group knew that they were surrounded by HRT snipers.

(2) Approval of the Rules of Engagement

Before addressing the legality of and the necessity for the Rules of Engagement, the question of whether the Rules given to the sniper/observers on August 22, 1992 were ever approved must be considered.

The Rules of Engagement were initially formulated while Commander Rogers was en route to Idaho. Rogers testified that FBI Assistant Director Larry Potts approved the Rules of Engagement during that flight before Rogers landed in Idaho. The three people, who discussed the Rules of Engagement that evening, recall the proposed Rules differently.

Potts recalled approving the following Rules:

1. [A]ny adult with a weapon who was observed in the vicinity of Randy Weaver's cabin or the firefight area, could be the subject of deadly force.

2. [A]ll efforts be made to avoid any confrontation with the children, but if such a confrontation became unavoidable, that faced with the threat of death or grievous bodily harm, the standard FBI use of Deadly Force Policy would be in effect.

[GARRITY][FN702]

[GARRITY]

As the on-scene commander, Glenn had the authority to make such a modification.[FN703]

Potts told this inquiry that he did not realize the Rules had been changed from deadly force "could" be employed to deadly force ~"can and should" be employed until after the crisis was resolved. However, he believes that "should" does not mean ~"must" and that it only serves to heighten the awareness of the threatening situation at hand.[FN704]

Danny Coulson, Deputy Assistant Director of the FBI at the time, also recalled the Rules as formulated as using the term "could" as opposed to "can and should~." He too was unaware that the proposed operations plan contained Rules of Engagement that used the term "deadly force can and should be employed.~"[FN705]

Glenn, the senior FBI manager at the site and commander of the effort, had never established Rules of Engagement in spite of years of experience as a supervisory agent. Although Rogers presented "proposed" Rules, it appears that Glenn gave great deference to Rogers' expertise, especially in light of the Rules' Friday night approval by Potts and Coulson at FBI Headquarters.

A lack of documentation in the FBI files made our review of the approval of the Rules of Engagement very difficult. For example, we found no entries in the FBI's SIOC log discussing the draft Rules of Engagement. There are no notes or records of Potts' and Coulson's initial approval of the Rules. Moreover, there is no documented approval thereafter. We find this lack of documentation significant and serious. The FBI prides itself on its attention to detail. We find no such attention given here. As was the case here, failing to preserve or create records could have serious consequences in future criminal or civil litigation arising out of similar events. The failure to record and preserve significant events, meetings, and discussions should be corrected.

On Saturday, August 22, written Rules of Engagement were approved by Glenn, and sent by facsimile to FBI Headquarters as part of an operation plan sometime between 2:30 and 3:00 p.m. (PDT) Glenn approved the written Rules in the morning in their original form and again in the afternoon, as modified to cover only armed adult males as subjects of deadly force before a surrender announcement. That plan was not approved. A negotiations strategy was requested, and other questions were addressed to Glenn about the deployment and the crisis site. Coulson reviewed the plan up to the point where a negotiation strategy should have been detailed. Finding none, he decided not to approve the plan and notified Potts and Glen of his decision.[FN705] No one at FBI Headquarters claims to have seen the Rules as written in the proposed plan, and an operation plan was never approved, although a number of plans were submitted throughout the siege.

Before briefing the sniper/observers on the Rules of Engagement, Rogers asked Glenn if FBI Headquarters had approved the Rules. Glenn told Rogers that they had been authorized.[FN707] In his statement to this review team, Glenn stated that at approximately 12:15 p.m.:

[The] operations plan, which included the ROE, was faxed to FBIHQ and USMS HQ for review. FBIHQ responded by requesting that we supply a negotiations option, which was not included in the plan, prior to approval. However, I was telephonically advised at that time, I believe by Assistant Director Larry Potts, that the ROE were approved as formulated and could be enacted. Based on this approval I informed ASAC Rogers, and the HRT personnel were briefed on these ROE.[FN708]

It is our conclusion that Rogers justifiably believed that the Rules of Engagement provided to help the HRT and SOG personnel were fully authorized. On the trip to Idaho, Rogers had received oral authorization for the use of special Rules from Potts and Coulson.[FN709] Finally, before the snipers were briefed on the Rules and deployed, Rogers secured Glenn's acknowledgement that FBI Headquarters had approved the final version of the Rules.

Although we found no written record reflecting approval of the Rules of Engagement, Potts acknowledged that he approved a version of the Rules early in the crisis without the word "should" and with the understanding that Glenn had authority to limit the Rules to "adult males" without Potts' approval. The only mention of the Rules of Engagement in the FBI's SIOC log is Coulson's reminder to Glenn about the Rules of Engagement in response to the latter's report that a SWAT team believed that it had seen Weaver away from the cabin. [FN710] Coulson's response is evidence that special Rules of Engagement in some form had been approved by FBI Headquarters. Potts and Coulson confirm this conclusion. However, since there is not written record of specifically what version of the Rules that FBI Headquarters approved, we cannot confidently say that the word "should" was approved by FBI Headquarters at any time. Nevertheless, since those Rules which contained "should" remained in force at the crisis scene for days after the August 22 shooting, it is inconceivable to us that FBI Headquarters' remained ignorant of the exact wording of the Rules of Engagement during that entire period.

(3) The FBI Standard Policy on the Use of Deadly Force and the Constitutionality of the Rules of Engagement

The FBI's Standard Deadly Force Policy states that:

Agents are not to use deadly force against any person except as necessary in self-defense or the defense of another, when they have reason to believe that they or another are in danger of death or grievous bodily harm. Whenever feasible, verbal warnings should be given before deadly force is applied.[FN711]

The purpose of the policy is to inform agents of circumstances when the use of deadly force in the line of duty is appropriate and to prohibit the use of deadly force in other circumstances. According to the FBI's training materials, the policy's importance is its uniformity of instruction, utilization, and administrative review. Such uniformity eliminates uncertainty and confusion.[FN712]

"Deadly force" is defined in the policy as force likely to cause death or serious bodily injury. Under FBI policy, deadly force is justified, if the subject is likely to cause death or serious bodily injury if not controlled and deadly force is necessary to achieve control safely. When deadly force is permissible, agents are instructed to utilize the amount of force reasonably necessary to eliminate the threat they face. When feasible, verbal warnings should be given before deadly force is applied, and, when a subject may be granted an opportunity to surrender without exposing agents or the public to unreasonable danger, the policy requires that the opportunity be given. [FN713]

The FBI's standard deadly force policy comports with the constitutional standard enunciated by the U.S. Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386 (1989). Garner requires that the officer have probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, before using deadly force to prevent escape. The standards for objective reasonableness set forth in Graham are considerably more explicit than those in Garner and also require consideration of whether the suspect poses an immediate threat to the safety of the officers or others.[FN714] The preconditions in the FBI's deadly force policy for the use of deadly force are essentially the same as those stated in Garner, that is, that deadly force may be used to protect oneself or others against death or grievous bodily harm. The FBI's deadly force policy also includes a provision for giving warnings, when feasible, as mandated by Garner.

We are considerably less sure about the constitutionality of the Rules of Engagement in effect on August 22, 1992 than we are about the FBI's standard deadly force policy. The Rules provided:

1. If any adult in the area around the cabin is observed with a weapon after the surrender announcement had been made, deadly force could and should be used to neutralize the individual.

2. If any adult male is observed with a weapon prior to the announcement deadly force can and should be employed if the shot could be taken without endangering any children. 3. If compromised by any dog the dog can be taken out.

4. Any subjects other than Randy Weaver, Vicki Weaver, Kevin Harris presenting threat of death or grievous bodily harm FBI rules of deadly force apply.

We believe that these Rules contain serious constitutional infirmities. First, Garner states that, when feasible, warnings should be given. However, in paragraph 1 of the Rules, the giving of warnings apparently releases agents from evaluating the necessity of using deadly force, that is, from determining whether the subject "poses a threat of serious physical harm." Garner at 11. Garner specifically addresses the issue of the fleeing felon who refuses to surrender and does not sanction the use of deadly force, unless it is necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others or that he has committed a crime involving the infliction or threatened infliction of serious bodily harm. Garner at 11-12. Thus, although paragraph 1 of the Rules was never employed because Horiuchi used deadly force before warnings had been given, it falls outside the strictures of both Garner and Graham, which require that law enforcement officers evaluate the risk of grievous bodily harm or death to themselves and or others, before employing deadly force.

Paragraph 2 suffers from a similar problem because it does not provide for evaluation by the agent of whether the armed adult male poses an immediate threat before employing deadly force against them. This contradicts the mandate of both Garner and Graham.

Paragraph 4 suffers from a related defect in that it applies the FBI standard policy on deadly force to all parties, except Randy Weaver, Vicki Weaver, and Kevin Harris. The FBI drafted this Rule in that manner because it considered these three people particularly dangerous, especially because the agents believed that Randy Weaver and Kevin Harris had killed Deputy Marshal Degan. However, Garner and Graham do not exempt law enforcement officers from evaluating risk to themselves and others, even from persons they deem especially dangerous. The Constitution allows no person to become "fair game" for deadly force without law enforcement evaluating the threat that person poses, even when, a occurred here, the evaluation must be made in a split second.

