State of Idaho v. Lon T. Horiuchi

KOZINSKI, Circuit Judge,

dissenting:

[W]e 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.

U.S. Department of Justice, Office of Professional Responsibility.1

Besieged by a platoon of FBI agents with high-powered rifles, two armored vehicles and a helicopter, the suspects at Ruby Ridge posed no immediate danger. There was no chance they could escape and take hostages. There was plenty of time to call out a warning, and there were many occasions to give the suspects a chance to surrender. Instead, FBI Agent Lon Horiuchi shot and killed Mrs. Weaver.

A Senate Committee, the Justice Department’s Office of Professional Responsibility and a prior panel of this court all have concluded the shooting was patently *998unconstitutional. See Harris v. Roderick, 126 F.3d 1189, 1203 (9th Cir.1997), cert. denied sub nom. Smith v. Harris, 522 U.S. 1115, 118 S.Ct. 1051, 140 L.Ed.2d 114 (1998). Because the majority’s contrary ruling creates a square intra-circuit conflict and throws a monkey wrench into our law governing the proper use of deadly force, I strongly dissent.

I

The facts here are largely not in dispute.2 Six Deputy U.S. Marshals, dressed in camouflage gear and armed to the teeth, came onto the Weaver property in the dead of night, without announcing their presence or wearing visible identification. They got into a shootout which left one deputy and the Weavers’ son dead. More than thirty hours later, FBI agents surrounded the Weaver cabin, which was located in the middle of the forest, far from any bystanders; they overflew the area by helicopter several times. The FBI agents did not announce their presence nor did they give the occupants an opportunity to surrender. Instead, the agents remained concealed and watched the cabin through the scopes of their rifles. Those in the cabin first learned of the FBI’s presence when Horiuchi opened fire.

Horiuchi fired two shots. The first was arguably justified by what he claims was a menacing gesture from Mr. Weaver in the direction of the helicopter. How Horiuchi could tell the man was threatening the helicopter is a bit of a mystery, since Hori-uchi admitted that he had no clue where the helicopter was.3 But Idaho is not prosecuting Horiuchi for that shot. Rather, it is the second shot-fired some twenty seconds later-that is the basis of the state’s prosecution. When Horiuchi was taking aim for this shot, the three people who had ventured outside the cabin were running headlong toward it. They were facing the cabin and away from the helicopter. They were not aiming their weapons. They were making no menacing gestures. Running for their lives, they threatened no one. As the Department of Justice investigators observed: “[Ejven giving deference to Horiuchi’s judgment, we do not find that the second shot was based on a reasonable fear of an immediate threat to the safety of officers or others.” DOJ Report, note 1 supra, at Section IV. F.3.c.(3) (internal quotation marks omitted).4 Yet, Horiuchi calmly took aim and *999shot to kill. That he aimed at Harris, thinking it was Mr. Weaver, but actually killed Mrs. Weaver does not help Horiuchi. His confusion as to the target only proves he was reckless in pulling the trigger.

What justification can there be for shooting a man who is completely surrounded by heavily armed law enforcement agents? The sum and substance of the majority’s reasoning is as follows: “Had [Horiuchi] hesitated for even a few seconds or called out a warning ... Harris could have fled into the cabin, taking wp a defensive, armed position” Maj. Op. at 994 (emphasis added). See also id. at 994 (“he was running to a place where he could rearm, regroup, and take up a defensive position”); id. at 994 (“Once inside [the cabin] Harris could take up a defensive position where he could shoot out, but the officers could not shoot in without the danger of harming a child.”).

Since when does taking up a defensive position justify the use of deadly force? Taking a defensive position may have kept the suspects from being apprehended right away, but it would have posed no immediate threat to the officers. Missing from the majority’s justification for the shooting is any indication that, once inside the cabin, Harris would pose an immediate threat to life and limb. Absent a threat, the FBI agents were not entitled to kill; rather, they should have employed one of the many other measures at their disposal, such as:

• Announcing themselves and demanding a surrender
• Commencing negotiations
• Waiting until the inhabitants ran out of food
• Shutting off water and electrical service to the cabin
• Sending in an armored personnel carrier to knock down various outbuildings and impress the inhabitants with the futility of resisting

