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    The corruption of federalism and of the rule of law has accelerated with the recent declaration by a Federal appellate court that an FBI sharpshooter, charged by the state of Idaho with murder in the death of Vicky Weaver during an assault by the BATF and the FBI on a private home within the state’s borders, is immune from prosecution.

    This is a naked act of arrogance by a central government doing its utmost to shake free the few remaining restraints of the Constitution, even while relying shamelessly on the doctrine of Constitutional supremacy to argue that state and local law must give way before the interests of federal policy implementation. Faced with chronic conflict between those policies and such legal limitations as it yet heeds, the federal community claims broader and broader latitude, becomes more and more convoluted in its reasoning, and, finding that practical resistance is disorganized or non-existent, is increasingly contemptuous and daring in its usurpations. At this new pinnacle of disdain for the ineffectual hindrances of Constitutional restraint, the 9th circuit court has dismissed the several states as meaningless, decreeing that the federal government needn’t be bothered by them and their annoying little laws.

    I am deliberately not going to dwell on the details of the situation in which the shooting took place, except to say, for the benefit of those unfamiliar with the case, that it occurred during an effort to serve an arrest warrant against Weaver’s husband over his failure to appear at a court hearing concerning an alleged firearm violation. The first indication the Weavers had of the presence of the arresting officers was the shooting-to-death of their son’s dog, followed shortly afterward by the shooting-to-death of the son himself. Vicky Weaver was shot in the face by FBI sniper Lon Horiuchi while standing weaponless in the doorway of the Weaver cabin with her baby in her arms.

    These and other details of the case would be pertinent in a trial when drawn on to assess individual responsibility for the various events and consequences, but in the contemplation of the public policy which fostered the situation and the legal doctrine being derived from it by the 9th circuit court, they will serve only to misdirect attention into the realms of emotionalism and circumstantial minutia, which, as the overseers and beneficiaries of a solidly founded, fully coherent rule of law, we can ill afford.

    Sadly, we have become chronic victims of such distractions, which are tried and true techniques serving the interests of those who would prefer to see the limitless growth of centralized state power. By feeding off the carefully nurtured impression in the minds of the general public that matters of law and public policy are esoteric technical specialties beyond the scope of the uninitiated, who had best leave such things to the experts, symbiotes of the State are able to slowly but surely consolidate its power with ever less interference. (This mythology comes from the same playbook as the specious argument that, in these increasingly complicated times, the relationships between government and governed that might have sufficed in the more bucolic past no longer will.)

    Presented with a wealth of detail and a blow by blow account of a complicated case distinguished by questionable government behavior, a dangerously large segment of the public finds easiest and most comforting the presumption that some idiosyncrasy of the situation called into play an obscure technicality legitimizing the state’s actions.

    Our society is now so broadly ill-educated in matters of law and public policy, and so saturated with manipulations of word and perception, that wide-eyed contemplation of even the most arrant defiance of plain law and common sense is shunned by countless Americans as a dangerous venture into esoterica risking a complete collapse of world-view, or at least a painful expenditure of intellectual effort. To give over the hypnotic and entertaining study of each tree during its fifteen minutes of fame and look up to notice that the forest is burning down is beyond the courage, self-discipline, and/or attention span of these contentedly apathetic, dependency-trained spectators who are nonetheless armed with the vote.

    Suffice it to say that though the Weaver family killed an FBI agent during the encounter, as defendants in a resulting criminal trial they were acquitted by the jury as having been properly acting in self-defense, and they then successfully sued the federal government over the wrongful deaths of Vicky and Sammy Weaver, collecting a $3.1 million award. In other words, the analysis of two courts and juries was that the FBI was wrong, and the Weaver family was right, in the behavior of each during the confrontation. Nonetheless, the 9th circuit court says that those judgments, and that of the indicting grand jury which found cause to charge the killer of Vicky Weaver, are null and void, and the killer walks, without even facing the prospect of jeopardy or the obligation to demonstrate the propriety of his actions. So much for due process.

    Though it is irrelevant to the core issue, I will nonetheless point out that in this precedent-setting case it is not some quirky local blue law or the like that is being declared superceded-- this is the state law concerning homicide. As in all jurisdictions with such laws, there are defensible forms of homicide, and there are criminal forms, and a system of governance with respect for the rule of law employs the mechanism of a trial and the judgment of a jury to determine which occurred in a particular instance. This is recognized as necessary for the protection of the community’s fundamental interests.

    Tools are available to both sides in a trial by which the prosecution can seek to assign guilt and the defense can seek to explain it away, with latitude provided for the exigencies of the particular circumstances. If the killing was justifiable for whatever reason, be it the overriding imperative of critical policy implementation or the peculiarities of the moment, the sniper would be exonerated. The federal government is unwilling to dare that contest. It would rather advance the absurd and destructive proposition that an FBI agent is incapable of committing one of the criminal forms of homicide just because he or she is on the clock; which is to say that cops carrying out federal policy are not subject to the law. If one is not subject to a trial of the law’s applicability, one is not subject to the law itself. There is a name for systems in which cops are not subject to the law and the forcible implementation of public policy is insulated from the rigors of trial—Police State. This doctrine is pernicious in the extreme, assigning to citizen-victims of law enforcement excesses the status of ‘collateral damage’, losses which are acceptable, even if unfortunate, for they are sustained by the enemy.