Finally, the instructions that deadly force "should be used" in paragraph 1 and that deadly force "should be employed" in paragraph 2 flatly contradict the commands of Garner and Graham, which require the careful evaluation of the risk posed by a suspect before law enforcement can employ deadly force. The word "should" strongly encourages the use of deadly force. The use of such language in the Rules was unconstitutional. Despite FBI protestations to the contrary, these instructions did not merely heighten the snipers/observers' sense of dangerousness presented by the situation but went further and sanctioned the use of deadly force without the evaluation of the actual threat posed by individuals encountered by the agents on the mountain. We believe that these Rules of Engagement created an atmosphere in which the sniper/observers were more likely to employ deadly force than had the FBI standard deadly force policy been in effect.

In addition to the aforementioned problems, we must conclude that the Rules of Engagement were defective for three other reasons. First, they were imprecise. As we have seen from the accounts of law enforcement personnel who formulated, approved, and implemented the Rules, there was no uniform interpretation of them. Some interpreted the Rules as an expansion of the FBI standard deadly force policy which allowed the sniper/observers more leeway on when to fire their weapons. However, others argued that the Rules restricted the standard policy. There was also disagreement regarding who fell within the coverage of the Rules and the term "any adult." Furthermore, many were adamant that the words "can and should" did not create a mandate to shoot and that the judgment and discretion of the shooter always prevailed. Most, however, seemed to agree that the Rules served to heighten the awareness of danger, thereby reducing the time sniper/observers had to evaluate whether to shoot.

The lack of precision and the resultant absence of a common understanding as to when to employ deadly force are serious problems. Regardless of whether the Rules of Engagement had an impact upon Horiuchi's decision to shoot, FBI supervisors at the Ruby Ridge crisis were responsible for giving precise orders concerning the use of deadly force by their personnel. In our view, Rules of Engagement that do not restrict the use of deadly force should not be implemented without clear authorization following the careful legal review of the proposed Rules.

Our second objection to the Rules relates to the impact the Rules had upon the HRT during its deployment on August 22. The Rules seem to have created an atmosphere which Glenn described as a "more offensive mode." To this extent, we believe the Rules contributed to Horiuchi's decision to take a second shot.[FN715]

Our final objection to the Rules is that they were an unconstitutional departure from the FBI's standard deadly force policy. As noted above, the FBI standard policy requires agents to assess the level of danger before using deadly force and to give warnings when feasible. The statements of the sniper/observers, along with Horiuchi's testimony, demonstrate that the Rules of Engagement did more than merely "heighten the awareness of the danger level" on the mountain. The Rules created an atmosphere that eliminated or significantly reduced the discretion of the agent to assess the nature of the threat, thereby eliminating the constitutionally required calculation of the threat level before deadly force is used.

Nothing in the recent Supreme Court cases suggests that the approach adopted in the Rules is unconstitutional. Rather, the standards enunciated in Garner and Graham emphasize the vital significance of assessing the "immediate threat of grievous bodily harm or death to self or others" before law enforcement officers may use deadly force. However, it is clear from the sniper/observers' statements that they understood that the Rules did change and supersede the standard deadly force policy and that the Rules were to be "abide[d] by."[FN716] Although we appreciate that evaluations of whether to employ deadly force may occur in a split-second and should not be judged from the perspective of hindsight, we must conclude that the Rules in effect were unconstitutional. The Constitution places the decision on whether to use deadly force on the individual agent; the Rules attempted to usurp this responsibility.

b. Initial Deployment of Law Enforcement Personnel to Ruby Ridge

The FBI viewed the situation at Ruby Ridge as extremely dangerous. Potts, the Assistant Director of the Criminal Investigative Division of the FBI, feared that casualties would be sustained in the attempt to establish a perimeter at the crisis site. He characterized the situation at Ruby Ridge as "the most dangerous situation the HRT has ever gone into."[FN717] Similarly, Coulson, the Deputy Assistant Director of the Criminal Investigative Division of the FBI at the same time, assessed the situation as posing an extreme risk to law enforcement personnel. In his words, "these types of operations are the most dangerous type of tactical operations that can be undertaken, especially if the subjects have not been contained."[FN718]

The first priority of the FBI at Ruby Ridge was to secure and control a perimeter around the Weaver cabin to ensure the safety of law enforcement personnel and to prevent the escape of those who may have been involved in the exchange of gunfire the previous day. In addition, the FBI wanted to obtain information about the situation based upon firsthand observation rather than having to continue to rely upon the reports from other law enforcement agencies.

We agree that the deployment of tactical personnel at Ruby Ridge to establish a perimeter around the Weaver cabin was a sound decision. Indeed, a consensus exists among FBI tactical specialists and other professionals in the law enforcement community that securing and controlling the site should be the first priority in a crisis. For these reasons, the initial strategic step by the FBI to deploy HRT sniper/observers and members of the Marshals Service SOG around the cabin was appropriate.

Another issue surrounding the initial deployment of law enforcement personnel was the delay in deployment, which occurred at least six hours after the HRT arrived at Ruby Ridge. A substantial portion of the delay resulted from the late arrival of four-wheel drive vehicles to transport the sniper/observers to the mountain area surrounding the cabin. This delay was crucial in that the first team of sniper/observers did not arrive at its position until approximately 5:00 p.m. Had the sniper/observers been deployed without waiting for the vehicles, they could have reached their positions some three hours earlier. Considering the gravity of the situation and the urgent need to gather intelligence, the delay was significant. However, the HRT supervisors explained to us that because of the rugged mountain terrain, they concluded that four-wheel drive vehicles were critical to a speedy deployment. Although in retrospect, it may have been advisable to deploy on foot, we believe that the decision to wait for the vehicles was reasonable under the circumstances existing at the time.

A final issue presented during the early development period was the need for a call out or to give a warning to those in the cabin before an HRT member fired a shot. Constitutional case law and the FBI's standard deadly force policy require such an announcement to be given "when feasible" before deadly force is used. We find that the management team gave insufficient consideration to giving such warnings. Although we do not believe it was appropriate, or safe, for Horiuchi or any of the other HRT sniper/observers to give a surrender warning to those in the cabin after they had arrived in their positions,[FN719] it was of crucial importance that such warnings be given by others, if feasible.

The plan in effect between the deployment of the HRT sniper/observers and the time of the surrender announcement was that contained in the Rules of Engagement which instructed HRT personnel to use deadly force if armed males were seen outside the cabin. We believe that FBI management team should have addressed the probability that once the subjects would come out of the cabin, especially considering the sounds of the helicopter and personnel carriers that were present during this time.

The first planned warning, assuming the subjects were contained in the cabin, was the formal announcement which was to occur after the personnel carriers had arrived in the cabin vicinity. The lack of a planned "call out" as the sniper/observers deployed is significant because the Weavers were known to leave the cabin armed when vehicles or airplanes approached. The absence of such a plan subjected the Government to charges that it was setting Weaver up for attack. We believe that the management team did not satisfy its obligation to evaluate the feasibility of giving surrender warnings under those circumstances. The delay in giving the surrender announcement is discussed in greater detail below.

c. The HRT Rifle Shots Fired on August 22, 1992

(1) The Applicable Standard for Review

The Fourth Amendment provides persons with the right to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and this right extends to those persons suspected of actual or anticipated criminal wrongdoing. When police officers arrest a criminal suspect, they make a seizure, thereby bringing their conduct within the protection of the Fourth Amendment. The Fourth Amendment and the case law emanating from it provides that, while there are important governmental interests in effective law enforcement, there are equally powerful countervailing interests supporting a person's right to be free from the intrusiveness which inevitably accompanies a seizure.

The U.S. Supreme Court has considered the question of seizures by the use of deadly force and has articulated a framework with which to analyze their constitutionality. In Tennessee v. Garner, 471 U.S. 1,7 (1985), the Court stated that "there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." When a police officer kills or mortally wounds a suspect while attempting to make an arrest, the ultimate seizure occurs. Not only is the suspect deprived of his life, in which he has the most fundamental interest, but society is deprived of the "judicial determination of guilt and punishment." Id. at 9. However, the Supreme Court recognized that effective law enforcement requires that deadly force be permissible in some circumstances.

In Garner, a burglary suspect fled the crime scene while a police officer pursued him. Although the officer identified himself and ordered Garner to stop, Garner continued to scale a fence. The officer, who saw no weapon and who was reasonably sure that Garner was unarmed, fired shots that killed Garner. The state statute permitted an arrest by all necessary means if the suspect had been provided notice of the officer's intent to arrest him yet persisted in fleeing or forcibly resisting arrest. The Supreme Court ruled this statute unconstitutional because it justified the use of unreasonable force, regardless of the danger that the suspect presented.

The Court in Garner enunciated a general theory permitting the use of deadly force by police officers: [W]here the officer has probably cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a deadly weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given." Id. at 11-12.

It was not until 1989 in Graham v. Connor, 490 U.S. 386, that the Supreme Court articulated an objective standard for evaluating the use of deadly force. In Graham, police had forcibly detained Graham, a diabetic, and prevented him from drinking orange juice to prevent the onset of insulin shock. The police handcuffed Graham and ignored or rebuffed his attempts to explain and treat his condition. Graham sustained multiple injuries and was released when it was determined that he had done nothing wrong.