Once the trigger is pulled and life is taken, all these options are foreclosed; the chance for a bloodless resolution is lost. Allowing the suspects to take a defensive position gives them time to think, to consider, to weigh their options, to calculate the risks to themselves and their children. It can lead to a peaceful surrender, as it did eight days later. It is therefore immensely troubling that the majority today holds-for the first time anywhere-that law enforcement agents may kill someone simply to keep him from taking up a defensive position. This conclusion runs contrary to a long line of deadly force cases, all of which hold that only an immediate threat to life and limb will justify an intentional killing by law enforcement agents. See, e.g., Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (review of officer’s use of force requires “attention to the facts and circumstances of each particular case, including ... whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”); Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (“Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”); see also Harris, 126 F.3d at 1201 (Police “may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officer or others, or is fleeing and his escape will result in a serious threat of injury to persons.”).

Horiuchi claims he was entitled to kill Harris to prevent him from shooting at the helicopter from inside the cabin. But killing Harris was not even remotely necessary to ensure the safety of the helicopter. To begin with, while Horiuchi may have *1000heard the helicopter’s engine,5 he did not see it or know where it was;6 he had no reason to believe that it was hovering within range of small arms fire from the cabin. Quite the contrary: During a reconnaissance mission earlier that day, he had observed the helicopter pilot taking precautions. According to Horiuchi, the helicopter “popped over the hill low and then came back over.” Horiuchi Testimony, note 3 supra, at 191 (June 4, 1993).7 The helicopter had also flown several other missions over the area without incident.

Moreover, Horiuchi was in radio contact with the FBI command center and could have called out a warning.8 In the time it would have taken the three to run into the cabin, take positions at the windows and commence shooting, Horiuchi could have warned the helicopter to move out of range. While an officer need not exhaust remote alternatives before resorting to deadly force, see Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir.1997), his failure to employ an obvious non-deadly alternative can make his use of deadly force unreasonable. See Brower v. County of Inyo, 884 F.2d 1316, 1317-18 (9th Cir.1989) (inquiry into reasonable non-deadly alternatives is important to establishing that deadly force was necessary to prevent escape).

But put all else aside and consider only Horiuehi’s admission that he made no sep*1001arate decision ivhether to take the second shot: “I had already made that determination after that first shot, so if I saw him again[,] I was going to shoot at that individual again.” Horiuchi Testimony, note 3 swpra, at 107 (June 3, 1993). Horiuchi’s testimony, which the majority overlooks, is crucial in light of Hopkins v. Andaya, 958 F.2d 881, 887 (9th Cir.1992), where we held that the justification for the use of deadly force, once established, does not continue indefinitely. If circumstances change and the threatened danger abates, deadly force may cease to be reasonable. As the DOJ investigators observed, “the circumstances which justified the first shot were significantly changed by the time the second shot was taken. There had been no return of fire or further threatening action, there had been no surrender announcement, and most significantly, the targets were retreating into the cabin.” DOJ Report, note 1 supra, at Section IV. F.4. The majority creates a direct conflict with Hopkins by holding that law enforcement officers are entitled to gun down a suspect even after he no longer poses an immediate danger to anyone.

There is another big problem with Hori-uchi’s second shot: He was aiming at the wrong target. The individual he claims to have observed holding a long gun and looking menacingly in the direction of the helicopter was Weaver, not Harris. Hori-uchi then observed three people-two of them similarly dressed males-running toward the cabin. In his testimony, Horiu-chi admits he could not tell the two men apart; in fact, he shot the wrong one.9 Any suspicion Horiuchi had that Weaver might shoot at the helicopter could not be attributed to Harris simply because he was nearby and dressed alike. The matter would be different if Horiuchi had reasonably believed he was in the grips of a firelight. See Clifton v. Cox, 549 F.2d 722, 729 (9th Cir.1977). But Horiuchi makes no such claim, and by adopting its “defensive position” rationale, the majority recognizes that this was not a fire fight. While we will not lightly second-guess decisions made by law enforcement officers in the heat of battle, this was not the heat of battle and caution was therefore appropriate.10 A menacing gesture by one of the individuals outside the cabin did not give Horiuchi the right to gun all of them down in cold blood.

