State of Idaho v. Lon T. Horiuchi

MICHAEL DALY HAWKINS, Circuit Judge, with whom Chief Judge SCHROEDER, RYMER, SILVERMAN, and GRABER,* Circuit Judges,

join, dissenting:

This case involves the application of well-settled law to the 1992 Ruby Ridge incident in Idaho. Both the district court and the panel majority correctly recognized that under the Supremacy Clause of the United States Constitution, FBI Special Agent Lon T. Horiuchi cannot be prosecuted for involuntary manslaughter by the state of Idaho for his role in this unfortunate affair.

In an effort to avoid the obvious import of over a century’s jurisprudence on state prosecution of federal officers, the majority confuses disputes about the reasonableness of conduct with disputes about issues of material fact and conjures up issues of material fact that the state of Idaho never raised below and that even the author of the majority opinion has conceded do not exist.1

Despite the majority’s protestations, there are no disputed issues of material fact in this case, and the majority’s insistence on sending this case back for still more proceedings frustrates the clear intent of the law that Horiuchi and other federal officers be free from the harassing threat of state criminal prosecution for honest mistakes of judgment they might make when carrying out their federal duties.

I. The Law of Supremacy Clause Immunity

As with many legal issues, historical context is critically important in understanding the nature and purpose of the Supremacy Clause defense raised by Hori-uchi. 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. As John Marshall recognized, “there is a plain repugnance in conferring on one government a power to control the constitutional measures of an*381other, which other, with respect to those very measures, is declared to be supreme over that which exerts the control.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431, 4 L.Ed. 579 (1819). Whether protecting judges from the threats of dissatisfied litigants, revenue agents from local moonshiners, unpopular prisoners from intimidating mobs, wartime shipbuilders from striking workers, or a child from a volatile crowd protesting court-ordered school desegregation, federal agents enforcing the laws of the nation can, on thankfully rare occasions, come into conflict with those who enforce the criminal laws of the states. When that occurs and when 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.

A. Origins

The origins of an explicit Supremacy Clause immunity defense can be traced to Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1880), which concerned the federal government’s long-standing efforts to protect its agents from prosecution in state courts. In Davis, a United States revenue agent was charged with murder in Tennessee state court. The agent contended that he was acting in self-defense in the scope of his duties as a revenue agent, and sought removal of his case to federal court. Id. at 259. Against Tennessee’s challenge, the Supreme Court affirmed the legitimacy and importance of the federal-officer removal statute. The Court noted that, as early as 1815, Congress had provided for removal of state prosecutions against federal officers. Id. at 267. The current act dated from 1833 and had been enacted in response to South Carolina’s attempt to nullify federal law by criminalizing the collection of tariff duties by United States officers. Id. at 268. Invoking the Supremacy Clause, the Court stated, “The founders of the Constitution could never have intended to leave to the possibly varying decisions of the State courts what the laws of the government it established are ... and what protection shall be extended to those who execute them.” Id. at 266. Such a situation would have been antithetical to the basic principles of American federalism:

[The federal government] can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offence against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection ... the operations of the general government may at any time be arrested at the will of one of its members.

Id. at 263.

Although Davis did not explicitly recognize a Supremacy Clause immunity defense, the Court relied heavily on Davis in the landmark case of In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890). Neagle established that federal officers were immune from state prosecution for acts committed within the reasonable scope of their duties.2 The case began in a squalid dispute over the legitimacy of a purported California marriage between *382Sarah Hill and William Sharon, a wealthy United States Senator from Nevada. After Sharon’s death, Hill married her attorney, David S. Terry, a former Chief Justice of the California Supreme Court.3 After considerable legal wrangling, Hill’s case was heard before a three-judge panel that included United States Supreme Court Justice Stephen J. Field, who had previously served with Terry on the California Supreme Court. Abjuring the subtler arts of appellate advocacy for a more direct entree to the judicial mind, Mrs. Terry found one of the other panel members on a train and “pulled his hair with a vicious jerk.” Id. at 44, 10 S.Ct. 658. When Justice Field later announced the panel’s unsurprising decision against her, the courtroom degenerated into chaos and violence. A U.S. marshal attempted to escort Mrs. Terry out of the courtroom after she repeatedly interrupted the justice, but her husband announced that “no man living should touch his wife” and slugged the marshal in the face, knocking out a tooth. Id. at 45, 10 S.Ct. 658. Mr. Terry then drew a bowie knife and was finally subdued by officers, one of whom was Deputy Marshal David Neagle, a lawman who had spent his early days in Tombstone, Arizona.

Both husband and wife served contempt sentences for this incident, which apparently made their resentment toward Justice Field fester even more. They made repeated threats on his life, threats that were so visible that “the press of California was filled with the conjectures of a probable attack by Terry on Justice Field, as soon as it became known that he was going to attend the Circuit Court in that year.” Id. at 47, 10 S.Ct. 658. The Attorney General recommended heightened protective measures for the justice, and David Neagle was given special instructions to guard the justice against attack.

Traveling with Justice Field on a train from Los Angeles to San Francisco, Nea-gle learned that Terry and his wife had boarded the train. Terry seems to have staked out Justice Field in the dining car, sending his wife back to their compartment to retrieve a revolver. Before she returned, Terry approached the justice from behind and struck him twice on the head. When Neagle ordered him to stop, Terry appeared to reach for a bowie knife, and Neagle fired two shots from his revolver, killing Terry. Id. at 52-53, 10 S.Ct. 658. The state of California then charged Neagle with murder; he in turn sought habeas corpus relief from the federal courts.4

The Supreme Court forcefully rejected the state’s attempt to prosecute Neagle and clearly established the immunity of federal officers under the Supremacy Clause from state prosecution. If the officer had performed “an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if in doing that act he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the state of California.” Id. at 75, 10 S.Ct. 658. The Court explained that this was emphatically not a question that was appropriate for a jury: “The circuit court *383of the United States was as competent to ascertain these facts as any other tribunal, and it was not at all necessary that a jury should be impaneled to render a verdict on them.” Id. The immunity provided by the Supremacy Clause is an immunity from prosecution itself, and this determination is to be made, as “under all systems of criminal jurisprudence,” by a “committing magistrate, or some similar authority, as to whether there is an offence to be submitted to a jury.” Id.

The Supreme Court reaffirmed these principles nine years later in Ohio v. Thomas, 173 U.S. 276, 19 S.Ct. 453, 43 L.Ed. 699 (1899). In Thomas, the Court rejected an attempt by the state of Ohio to prosecute the director of a federal soldiers’ home for violating a state statute relating to the use of oleomargarine. Federal officers, the court explained, “when discharging [their] duties under federal authority pursuant to and by virtue of valid federal laws, are not subject to arrest or other liability under the laws of the state in which their duties are performed.” Id. at 283, 19 S.Ct. 453.

The Thomas court relied on Davis, Neagle, and, most heavily, on an important district court decision, In re Waite, 81 F. 359, 363-64 (N.D.Iowa 1897), aff'd sub nom. Campbell v. Waite, 88 F. 102 (8th Cir.1898). In Waite, a federal pension examiner, in the course of investigating fraudulent pension applications, was charged under a state statute with maliciously threatening “to accuse a person of a crime in order to compel him to do an act against his will.” 81 F. at 361-62. The district court granted habeas relief, explaining:

If in the performance of these duties the officer so acts as to violate his duty to the United States, that government, and not the state, is the proper party to call him to account. If the acts done are violative of the rights of individuals, a civil action for damages may be maintained,. or protection may be sought under the laws of the United States, and thus a remedy may be afforded to the citizen without bringing the federal and state governments into conflict, or without unduly interfering with the operations of that government under whose authority the officer is acting.

Id. at 363-64. The court recognized that “it certainly is the law that the officers and agents of the United States, such as the marshals, the deputy marshals, post-office inspectors, pension examiners, and the like, cannot be called to account before the courts of the states for the manner in which they perform the duties intrusted to them.” Id. at 370. If states could hold “officers and agents of the United States ... responsible, under the criminal statutes of the state, for acts done in their official capacity,” the states could “control or nullify the action of the authorities of the United States.” Id. at 371.