The Supreme Court rejected the subjective standard the district and appellate courts had imposed which had required Graham to show that the police had applied force "maliciously and sadistically for the very purpose of causing harm." Id. at 390 -391 (citations omitted). The Court held that instead of a subjective standard "all claims that law enforcement officers have used excessive force -- deadly or not -- . . . should be analyzed under the Fourth Amendment and its 'reasonableness' standard. . . ." Id. at 395.

(2) The First Shot

With respect to the objective reasonableness of each of Horiuchi's shots, we must examine them in conjunction with the factors enunciated by the Graham court -- the severity of the crime, whether the suspect posed an immediate threat to the safety of the officers or the others, and whether he actively resisted arrest.

Before assuming their position overlooking the Weaver compound, Horiuchi and the other agents had been briefed about the encounter at the Y. From this briefing, they knew that a marshal had been killed; that Weaver had sophisticated weapons experience; that the family had declared that they would never surrender to the federal government and were prepared for a confrontation with the government; that the family was generally armed when they left the cabin; and that the family made armed responses to approaching people and vehicles. Although FBI personnel did not have specific details about the August 21 shooting, they knew: that more than one shot had been fired at the "Y"; that Randy Weaver, Kevin Harris, and Sandy Weaver had been there; and that Kevin Harris had shot and killed Deputy Marshal Degan. In addition, they had been informed that shots had been fired at an airplane and that there had been unconfirmed reports of an April 1992 shooting at a news helicopter near the Weaver compound.

Thus, before Horiuchi was in position to react to the quickly unfolding events of the evening of August 22, it could be said that two Graham factors had been satisfied: Horiuchi knew that a crime had been committed, and he knew that Weaver was resisting arrest with Harris' assistance. [FN720]

With those two factors satisfied, we turn to the remaining question of whether the person whom Horiuchi shot posed an immediate threat to officers or others. Before Horiuchi fired his first shot, he had two opportunities to shoot, first at the young girl, then at the unarmed man who was prodding the ground with a stick. Horiuchi did not shoot either person because he believed the young female was an unarmed child and that the man was not behaving in a threatening manner.

According to Horiuchi, he fired the first shot only after he heard and saw the helicopter. When the person whom he believed to be Harris reappeared at the side of the shed from which he had disappeared, he held his weapon at high port and scanned above and behind Horiuchi's position. Horiuchi believed that the man was looking for the helicopter. According to Horiuchi, the man was "watching the helicopter, and at times he would kind of bring his weapon up and [Horiuchi perceiv[ed] that perhaps he was trying to get a shot off." [FN721]

The person in Horiuchi's sights moved along the side of the birthing shed, while holding his weapon high. Horiuchi believed that the person had seen the helicopter and was trying to get to the other side of birthing shed. Horiuchi concluded that the person was preparing to shoot at the helicopter with his scoped rifle. [FN722] He saw the individual watching the area where Horiuchi believed the helicopter was flying and saw the man "getting ready to take a shot at the individuals in the helicopter."[FN723]

[GARRITY]

[FN724] Horiuchi "assumed that [the man] was raising [his arm] to grab inside the building to spin himself around the corner." [FN725] It was at this time that Horiuchi fired one shot. At the time that Horiuchi shot, the man was at the corner of the shed, with his back toward Horiuchi. According to Horiuchi, he was aiming at the man's back at the time he fired the shot. [FN726] After the shot was fired, the man suddenly moved along the side of the birthing shed and disappearing from Horiuchi's vision.

Horiuchi's colleague's, who were able to see the events at the cabin, gave considerable corroboration for his perceptions. Dale Monroe, Horiuchi's teammate, heard the helicopter and noticed it flying around the Weaver cabin. He "thought [the Weaver group was] going to shoot at the helicopter from various fortified positions around the cabin....." Although Monroe's view was obstructed by the brush, he eventually spotted an adult male with a rifle near the birthing shed just before he heard the first shot. Monroe assumed that "the immediate danger.....was to the helicopter". [FN727] Jerome Barker saw two males and a female, all armed with long barreled weapons, move from the residence to the birthing shed. He believed that they "posed a grave threat to the safety of the helicopter as well as [him]self and [HRT members] Curran, Horiuchi and Monroe." Barker was telling his partner Curran of their location so that Curran would "be prepared to encounter them at they approached" when he heard a shot from Horiuchi's position. [FN728]

Some of Horiuchi's perceptions as he fired the first shot were not accurate. At trial, Horiuchi was adamant that he never saw a gun in the hands of Randy Weaver, even though Weaver was armed at the time he was struck by Horiuchi's first shot. [FN729]

[G.J.], [FN730] Horiuchi was incorrect. Several HRT sniped/observers on the mountainside and Harris himself confirm that Sara Weaver, Randy Weaver, and Kevin Harris were all armed at the time they came out of the cabin. [FN731]

Although we are troubled by Horiuchi's inaccurate perception of some of the facts when we took the first shot, we do not think that these misperceptions affected his ability to assess the risk presented. Indeed, we find his perception of the facts most relevant to our inquiry to be reliable and reasonable. More specifically we find reliable and reasonable his perceptions that the target was an armed man; the helicopter was in flight; and that the movements of the man indicated a threat to the helicopter. Based on these perceptions, Horiuchi, as well as the two other snipers, who were able to see the movement around the cabin, believed that the safety of both the people in the helicopter and the snipers were threatened by the armed individuals

[G.J.]

Special Agent in Charge Glenn noted that, on a reconnaissance mission on which he was a passenger, the helicopter was forced by bad weather to "stay at low altitudes and weave around the crisis site in an effort to avoid being an obvious target." [FN733] Glenn believed that the helicopter was within range of a rifle shot. [FN734]

Weaver and Harris have stated that their actions were innocent and not indicative of aggressive conduct. According to them, they left the cabin to view Sammy Weaver's body in the birthing shed an to retrieve a battery. We are skeptical of this account. Indeed, we think it is unlikely they would have timed such innocent activities to coincide with event which would expose them to enhanced risk by leaving the secure cabin and venturing to an unprotected area when armed law enforcement personnel were nearby. Therefore, we find their explanation implausible. We are convinced that because of their knowledge of and involvement in the previous day's shooting of a marshal, the heavy traffic below that was audible in the cabin, and the loud helicopter flights above the Weaver cabin, that the cabin occupants knew that law enforcement personnel were in the area. In light of the circumstances, we believe they probably came out in response to the noise of the helicopter and the personnel carriers, not simply for the innocent reasons they offer. Accordingly, we believe that Horiuchi reasonably interpreted the actions of the three people as they ran from the cabin as aggressive.

The law requires that we give some deference to Horiuchi's perceptions of the threat to the helicopter and the individuals aboard it. Indeed, the Supreme Court in Graham cautions that "the 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 386 U.S., at 396. In Graham the Supreme Court also advised that, in assessing the reasonableness of the use of deadly force, one must allow for the fact that police officers are often forced to make split- second judgments in these circumstances, like those at Ruby Ridge, that are tense, uncertain, and rapidly evolving. As the Sixth Circuit emphasized in Smith v. Freland:

[W]e must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world the policemen face every day. What constitutes 'reasonable' action may seem quite different to one facing a possible assailant than to someone analyzing the question at leisure.

954 F.2d at 347

Applying these standards to the first shot taken by Horiuchi, we conclude that the first shot meets the constitutional standard of "objective reasonableness". We accept Horiuchi's justification for the first shot. Based on the circumstances present at the time, we find it reasonable for Horiuchi to believe that the armed male he observed was preparing to shoot down the helicopter.

(3) The Second Shot

We now look at the immediacy of the threat factor to evaluate whether the second shot was justified. The second shot, after passing through the window of the cabin door, killed Vicki Weaver who was standing behind the door and also seriously injured Kevin Harris.

As a preliminary matter, the two conditions we found satisfied in regard to the first shot -- the reasonable conclusion that the suspects had been involved in a severe crime and that they were actively resisting arrest -- were satisfied at the time of the second shot. Again, our focus must be on whether the target of Horiuchi's shot posed an immediate threat to the officers or others.

In our discussion above, we found that when Horiuchi fired the first shot, he made a judgment of threat and necessity based on his observation that the armed male posed an immediate threat of death or serious harm to the occupants of the helicopter. Horiuchi admitted that, after taking the first shot, he intended to shoot at that man again, given the opportunity, because the threat the subject posed would increase after he returned to the cabin. [FN735] Horiuchi feared that once the man returned to the cabin, he would have been more protected and could have shot at the HRT personnel or the helicopter. Horiuchi felt that the man probably knew that law enforcement personnel "couldn't shoot back in there without harming some of the children." [FN736]

The second shot raises serious questions. On one hand, Horiuchi believe that at least one subject was armed and had intended to shoot at the helicopter, and that the subjects now knew at least generally where a sniper was located. However, this perception must be evaluated in conjunction with the reality that the subject were returning to their home and had not returned fire when shot upon. Thus, their actions as they ran into the cabin were not aggressive, but rather protective or defensive.

We find Horiuchi's explanation of the threat and necessity of the second shot speculative. Based on the facts known and the actions of the subjects, we do 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.

Horiuchi also confused his targets. He erroneously believed that the last man returning the cabin as the man he had originally tried to shoot. Thus, Horiuchi never saw Harris, the target of his second shot, take any threatening action toward the helicopter.

