In Idaho v. Lon T, Horiuchi, the Court of Appeals for the Ninth Circuit in 2001 wrote: “If federal agents are to perform their duties vigorously, however, they cannot be unduly constrained by fear of state prosecutions. Accordingly, the Supreme Court has held that the Supremacy Clause cloaks federal agents with immunity if they act reasonably in carrying out their responsibilities. See In re Neagle, 135 U.S. 1, 75 (1890).”
Lon T. Horiuchi was a FBI sniper. In late summer 1992 he was rushed to Ruby Ridge in Northern Idaho because the day before on August 21, 1992, US Deputy Marshalls got in a gun fight with the occupants of a cabin in the remote mountains. In that fight the US Deputy Marshalls killed Samuel Weaver and his dog Striker; Sammy’s father, Randy Weaver, killed Deputy Marshall William Degan, Quincy native, who was married with two children and a Marine. Randy Weaver and another were put on trial for that shooting and acquitted.
Horiuchi was in his sniper nest overlooking the cabin about 200 yards away. He thought Randy Weaver was going to shoot at a helicopter so he fired at him hitting him in the arm; he then shot again as Weaver, his 16-year-old daughter, Sara, and Kevin Harris fled back into the cabin killing Weaver’s wife Vicki, who was standing inside the cabin holding her baby.
In 1997 FBI agent Horiuchi was charged with manslaughter bay the State of Idaho. The U.S. Attorney filed a notice of removal of the case to federal court, which automatically took effect under the statute for removal jurisdiction. The federal district court judge dismissed the case. Idaho appealed. In a six to five decision, the Ninth Circuit court held that the case should be sent back to the lower court to decide whether Horiuchi acted “in an objectively unreasonable manner” and if so the immunity Horiuchi claims will not be honored.
The dissent noted “For more than a century, in a virtually unbroken line of cases in which federal officers have faced state criminal charges for actions arising out of the performance of their official duties, United States courts have invoked the Supremacy Clause of the Constitution to shield federal agents from criminal liability.” The court went on to say: [W]hen the federal agent is acting reasonably within the broad contours of official duty, and without malice, the courts have employed the Supremacy Clause to protect the agent from prosecution.” When the case arrived back at the federal district court, a new prosecutor from Idaho moved to dismiss the case and it ended.
The law seems fairly clear. A federal agent like a FBI agent is protected by the Supremacy Clause from state prosecutions for doing his job without malice. John Connolly was a federal agent. In Horiuchi the U.S. Attorney following the century old practice went into federal district court to protect the federal agent. As I noted yesterday, the U.S. Attorney in Boston not only didn’t do this but one of his assistants prosecuted the case in the state court in Florida. This aberration from 100 plus years practice seemed to have slipped under the nose of Connolly’s lawyers. Shouldn’t they have gone into federal clause to put forth his claim under the Supremacy Clause if the U.S. Attorney in Boston was intent on ignoring his claim? Did they ask anyone in Washington, DC to review the decision?
Or, did Connolly tell his lawyers not to put forth the claim? Connolly outside the courtroom has loudly proclaimed his innocence but when it came time to press his case in court before Judge Wolf or in his criminal trials he sat silently claiming his Fifth Amendment rights. That makes no sense to me. If you think you are right then you’ve got to stand up for yourself no matter the consequences.
Here is my conundrum: The FBI gave Connolly the duty to handle Top Echelon informants. There has never been clear line drawn on what he could or could not do in dealing with them. The Justice Department and the FBI are very happy to keep this murky. Why isn’t Connolly doing something in an official forum to have this issue decided?
In an excellent article by T.J. English in the online publication The Daily Beast Connolly is reported to have said: “My lawyers have information that since Bulger was brought in, he spoke to FBI agents and told them I had nothing to do with tipping him off [about a pending federal indictment]. And he told them I had nothing to do with this murder in Florida, not one damn thing.”
Based on that alone it seems to me Connolly and his present lawyers are way off base in their thinking. His road to freedom will never be through Whitey — don’t they understand Whitey has no credibility? Connolly’s only was out is to bring out the issue of his rights and duties as a FBI agent handling a Top Echelon Informant in the proper forum. He’s got to bite the bullet and start standing up for himself because nothing that can happen now can be worse than the situation he finds himself in — and find some lawyers who will help him — if he doesn’t, then the only conclusion one can draw is that he knew he was not acting properly.