Waite was in accord with another early application of Neagle in recognizing that Supremacy Clause immunity provided a broad defense against state criminal prosecution. A federal court in Washington explained the doctrine this way:

[WJhere an officer, from excess of zeal or misinformation, or lack of good judgment in the performance of what he conceives to be his duties as an officer, in fact transcends his authority, and invades the rights of individuals, he is answerable to the government or power under whose appointment he is acting, and may also lay himself liable to answer to a private individual who is injured or oppressed by his action; yet where there is no criminal intent on his part he does not become liable to answer to the criminal process of a different government. With our complex system *384of government, state and national, we would be in an intolerable condition if the state could put in force its criminal laws to discipline United States officers for the manner in which they discharge their duties.

In re Lewis, 88 F. 159, 160 (D.Wash.1897); see also In re Fair, 100 F. 149, 151 (C.C.D.Neb.1900) (noting that it was “well and firmly established” that an “act done by an officer or agent of the United States in and about a matter solely within federal control, and in pursuance of an authority given by the laws of the United States, is not an offense against the laws of the state”).

B. Applications

In 1920, Justice Oliver Wendell Holmes explained the Supreme Court’s understanding of Neagle: “[E]ven the most unquestionable and most universally applicable of state laws, such as those concerning murder, will not be allowed to control the conduct of a marshal of the United States acting under and in pursuance of the laws of the United States.” Johnson v. Maryland, 254 U.S. 51, 56-57, 41 S.Ct. 16, 65 L.Ed. 126 (1920). Holmes recognized that the power of federal agents to employ deadly force can result in the loss of life. Federal courts have repeatedly granted Supremacy Clause relief to officers accused of unlawfully taking human life, even in situations in which differing conclusions could be drawn about the reasonableness of the agent’s conduct.

Our most recent affirmation of this principle is Clifton v. Cox, 549 F.2d 722 (9th Cir.1977). Like this case, Clifton concerned an altercation between federal officials and criminal suspects at a remote cabin. Federal officers arrived by helicopter to execute federal search and arrest warrants at an alleged illegal drug manufacturing site. As the helicopter landed, one agent tripped and fell. Agent Lloyd Clifton, believing that his comrade had been shot, rushed to the cabin and kicked in the door. He did not knock, identify himself, or announce his authority before entering. As he entered, the subject of the arrest warrant jumped over a bannister into the backyard and began running toward a nearby wooded area. When the unarmed subject refused to halt, Clifton shot him in the back. He died shortly thereafter. Id. at 724.

We concluded, despite suggestions that Clifton’s conduct violated internal regulations, that Clifton was entitled to Supremacy Clause immunity from state prosecution for second-degree murder and involuntary manslaughter. We emphasized that immunity depended on “whether the official employs means which he cannot honestly consider reasonable in discharging his duties or otherwise acts out of malice or with some criminal intent.” Id. at 728. “Proper application of this standard does not require a petitioner to show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be.” Id.

The facts in that case showed that a reasonable officer in Clifton’s situation might have acted in the manner that he did. Clifton had an arrest warrant for the suspect. He “had been informed that the suspects might be armed and dangerous.” Id. at 729. We therefore agreed with the district court that Clifton’s conduct was “both honest and reasonable,” in light of his belief that the occupants of the cabin were “potentially armed and dangerous” and his belief that the suspect’s “escape into the woods would pose a danger to the lives of the pursuing officers.” Id. at 729.

Other cases dealing with the use of deadly force are in accord with Clifton. The case most closely analogous to this *385one is United States v. Lipsett, 156 F. 65 (W.D.Mich.1907). Lipsett involved a military sentry, Cyrus Gillette, who was supervising two military prisoners, one of whom, Hodsdon, escaped. Gillette chased after Hodsdon, loading his gun as he ran. Gillette initially held his fire because of some children in the street, but eventually decided to fire at the escapee. “The bullet passed over Hodsdon’s head and accidentally struck and killed Miss Elizabeth Ca-denhead, who, with friends, was returning from a visit to Ft. Brady, and was walking along the street on which Gillette and Hodsdon were running.” Id. at 66. State officials subsequently charged Gillette with manslaughter.

The district court held that Gillette was entitled to Supremacy Clause immunity and to habeas relief. The court noted, “No claim is made on the part of the state authorities that Gillette had any malice or ill will towards either Hodsdon or Miss Cadenhead, or that the homicide was other than accidental; and there is nothing in the evidence presented on the hearing reasonably tending to show, nor is it asserted, that Gillette, in firing the shot, did not act in good faith and in the supposed performance of his duty.” Id. at 67. The state contended, however, that there was a question of fact “whether there was any other possible means of preventing the escape of the fugitive than by firing, and whether Gillette exercised due care ... the street being unobstructed, and it thus having been possible to discover that Miss Cadenhead and her companions were in the line of fire.” Id.

The court held that the reasonableness of Gillette’s conduct, and thus his immunity, was properly decided by the court, and not by the jury. “[T]he suggestion that different minds might draw different inferences from undisputed facts furnishes no reason why I should abdicate my responsibility to decide in this proceeding whether the guard, in shooting at the fleeing deserter, acted in the supposed discharge of his duty.” Id. at 71. In this case, if the “guard, in shooting as he did, was acting in the supposed exercise of his duty, without malice or criminal intent ... he is not liable to prosecution in the state court from the fact that from misinformation or lack of good judgment he transcended his authority, even though he might be liable to a civil action at the suit of the injured party.” Id. (emphasis added). The court concluded, “Even though it might have been more prudent for the guard to have exercised still greater care in the prevention of this deplorable accident, such fact would not convert this accident into a crime.” Id. at 72.

In Ex parte Warner, 21 F.2d 542 (N.D.Okla.1927), the court granted Supremacy Clause immunity to a prohibition agent who accidentally shot and killed a man whom he was trying to arrest. The case was “extremely unfortunate,” but “federal courts will not permit a federal officer or agent to be restrained of his liberty by state authority for an act done in pursuance to federal law.” Id. at 544, 543.

In West Virginia v. Laing, 133 F. 887 (4th Cir.1904), federal marshals enlisted local citizens as a posse comitatus to help serve a federal arrest warrant. John Harless, the subject of the warrant, ran toward the officers carrying a pistol. He then turned toward a large tree, and two of the citizens opened fire, lolling him instantly. Id. at 888. The court found that this incident was “unfortunate, and the result [was] greatly to be deplored.” Id. at 889. However, the court noted that “there was no feeling of animosity on [the citizens’] part towards Harless, and no motive existed because of which either of them would have been induced to do him *386harm.” Id. at 890. They knew that Harless was “a dangerous and desperate character,” and they reasonably believed that, when he turned to the shelter of the tree, he was intending to open fire on them. Id. at 890-91. Accordingly, they were entitled to Supremacy Clause immunity. The court rejected the state’s claim that the ease ought to go to a jury, stating, “Congress certainly intended, in cases of this character, that the judges of the United States should hear the evidence, and without a jury proceed in a summary way to pass upon the federal question involved.” Id. at 891.

In re Fair, 100 F. 149 (C.C.D.Neb.1900), involved soldiers who shot and killed a deserter. After a military court found the soldiers not guilty of manslaughter, the state of Nebraska instituted criminal proceedings against them. Id. at 151. The federal court granted habeas relief on the ground of Supremacy Clause immunity. The evidence revealed no malice, and, accordingly, if the soldiers “acted without any criminal intent, but in an honest belief that they were only discharging the duties of a soldier,” they could not be guilty of a crime against the state. Id. at 155.

Of course, the importance of Supremacy Clause immunity is not restricted to the regrettable situations in which there is a loss of life. It matters in all kinds of cases in which federal agents are attempting to enforce federal law in the face of local intransigence. A good example of this is the case of In re McShane, 235 F.Supp. 262 (N.D.Miss.1964). In McShane, the state of Mississippi attempted to prosecute James McShane, the Chief of the Executive Office of the United States Marshals, for his role in enforcing James Meredith’s right to attend the University of Mississippi. A large crowd had gathered to challenge Meredith’s admission, and McShane ordered his marshals to use tear gas on the crowd, provoking a tumultuous riot. Id. at 269. The state charged McShane with breach of the peace and unlawful and felonious use of force. Id. at 264. McShane sought relief in federal court.

The district court noted that the parties disputed the reasonableness of McShane’s conduct. McShane contended that the crowd was “fast getting out of hand,” that the use of tear gas was proper, and that the gas used “was a safe and proper kind for use against crowds.” Id. at 269. Mississippi contended that the crowd was not out of control, that a “wrong and dangerous type of gas was used indiscriminately and recklessly,” and that the firing of tear gas into a group of students “was wholly unnecessary.” Id. There was also evidence that the Deputy Attorney General disapproved of the use of gas and felt that “somebody jumped the gun.” Id. at 270.