Many of the sniper/observers saw three people running to the cabin after the first shot. None reported ny action that could immediately be interpreted as threatening to the helicopter or the sniper/observers. In a statement Horiuchi prepared later that evening, he explained that, just before Harris entered the cabin, he "stopped at the door looking for either the helicopter or where the shot came from...." [FN737] Thus, even Horiuchi does not characterize these movements as threatening or as provocation for the second shot. Indeed, he admitted that he had already decided to shoot when Harris paused in front of the door. Horiuchi testified at trial, " 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." [FN738]

Although we agree that Harris and the Weavers could have fired from inside the cabin, we do not believe that this potential, especially considering the circumstances of the this case, warranted law enforcement to perceive an immediate threat. Since the exchange of gunfire at the Y, no one at the cabin had fired a shot. Indeed, they had not even returned fire in response to Horiuchi's first shot. Furthermore, at the time of the second shot, Harris and others outside the cabin were retreating, not attacking. They were not retreating to an area where they would present a danger to the public at large or take members of the public hostage. [FN739] Instead, they were retreating into a cabin and within rifle shot of well equipped law enforcement personnel. Finally, as we discussed below, prior to this time, law enforcement personnel had not viewed the presence of Weaver and Harris in the cabin as posing a particular threat. In our view these facts undercut the immediacy of the threat that Harris posed to Horiuchi and his colleagues.

At Ruby Ridge, FBI supervisors in charge of the crisis determined that, following the deployment of HRT sniper/observers around the cabin, a negotiation strategy was to be employed, at least initially, to solve the crisis. [FN740] The supervisors has decided that the safest solution to the crisis was to contain the Weaver/ Harris group and induce its members to leave the cabin through negotiations. This strategy contemplated that sniper/observers would surround the cabin while Weaver and Harris were inside with weapons. It can be assumed that the FBI command contemplated that, during negotiations, risk form the cabin would be tolerated in the hope of a peaceful resolution. The plan did not contemplate the use of deadly force as the only safe alternative. Indeed, plans to assault the cabin because of a perceived immediate threat had been rejected earlier in the day. Horiuchi's explanation of the threat is, therefore, contrary to the approved negotiation strategy.

However, even if Horiuchi's judgment on the necessity to use deadly force was supportable, we believe that his second shot was taken without regard for the safety of others near Harris. Although Horiuchi could not see behind the front door of the cabin, he had reason to believe that someone might be on the other side when he took his second shot. At trial he testified that it appeared that Harris "was trying to hold the door open or moving somebody out of the way" when Horiuchi fired. [FN741] When asked if he "knew there was somebody behind the door," Horiuchi responded that he "wasn't shooting at the individual behind the door." [FN742] However, by fixing his cross hairs on the door, when he believed someone was behind it , he placed the children and Vicki Weaver at risk, in violation of even the special Rules of Engagement:

If any adult male is observed with a weapon prior to the announcement deadly force can and should be employed if the shot could be taken without endangering any children. (Emphasis added.)

(GARRITY)

In our opinion he needlessly and unjustifiably endangered the persons whom he thought might be behind the door. [FN743]

(GARRITY)

[FN744]. We also find no evidence that Vicki Weaver was the intended target of the second shot as has been alleged. Horiuchi testified that he did not intend to shoot her. [FN745] Our review of the evidence has produce nothing to discredit those statements.

In sum, even 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." Moreover, we believe that the shot was unnecessarily dangerous and should not have been taken.

We understand that the FBI standard policy on the use of deadly force has been interpreted as permitting deadly force when it is "necessary," that is, "when alternative steps are not likely to lead to safe control of the subject." [FN746] Some in the FBI interpret "safe control" to mean "in custody." [FN747] We are not convinced the this interpretation is sound policy and point out that the interpretation could allowably argue the use of deadly force whenever a dangerous person refuses to surrender, even is less violent measures could be used to apprehend the person. Such an approach raises serious constitutional concern.

Supervisory Special Agents John Hall and Kimberly Crawford of the Legal Training Unit at the FBI prepared a legal analysis of the Ruby Ridge incident and determined that Horiuchi's shots were "reasonable under constitutional standards" [FN748]. The Hall/ Crawford analysis concludes that Horiuchi "has a reasonable basis for believing that the two armed, male suspects at whom he fired his rifle met the constitutional criteria for dangerousness" and the both shots were necessary, that is, "no safe alternatives were available to accomplish the seizure" of Harris and Weaver. [FN749] In particular, they concluded that the second shot was necessary to because "permitting a demonstrably dangerous (and armed) person to regain a position of cover and concealment dramatically increases the potential threat to effect the seizures of the suspects." [FN750]

Hall and Crawford quote Garner for the proposition that deadly force is justified in preventing the escape of a suspect, "if the suspect threatens an officer with a weapon" or" there is probably cause to believe that [the suspect] has committed a crime involving the infliction of serious physical harm." [FN751] They conclude that because Horiuchi reasonably believed that his targets had "'committed a crime involving the infliction of serious physical harm' [to Deputy Marshal Degan], it was reasonable to believe that 'the [targets] pose[d] a threat of serious physical harm'" to Horiuchi and his colleagues. Finally, the conclude that "[t]he Fourth Amendment does not require a showing that the threat was 'imminent.'" [FN752]

We reject this analysis to the extent that it implies that a reasonable belief that a suspect has committed a crime involving the infliction of serious physical harm eliminates the necessity of considering whether a threat is imminent before deadly force is used. The Hall/Crawford analysis accurately quotes Garner as saying 'deadly force may be sued to prevent escape", if "the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction.....of serious physical harm." [FN753] However, this language was not intended to indicate that deadly force, without something more, could be used. Indeed, the following language in Garner was meant to explicate the previous sentence: "Where that officer has probable cause to believe that the person poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape using deadly force." [FN754] Thus, the use of deadly force in such situations still requires that the officer have "probable cause to believe" that the person "poses a threat of serious physical harm." Such a requirement is consistent with the explicit holding of Garner announced earlier in the decision that deadly force "may not be used unless it is necessary to prevent [an] escape and the officer has probably cause to believe the subject poses a significant threat of death or serious physical harm." [FN755] Finally, the immediate threat requirement is reiterated in the Supreme Court in its conclusion that the "proper application" of the Fourth Amendment to the use of deadly force requires "careful attention to a number of factors, which include not only "the severity of the crime at issue," but also "whether the subject poses an immediate threat." [FN756]

We conclude that, even if Horiuchi reasonably believed that Weaver and Harris had participated in Degan's killing, he still had to consider the imminence of the threat his targets posed to himself and his colleagues when he fired. Considering the totality of the circumstances of the second shot, we have concluded that the retreating subjects did not pose an imminent threat of physical harm.

We cannot fault Horiuchi alone for these actions. We are persuaded that his judgment to shoot at the armed man again, if given the chance, was influenced by the special Rules of Engagement, which he had no role in creating but which he was instructed to follow. We believe that Horiuchi fired his second shot and Wenger prepared to shoot because the Rules of Engagement had a significant effect on the snipers/observers' sense of danger and had encouraged their use of deadly force. [FN757]

Although we believe that, even under the special Rules, Horiuchi should not have taken a shot into the door with the possibility that persons other than the other than the target could be injured, the responsibility for taking that shot may not rest exclusively with Horiuchi. As we noted above, the special Rules of Engagement were subjected to different interpretations as to who was a subject and what conduct could be required before a shot could be taken. This inquiry finds that the Ruled expanded the use of deadly force beyond the scope of the Constitution and beyond the FBI's own standard deadly force policy. Despite this conclusion, we are convinced that those who prepared the Ruled believed that their provision were within the law.

Having made these finding, we have proposed recommendations at the conclusion of this report. However, because we remain seriously troubled by the circumstances that surrounded the second shot, we recommend referral of the matter of the second shot to the appropriate component of the Department of Justice for a determination of whether federal criminal prosecutive merit exists.

(4) Use of the Helicopter to Draw Subjects Out of the Cabin

This inquiry found no evidence to support the allegation that the FBI intentionally used the helicopter to lure the Weavers and Harris out of the cabin so that they would be a target for HRT snipers. Utilization of overhead observation to collect information at a crisis site and to determine the possible presence of confederates or individuals in areas adjacent to the crisis site is a well recognized technique that gathers critical information for those responsible for responding to crisis situations.

Notwithstanding this conclusion, we believe the FBI supervision of sniper/observers on the mountain was handled poorly. From information received at the Marshals Service, FBI management had reason to believe that the Weaver/ Harris group would respond to a helicopter in the vicinity of the cabin by coming outside with firearms. Notwithstanding this knowledge, they placed sniper/observers on the adjacent mountainside with instructions that they could and should shoot armed members of the group, if they came out of the cabin. Their use of helicopter near the cabin invited an accusation that the helicopter was intentionally used to draw the Weaver group out of the cabin.

When asked it the helicopter could have been utilized to draw the Weaver subjects out of the cabin, HRT and SOG personnel were unanimous that such a tactic would not be sound strategy in that it would subject those in the helicopter to severe risk. We agree that the intentional use of a helicopter in such a fashion would be unwise. In view of the fact that three senior law enforcement officials were in the helicopter when Horiuchi fired the first shot, it is unlikely that the helicopter was used intentionally as a lure.