    This viewpoint uses the somewhat more defensible (or, at least, less obviously threatening) presumptive righteousness of policy implementation as a foil for quietly tilting the balance of power to the benefit of the State. It is the actualization of political war, which is not a battle between priorities, but one between competing claims of sovereignty. The competitors are the people and the State, and the conflict puts the lie to the long-standing mythology of a mystic blend of the two celebrated throughout the years by demagogues whenever the State seeks to tip the balance in its favor. If more local jurisdictions, in which the voice of the individual citizen is proportionately stronger, are diminished in favor of a more distant and more unresponsive political aggregate, the individual citizen loses power. Power structures, like nature, will not abide a vacuum, and that which is lost by the citizen is gained by the State. And citizens who have no recourse to justice when harmed by the apparatus of the State have been made subjects, if not simple road kill.

    The immediate, pragmatic issue informing the government’s maneuvering is that an Idaho jury has already ruled against the federal government (by acquitting the Weavers) in one criminal prosecution relating to the same case, and the feds just don’t want to lose again. The possibility of such a reinforcement of restraint as would accompany THAT precedent is an unacceptable price to pay for the increasingly insignificant benefit of conspicuous or even desultory conformity with the principles of the rule of law and respect for Constitutional limitations.

    The essence of the circuit court’s reasoning is basically the Nuremberg defense— that agents just follow orders and can’t be considered personally responsible for their conduct. This argument failed to save a lot of Nazis from the Greatest Generation’s gallows not too long ago, and properly so. When we consider the fact that the supervisors of these agents in the field, who gave those orders, got medals and promotions for their work at the Weaver abattoir, we face the cold hard reality that under this doctrine no one can be held responsible for any federal conduct, as even they are presumed to be carrying out policies emanating from the ‘system’ itself, which has always reserved to itself the shield of ‘sovereign immunity’. (Maybe Congress should be tried for Vicky Weaver’s murder?)  Sensibly unwilling to actually test that argument directly, the government is more comfortable having the circuit court slam the castle gates behind them, shutting out the angry mob.

    If this usurpation stands, the state of Idaho (and by extension its fellow states) is declared in vassalage to Washington. Perhaps we should call it the Duchy of Idaho. Its justice, (and the defenses its courts and legislature offer to citizens for their safety and peace), is subordinate and secondary to the projection of federal power, if permitted at all. Now, if a defendant is politically correct, or connected, they are untouchable by that justice. I guess that if you happen to be an unlucky bystander in the vicinity of, say, an INS raid, and one of the agents decides to pistol-whip you, you just take your lumps and be thankful you didn’t get worse.

    The arrogance and disrespect on display in this act of the court is breathtaking, and the clear implication of its motive-- that the court and its political community-of-interest fear that an unfavorable ruling against an FBI sniper might have a chilling effect on future jack-booted-thug offensives against insufficiently submissive and obedient citizens-- should be seen as a statement of intentions for the future. It is perhaps disturbingly pertinent that some pesky state laws, including one in Texas, provide for an affirmative defense in trial for the return of fire against law enforcement raids if the cops are employing excessive force. Makes Waco come to mind, doesn’t it.

    In taking this stance the court is granting federal agents a free and unlimited license in the exercise of deadly force against citizens. In practical effect, the heart of this doctrine is: while acting under orders, any homicide committed by a federal agent is justified. Nothing but the consciences of the hired guns will hold them back from carrying out even wildly improper orders. There is no need to point out that hired guns entirely lacking consciences are available, and as the systematic demonization and dehumanizing of target groups and individuals becomes ever more common and refined, even those with sound instincts will be made to be tools for those without them.

    The trend is clear and frightening. We have seen the passage of federal legislation making the killing of these unaccountable federal agents a capital offense, and more recently, the act of lying to an agent was made a felony. Soon, refusal to answer at all will be similarly criminalized. Then it will be a failure to render them assistance.

    Right now, there are some 83,000 armed federal agents roaming the landscape, enforcing increasingly intrusive, bellicose, burdensome demands on American citizens. 50,000 of those now personally unaccountable supercops toting 9mm’s do not belong to the FBI, DEA, INS, or US marshals service. They are employees of the 41 other agencies fielding armed enforcers, including the Federal Emergency Management Agency, the EPA, the Bureau of Land Management, the Dept. of Health and Human Services, the Post Office, and the Fish and Wildlife Service.


    Resistance is futile.


    Well, not quite yet. But it is dangerous. Keep your powder dry.


"Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves."

-William Pitt

© Peter E. Hendrickson