I also find it highly significant that Hori-uchi, alone among the agents surrounding the cabin, considered the danger serious enough to open fire. Even after Horiu-chi’s first shot rang out, Harris and the Weavers were not peppered by bullets from the other sharpshooters hidden in the hills above the cabin. As the DOJ Report *1002observed, “Many of the sniper/observers saw three people running to the cabin after the first shot. None reported any action that could immediately be interpreted as threatening to the helicopter or the sniper/observers.” DOJ Report, note 1 supra, at Section IV.F.3.c.(3). If Horiuchi was justified in shooting, all the other FBI sharpshooters must have been derelict in holding their fire.

Finally, I return to the immovable fact that the occupants of the cabin were given no opportunity to surrender before deadly force was unleashed against them. Giving a warning and opportunity to surrender is not just an aspirational goal; it is a required step before deadly force may be used. It is true that we have qualified this requirement with such phrases as “where feasible,” see, e.g., Forrett, 112 F.3d at 420, but this does not mean warnings can be dispensed with whenever they would be inconvenient. A warning and an opportunity to surrender must always be given before deadly force is used, unless doing so would materially increase the danger to law enforcement personnel or bystanders. This contemplates a narrow class of cases, such as where the suspect has opened fire, pulled a gun, or credibly threatened vulnerable targets.

It is conceivable that Horiuchi was entitled to take his first shot without giving a warning,11 but thereafter neither Harris nor Mr. Weaver nor anyone else connected with the cabin was shooting or even aiming weapons at any vulnerable targets. To become a threat again, as Horiuchi supposedly feared, they would have had to enter the cabin, take their places at a window and start shooting. This interval gave Horiuchi plenty of time to shout out a surrender demand.12

Nor was this the only interval when a warning could-and should-have been given. FBI agents had staked out the Weaver cabin since earlier that morning, while the shooting took place in late afternoon. Obviously, those involved in the operation had ample time to give the necessary warning before deploying agents with shoot-on-sight orders.13 Even after Horiuchi and *1003his team had taken their places around the cabin, approximately half an hour passed during which the Hostage Rescue Team members could have called out a warning and given those in the cabin a chance to surrender. It was wholly unreasonable for Horiuchi to open fire, knowing that the civilians at whom he was aiming were unaware of the danger and had no chance to surrender rather than die. Accord Harris, 126 F.3d at 1203. That all the other sharpshooters held their fire tells us all we need to know on this score.

II

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

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

We do not believe that there is any credible evidence that the three individuals who were running into the cabin presented a threat of grievous bodily harm or death to Agent Horiuchi or anyone else. The three were running for the cover of the cabin. They had not returned the sniper’s fire and, according to Horiuchi’s trial testimony, they were running faster than when they emerged from the cabin. The FBI had not previously considered the Weavers and Harris a significant threat from within the cabin. The FBI had decided to accept the risks posed by these suspects as they remained in their cabin, in making plans to negotiate with them while they remained inside. The helicopter had taken several flights earlier in the day, and the Weavers had not shot at it from the cabin. The second shot, therefore, was not objectively reasonable.

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

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 *1004not 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.
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 [sic] case, warranted law enforcement to perceive an immediate threat. Since the exchange of gunfire at the Y [30 hours earlier], 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. 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.

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

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

Law enforcement officials may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed. Whenever practicable, a warning must be given so that the suspect may end his resistance or terminate his flight. A desire to prevent an armed suspect from entering the place he is residing because it may be difficult to persuade him to reemerge is insufficient cause to kill him. Other means exist for bringing the offender to justice, even if additional time and effort are required. When Horiuchi shot Harris, without any warning, as he was retreating toward an area of safety, he acted in a patently unreasonable manner that violated clearly established law. That the conduct at issue violated Harris’s constitutional rights should have been plain to any reasonable officer.

Id. at 1204.