However, we do believe that greater thought should have been given to the fact that Randy Weaver and Kevin Harris probably would come out of the cabin when the helicopter flew in the vicinity. We believe that the deployment of sniper/observers with the instructions that they "can and should" use deadly force against armed males outside the cabin, concurrent with the use of the helicopter, set the stage for the rifle shots on August 22. By not anticipating the consequences of snipers in position and helicopter in flight while special rules of engagement were in force, the FBI invited an accusation of an intentional lure. Other than rumors, we found no evidence to support allegations of the helicopter's use in such a fashion.

(5) Surrender Announcement

In examining the early stages of HRT's involvement in the crisis, the question of the timing of surrender announcement arises, namely, whether before or during the deployment of HRT personnel, the FBI could have announced to those in the Weaver cabin area the presence of law enforcement and could have demanded their surrender.

When a crisis presents a heightened possibility that federal law enforcement may employ deadly force, those who have created the crisis situation should be notified, when feasible, that law enforcement personnel are in the area and that they should surrender. Indeed, the standard deadly force policy of the FBI requires that the agents issue a warning, when feasible, before deadly force is employed.

At Ruby Ridge, it was of paramount importance to give notice to those in the Weaver cabin at the earliest feasible opportunity, given the Rules of Engagement in effect during the initial stages of the FBI operation. The FBI had a good reason to believe that the people in the cabin had a least a general knowledge of law enforcement's presence. [FN758] It is less certain whether they were aware of the imminent danger of being shot when they left the cabin before Horiuchi fired. [FN759]

There was no attempt by the FBI to give notice to the individuals in the cabin prior to the shots taken by Horiuchi. However, immediately after the shots, at approximately 6:15 p.m., two armored personnel carriers were driven to the vicinity of the cabin and a surrender announcement was made. In our view, the factor that caused the FBI to make the surrender announcement at that time was Horiuchi's shots.

The Rules of Engagement underscore the importance of the timing of the surrender announcement and make inexcusable and unjustifiable delay in giving the announcement. The announcement should have been a priority at Ruby Ridge, not a rushed afterthought. The FBI should have explored whether it was possible to make a surrender announcement before deploying sniper/observers. We believe it was possible to make an announcement earlier. Perhaps the announcement could have been made without great risk by using an armored personnel carrier or a sound transmitter from a safe distance. At a minimum, we believe that more consideration should have been given to this crucial part of the operation, particularly in light of the Rules of Engagement in effect.

4. Conclusion

We find that the decision to deploy the FBI's HRT and components of the U.S. Marshals Service SOG to the Ruby Ridge site was proper. However, the Rules of Engagement drafted by the FBI were improper and failed to comply with constitutional standards regarding the use of deadly force by a law enforcement officer. The Rules were also a departure from the FBI's standard policy on the use of deadly force. Implementation of such Rules may have created an atmosphere that caused an HRT sniper/observer to take a shot that he otherwise would not have taken. The imprecision of the Rules resulted in wide misunderstandings regarding the authorized use of deadly force by law enforcement personnel. In addition, the Constitution requires that surrender announcements be given, where feasible, before deadly force may be employed. For this reason, we believe that the FBI should have given a higher priority to making a surrender announcement at the earliest possible opportunity.

We believe that in examining the "totality of the circumstances" surrounding the first shot taken by the sniper/observer, the shot met the constitutional standard of "objective reasonableness." Applying the same analysis, we believe, that the second shot did not meet that standard. Although we did not believe that the existence of an immediate threat is a precondition for the legitimate use of deadly force, we do believe that its presence or absence is important. In this case, we conclude that the sniper/observer did not have a reasonable fear of an immediate threat to the safety of law enforcement personnel or others when he fired the second shot. We find that 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. In addition, we note that the sniper/observer's perception that the armed adults' return to the cabin would create an enhanced danger was inconsistent with the FBI plan in effect which was to attempt negotiation with the occupants of the cabin. As a result of these changed circumstances, we 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.

[Garrity Material PAGES REMOVED 229-232]

---

FOOTNOTES (SECTION IV, PART F)

528 Thomas Sworn Statement, at 15.

529 Potts Sworn Statement, December 17, 1993, at 9.

530 Id. at 6.

531 [G.J.]

532 Rogers Trial Testimony, June 2, 1993, at 20-21.

533 Id. at 22-23.

534 Rogers Trial Testimony, June 3, 1993, at 85-86.

535 ID., June 2, 1993, at 24.

536 [G.J.]

537 Potts Sworn Statement, December 17, 1993, at 8. (Emphasis added.) Furthermore, Potts said that any written records made by him pertaining to this matter would have been forwarded by him to the FBI Headquarters unit responsible for the management of the case, which was the violent Crimes/Major Offenders (VCMO) Section of the Criminal Investigative Division. Attempts to retrieve his written record were unsuccessful. In addition, toward the end of our inquiry, we made a broad request to the FBI for any and all documents relevant to our inquiry which had not previously been produced. this request went to all pertinent FBI components and offices. Al responses to the request were negative except for one response from the Salt Lake City office which contained no information significant to our inquiry that had not been provided previously.

538 Potts Sworn Statement, December 17, 1993, at 8.

539 FD-302 Interview of John Sauls, October 20, 1993, at 2-3.

540 ID.

541 ID.

542 ID.

543 FD-302 Interview of Lee C. Rasmussen, January 12, 1994, at 2.

544 Coulson Sworn Statement, November 23, 1993, at 9.

545 Coulson Sworn Statement, November 3, 1993, at 10-11. Coulson reminded Rogers of a 1988 HRT deployment in Utah, which had resulted in the only killing of a law enforcement officer during an HRT operation. Coulson believed that the Utah incident was strikingly similar to the Weaver crisis. According to Coulson, in the Utah case, BATF had requested the FBI to assist in apprehending Adam Swapp who had been implicated in the bombing of a Mormon temple. Like Randy Weaver, Swapp was a survivalist who armed himself, his associates, and family members. The HRT was deployed to assist the Salt Lake City Division in apprehending Swapp. Thereafter, a standoff occurred during which Swapp and other adults routinely left their residence while armed. Throughout the siege, Swapp and others threatened law enforcement personnel, fired upon the perimeter of the FBI agents, and resisted arrest. At the end of the siege, a young boy, who was confined to a wheelchair, shot and killed a local police officer from a window of the house as HRT members and other law enforcement personnel attempted to apprehend Swapp. Coulson and Rogers discussed at length the circumstances of the 1988 case, and Coulson expressed concern that the HRT would incur casualties if adequate precautions were not taken at Ruby ridge. ID. at 4-5.

546 Coulson Sworn Statement, November 3, 1993, at 6.

547 Smith Sworn Statement, January 6, 1994, at 5-6.

548 ID. at 6.

549 [G.J.]

While waiting for the rest of the team to arrive, HRT Supervisor Stephen McGavin, second in command to Rogers, began writing the Rules of Engagement from his memory of the discussions on the airplane.

550 Gore Sworn Statement, November 3, 1993, at 5.

551 Sworn Statement of Stephen Peter McGavin, November 19, 1993, at 8.

552 Rogers Trial Testimony, June 2, 1993, at 44.

553 Trial Exhibit No. 41-3, UNITED STATES V. WEAVER, CR 92- 080-N-EJL. The Rule was modified from "adult" to "adult male" to exclude Vicki Weaver around 2:30 or 3:00 p.m. after consultation with Glenn because Vicki Weaver was not seen at the site of Degan's slaying. The change was communicated to the sniper/observers before deployment. Rogers Trial Testimony, June 2, 1993, at 31.

554 ID. at 31-32.

555 ID. at 50.

556 ID. at 47-48.

557 ID. at 48.

558 There are no documentation or log entries related to these discussions.

559 Stagg FD-302, October 21, 1993, at 7.

560 Glenn Sworn Statement, January 12, 1994, at 11-12.

561 [G.J.]

562 Rogers Trial Testimony, June 2, 1993, at 99-100. See Trial Exhibit No. 41-4.

563 McGavin Sworn Statement, November 19, 1993, at 14.

564 Glenn Sworn Statement, January 12, 1994, at 12-13.

565 Crisis Center Log, August 22, 1992, at 3:00 p.m. (EDT).

566 ID. at 3:33 p.m. (EDT).

567 Crisis Center Log, August 22, 1992, entering at 4:50 p.m. (EDT). The Log also stated that weather was a major factor and that the plan was scheduled to commence late that afternoon but might be pushed back because of weather conditions. Concern was raised about the deployment of gas into the residence because of the high degree of risk to small children and the possibility that a one year old baby was inside.

Although the Crisis Center Log notes receipt of the draft operational plan from the FBI at 5:40 p.m. (EDT), the FBI SICC log has no entries recording the plan's receipt or transmission to the Crisis Center.

568 Gore Sworn Statement, November 3, 1993, at 8-9.

569 Gore recalls this discussion as follows:

Lou Stagg voiced an opinion it wouldn't work; it would get our people killed. I became aware that Marshal's Service representatives contacted the USMS command post in Washington, D.C. complaining about the FBI's handling of this matter. I do not recall that these Marshal's Service representatives provided and viable alternative to the Operational Plan as drafted other than the possible suggestion to effect it during hours of darkness.

