Their License to Kill; Our Duty to Die

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A few years ago, in my old job, I wrote an essay entitled “The 007 Standard.” The title was inspired by a dissent from Judge Alex Kozinski to a ruling by the Ninth Circuit Court of Appeals that FBI sniper Lon Horiuchi couldn’t be prosecuted for murdering Vicki Weaver during the 1992 federal siege of Ruby Ridge.

In its decision the court, invoking the spurious concept of “Supremacy Clause Immunity,” extracted from its collective fundament something it called a “discretionary function exemption” that protects federal agents who deliberately gun down unarmed mothers while they are holding infants. (Horiuchi has admitted under oath that he knew it was Vicki Weaver in his sights when he pulled the trigger.)

What this would mean, of course, is that federal law enforcement officers could kill at their discretion without fear of prosecution; it would be a literal license to kill.

Kozinski’s outraged and incredulous dissent concluded that the Ninth Circuit Court’s “007 Standard” applies to “all law enforcement agencies in our circuit — federal, state, and local.”While agreeing in substance with Kozinski, I commented that he was mistaken “in saying that the `007 Standard’ applies to `all law enforcement agencies'; apparently, only federal agents are thus consecrated.”

Nine years after those words were written I’ve come to understand that, in the Homeland Security Era, all law enforcement agencies are “federal,” and that most abuse of police power occurs at the local level.

Police personnel at all levels seem to have taken to heart the idea that they possess a “discretionary function exemption” that shields them from accountability. And there’s reason to suspect that the Ninth Circuit Court’s disposition of the Lon Horiuchi matter has had a substantive impact on the training of recent police recruits.

A good friend who’s a faithful LRC reader (and former local law enforcement officer) sent me a link to an essay on entitled “So, You Want to Date a Female Cop?”

Among the social “challenges” listed in the essay is this: “It can be very intimidating for the person who is dating a female cop who carries a gun and has a constitutional authority to take a life.” (Emphasis added.)

“So, apparently, it’s in the Constitution that anybody wearing state jewelry can kill somebody. Great,” commented my friend.

Given that, whatever other defects might disfigure the document, the U.S. Constitution does not authorize police to act as executioners, where would this cute notion of “a constitutional authority to take a life” come from, if not from the Ninth Circuit Court’s “007 Standard” ruling?

2:43 pm on March 13, 2009