The majority tries in vain to distinguish Harris by arguing that the panel there “did not consider many facts apparent on the record in this case, such as Horiuchi’s belief that the armed man was a threat to the helicopter.” Maj. Op. at 1000. But any threat to the helicopter could justify only Horiuchi’s first shot-which he took after he allegedly saw one of the men look menacingly in the direction of the helicopter. Once the man started running toward *1005the cabin, the immediate threat to the helicopter ceased. The helicopter could have been warned to move out of range, if such warning were even necessary. See pp. 1000-01 supra. Neither this fact, nor any other, distinguishes this case from Harris.

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

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

. United States Department of Justice, Report of the Ruby Ridge Task Force to the Office of Professional Responsibility of Investigation of Allegations of Improper Governmental Conduct in the Investigation, Apprehension and Prosecution of Randall C. Weaver and Kevin L. Harris, June 10, 1994, [hereinafter “DOJ Report”] at Section IV.F.4.

.The one key factual dispute cuts against the majority’s conclusion. While the majority claims Horiuchi was unaware of Mrs. Weaver’s presence behind the door, Maj. Op. at 996, there is evidence that he should have known, which could make his decision to shoot blind through the door objectively unreasonable:

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. When asked if he "knew there was somebody behind the door,” Horiuchi responded that he "wasn't shooting at the individual behind the door.” However, by fixing his cross hairs on the door, when he believed someone was behind it, he placed the children and Vicki Weaver al 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 .... In our opinion he needlessly and unjustifiably endangered the persons whom he thought might be behind the door.

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

. "I don't know where the helicopter was, sir, I would be guessing if I told you where it was.” Excerpt of Testimony of Lon T. Horiuchi, United States v. Weaver and Harris, No. 92-080-N-EJL [hereinafter "Horiuchi Testimony”] at 259 (June 4, 1993).

. The DOJ investigators relied on Horiuchi’s own words in concluding that he acted unreasonably in taking the second shot: "In a statement Horiuchi prepared later that evening, he explained that, just before Harris entered the cabin, he ‘stopped at the door *999looking for either the helicopter or where the shot came from....’ Thus, even Horiuchi does not characterize these movements as threatening or as provocation for the second shot.” DOJ Report, note 1 supra, at Section IV.F.3.c.(3) (footnote omitted).

. Idaho does not seem to dispute that Horiu-chi heard the helicopter, but the Senate Subcommittee expressed doubt. At the very least, there is conflicting evidence. Randy Weaver testified that "ail was quiet" at the time of Horiuchi’s first shot. Moreover, "Weaver maintains that, had they heard a helicopter at this moment, they all would have run back to the cabin immediately.” The Federal Raid on Ruby Ridge, ID: Hearings Before the Sub-comm. on Terrorism, Technology, and Government Information of the Senate Comm, on the Judiciary, 104th Cong., First Session, at 1115 (1995) (Appendix, Ruby Ridge: Report of the Subcommittee) [Hereinafter "Senate Report”]. All factual disputes must be resolved against Horiuchi at this stage of the proceedings. See Morgan v. California, 743 F.2d 728, 733 (9th Cir.1984).

. During his direct examination in the Weaver criminal trial, Horiuchi implied that he had a general idea as to the location of the helicopter:

Q: When you saw the activity in the house area, could you tell from the sound where the helicopter was at that particular time?
A: Generally, sir, it was either behind me or to my right or to my left.
Q: You couldn’t see the helicopter at the time you saw the activity, is that correct?
A: No, sir, once the activity started, I was concentrating on the three individuals that came out of the building, not the helicopter.

Horiuchi Testimony, note 3 supra, at 67-68 (June 3, 1993). However, on cross-examination, he admitted that he had no clue as to the helicopter’s location:

Q: The helicopter was behind you?
A: I don’t know where the helicopter was, sir, I would be guessing if I told you where it was.

Id. at 259 (June 4, 1993).

. Horiuchi presented conflicting testimony about whether he thought the helicopter was in danger. At Weaver’s criminal trial, he claimed the helicopter "wasn’t necessarily out of rifle range” during the reconnaissance flight he took. But on cross he was impeached by a statement that he made previously to the effect that the helicopter "stayed well out of [rifle] range” during his flight. Id. at 258 (June 4, 1993).