Gore Sworn Statement, November 3, 1993, at 9-10.

570 Coulson told Potts why he had not approved the proposed plan. Although Potts did not see the plan, he agreed with Coulson's rejection of it.

571 Coulson Sworn Statement, November 3, 1993, at 9, 13-14.

572 FBI Strategic Information and Operations Center entry, August 22, 1992, at 6:30 p.m. (EDT) (hereinafter cited as "SIOC Log".) (Emphasis added.) Subsequent interviews determined that Weaver was not actually seen, but that tactical personnel had heard a person they believed to be Weaver, yelling from a distance.

573 Coulson FD-302, November 3, 1993, at 9-10.

574 Gore Sworn Statement, November 3, 1993, at 10. He stated that Headquarters "wanted our negotiation strategy which was an objective of our plan to be documented in the plan.... Despite FBIHQ's knowledge of our clear intent to initiate negotiations as soon as possible, written documentation was being required."ID.

575 FD-302 Interview of Frederick Lanceley, September 2, 1993, at 2.

576 FD-302 Interview of Frederick Lanceley, October 19, 1993 at 2-3.

577 SIOC Log, August 22, 1992, at 7:52 p.m. EDT (4:52 p.m. PDT).

578 SIOC Log, August 22, 1992, at 7:53 p.m. EDT (4:53 p.m. PDT). The Crisis Center Log states that the negotiation annex was received from the FBI at 7:50 p.m. (EDT). The command post explained that APCs would be "activated in 30 minutes." Crisis Center Log, August 22, 1992, at 7:50 p.m. and 8:10 p.m. (EDT).

579 The FBI conducted an internal administrative inquiry into the circumstances surrounding the two HRT rifle shots on August 22, 1992. For a discussion of the results of that inquiry see Section IV (G), INFRA.

580 [GARRITY]

581 Glenn Sworn Statement, January 12, 1994, at 16.

582 Rogers Trial Testimony, June 2, 1993, at102.

583 Potts continued:

ROE are utilized as a method of assisting tactical personnel in identifying and refining the perception of the level of risk. They are never intended to obviate the standard FBI deadly force policy. When HRT deploys, the initial mission is to isolate and contain subjects. Sniper/observers are usually utilized to begin this task, and they are usually deployed immediately. ROE are established and given these personnel as a means of further identifying the level of risk, in a concise manner....

As stated in the document ROE provide, in part:

'If any adult in the compound is observed with a weapon after the surrender announcement is made, deadly force can and should be employed to neutralize the individual. If any adult male is observed with a weapon prior to the announcement, deadly force can and should be employed, if the shot can be taken without endangering the children.' Although I personally would not normally, and did not use the word 'should' in that context, it is my belief that it only serves to heighten the awareness of the threatening situation at hand, and does not mean 'must'. Potts Sworn Statement, December 17, 1993, at 8-10.

584 Coulson Sworn Statement, December 7, 1993, at 6.

585 Glenn Sworn Statement, January 12, 1994, at 13.

586 ID. at 15. (Emphasis added.)

587 Glenn explained that he intended the Rules of Engagement to clearly differentiate this situation from similar situations where "operational personnel are precluded from using deadly force because of other ongoing initiatives." ID. at 16.

588 Glenn Sworn Statement, January 12, 1994, at 14-15.

589 ID., at 14.

590 Gore explained:

In addition to the willingness to shoot a law enforcement officer as shown by the killing of DUSM Degan, the ROE [Rules of Engagement] were predicated on the totality of the intelligence information as provided up to that time, again primarily by the USMS. Weaver had been reported to have a large cache of weapons. It had been initially reported he was a Green Beret during his military service and that he had opportunity for 18 months to fortify his compound during the extended fugitive investigation by the USMS. I was also aware that newspaper articles had been written suggesting that Weaver would not be taken alive. It was also remarked that he would not come down from the hill.... This intelligence, at times, also included that he possibly possessed infrared equipment, explosives, hand grenades and had placed booby traps.

Gore Sworn Statement, November 3, 1993, at 7-8.

591 ID. at 7.

592 Sauls FD-302, October 20, 1993, at 3-4.

593 Memorandum by Supervisory Special Agents John C. Hall and Kimberly Ann Crawford, entitled, " A Legal and Policy Analysis of the Shooting Incident at Ruby Ridge, Idaho, 8/22/92", December 2, 1993, at 7-8 (hereinafter cited as "Hall/Crawford Memo").

594 Lindquist Interview, Tape 6, at 16-17.

595 ID. According to Lindquist, HRT Commander Rogers seemed sincere in explaining that he used the Rules to protect his personnel. Rogers characterized the Rules as an expansion of the FBI standard policy on the use of deadly force. Lindquist recognized the possibility that the Rules might be rejected by the jury at trial as overreaching and excessive. ID.

596 Lanceley FD-302, September 2, 1993, at 2, and October 19, 1993, at 2.

597 ID. at 69.

598 Rogers Trial Testimony, June 3, 1993, at 66.

599 ID. at 67.

600 ID.

601 ID. at 68.

602 ID. at 68-69.

603 McGavin Sworn Statement, November 19, 1993, at 9.

604 McGavin continued:

At Ruby Ridge, shots had been fired by subjects unwilling to submit to arrest by the federal government. the ROE were needed to inform HRT members going into a continuing crisis between the government and these subjects, that they were moving in under great risk, and that an individual in that compound with a weapon was already a deadly threat. I am not saying that a decision to shoot would be made for anyone, nor am I saying that ROE would order an individual to shoot. ID.

605 ID. at 8.

606 ID. at 11.

607 ID. at 11-12.

608 ID. at 12.

609 Monroe was briefed two or three times on the Rules of Engagement, "which we all clearly understood." Sworn Statement of Dale R. Monroe, August 31, 1992, at 2-3, 6.

610 Wenger reports that the HRT was briefed on the Rules at the National guard Armory and later at the staging area. Sworn Statement of Edward C. Wenger, Jr., August 31, 1992, at 2.

611 Sworn Statement of Warren T. Bamford, October 26, 1993, at 4-5. Bamford recalled that the team was reminded at the National Guard Armory that normal Bureau policy regarding deadly force applied. However, HRT Sniper Coordinator Hazen added specific "Rules of Engagement" later at the command post. ID. at 2

612 Sworn Statement of Mark E. Tilton, August 31, 1992, at 2.

613 Sworn Statement of Jerome Anders Barker, August 31, 1992, at 2.

614 FD-302 Interview of Gregory Sexton, October 4, 1993, at 1-2.

615 FD-302 Interview of Danny Joe Harrell, October 5, 1992, at 3.

616 FD-302 Interview of Peter K. King, October 4, 1993, at 2.

617 FD-302 Interview of Donald Kusulas, October 4, 1993, at 1-2.

618 FD-302 Interview of Brian McKee, January 7, 1994, at 2- 3.

619 Trial Testimony of Lon Horiuchi, June 3, 1993, at 164- 65.

620 ID. at 166-67.

621 ID. at 172-73. He emphasized that all the snipers were present when the Rules of Engagement were discussed:

The individuals that went up on the hill were present when the Rules of Engagement were discussed:

The individuals that went up on the hill were pre-briefed by me and Mr. Love, the other team leader, to ensure that the individuals that we had under our control were well-briefed on the rules of engagement.

ID. at 178.

622 ID. at 193.

623 Sworn Statement of Lester Hazen, November 19, 1993, at 8.

624 [G.J.]

625 [G.J.]

626 McGavin Sworn Statement, November 19, 1993, at 15.

627 [GARRITY]

628. There was concern that supporters of the Weaver group would approach the Weaver cabin and threaten law enforcement personnel. There were two reported episodes of reputed supporters of the Weaver/Harris group attempting come to their assistance. On Friday, August 25, 1992, two persons attempting to approach the cabin were arrested by the Idaho State Police. On Tuesday, August 25, 1992, five men were arrested after their vehicle was stopped five miles south of the crisis site in Naples, Idaho. The previous day, one of these men had purchased large quantities of ammunition at a local gun shop and had asked for directions to the Weaver cabin. Seven firearms, including two Mini 14 assault rifles, and large quantities of ammunition, were seized from their vehicle.

629. Stagg FD-302, October 21, 1993, at 7.

630. Glenn Sworn Statement, January 12, 1994, at 15; Gore Sworn Statement, November 3, 1993, at 9. According to Glenn, inclement weather had limited the effectiveness of helicopter flights in gathering intelligence. Glenn had been given primary responsibility for management of the law enforcement response at Ruby Ridge.

631. Hazen Sworn Statement, November 19, 1993, at 8.

632. Glenn Sworn Statement, January 12, 1994, at 23; McGavin Sworn Statement, November 19, 1993, at 15.

633. Horiuchi Trial Testimony, June 3, 1993, at 32. See also, HRT Sniper Log, August 22, 1992, at 3:45 (PDT), at 1.

634. FD-302 Interview of Frank Constanza, September 10, 1992, at 1.

635. Glenn Sworn Statement, January 12, 1994 at 22-23.

636. FD-302 Interview of Luke Adler, January 7, 1994, at 1.

637. Shooting Incident Report, September 30, 1992, at 2.

638. HRT Sniper Log, August 22, 1992, at 1. Unless otherwise noted, times specified in that log are Pacific Daylight Savings Time.