The district court readily granted McShane’s petition, noting McShane’s un-contradicted testimony that he honestly felt his actions were necessary to implement court-ordered integration. Id. “[E]s-timating the temper of a crowd,” the court noted, “is a matter of judgment. The difference between a mob and a crowd is gossamer thin.” Id. After an extensive review of the case law, the court concluded that federal officers were to be denied immunity from state prosecution only if they “employ means which they cannot honestly consider reasonable in discharging their duties or who otherwise act out of malice or with some criminal intent.” Id. at 273 (emphasis in original). The substance of the standards applied in the case law was “that of honest and reasonable belief.” Id. at 274.

If, as here, the petitioner shows without dispute that he had no motive other than to discharge his duty under the circumstances as they appeared to him and that he had an honest and reasonable *387belief that what he did was necessary in the performance of his duty ... then he is entitled to the relief he seeks. This is so even though his belief was mistaken or his judgment poor.

Id. (emphasis added). The court accordingly granted McShane Supremacy Clause immunity.

McShane is typical of federal cases in which courts have invoked Supremacy Clause immunity to protect the operations of the federal government from state interference. See, e.g., Hunter v. Wood, 209 U.S. 205, 28 S.Ct. 472, 52 L.Ed. 747 (1908) (railroad official acting under a federal injunction who was charged under state law with overcharging for a railroad ticket); Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (1900) (Treasury official who, pursuant to federal regulations, refused to produce records to state officials); Kentucky v. Long, 837 F.2d 727, 745 (6th Cir.1988) (FBI agent who allegedly committed a burglary as part of an undercover operation; “a mistake in judgment or a ‘botched operation,’ so to speak, will not of itself subject a federal agent to state court prosecution”); Baucom v. Martin, 677 F.2d 1346 (11th Cir.1982) (FBI agent who bribed a state prosecutor in an undercover operation); Texas v. Carley, 885 F.Supp. 940 (W.D.Tex.1994) (Fish and Wildlife officer charged with criminal trespass while making National Wetlands Inventory); Connecticut v. Marra, 528 F.Supp. 381, 386 (D.Conn.1981) (Federal Informant who, in an “error[ ] resulting from confusion or nervousness or bad judgment,” exceeded his authority and attempted to bribe a police officer); Lima v. Lawler, 63 F.Supp. 446 (E.D.Va.1945) (naval shore patrolman charged with assault for striking city policeman who interfered with arrest of a serviceman); Brown v. Cain, 56 F.Supp. 56 (E.D.Pa.1944) (Coast Guard official charged with quelling riots who shot and killed a man he suspected had thrown a brick at him); Ex parte Beach, 259 F. 956 (S.D.Cal.1919) (customs agent who fired shots at the roadster of a suspected opium smuggler); In re Wulzen, 235 F. 362 (S.D.Ohio 1916) (National Guard officers who pushed people out of the way of a military march); In re Turner, 119 F. 231, 235 (C.C.S.D.Iowa 1902) (federal officer constructing sewer pipe to army base against prosecution for violation of a state injunction; “an officer of the United States ... acting in obedience to commands ... is not subject to arrest on a warrant or order of a state court”); United States ex rel. Flynn v. Fuellhart, 106 F. 911 (C.C.W.D.Pa.1901) (Secret Service agents charged with assault and battery for arresting a counterfeiter); In re Lewis, 83 F. at 160 (Treasury agents who, with “bad judgment,” executed an illegal search warrant); United States ex rel. McSweeney v. Fullhart, 47 F. 802 (C.C.W.D.Pa.1891) (U.S. marshals who drew their guns at state constables while escorting a federal arrestee into custody).5

Indeed, there appear to be only four instances in the entire history of our nation in which federal courts have denied Supremacy Clause immunity to an officer who has sought protection from state criminal prosecution.6 None of these four cases bears any resemblance to this one.

In the first case, United States ex rel. Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, *38850 L.Ed. 343 (1906), the Supreme Court affirmed a trial court’s denial of habeas relief to an Army officer and an enlisted man who were indicted for homicide in a Pennsylvania state court. The defendants were trying to stop thefts on a military base, and they found “three or four half-grown boys or young men” congregated in the street. Id. at 3, 26 S.Ct. 229. They contended that they fired at one of the boys to prevent his escape. However, other witnesses contended that the boy surrendered and begged the officers not to shoot him, but they shot him anyway. Id. at 2-3, 26 S.Ct. 229. This presented a substantial conflict in the testimony, suggesting that the officers may have acted with deliberate criminal intent.7 The Supreme Court stressed that habeas relief was “an exceedingly delicate jurisdiction,” id. at 7, 26 S.Ct. 229, and concluded that the trial court did not abuse its discretion in denying habeas relief, id. at 8, 26 S.Ct. 229.

The second case, Castle v. Lewis, 254 F. 917 (8th Cir.1918), concerned federal officers who shot and killed a man they suspected was illegally transporting whiskey into Indian country. The district court denied habeas relief, and the circuit court reviewed for abuse of discretion. Id. at 921, 926. The Eighth Circuit noted that there was “a substantial conflict” in the evidence with respect to what happened. Id. at 926. Moreover, the court imposed a novel requirement that petitioners specifically show that trial of their case in state court would “seriously interfere with the enforcement of the laws of the United States or the operations of its government.” Id. at 921.

The third case, Birsch v. Tumbleson, 31 F.2d 811 (4th Cir.1929), relied heavily on Castle. Birsch involved federal game wardens who killed two hunters. The Fourth Circuit affirmed the trial court’s denial of habeas relief, since the only witness to the shootings (other than the defendants), asserted that they had simply opened fire on the hunters for no apparent reason. Id. at 812.

The fourth case, Morgan v. California, 743 F.2d 728 (9th Cir.1984), was, until today, the only case in which a federal appellate court has reversed a district court’s holding that a defendant is entitled to Supremacy Clause immunity. Like the other three cases, Morgan arose from a habeas petition. Unlike the other cases, however, it was not primarily about the reasonableness of an officer’s conduct. Rather, it addressed whether the officers were on official business or on what tort scholars might term a “frolic and detour.” Two DEA agents, who by all accounts were intoxicated, backed their car into another car and got into an altercation with that car’s owner. The agents later followed the owner to a jewelry store, where, the owner alleged, the agents assaulted him. Id. at 729-30. Although the agents claimed they were on their way to meet an informant at the time of the accident, other testimony suggested they were heading to the Police Academy for drinks. Id. We reversed the district court’s grant of habe-as relief against state prosecution for various misdemeanor offenses, concluding that there was a substantial conflict in the evidence with respect to whether the officers were engaged in official business at the time of the incident. Id. at 734.8

*389These four cases are instructive. Each involved a substantial conflict in the evidence. In three cases, there was evidence suggesting that the federal officers acted with deliberate malice. In the fourth, there was evidence suggesting that the federal officers were not on official duty at the time of the incident. Neither circumstance, of course, is present here. Idaho’s indictment alleges that Horiuchi acted “without malice,” and there is no dispute that Horiuchi was acting within his official duties. The majority therefore cannot point to any case that is on all fours with this one-that is, a case in which a court denies Supremacy Clause immunity based on a second-guessing of the reasonableness of actions taken by an agent indisputably acting without malice and while on official duty. This does not necessarily mean that such a case might not exist, but it does suggest the unprecedented nature of denying immunity on the facts of this case. The vast weight of authority is that poor judgment, mistaken assumptions, and excessive zeal alone are not sufficient to subject a federal agent to state criminal prosecution.

C. Standards

The case law establishes that a federal agent is entitled to immunity from state prosecution if he was acting within the scope of his official duties and employing means that he honestly and reasonably considered necessary to the discharge of those duties. See, e.g., Clifton, 549 F.2d at 726, 728.

As the majority properly points out, state criminal prosecution of a federal agent is much more serious than an action against that officer for civil damages. (Majority at 376.) The federal government cannot indemnify prison time. This consideration warrants a strong inference that Supremacy Clause immunity is broader than qualified immunity and more protective of the federal officer. Indeed, no judicial decision has ever equated the two forms of immunity.9 Where precisely these contours lie it is not necessary to decide.10 At minimum, Supremacy Clause immunity is at least as broad as qualified immunity, which is itself broader than the scope of the underlying constitutional right.