. At oral argument, Horiuchi’s counsel represented that the agents were under orders to maintain radio silence. Counsel did not provide record support for this assertion and it turns out not to be true, as one of Horiuchi's fellow agents did use the radio to alert the FBI command center that individuals outside the cabin were on the move: “I believe it was Special Agent Love in Sierra 1 position who saw them coming out at the same time, pretty much the same time I did, and he radioed back to the command post that three individuals had come out of the building.” See Hori-uchi Testimony, note supra, at 77 (June 3, 1993). Horiuchi testified that the only reason he didn’t radio himself was that a momentary malfunction caused Agent Love to "beat [him] to the punch.” Id. At the time he fired, Hori-uchi knew that the helicopter pilot had been warned that there were people outside the cabin, and that additional warnings could be given if necessary.

. The DOJ investigators recognized the same problem: "Horiuchi also confused his targets. He erroneously believed that the last man returning [to] the cabin [w]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.” DOJ Report, note 1 supra, at Section IV.F.3.c.(3).

. The Senate Subcommittee expressed a similar view:

We do not want in any way to hamstring the police officer involved in a hot pursuit or close range confrontation with a dangerous criminal. Those women and men have to make snap judgments every day, and we have no wish to increase their personal risk by requiring undue hesitation before they protect themselves.

But in the case of the snipers on Ruby Ridge, no such personal or immediate danger existed. When Horiuchi fired, he was in a concealed, safe and remote firing position. He had time to think before he shot, time to be briefed before he was deployed, and time to calmly plan his actions. Under those circumstances, what Horiuchi saw as Weaver, Harris and Sara fled back toward their cabin-where one child (two, as far as law enforcement officers were aware) and one infant were present-gave him insufficient justification to fire his weapon.

It is not our purpose to urge (or to urge against) prosecution or other sanction against Agent Horiuchi. But it is the Subcommittee's firm purpose to make sure that in the future, in similar circumstances, inappropriate and unconstitutional deadly force like the second Ruby Ridge shot will never again be used. Senate Report, note 5 supra, at 1120.

. The Senate Subcommittee expressed doubt on this score: "Although we are not prepared to conclude that the first shot was unconstitutional, we are concerned for several reasons that the perception of an imminent threat to the helicopter was not what caused Horiuchi to take the first shot...." Senate Report, note 5 supra, at 1116.

. The majority doubts that Horiuchi could have been heard, Maj. Op. at 994, but Horiu-chi testified that he was near enough to hear voices from within the cabin, see Horiuchi Testimony, note 3 supra, at 13 (June 3, 1993) (agents heard "screaming, a single male voice” from their positions). It is therefore likely that a shouted warning from one or more of the agents would have been heard by the three as they fled toward the cabin. Or, Horiuchi might have alerted the helicopter or one of the armored transports to call out a surrender demand using loudspeakers. At the very least, this is a disputed fact that must be resolved against Horiuchi at this stage of the proceedings. See United States ex rel. Drury v. Lewis, 200 U.S. 1, 8, 26 S.Ct. 229, 50 L.Ed. 343 (1906); Morgan, 743 F.2d at 733.

. The Special Rules of Engagement, which have been criticized by everyone including FBI Director Louis Freeh, see The Federal Raid on Ruby Ridge, ID: Hearings before the Subcomm. on Terrorism, Technology, and Government Information of the Senate Comm, on the Judiciary, 104th Cong., First Session, at 1087 (1995) (statement of FBI Director Louis J. Freeh), were indeed shoot-on-sight orders. See Senate Report, note 5 supra, at 1111. Many who have looked at the second shot have speculated that it was the patently unlawful Rules of Engagement that may have been responsible for Agent Horiu-chi’s action, rather than the makeshift justification he cobbled together later. Because the Rules have been found to be unconstitutional by virtually everyone who examined them, see id.; Harris, 126 F.3d at 1205, Horiuchi's counsel explicitly declined to rely on them to exonerate his client:

The Court: If your client is relying on [the Rules of Engagement] as a part of his justification, we have to deal with [them],

Mr. Hoffinger: He's not. And let me make that very clear.... He’s not relying on the Rules of Engagement to justify his conduct. Audio Recording of Oral Argument in Idaho v. Horiuchi, No. 98-30149 (before the 9th Circuit Court of Appeals, recorded in Pasadena, California, June 9, 1999).