639. Upon arrival at this position, Horiuchi took out his rain jacket because it had begun to rain. He positioned his rifle through the limbs of a small pine tree. His weapon was a Remington, Model 700 rifle which has a fixed Unertyl, ten power telescope sight. The weapon fires a .308 calibre, match grade 168 grain bullet.

640. [G.J.] Horiuchi Trial Testimony, June 3, 1993, at 52-57.

641. [G.J.]

642. [GARRITY]

At trial, he said that the female stayed outside the cabin "two of three minutes, I'm not sure." Horiuchi Trial Testimony, June 3, 1993, at 63-64.

643. Id. at 64

644. Id. at 64-65

645. Id. at 66.

646. Id. at 66-67

647. Sworn Statement of Christopher Whitcomb, December 7, 1993, at 6.

648. HRT Sniper Log, August 22, 1992, 5:57 p.m., at 1.

649. Smith FD-302, November 24, 1993, at 7; and Rogers Trial Testimony, June 2, 1993, at 60-61.

650. FD-302 Interview of John Haynes, October 20, 1993, at 7.

651. Smith Sworn Statement, January 6, 1994, at 7-8; Rogers Trial Testimony, June 2, 1993, at 63-65.

652. Constanza FD-302, October 22, 1993, at 2.

653. Horiuchi Trial Testimony, June 3, 1993, at 67-69.

654. Id. at 81. Horiuchi assumed that the female was the same person he had seen earlier because of her small stature. Id. at 74.

655. [G.J.]

656. [G.J.]

657. Horiuchi Trial Testimony, June 3, 1993, at 71-72.

658. "Port arms" is a military term which describes a weapon being carried across the chest with both hands in a slanting direction with the barrel near the left shoulder.

659. [G.J.]

660. Horiuchi Trial Testimony, June 3, 1993, at 86-87.

661. [G.J.]

662. Barker Sworn Statement, August 31, 1992, at 3.

663. Id., November 12, 1993, at 2.

664. Id., August 31, 1992, at 3. Barker alerted Curran, who was preparing his position at Sierra 3 and did not observe any of this activity. Monroe, who was stationed with Horiuchi, did not see anyone leave the cabin until Horiuchi alerted him because Monroe's view was obstructed by brush. Monroe watched three persons run from the cabin with weapons at port arms or other positions of readiness. Monroe Sworn Statement, December 17, 1993, at 6-7. Whitcomb and Love at the Sierra 1 position and Wenger at Sierra 2 observed three armed persons move from the front of the cabin to rock outcropping. Tilton, the third sniper/observer at Sierra 1, heard radio transmissions that people were outside the cabin, but did not observe anyone. See Tilton Sworn Statement, August 31, 1992, at 3. Warren Bamford, also at Sierra 2, did not observe anyone near the Weaver cabin because he was preparing his position. See Bramford Sworn Statement, October 25, 1993, at 6.

665. Horiuchi Trail Testimony, June 3, 1993, at 81-82.

666. Id. at 82.

667. [GARRITY]

668. Horiuchi Trial Testimony, June 3, 1993, at 88, 90.

669. Id. at 93; [GARRITY] Horiuchi conceded that, although it may have not been effective, he could have yelled to Weaver and Harris to drop their weapons before he fired the first shot. Horiuchi Trial Testimony, June 3, 1993, at 169.

670. [GARRITY]

671. Horiuchi Trial Testimony, June 4, 1993, at 40-41.

672. Id. at 42.

673. Id., June 3, 1993, at 93.

674. Id. at 94. However, Horiuchi acknowledged that he know that the man had been hit "in the back up towards the fleshy part of his arm." Id. at 37.

675. Id. at 103.

676. Id., June 3, 1993, at 90-94.

677. FD-302 Interview of Kevin Harris, September 1, 1992, at 3-4. The only other sniper who saw the birthing shed activity was Monroe, Horiuchi's partner. Monroe saw an adult male, who he believed was Kevin Harris, armed with a rifle. The person appeared to be using the birthing shed as cover, while maneuvering to take a shot. Monroe Sworn Statement, November 17, 1993, at 7. None of the sniper/observers saw a female by the birthing shed.

678. Letter dated August 26, 1992, signed "Randall C. Weaver, Kevin Harris, Sara Weaver, Rachel and Elisheba," at 5 (Appendix at 27).

679. Horiuchi Trial Testimony, June 3, 1993, at 110-11.

680. [GARRITY]

681. Horiuchi Trial Testimony, June 3, 1993 at 113 [GARRITY]

682. Id., June 3, 1993, at 111-15. Horiuchi testified that he could not see through the window in the door.

683. Id. at 126.

684. Id.

685. Id. at 127

686. Horiuchi Trial Testimony, June 4, 1993, at 62. Horiuchi also testified that at the time Harris was reentering the cabin Horiuchi "knew that [Harris] was trying to move somebody out of the way when [he] shot, and that [Horiuchi] knew somebody was behind [the] door." Horiuchi emphasized that, "[he] wasn't shooting at the individual behind the door, [he] was shooting at Mr. Harris." Id. at 61-62.

687. [GARRITY] For a discussion of the discovery issues surrounding the Horuichi Shooting Incident Review sketch, see Section IV(M) (2), infra.

688. The view of Monroe, Horiuchi's partner, was obstructed by foliage, but he had focused his scope on armed people running toward the cabin. At the time of the second shot, an adult male dove toward the front door. Monroe could not tell if the male had been hit. Monroe Sworn Statement, August 31, 1992, at 8.

Approximately 30 seconds after the first shot, Wenger was three people running toward the cabin with a female in the lead. The female and male entered the cabin. The second male stopped on the porch and appeared to look in the direction from which he had come. While Wenger was lining up a shot, he saw the individual flinch before dropping below the vision of his scope. He heard unintelligible female screaming for approximately ten to twenty seconds, but did not see a female. Wenger Sworn Statement, August 31, 1992, at 4.

Whitcomb saw three people running toward the cabin. When they reached the front porch, he heard a second shot. The porch roof obstructed his view, and he was nothing more. While the people were outside, Whitcomb attempted to shoot, but was unable to do so because of obstructions and the speed with which they moved. Whitcomb Sworn Statement, December 7, 1993, at 7.

Tilton saw three persons running toward the cabin and out of his view. He heard a second shot, followed by a woman screaming. Tilton Sworn Statement, August 31, 1992, at 3.

Love saw two persons running toward the cabin. After losing sight of them, he heard a shot, followed by screaming. Sworn Statement of Roger Love, August 31, 1992, at 4.

Bamford was three people running toward the cabin, but lost sight of them as they got near the front door. He could not identify the three individuals, could not distinguish whether they were male and female, and could not determine whether they were carrying weapons. After he lost sight of them, he heard a second shot. Bamford Sworn Statement, August 31, 1992, at 3.

Approximately 15 to 20 seconds after the first shot, Barker saw three persons moving from the shed to the cabin. One of the males appeared to be holding his left side. As the three reached the porch, Barker heard a second shot and female scream. Barker Sworn Statement, August 31, 1992, at 4.

Curran did not see any people, but did hear a second shot and a scream. Sworn Statement of Christopher Curran, November 3, 1993, at 3.

689. Hazen Storm Statement, November 19, 1993, at 13. Cooper and Roderick were informed that night that an HRT sniper had killed Harris. Cooper expressed disbelief and insisted that he had shot Harris at the Y. Id.; Cooper Sworn Statement, at 12-13; Norris Sworn Statement, at 15.

690. The FBI SICC Log at Headquarters reports at 9:12 p.m. (EDT).:

SAC Glenn advised that within the last 1/2 hour, FBI helicopter, flying over subject's house, had drawn fire from within the house. Thereafter, shots were exchanged between subject(s) in house and snipers. None of our personnel were struck. Unknown if subjects(s) were hit.

The Crisis Center Log reports between 8:58 p.m. (EDT) and 9:43 p.m. (EDT) :

two friendly sniper rounds fired into the Weaver house, and reported a possible hit.

SIOC [FBI] advised that observation helicopter overflying the Weaver residence had take fire from the Weaver house. Ground observers had also taken fire when snipers returned fire.

ADO Smith had telephonically confirmed that the observation helicopter had taken fire during a fly over of the Weaver residence. Law Enforcement officers at the point fired twice, possibly hitting one unidentified male, possibly Kevin Harris.....

Mike McShane advised that:

[I]nformation received from FBI Command Post is that the HRT believes that Harris has been shot and killed. This information is very sketchy at this time and its reliability is unknown.

The Crisis Center Log also reports at 11:26 p.m. (EDT) that:

ADO Smith confirmed and clarified that when the observation helicopter was fired upon, three persons -- one male (tentatively identified as Harris) and two females and exited the Weaver house, although it remains unclear whether the females were also firing weapons. When law

691 Harris FD-302, September 1, 1992, at 3-4

692 Transcript of Conversation Between James Gordon "Bo" Gritz and Randy Weaver, August 29, 1992, at 3-4.

The bullet entered the right side of Weaver's face, severing her carteroid artery and vein and causing a massive, instantaneous loss of blood, resulting in death. The clothing Weaver has wearing when her body was recovered was saturated in blood. Autopsy report of George Lindholm, August 31, 1992, at 3-4. A holstered semi- automatic pistol was recovered from Weaver's body when it was removed from the cabin. FD-302 Interview of James Gordon "Bo" Gritz, November 17, 1993, at 10.