The Supreme Court has recognized that officers who violate a constitutional provision are nonetheless entitled to qualified immunity if they might have reasonably thought their actions were constitutionally permissible. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). As the Court explained, “We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that [their action is constitutional]” and that *390they should not be held personally liable for their mistakes. Id. at 641, 107 S.Ct. 3034 (emphasis added). Under qualified immunity, an officer is protected if “officers of reasonable competence could disagree” on an issue. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). In immunity cases, the court “should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed five years after the fact.” Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). At minimum, Supremacy Clause immunity provides this much protection to the federal officer: He is entitled to immunity unless no reasonable officer in the situation would have acted in that manner. We do not ask whether every reasonable agent would have done precisely the same thing. We do not ask whether the agent made an error of judgment. Nor need we determine, with pinpoint precision, whether the acts were constitutional.11

When a federal officer raises a Supremacy Clause immunity defense, the burden shifts to the state “to come forward with [an] evidentiary showing that disputed issues of fact exist to rebut the claim of the federal officer.” Long, 837 F.2d at 751. If the state makes such a showing, the disputed facts must then be resolved, either by a judge or by a jury. We need not reach the issue of who resolves these disputes, however, because in this case there are no disputed material facts.12

With these principles in mind, we turn to the events of August 22, 1992.

II. Special Agent Horiuchi’s Conduct

A. Issues of Material Fact

The majority asserts that there are six major disputed issues of material fact in this case (Majority at 368-69.) Although we will explain in some detail why none of these “disputes” constitutes a disputed material fact under the governing case law, *391the most telling evidence about the existence of these “disputes” is that the author of the majority opinion disavowed them in his dissent to the panel opinion. The seventh sentence of that dissent announces, “The facts here are largely not in dispute.” Horiuchi, 215 F.3d at 998 (Kozinski, J., dissenting). The author then drops a footnote that states, “The me key factual dispute cuts against the majority’s conclusion.” Id. at 998 n. 2 (emphasis added). Indeed, the only disputed factual issue argued by the state of Idaho in the district court related to Horiuchi’s knowledge of Vicki Weaver’s position. The dissent accordingly argued that Horiuchi’s conduct was unreasonable as a matter of law.

The panel had the benefit of full and extensive briefing and, in the year that elapsed between oral argument and the filing of the decision, had plenty of time to scour the record for disputed material facts. Yet despite all that, the dissent could come up with only one possible factual dispute. The dissent never argued that the factual record was incomplete or that the district court needed to take another look at what happened. The majority now dredges up five new purported factual disputes that no one on the panel, including the dissent, ever noticed, and that Idaho never argued below. No one noticed them because they are not real disputes about material facts at all. They are primarily a series of assertions and second-guesses about the reasonableness of Horiuchi’s conduct-the bread and butter of the dissent from the panel opinion dressed up as disputes about material fact.

1. The Location of the Helicopter

The majority summarizes its contentions about the helicopter by noting, “it seems highly debatable whether a reasonable agent in Horiuchi’s position would have believed that the helicopter would be endangered if the man with the gun reached the cabin.” (Majority at 370.) Of course, this is not an issue of material fact; it simply restates the basic question whether Horiuchi acted reasonably-that is, the question whether he is entitled to immunity. To show a genuine issue of material fact the majority must do more than show that reasonable people in Horiuchi’s position might have acted differently. It must do more than make a plausible argument that Horiuchi acted unreasonably. It must show some substantial conflict in the evidence about a material fact.

The majority purports to identify a dispute about the precise location of the helicopter. Although Idaho argued strenuously in the district court that there were multiple disputed issues of material fact, it never once challenged Horiuchi’s account of the helicopter’s location, or even mentioned the helicopter at all. (In fact, the word “helicopter” never appears in Idaho’s opposition to Horiuchi’s motion for immunity.) Nor did Idaho mention the helicopter issue in its opening brief to this court. Once Horiuchi raised the Supremacy Clause immunity defense, the burden shifted to the state “to come forward with [an] evidentiary showing that disputed issues of fact exist to rebut the claim of the federal officer.” Long, 837 F.2d at 752. It is not our role to litigate Idaho’s case for it; that is why we require “[p]arties before district courts ... to prepare their cases in a thorough manner.” United States v. Matthews, 240 F.3d 806, 810 (9th Cir.2001). Idaho’s failure to come forward with specific evidence challenging the location of the helicopter prohibits the majority from relying on it on appeal.

As we have previously explained,

Requiring the district court to search the entire record for a genuine issue of fact, even though the adverse party does *392not set it out in the opposition papers, is also profoundly unfair to the mov-ant. ... If the district court, or later this court, searches the whole record, in practical effect, the court becomes the lawyer for the respondent, performing the lawyer’s duty of setting forth specific facts showing that there is a genuine issue for trial. The movant is then denied a fair opportunity to address the matter in the reply papers.

Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001) (emphasis added). The majority, without the slightest shred of explanation, does precisely what Carmen squarely forbids: It finds reversible error because a district court failed to search the record for disputed facts that Idaho never raised and never argued and to which Horiuchi has never had an opportunity to respond.

Even if the issue were properly before the court, the shred of testimony upon which the majority relies is taken entirely out of context and does nothing to advance its argument. Horiuchi testified on direct examination that, prior to his first shot, he was searching “this area here with the naked eye.” (Horiuchi Testimony at 83.) At that point, an armed male “stopped and prodded in the ground with a stick or something and looked up at the helicopter or what I perceived to be a helicopter somewhere behind my location.” Id. Hori-uchi did not fire a shot at this point.

Horiuchi subsequently began looking through his rifle scope. Id. at 84. Horiu-chi could hear the helicopter “moving either somewhere behind me or off to my right.” Id. at 85. Horiuchi then observed the armed male “looking for the helicopter.” Id. at 87. Through the scope, Hori-uchi could see the male “watching the helicopter, and at times he would kind of bring his weapon up.” Id. at 88. “His view, or his facial view, was above and to the right of my location, and that is where I heard the helicopter or where I perceived that the helicopter was, and I’m assuming that’s what he was watching.” Id. at 88. Then the male began running, and “evidently the helicopter- popped up and maybe he thought that he was seen by the people in the helicopter.” Id. at 89. Hori-uchi then perceived that the male was “getting ready to take a shot at the individuals in the helicopter.” Id. at 90. Hor-iuchi subsequently fired his first shot. On cross-examination, Horiuchi was asked where the helicopter was at the time of the shot. He responded that “I don’t know where the helicopter was, sir, I would be guessing if I told you where it was.” Id. at 259.

The majority concludes that this testimony is “inconsistent.” (Majority at 369.) It is nothing of the sort. Horiuchi freely admits that at the time of the first shot, he did not know the precise location of the helicopter. How could he? He was looking through his rifle scope, as snipers must. His sense of the helicopter’s location was based on hearing the sound of the helicopter and on the armed man’s reaction to something in the air. There is nothing inconsistent between this testimony and his testimony about what happened at an earlier point, when he was not looking through his rifle scope. Between the time that Horiuchi was observing the area with his naked eye and the time he fired the first shot, the helicopter, quite simply, had moved. This is hardly the stuff of which disputed material facts are made.13

*393In a final effort to create a disputed issue about the helicopter, the majority cites Randall Weaver’s testimony before a Senate subcommittee. (Majority at 369 n. 16.) Idaho never submitted this or similar evidence to the district court, and it has never been made a part of the record. It is an elementary principle of law that disputed facts must be part of the record,14 See Willis v. Pacific Mar. Ass’n, 236 F.3d 1160, 1168 (9th Cir.2001) (“The appellate court is limited to evidence in the record.”). Whether this testimony is appropriate for judicial notice is beside the point: District courts do not commit reversible error by failing to search the Internet sua sponte for evidence a party might have, but failed, to submit.

In sum, there is no evidence whatsoever in this record that the helicopter was not where Horiuchi said it was-that is, that it was flying in close vicinity of the cabin.

2. The Rules of Engagement

The majority here relies on vague suggestions that Horiuchi lied about his motive and that he relied on the Rules of Engagement when he fired his shots. Idaho never made any of these arguments in the district court, but even assuming the issue was before us, the majority presents no substantive dispute of material fact.

