Harris v. Roderick, s. 96-35780

• Decision Date: 25 September 1997
• Docket Number: 96-35782,96-35783 and 96-35784,Nos. 96-35780,96-35781,s. 96-35780
• Parties: 97 Cal. Daily Op. Serv. 7610, 97 Daily Journal D.A.R. 12,280 Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant, and Lon T. Horiuchi, Defendant-Appellant. Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant, Richard Rogers, Defendant-Appellant, Steve McGavin, Defendant-Appellant, Les Hazen, Defendant-Appellant, Dale Carnege, Defendant-Appellant, William Gore, Defendant-Appellant, and Eugene F. Glenn, Defendant-Appellant. Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant, and G. Wayne "Duke" Smith, Defendant-Appellant. Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant, and Larry Potts, Defendant-Appellant. Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant-Appellant, Larry Cooper, Defendant-Appellant, Jose Antonio "Tony" Perez, Defendant-Appellant, Henry Hudson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1189

126 F.3d 1189

97 Cal. Daily Op. Serv. 7610, 97 Daily Journal

D.A.R. 12,280

Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant, and Lon T. Horiuchi, Defendant-Appellant.

Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant, Richard Rogers, Defendant-Appellant, Steve McGavin, Defendant-Appellant, Les Hazen, Defendant-Appellant,

Dale Carnege, Defendant-Appellant,

William Gore, Defendant-Appellant,

and

Eugene F. Glenn, Defendant-Appellant.

Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant, and G. Wayne "Duke" Smith, Defendant-Appellant.

Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant, and Larry Potts, Defendant-Appellant.

Kevin L. HARRIS, Plaintiff-Appellee, v. Arthur RODERICK, Defendant-Appellant, Larry Cooper, Defendant-Appellant, Jose Antonio "Tony" Perez, Defendant-Appellant, Henry Hudson, Defendant-Appellant.

Nos. 96-35780, 96-35781, 96-35782, 96-35783 and 96-35784.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 7, 1997.

Decided Sept. 25, 1997.

Michael L. Martinez, Holland & Knight, Washington, DC, for defendant-appellant G. Wayne "Duke" Smith.

Charles S. Leeper, Spriggs & Hollingsworth, Washington, DC, for defendants-appellants Arthur Roderick, Larry Cooper, Jose Antonio "Tony" Perez, and Henry Hudson.

Kathleen H. Quimby, Williams & Connolly, Washington, DC, for defendants-appellants Richard Rogers, Steve McGavin, Dale Carnege, William D. Gore, Eugene F. Glenn, and Les Hazen.

Patricia Maher, Shwalb, Donnenfeld, Bray & Silbert, Washington, DC, for defendant-appellant Lon T. Horiuchi.

David Z. Nevin and Ellison Matthews, Nevin, Kofoed & Herzfeld, Boise, Idaho, for plaintiff-appellee.

Appeals from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-94-00359-BLW.

Before: REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District Judge. ^*

REINHARDT, Circuit Judge:

Kevin Harris brought a Bivens ¹ action against thirteen named federal law enforcement agents, as well as several unnamed individuals and the United States for their actions at Ruby Ridge, Idaho during two days in August 1992. The individual defendants moved to dismiss the complaint, in part on the basis of qualified immunity. The district court granted the motion to dismiss in part, but denied the motion with respect to almost all of the Fourth Amendment claims. The defendants appeal the denial of qualified immunity with respect to the remaining claims, which constitute the heart of Harris's action, and seek dismissal of his complaint in its entirety. We reject the defendants' arguments in toto and affirm the applicable rulings of the district court.

Background

We state the facts, as we must on this appeal, as they are set forth in Kevin Harris's Second Amended Complaint.

On August 21, 1992, six Deputy United States Marshals ("Marshals"): Arthur Roderick Larry Cooper, William Degan, Thomas Norris, Joseph Thomas, and David Hunt, ² came onto Randall Weaver's property in Boundary County, Idaho to serve an arrest warrant upon Weaver. Kevin Harris was living on the Weaver property. Cooper, Degan, and Roderick confronted Harris, Weaver, Weaver's 14-year-old son, Sammy, and the Weaver family dog, Striker, at the "Y," the intersection of two roads near the Weaver property. As Striker was heading home in response to Weaver's call, Roderick shot and killed him. After his dog was killed, Sammy fired two shots in Roderick's direction, turned, and began to run home calling out "I'm coming, Dad...." Cooper and Degan, who were hiding in the woods, then fired their guns. One of the two, most likely Degan, shot at the gun Sammy was holding, and severely injured his arm. Cooper then shot at Sammy after he was disarmed and while he was continuing to run away. The final shot hit Sammy in the back, killing him.

A "melee" of firing erupted prior to the time Sammy was killed. Harris states he fired one or more shots into the woods in the direction of those he thought were trying to kill him as well as the others. He asserts, however, that those shots were fired in self-defense because he believed that he had to return the fire in order to protect his own life and that of Sammy. Degan was killed during the firestorm when a single round struck his upper shoulder. Harris admits that he may have fired the fatal shot.