693 Rogers Trail Testimony, June 2, 1993, at 66-67.

694 Id. at 67

695 It was originally reported to FBI Headquarters in Washington that the progress of the carriers up the mountain was hindered "by a large truck in the road. The truck is anchored to the ground by a metal stake." SIOC Log, August 22, 1992, at 9:50 p.m. EDT (6:50 p.m. PDT)

696 HRT Sniper Log, August 22, 1992, at 6:12 p.m. (PDT)

697 Lanceley, FD-302, September 7, 1993. Attachment at 1.

698 Rogers Trial Testimony, June 3, 1993, at 64.

699 Rogers Trial Testimony, June 2, 1993, at 30.

700 U.S. Marshal Johnson reported "fly bys" of the compound and noted that "there still appears to be two white males in the compound." Crisis Center Log, August 22, 1992 at 13.

701 For example, Vicki Weaver described the dog chasing the "servants of the New World Order" down Farnsworth Road. Diary entry, August 21, 1992.

702 (GARRITY)

703 November 5, 1993, at 9

(GARRITY)

704 Id. at 10.

705 Coulson Sworn Statement, November 3, 1993, at 9, 13-14

706 Having spent the previous evening at Headquarters, Potts was at home when the operations plan arrived.

707 Glenn told the Shooting Incident Review Team that, " at 12:15 pm on Saturday, August 22, 1992, the Operations plan which included the rules of engagement, was faxed to FBI headquarters and USMS Headquarters, and at 12:30 PM they approved the plan." Glenn Sworn Statement, September 2, 1992, at 6.

708 Glenn Sworn Statement, January 12, 1994, at 16.

709 This is confirmed by Special Agent in Charge William Gore in his sworn statement dated November 3, 1993, at 7.

710 This reference in the SIOC log states:

SAC Glenn advised DAD Coulson the Portland SWAT team had contact with who (sic) they believe was subject approximately 1/4 mile 'up canyon' from home. He used profanity and told them to get off property. SAC was reminded of rules of engagement and to treat subject as threat if confronted outside home. SAC is working on negotiation plan.

SIOC Log, August 22, 1992, at 6:30 p.m. (EDT) (Emphasis added.)

711 FBI Deadly Force Policy, November 1992, at 1.

712 Training Materials on the FBI Deadly Force Policy, November 1992, at 1.

713 Id. at 2-3.

714 The provision for warnings found in Garner, which is also part of the FBI Standard Deadly Force Policy, is absent in Graham.

715 A discussion of the propriety of Horiuchi's two shots may be found below.

716 Barker Sworn Statement, August 31, 1992, at 2. After reviewing the statements and testimony of the sniper/observers and Horiuchi, we have concluded the Horiuchi's decision not to shoot the two armed males on sight is probably a testament to his training, given the Rules on which he had been brief at least three times that day. Those Rules directed him to dispense with the usual assessment of harm, to dispense with warnings, even if feasible, and to shoot armed males who emerged from the cabin.

717 Potts Sworn Statement, December 17, 1993, at 7.

718 Coulson Sworn Statement, November 3, 1993, at 6.

719 A primary function of sniper/observers is to remain undetected. Consequently, an announcement by sniper/observers once in position would, in our view, unwisely disclose their position. Horiuchi acknowledge at trial that he could have stood up and told Weaver and Harris to drop their weapons. However, he also testified that "yelling may not have been effective" and that he "didn't have the time or the distance or probably the voice loud enough to yell at either Weaver or Harris to drop the weapon." Horiuchi Trial Testimony, June 3, 1993, at 169

720 We believe Harris' behavior indicates that he was resisting arrest. After engaging in the firefight that killed Degan, Harris retreated with Weaver to the cabin and emerged only when armed. There was no indication that Harris or any member of the Weaver/ Harris group was going to surrender to law enforcement.

721 Horiuchi Trial Testimony, June 3, 1993, at 88, 90

722 Id. at 93 [GARRITY]

723 Shots were not fired at the helicopter. The SIOC Log indicates that shots were fired during the events of August 22. SIOC Log August 22, 1992, at 9:12 p.m. (EDT), 6:12 p.m. That information is erroneous. We have found no evidence during this inquiry that shots fired at any helicopter during the Ruby Ridge crisis. The erroneous entry was never corrected.

724 [GARRITY]

725 Horiuchi Trial Testimony, June 4, 1993, at 40-41

726 Id. at 42.

727 Monroe Sworn Statement, August 31, 1992, at 4-5.

728 Barker Sworn Statement, August 31, 1992, at 3-4.

729 Horiuchi Trial Testimony, June 4, 1993, at 34-35. [G.J.]

730 [G.J.]

731 According to Kevin Harris, "All three had rifles" when they left the cabin. Harris FD-302, September 1, 1992 at 3. See also, Monroe Sworn Statement, December 17, 1993, at 6-7; Barker Sworn Statement, August 31, 1992, at 3.

732 [G.J.]

733 Glenn Sworn Statement, January 12, 1994, at 23.

734 Id.

735 Assistant U.S. Attorney Lindquist, one of the attorneys who prosecuted Weaver and Harris, asked Horiuchi during the trial preparation why he believed that the conduct of the subjects, as they retreated to the cabin, constituted offensive action even under the standard FBI deadly force policy. Horiuchi explained that the subjects had been aggressive and that, if they got back to the house, Horiuchi and his colleagues would be exposed to fire without being able to fire back because of the children in the cabin. Lindquist Interview, December 2, 1993, Tape 6, at 21-22.

736 Horiuchi Trial Testimony, June 3, 1993 at 111. Horiuchi was not the only person disposed to shoot again. As Wenger watched three people running to the cabin, he "began to line up a shot with [his] sniper rifle....." Wenger Sworn Statement, August 31, 1992, at 4.

737 Horiuchi FD-302, August 22, 1992, at 1.

[GARRITY]

At trial, Horiuchi characterized Harris' action as a "pause" Horiuchi Trial Testimony, June 4, 1993, at 86.

738 Horiuchi Trial Testimony, June 3, 1993 at 86

739 [GARRITY]

740 Gore Sworn Statement, November 3, 1993, at 8; Glenn Sworn Statement, January 12, 1994, at 17-18

741 Id. at 111-12.

742 Horiuchi Trial Testimony, June 4, 1993, at 61-62.

743 Ironically, Horiuchi's decision to shoot at the door is inconsistent with the justification he gave for the shot. Horiuchi testified that, once the subjects were in the cabin, the would be able to fire out and be protected from return fire because the HRT "probably would not have shot at anyone inside the house for fear of shooting the children." Horiuchi Trial Testimony, June 3, 1993, at 110-11.

744 (GARRITY)

745 Id. at 140.

746 John Hall and Kimberly Crawford, Supervisory Special Agents at the Legal Training Unit at the FBI Academy, have concluded that Horiuchi's second shot was necessary because "permitting a demonstrably dangerous (and armed) person to regain a position of cover and concealment dramatically increases the potential threat to future efforts to effect the seizures of the suspects." Therefore, in their view, Horiuchi reasonably concluded that the armed men at whom he fired were likely to cause death or serious bodily injury, if not controlled, and that the use of deadly force was necessary to achieve control safely. Hall/ Crawford Memo, December 2, 1993, at 5.

747 See discussion of this issue by FBI Legal Instruction Unit in Sauls FD-302, October 20, 1993, at 2.

748 Hall/Crawford Memo, December 2, 1993, at 5.

749 Id. at 4-5.

750 Id. at 5.

751 Id. at 3 (quoting Garner, 471 U.S. at 11). (Emphasis in original.)

752 Id. at 4.

753 Garner, 471 U.S. at 11.

754 Id. (Emphasis added)

755 Id. at 3. (Emphasis added)

756 Graham, 490 U.S. at 396. (Emphasis added.)

757 We note that, having given several sworn statements on the topic, Horiuchi and HRT Commander Rogers declined to make a statement to us during the course of this inquiry.

758 For instance, Glenn concluded that those in the cabin "were continuing to resist arrest, knowing that law enforcement personnel were amassing around them because of the large number of vehicle they would have seen/heard coming up the road in the valley on a Friday night." Glenn Sworn Statement, January 12, 1994, at 14.

On Saturday morning, August 22, before HRT's arrival, the Portland SWAT team leader heard someone he believed to be Randy Weaver yell words to the effect of "Get the hell off my property." The FBI believed that Weaver knew he was addressing law enforcement officials. FD-302 Interview of Paul Hudson, October 5, 1993, at 3; Sworn Statement of E. Michael Kahoe, December 7, 1993, at 6. Furthermore, the helicopter mission occurring at the time Horiuchi took the two shots was the sixth reconnaissance mission by the HRT helicopter that day.

759 Gerald McLamb, one of the non-government negotiators who helped resolve the crisis, said that Randy Weaver did not mention whether he knew that law enforcement personnel were posted around the Weaver cabin when he left the cabin to go to the birthing shed. FD-302 Interview of Gerald Jackson McLamb, January 13, 1994, at 5.