Horiuchi concedes that the Rules of Engagement permitted him to fire at any armed male, and he concedes that the instructions he gave his men prior to the beginning of the mission reflected those Rules. Horiuchi has never argued that this conduct can be justified solely on the basis of those Rules, and he has declined to rely on them in his defense of this case.

The majority makes much of the fact that Horiuchi’s conduct could be consistent with the Rules of Engagement. However, at the beginning of the incident, Horiuchi specifically declined to fire a shot at an armed male because “there was no really threatening movement at that time.” (Horiuchi Testimony at 84.) And Horiuchi did not fire at unarmed people, because, obviously, unarmed people did not pose any threat. Horiuchi’s testimony is that he only fired when he observed what appeared to be a genuine threat to the safety of the helicopter.

The majority’s argument seems to suggest that once the Rules of Engagement had been articulated, Horiuchi could never develop independent grounds for employing deadly force. Of course, this argument proves too much. Suppose a federal officer tells a subordinate, “Shoot and kñl anyone on the street to whom you take a dislike.” The officer then observes an armed man firing an automatic weapon at a crowd of schoolchildren, and the officer shoots and kills the armed man. No one would contend that such an officer should be subject to state prosecution, even if his conduct is fully consistent with unconstitutional orders.15 That is the issue present*394ed here. Assuming, arguendo, that reb-anee on the Rules of Engagement might be constitutionally troublesome, the issue is whether intervening circumstances are sufficient that Horiuchi could have formed independent grounds for firing his shots. That may be disputed, but it is not a disputed issue of fact.

Moreover, to the extent that Idaho or the majority is suggesting that Horiuchi and his colleagues organized a summary execution and hunted down their victims in cold blood, that argument is squarely foreclosed by the criminal complaint. If such conduct was the factual predicate of the complaint, Horiuchi should have been charged with murder. Instead, Horiuchi was charged with “unlawfully, but without mahee,” operating “a firearm in a reckless, careless, or negligent manner.”

Under Idaho law, involuntary manslaughter is:

the unlawful killing of a human being, without malice .... [1] in the perpetration of or attempt to perpetrate any unlawful act, other than arson, rape, robbery, kidnapping, burglary, or mayhem; or [2] in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; or [3] in the operation of any firearm or deadly weapon in a reckless, careless or negligent manner which produces death.

Idaho Code § 18-4006. The complaint charges Horiuchi under the third of these definitions. Specifically, the complaint states that Horiuchi discharged “the firearm through the front door of the Weaver residence in an attempt to shoot Kevin Harris as he entered the door from outside, without first determining whether any person other than his intended target was present on the other side of the door.” At oral argument, Idaho’s counsel stated that, at most, Horiuchi acted with “excessive zeal.”

Idaho did not charge Horiuchi under the first of the three definitions of involuntary manslaughter, which it could have easily done if it believed Horiuchi’s second shot was unlawful. Nor did it charge him with murder. Idaho never argued in the district court that Horiuehi’s conduct was motivated by unconstitutional Rules of Engagement. In fact, it never once questioned Horiuchi’s motives for taking that shot. The only issue it raised was the manner in which that shot was fired. There is obviously no concept in the criminal law of a “greater included offense.” Thus the only issue in this appeal is whether Horiuchi’s alleged “excessive zeal” can expose him to state criminal prosecution for “reckless, careless or neg-hgent” behavior. There might be a dispute on this point, but it is not a disputed issue of material fact.

3. Feasibility of a Warning

The majority contends that Horiuchi might have given a warning before firing. The majority states, “On the evidence before us, we cannot hold that Horiuchi has established that he reasonably believed giving a warning, as required by Gamer, was not feasible.” (Majority at 372-73.) The majority here abandons any pretense that material facts are at issue. This is solely an issue about the reasonableness of Horiuchi’s conduct on the basis of undisputed facts, which is probably why Idaho never raised this argument below. Since it does not present a factual issue, it is *395appropriate for resolution by this court. See Lipsett, 156 F. at 71.

4. Certainty of Target

Again, the majority fails to discuss any disputed material facts and advances an argument that Idaho never made below. The majority merely notes that Horiuchi may not have been certain of his target and may have acted unreasonably. (Majority at 373.) This is purely an issue about the reasonableness of Horiuchi’s conduct, which, in the context of Supremacy Clause immunity, is a legal issue for the court to resolve. The majority identifies no further factual inquiries that would be necessary for proper resolution of this issue.

5. Horiuchi’s Knowledge of Vicki Weaver’s Position

The majority’s cursory treatment of this issue is surprising given that this is the only disputed material fact that Idaho relied on in opposing Horiuchi’s motion to dismiss. Horiuchi contends that he did not know that Vicki Weaver was behind the door when he fired his second shot. Idaho contends that he knew or should have known that she was standing there. Both the district court and the panel majority correctly concluded that Idaho had not presented a genuine issue of material fact as to whether Horiuchi knew Vicki Weaver was behind the door. Whether he should have known she was there if he had been more prudent is a question of reasonableness, not an issue of material fact.

Idaho and today’s majority rely on three pieces of evidence to show that Horiuchi knew that Weaver was behind the door: the preliminary healing testimony of Sara and Randall Weaver and Horiuchi’s testimony in the Weaver and Harris criminal trial. None of this testimony creates the disputed material fact that the majority contends it does.

The majority states, “Both Sara and Randy Weaver testified that, after the first shot, Vicki Weaver came onto the porch and called out, and so Horiuchi could have seen or heard her.” (Majority at 373.) This seriously misstates the testimony. Although both Weavers testified that each saw Vicki Weaver come outside of the cabin, neither one can place her outside the threshold of the door at the relevant time period.

Randall Weaver testified that, right after he was shot, he saw Vicki Weaver. When asked where she was, he stated, “I’m gonna guess three or four feet from the porch.” (Preliminary Hearing Testimony at 88.) Weaver then began running back to the cabin. His testimony continues:

Q: So you’re telling us she was carrying her baby in the middle of a fire fight, knowing that a shot had rung-out, she came running out of the house holding her baby?
[Objection and ruling omitted.]
A: She came out of the house with the baby — she might have been on the porch. I don’t know, to be honest with you.

(Preliminary Hearing Testimony at 92.) All this testimony shows is that at some point Vicki Weaver was off the porch. There is nothing here that shows that when Horiuchi later fired the second shot he knew that she was behind the door.

Sara Weaver’s testimony is even less supportive of the majority’s claims. She testified thus:

Q: Is it your testimony that your mother — did your mother, did you ever see your mother actually come beyond the doorway?
A: No.
*396Q: Did you see her ever come as far as the doorway itself or was she inside?
A: I don’t remember.

(Preliminary Hearing Testimony at 51.) Sara’s testimony therefore cannot even establish that Vicki Weaver was ever in a position where Horiuchi could see her.

The majority also asserts that “Sara Weaver testified that the curtain on the door was open, and so Horiuchi could have seen her mother through the glass pane on the door.” (Majority at 373 (citation omitted)). Again, the majority misstates the testimony. Sara testified that the curtains over a glass pane on the door were pulled open, but she never testified that Horiuchi could see through the pane. In fact, when asked about this specific issue, Horiuchi explained that he could not see through the glass:

Q: Describe the glass window?
A: It appeared like a six-pane glass window with curtains or something else on it, like plastic or something, on the door and even on the glass.
Q: Could you see through the window of the door?
A: No.

(Horiuchi Testimony at 109-10.)

Idaho was required to come forward with “disputed issues of fact.” Long, 837 F.2d at 752. There is no dispute here. Horiuchi did not state that the curtain was closed, and Sara Weaver’s testimony did not establish, must less even assert, that a person in Horiuchi’s position would be able to see through the glass. Even if Idaho had presented the tiniest shred of evidence that a person at Horiuchi’s position under those weather conditions would have been able to see through that type of glass at that angle (which it has not), Horiuchi’s failure to look through it would at most go to the reasonableness of his conduct. It would not create a disputed issue of fact. Finally, the majority relies on Horiuchi’s testimony from the Weaver and Harris criminal trial. Horiuchi did not testify, as the majority claims, that “he thought someone else might be standing behind the door.” (Majority at 373.) The testimony, in context, is as follows:

Q: Describe the position of that second male adult in relation to the open door of the house when you fired that shot?
A: He was basically taking the last step and again at that time I didn’t know what the landing looked like, or what the porch area looked like, but he looked like he was taking a last leap trying to get into the doorway at the last-you know, just before taking a jumping-trying to jump into the doorway.
Q: Describe his body position in that connection?
A. He had his weapon in his right hand and he was reaching out with his left hand. It appeared to me like he was trying to hold the door open or moving somebody out of the way, and that’s the time I shot.