Following this, the initial Ruby Ridge incident, Harris alleges that Cooper and Roderick met and conspired to lie about the events that occurred at the "Y." Harris maintains that, in order to conceal their wrongdoing, Cooper and Roderick decided to say that Harris was the aggressor--that he had initiated the firing and had not acted in self-defense. Their falsehoods, according to Harris, were intended to absolve them of responsibility for the deaths of both Degan and Sammy Weaver and to shift the blame to him.

After the initial shootings, the FBI dispatched a special unit designed to deal with crisis situations, called the "Hostage Rescue Team" (the "Team"). The Team, which was under the command of Richard Rogers, is composed of two types of agents: snipers and assaulters. The Team normally operates under the FBI's Standard Rules of Engagement which "provide that an FBI agent may kill a person with whom he or she comes into contact only when the person presents an immediate risk of death or great bodily harm to the agent or another person." However, a group of FBI and Marshal Service officials decided to rewrite the Rules of Engagement and create Special Rules of Engagement for Ruby Ridge. The Special Rules first provided that "any armed adult observed in the vicinity of the Weaver cabin could and should be killed," but were then narrowed to read "any armed adult male " in order to eliminate the possibility that the Team would fire at Vickie Weaver, Randall Weaver's wife. Furthermore, Harris alleges that the agents involved represented to other agents that the situation at the Weaver property was a "continuing firefight" although there had been no firing of weapons for 32 hours.

During the afternoon of August 22, 1992, after being told by Rogers to follow the Special Rules, several members of the Team took positions on a hill overlooking the Weaver cabin. This group included Lon T. Horiuchi, a Team sniper, who, according to Harris, was a highly trained marksman equipped with a thick-barreled .308 caliber bolt action rifle. Harris alleges that with that combination of skill and equipment Horiuchi could hit a quarter-inch target at 200 meters.

At about 6:00 p.m. that evening, Weaver, his daughter Sarah, and Harris, who were in the cabin and unaware of the presence of the Team agents stationed on the hill, decided to go to the shed where they had placed Sammy's body after they had washed it and prepared it for burial. After arriving at the shed, Weaver reached up to open the latch and was shot in the back by Horiuchi. Weaver yelled to his wife, Vickie, that he had been shot and began to run back to the cabin, as did Sarah and Harris. Vickie, with her infant daughter Elisheba in one arm, held the outer cabin door open with the other. The complaint alleges that Horiuchi then fired a second shot in an effort to kill both Harris and Vickie. The bullet passed through the clear glass in the open door, striking Vickie in the head, and after passing through her, hit Harris in the upper arm and chest. Vickie Weaver was killed instantly.

After the shooting ended, FBI personnel drove a military tank onto the front yard of the Weaver property and, using a loudspeaker, announced their presence. Harris remained in the cabin, despite a shortage of food and water, for eight days, during which time the FBI employed a variety of tactics designed to lure those remaining in the cabin outside. These tactics included the constant playing of loud music, the use of bright lights at night to prevent the Weavers and Harris from sleeping, referring to Vickie as if she were still alive, and taunting the cabin's occupants with descriptions of the food that was available to the agents. The FBI also installed cameras and microphones around the cabin and placed a remote-controlled robot with a shotgun attached aimed at the door. Harris, badly injured and in pain, alleges that he repeatedly asked his cabin-mates to shoot him in order to end his suffering. Vickie's body rested on the kitchen floor wrapped in blankets all the while. There is no indication in the complaint who, if anyone, in addition to Elisheba, Sarah, Weaver, and Harris, may have remained alive and in the cabin.

After eight days, Harris surrendered. He was taken to the hospital where he was treated for his injuries and underwent surgery. He was in intensive care for about twelve days.

Harris was then indicted in the United States District Court for the District of Idaho on a number of charges relating to the events of August 21 and 22. The charges included assault with a deadly weapon on Roderick, Cooper and Degan, as well as first degree murder of Degan. After a jury trial, he was acquitted on all charges.

Proceedings Below

Harris then brought this Bivens action in the district court, alleging violations of his Fourth, Fifth, and Sixth Amendment rights, for the actions that took place at Ruby Ridge. Harris sued the following thirteen individuals: Deputy Marshals Arthur Roderick and Larry Cooper; Deputy Director of the United States Marshal's Service G. Wayne "Duke" Smith; Directors of the United States Marshal's Service, Jose Antonio "Tony" Perez and Henry Hudson; FBI Special Agent and Director of the Hostage Rescue Team, Richard Rogers; Larry Potts, Assistant Director of the FBI in charge of the Criminal Division; FBI Special Agent and Member of the Team Lon T. Horiuchi; FBI Special Agent and Supervisor of the Team, Steve McGavin; FBI Special Agent and Team Sniper Coordinator Les Hazen; FBI Special Agent and Team Logistics Coordinator, ...