(Horiuchi Testimony at 107-08.) This testimony describes the body position of a running man about to leap onto a porch. At best for Idaho, the testimony calls into doubt the reasonableness of Horiuchi’s second shot, which depended on his ability accurately to hit a moving target. But nothing in this testimony contradicts Hori-uchi’s testimony that he did not know Vicki Weaver was behind the door.

In sum, all the majority offers are suggestions that Horiuchi was careless in firing the second shot. Those arguments go to the reasonableness of Horiuchi’s conduct, not to the threshold issue of disputed material facts.

*3976. The Danger of Escape

The majority finally contends that it is at least “in dispute” whether the suspects in the cabin posed any threat of escape. (Majority at 374.) If that issue were in dispute, the majority may be correct in finding a disputed issue of fact. However, it is irrelevant for purposes of this case whether the suspects in fact had an avenue of escape. The only issue, and a somewhat tangential one at that, is whether Horiuchi might have reasonably thought that they did. Again, there are no disputed material facts, only differences about the conclusions to be drawn from those facts.

Horiuchi specifically testified that the cabin was not surrounded. (Horiuchi Testimony at 250-51.) Although Horiuchi could see the back porch of the cabin, he had no way of knowing whether a suspect might escape through a window or other opening on the side of the cabin that he could not see. Horiuchi knew that the suspects had a superior knowledge of the surrounding terrain. There is nothing in the record that suggests Horiuchi could not have concluded that the suspects might be able to escape from the cabin and pose an even greater threat to the other agents if their positions became known. Whether such a conclusion accurately reflected the reality of the cabin is beside the point.16 Idaho has presented no evidence showing that Horiuchi could not reasonably have thought that the suspects might have escaped from the cabin.

We now turn to the reasonableness of Horiuchi’s conduct under the case law of Supremacy Clause immunity.

B. The Reasonableness of Horiuchi’s Conduct

1. The Ruby Ridge Deployment

Undisputed facts establish the following: Special Agent Lon Horiuchi is a sniper observer in the FBI Hostage Rescue Team stationed in Quantico, Virginia. This team is a highly trained, full-time tactical team whose purpose is to handle sensitive, high-risk law enforcement operations. On August 21, 1992, his group was deployed to Boundary County, Idaho, in response to the shooting death of a Deputy United States Marshal in a mountainous area. When he arrived on the scene, Horiuchi was briefed on the day’s events and advised that this mission was extremely dangerous. He was told that federal marshals had been conducting surveillance of the area near the Weaver property when they were attacked by armed men. In the ensuing gunfight, a federal officer was killed. Other federal agents were still believed to be pinned down on the hill. The suspects in the killing of the marshal were Randall Weaver and Kevin Harris, who were alleged to have ties with white separatist groups. Weaver had been eluding arrest on federal weapons charges for more than a year. It appeared that Weaver was an especially dangerous individual. He was known to have had Special Forces training and expertise in weapons, explosives, and military tactics. He always appeared armed and would confront anyone he encountered. He established “fighting positions” around his residence, and armed members of his family would man these “battle stations” to challenge any stranger that approached. Weaver and Harris *398were known to be carrying handguns and long guns.

Horiuchi was also told that the FBI had adopted special Rules of Engagement for dealing with the situation. Under the Rules, officers were authorized to employ deadly force against any armed adult male if a shot could be taken without endangering the Weaver children. The Rules of Engagement further alerted Horiuchi to the extreme danger presented to himself and to fellow officers by Weaver and Harris.17 On the rainy, overcast afternoon of August 22, 1992, Horiuchi and other members of the Hostage Rescue Team took up positions in sight of the cabin, climbing several hours over steep, rocky terrain. However, they did not surround the cabin, and Horiuchi did not know if there were any escape routes from the cabin. Horiu-chi’s position directly faced the side of the cabin, about 200 yards away. He could see a porch on the front of the cabin. A door led from the cabin to the front porch. When the door was opened outward, perpendicular to the front of the cabin, Horiu-chi could see the door. Otherwise, it was not visible.

Shortly before 6 pm, Horiuchi observed an FBI helicopter lift off from the law enforcement base in the valley below the Weaver cabin. A few seconds later, he observed two adult males, at least one of whom was armed, and a young female rush from the cabin to a rock outcropping that had been described as the Weavers’ “lookout.” Horiuchi soon observed one of the men point his rifle at the sky, appearing to aim at the FBI helicopter. Horiuchi fired a single shot at the armed male. He believed, erroneously as it turned out, that his shot had missed. The three individuals then took cover behind a structure they termed the “birthing shed.”

Seconds later, the three individuals ran toward the cabin. Horiuchi saw the first male and the female run through the door into the cabin. The last male was armed, and Horiuchi believed he was the man who had threatened the helicopter. The male slowed before reaching the door and looked toward the ridge where Horiuchi was located. From the cabin, the male would be able to shoot at the helicopter without risk of the agents returning fire, since the agents had been told not to fire into the cabin.18

Horiuchi fired one shot at the armed male before he stepped behind the opened door. The shot went through the door, striking its target, as Horiuchi intended. However, unknown to Horiuchi, Vicki Weaver was standing behind the door, where Horiuchi could not see her. The shot struck her before it hit the armed male. Weaver died immediately. The shot was fired parallel to the front of the cabin,19 which was the only type of shot Horiuchi could take without firing into the cabin itself. This second shot came ap*399proximately twenty seconds after the first shot.

2. Reasonableness

The standard we apply in determining Horiuchi’s entitlement to immunity from state criminal prosecution is perhaps the most deferential standard known to the law. We are not here to assess whether Horiuchi is immune from federal criminal liability or from civil liability. We need not determine whether Horiuchi violated internal regulations or whether he is fit for the position he holds. Our issue is a very narrow one: Did Horiuchi lack an honest and reasonable belief that his actions were necessary and proper in fulfilling his duties? Horiuchi’s belief will be reasonable unless no reasonable officer could have taken the actions that he did.

Immunity attaches even if an agent’s “belief was mistaken or his judgment poor.” McShane, 235 F.Supp. at 274. If an officer “was acting in the supposed exercise of his duty, without malice or criminal intent ... he is not liable to prosecution in the state court from the fact that from misinformation or lack of good judgment he transcended his authority.” Lipsett, 156 F. at 71. “Proper application of this standard does not require a petitioner to show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be.” Clifton, 549 F.2d at 728.

As explained in the first part of this opinion, no federal officer has ever been denied immunity because a court later second-guessed the reasonableness of his conduct. The only cases in which immunity has been denied are cases in which there is clear evidence of malice or evidence that the officer was not on official duty.

lo. this case, there is no evidence that Horiuchi was not on official duty at the time of the shooting. There is no evidence that Horiuchi acted with malice.20 There is no evidence .that Horiuchi knew that Vicki Weaver was behind the door. And there is no evidence that Horiuchi did not fear for the safety of other officers when he fired his second shot. All the majority can offer is a string of second-guesses: Horiuchi should have done this. Pie should not have done that. He should have been more careful. All of this may be true, but none of it will be sufficient to meet the exceptionally high standards imposed by the Supremacy Clause immunity cases. Considered carefully, the majority’s arguments amount to little more than assertions that this incident should have been handled differently, a proposition with which no one will disagree.

The majority first suggests that there was no real threat to the helicopter or to the other agents when Horiuchi fired the second shot, and that any fear he may have felt was not objectively reasonable. (Majority at 368-69.) In this case, however, there were plenty of signals indicating a serious threat to the agents and the helicopter. The suspects were known to be armed and extremely dangerous. One federal agent already lay dead. The cabin may have been stockpiled with weapons and explosives. A suspect in the cabin could fire freely into the mountains and into the sky, since the FBI agents could not return fire into the cabin. It did not appear impossible that an armed suspect could escape into the woods and use his superior knowledge of the surrounding terrain to further endanger the lives of the agents and others. The armed male had appeared poised to fire at the FBI helicopter. Nothing about the incident suggested *400that the agents were dealing with normal, peaceful people. Under all those circumstances, Horiuchi made the decision to shoot. Twenty/twenty hindsight may suggest that the decision was erroneous or that Horiuchi exercised poor judgment in making it. But that is not enough. The issue is whether it was so far beyond the bounds of reasonableness at the time that no reasonable agent would have done what Horiuchi did. Idaho has come nowhere close to such a showing.

The majority’s second suggestion is that no reasonable officer would have acted as Horiuchi did because he failed to give a warning before firing. (Majority at 372.) The Supreme Court has held that, when an officer has probable cause to believe that a 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.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). “[I]f the suspect threatens the officer with a 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, 105 S.Ct. 1694 (emphasis added).

In Gamer, a police officer fired at a suspect in a residential burglary whom the officer was “reasonably sure” was unarmed. Id. at 3, 105 S.Ct. 1694. There was no likelihood of violence, and the officer did not attempt to justify the shooting on any other ground than the need to prevent an escape. Id. at 21, 105 S.Ct. 1694. Nonetheless, the officer received qualified immunity in the lower court, and the Supreme Court expressed no disapproval of that immunity. Id. at 5, 105 S.Ct. 1694.

In Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir.1997), we held that “a suspect need not be armed or pose an immediate threat to the officers or others at the time of the shooting.” Because the officers there had “probable cause to believe [that Forrett] had committed a crime involving the infliction of serious harm .... [they] therefore had probable cause to believe that Forrett posed a serious threat of harm to them or others.” Id. We further noted that the evidence did not show that “the police had actually established an escape-proof cordon at the time Forrett was shot.” Id.

In this case, Horiuchi knew that the armed man was wanted on federal weapons charges, that he or a compatriot had already killed a federal agent, and that he appeared to threaten officers in the helicopter with a weapon. Here, Horiuchi reasonably could have thought that a warning would expose fellow agents to danger, and that it would result in a shot immediately being fired in his direction. The prior conduct of the suspects would certainly support such an inference. He also could have concluded that the suspects posed some danger of escape. These may have been mistaken conclusions, and perhaps greater care might have led to a different decision. But Garner contemplates that the feasibility determination will be in the hands of the individual officer on the scene. Surely a mistaken conclusion as to the feasibility of a warning by a federal officer does not turn the officer into a common criminal. A reasonable officer in Horiuchi’s position could have made this determination, even if in retrospect it may not be justifiable. Clifton, 549 F.2d at 728.

The majority next suggests that Horiu-chi may not have been certain of his target and that he fired in the “face of major uncertainty about the identity of the tar*401get.” (Majority at 373.) This argument rests on an entirely faulty premise. Hori-uchi never testified, as the majority claims he did (Majority at 373), that he could not distinguish between the two adult males. When the three individuals came out of the cabin, Horiuchi could see that the last one out was carrying a long weapon. (Horiu-chi Testimony at 69.) He could not see any weapons on the other two individuals. (Id. at 69.) Horiuchi focused his attention on the armed male. (Id. at 70.) This individual later appeared to threaten the helicopter, and Horiuchi fired at him. After the shot this individual disappeared behind the “birthing shed.” (Id. at 99.) The three individuals then came out from behind the shed; they appeared to be in the same order as when they left the cabin. (Id. at 99.) Horiuchi saw that the second male was carrying a long weapon and he focused on that individual. (Id. at 100-01.) He also testified that he never saw a weapon in the hands of the other male. (Id. at 220.) Horiuchi therefore assumed that the armed male he saw disappear behind the shed was the same armed male he saw emerge from behind the shed, and that the unarmed male he saw disappear behind the shed was the same unarmed male he saw emerge from the behind the shed.

Horiuchi, however, was mistaken. The individuals had become confused. When asked on cross-examination how this mistake could have happened, Horiuchi explained, “They appeared to be dressed similar, that individual looked similar to the individual that initially came out as a third person.” Id. at 238. From this, the majority concludes that Horiuchi fired in the face of known uncertainty about his target. The testimony establishes nothing of the sort. Horiuchi used the presence of the weapon to distinguish between the two individuals. He saw an unarmed man and an armed man. The armed man appeared to threaten the helicopter. Both disappeared, and Horiuchi again saw an armed man and an unarmed man. It is certainly within the bounds of reasonableness to conclude that the armed man was the same person. Perhaps Horiuchi could have exercised more care, but this was a moment of extreme danger and it is impossible to contend that Horiuchi’s conduct here was so totally unreasonable that no reasonable agent could have the drawn the conclusion he drew.

The majority finally suggests that Hori-uchi could not reasonably have fired his second shot if he knew or should have known that someone was standing behind the door. As we have already explained, there is no evidence that Horiuchi knew someone was standing behind the door. Horiuchi saw the first male and the female run quickly to the porch and disappear behind the open door. (Horiuchi Testimony at 105.) It would not be unreasonable for Horiuchi to conclude that these individuals ran into the cabin and did not linger behind the open door. We also agree with the district court that “it would be objectively reasonable for Mr. Horiuchi to believe that one would not expect a mother to place herself and her baby behind an open door outside the cabin after a shot had been fired and her husband had called out that he had been hit.”

Moreover, Idaho’s entire criminal complaint rests on Horiuchi’s failure to determine “whether any other person other than his intended target was present on the other side of the door.” On this point, the present case is indistinguishable from Lipsett. In Lipsett, a federal agent fired his weapon at a suspect, despite the presence of other people who were apparently on the other side of the suspect. The agent missed, and an innocent bystander was killed. The state contended that it was “possible to discover that [the victim] *402and her companions were in the line of fire.” 156 F. at 67. The court nevertheless granted immunity, since a “lack of good judgment” does not translate into a forfeiture of immunity. Id. at 71. Here, Horiuchi assumed that no else was standing behind the door. His assumption was wrong and may have been based on extremely poor judgment, but it was not so unreasonable as to require the forfeiture of his immunity.

In sum, there is nothing to place this case into the tiny category of cases in which federal courts have denied Supremacy Clause immunity to federal officers. The facts of this case fit squarely into the long line of cases in which immunity has been granted, despite bad judgment on the part of the officer. We can all agree that what happened at Ruby Ridge was deplorable. Few people would contend that the FBI adopted an appropriate strategy to handle the situation. In hindsight, Hor-iuchi could have acted more carefully, and he probably made serious mistakes in judgment. It is, however, one very large and unsupported leap to move from that assessment to the conclusion that Horiu-chi’s conduct was so objectively unreasonable that he must be called to account in a state criminal dock. The Monday-morning quarterback can always perfectly dissect the mistakes of the professional, can always point to decisions erroneously made, and can always show, in retrospect, how things might have been handled better. Our role is not to decide what should have been done, but to determine whether the professional in the field acted within the bounds of permissible authority in executing a quick judgment call in a crisis situation.

As judges, we enjoy absolute immunity for our mistakes of judgment. We do not risk imprisonment for reaching the wrong judgment in this case. Special Agent Horiuchi does. After three rounds of litigation in federal court, thousands of hours of legal work, extensive briefing and oral argument, six judges of this court and two experienced United States District Court judges have concluded that Horiuchi acted reasonably. Six judges of this court apparently feel otherwise. Horiuchi, of course, did not have the option of making a leisurely decision after carefully examining a vast pile of papers on his desk. He had to make his judgment in a matter of seconds on a dark, rainy day on a ridge in Idaho in the aftermath of the slaying of a fellow federal agent. The very fact that a majority of federal judges who have examined Horiuchi’s conduct have found his actions reasonable for Supremacy Clause immunity purposes belies the majority’s repeated suggestions that no reasonable agent might have acted as he did.

The consequences of today’s decision extend far beyond potentially sending this FBI agent to trial under Idaho law. The majority contends that this is an exceptional case that could not possibly chill law enforcement efforts in more ordinary circumstances. (Majority at 376-77.) This confidence is not shared by those with lengthy experience in law enforcement. In an amicus brief, four former Attorneys General of the United States and a former Director of the FBI, from different administrations, argue that it is “impossible to imagine a more chilling circumstance” than the attempted prosecution of Agent Horiu-chi and that the majority’s decision will “severely undermine, if not cripple, the ability of future Attorneys General to rely on specialized units in moments of crisis such as hostage taking and terrorist acts.” As the Solicitor General of the United States explained in oral argument, “This case tests a principle of surpassing importance to the United States.... State *403prosecution of federal officers is terribly chilling in all but the most extreme cases, and this is not one of them.” If Lon Horiuchi were just some rogue agent who took the law into his own hands, as the majority suggests, it is hard to imagine why any of these people would jump to his defense. Their concerns are unlikely to be assuaged by the thought that we can count on the good judgment and discretion of state prosecutors not to interfere unduly with federal law enforcement efforts.

The inevitable result of the majority opinion is that federal agents will hesitate in precisely those highly charged situations in which their quick judgment is most critical to the effective enforcement of our nation’s laws. Nothing, it has been said, focuses the mind like the fear of being hanged. The great danger is that federal agents will focus their minds, not on the immediate task at hand, but on the intricacies of state and local law. As one court has recognized in these cases, there is a real risk that the engagement “would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions.” Fair, 100 F. at 154-55 (quoting McCall v. McDowell, 15 F. Cas. 1235 (C.C.D.Cal.1867) (No. 8673)).

Conclusion

Every day in this country, federal agents place their lives in the line of fire to secure the liberties that we all hold dear. There will be times when those agents make mistakes, sudden judgment calls that turn out to be horribly wrong. We seriously delude ourselves if we think we serve the cause of liberty by throwing shackles on those agents and hauling them to the dock of a state criminal court when they make such mistakes, especially when the prosecuting state concedes they acted without malice. None of us on this court, thankfully, knows what it is like to be engaged in an altercation with armed and dangerous criminals. Special Agent Lon Horiuchi does, as do the thousands of other federal officers who daily risk their lives to protect ours. Today’s decision is a grave disservice to all these men and women, who knew until now that if they performed their duties within the bounds of reason and without malice that they would be protected from state prosecution by Supremacy Clause immunity and not subjected to endless judicial second-guessing. The clear mandate of over a hundred years of Supremacy Clause jurisprudence forbids the state of Idaho from prosecuting Horiu-chi for his mistaken judgment in this regrettable incident. Because I cannot agree with the majority’s attempt to thwart that law, I respectfully dissent.

. See Idaho v. Horiuchi, 215 F.3d 986, 998 (9th Cir.2000) (Kozinski, J., dissenting) ("The facts here are largely not in dispute.”). The majority approach brings Ogden Nash to mind: "If we had some ham, we could have some ham and eggs, if we had some eggs.”

. The historical background to the Neagle case, a classic of law and order in the wild west, is explored in Paul Kens, Justice Stephen J. Field: Shaping Liberty from the Gold Rush to the Gilded Age (1997); and Carl Brent Swisher, Stephen J. Field: Craftsman of the Law (photo, reprint 1963) (1930).

. Terry is the subject of a book-length biography, A. Russell Buchanan, David S. Terry of California: Dueling Judge (1956). During his tenure on the California Supreme Court, Terry stabbed a San Francisco city official in a fit of temper. After his resignation from the court, he killed a United States Senator in a duel and then fought for the Confederacy in the Civil War.

. California officials also arrested Justice Field for his role in Terry’s death, although the charges were soon dropped. See Swisher, supra note 2, at 351-55.

. It strains all credibility to assert, as the state of Idaho did at oral argument, that there is “no such thing as Supremacy Clause immunity-”

. The defendant in Arizona v. Manypenny, 672 F.2d 761, 762 (9th Cir.1982), also did not receive Supremacy Clause immunity, but this was because he “apparently made a strategic choice not to raise the federal immunity defense.”

. The lower court had found a "serious conflict of evidence involving an important issue of fact.” United States ex rel. Drury v. Lewis, 129 F. 823, 827 (C.C.W.D.Pa.1904).

. We also noted in Morgan that federal courts can issue writs of habeas corpus to federal agents if it appears that the prosecution is designed "to frustrate the enforcement of federal law.” Id. at 733. In such cases, the *389"writ should be granted even if the judge has to resolve factual disputes to arrive at that conclusion.” Id.

. Early cases applying Neagle explicitly stated that civil liability might lie in cases in which a federal officer was nonetheless immune from state prosecution under the Supremacy Clause. See, e.g., Lipsett, 156 F. at 71; Lewis, 83 F. at 160; Waite, 81 F. at 363.

. The majority’s statement that we have previously held that Horiuchi is not entitled to qualified immunity is simply wrong. (Majority at 372 n. 22.) In a civil suit brought by Kevin Harris against various federal officers, we denied the officers' motion to dismiss on the grounds of qualified immunity. Harris v. Roderick, 126 F.3d 1189 (9th Cir.1997). In ruling on the motion to dismiss, we merely held that the officers could not establish qualified immunity on the bare facts alleged in the complaint. The suggestion that the officers might never establish this immunity was pure dictum, unnecessary to the resolution of that appeal. Id. at 1202-05. The case was subsequently settled by the government.

. Not every constitutional wrong carries precisely the same set of constitutional remedies. See generally John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87 (1999). State criminal law is certainly not the only mechanism by which federal officers can be restrained from misconduct. Federal officers who violate individual rights place their employment at jeopardy and risk the disintegration of their entire careers. They also risk federal prosecution, lawsuits, and public humiliation. In this case, although officers were disciplined for their actions at Ruby Ridge, an extensive federal criminal investigation cleared Horiuchi of any wrongdoing.

. Forced to confront the issue squarely, resolution of the factual issues pertaining to immunity by the judge seems more consistent with the protective purposes of Supremacy Clause immunity. In the procedural posture of this case, however, the majority's remand for an evidentiary hearing makes little sense. Idaho specifically opposed an evidentiary hearing on Horiuchi’s motion to dismiss, despite case law holding that the state was obligated to "come forward with [an] evidentiary showing that disputed issues of fact exist to rebut the claim of the federal officer.” Long, 837 F.2d at 751. Granting a form of relief that the appellant not only failed to request on appeal, but actively opposed in the district court, turns appellate review on its head. In effect, Idaho is being given a second bite at an apple that it deliberately discarded when formulating its litigation strategy. Idaho mistook the law, and it bore the risk of that mistake.

To the extent that the district court was required, under the majority's view, to resolve disputed issues of fact, it has already done so. The majority may not like it, but the district court’s conclusion that Idaho failed to present any significant factual disputes effectively resolved any lingering factual issues against Idaho. [Judge Graber does not concur in this footnote.]

. The majority erroneously states that "Hori-uchi admits that he never actually saw the helicopter." (Majority at 369.) In fact, Hori-uchi testified that he saw the helicopter as it lifted off. (Horiuchi Testimony at 66.)

. The majority’5 use of this material is also highly selective. Compare Majority at 369 (''[none] of the other agents on the scene reacted as if they thought the helicopter was in danger”) with The Federal Raid on Ruby Ridge, Idaho: Hearings Before the Subcomm. on Terrorism, Technology and Gov't Information of the Comm, of the Judiciary, 104th Cong. 320-21, 331, 343-44, 353 (1995) (testimony that two other Hostage Rescue Team members perceived a direct threat to the helicopter at all times in the incident and that they held fire only because they could not get a clean shot).

. This is not to say that there is no subjective component to the determination of immunity or that mental state is irrelevant. If, in the example above, the officer shot the man, but was unaware that the man was shooting at schoolchildren and simply saw the back of a man whose shirt color he disliked, he could not have had an honest belief in the reasonableness of his actions. Accordingly he *394would be denied immunity, even though his conduct would be permissible if he had been aware of additional facts.

. The majority chides us for “drawing inferences in favor of Horiuchi.” (Majority at 374 n. 24.) If we were stating that the suspects had a clear avenue of escape, the majority’s point would be well taken. But we make no such claim. We merely note that Horiuchi could have thought that there was an avenue of escape. This does not require drawing any inferences in his favor. It is a simple statement of fact that is apparent from the record.

.It is not necessary for us to decide whether these Rules of Engagement were constitutional. Neither Horiuchi nor the United States argues that Horiuchi’s conduct can be justified simply by referring to these Rules.

However, the existence of the Rules cannot be ignored. They play a critical role in explaining Horiuchi’s mental state and the level of danger that appeared to him. The fact that the FBI felt such rules were necessary certainly implicates the reasonableness of Horiu-chi's conduct in this highly charged situation.

. At oral argument, the state conceded that, if Harris got into the cabin, he could shoot at the helicopter without risking returning fire.

. There is no evidence that Horiuchi fired into the cabin or that the bullet entered the cabin. Had the door not been open, the bullet would have landed somewhere on the other side of the cabin.

. To the contrary, Idaho has conceded in its indictment that Horiuchi acted without malice. This is an essential element of its case that it must prove at trial.