Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge WILLIAM A. FLETCHER; Dissent by Judge MICHAEL DALY HAWKINS.
KOZINSKI, Circuit Judge:
It was, in the words of Justice Kennedy, the genius of the Founding Fathers to “split the atom of sovereignty.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (Kennedy, J., concurring). What this means in practical terms is that, within the territory of every state, two sovereigns-the state government and the federal government-reign cheek to jowl. From the dawn of the Republic, this unusual arrangement has led to a fair degree of conflict, as the actions of one sovereign have encroached on the prerogatives of the other. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819). This conflict reflects, not the defects of the system, but its virtues, because the beneficiaries of these competing sovereignties are the citizens of the United States. As Alexander Hamilton foresaw:
Power being almost always the rival of power, the general government will at times stand ready to check the usurpa-tions of the state governments, and these will have the same disposition towards the general government.... If [the people’s] rights are invaded by either, they can make use of the other as the instrument of redress.
The Federalist No. 28, at 181 (Alexander Hamilton) (C. Rossiter ed., 1961).
We have grown accustomed to relying on the federal government to protect our liberties against the excesses of state law enforcement. Federal prosecutors may bring criminal charges against state police who violate the rights of citizens. See, e.g., Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Those citizens may also seek redress by bringing private suits in federal court. See 42 U.S.C. § 1983. While state prosecutions of federal officers are less common, they provide an avenue of redress on the flip [362]*362side of the federalism coin. When federal officers violate the Constitution, either through malice or excessive zeal, they can be held accountable for violating the state’s criminal laws.
If federal agents are to perform their duties vigorously, however, they cannot be unduly constrained by fear of state prosecutions. Accordingly, the Supreme Court has held that the Supremacy Clause cloaks federal agents with immunity if they act reasonably in carrying out their responsibilities. See In re Neagle, 135 U.S. 1, 75, 10 S.Ct. 658, 34 L.Ed. 55 (1890). We explore the outer bounds of Supremacy Clause immunity in the context of Idaho’s attempt to prosecute FBI Special Agent Lon T. Horiuchi for killing Vicki Weaver during the infamous Ruby Ridge incident.
I
In the early morning hours of August 21, 1992, six Deputy United States Marshals, using night vision equipment and dressed in camouflage gear, conducted a reconnaissance mission on the Weaver property in preparation for serving an arrest warrant at a later date. The officers were armed but wore no visible law enforcement identification. They were still on the property at about 10:20 a.m., when they were detected by a party consisting of Kevin Harris, Randy Weaver, his son Samuel and their dog Striker. Accounts of what followed differ, but we know that a firefight erupted during the course of which the marshals killed Striker and Samuel Weaver. Samuel was shot twice, once in the arm and once, fatally, in the back. One of the Weaver party, probably Kevin Harris, shot and killed Deputy Marshal William Degan.1 Randy Weaver and Harris retreated' to the Weaver cabin. Later, Weaver and his wife retrieved Samuel’s body and placed it in a structure near the cabin referred to as the birthing shed.
Special Agent Horiuchi and the other members of the FBI’s Hostage Rescue Team arrived on the scene the following morning and were briefed on the situation. [363]*363Part of the briefing concerned the Rules of Engagement. The Rules initially authorized agents to fire at any armed adult if the shot could be taken without endangering the children in the cabin. The Rules were later revised to authorize firing only at any armed adult male, subject to the same caveat. The agents were forbidden from firing into the cabin because of the risk of hitting the Weaver children who were inside.2
Sometime during the afternoon, Agent Horiuchi and his team of snipers, guided by a deputy marshal familiar with the area, ventured on foot into the hills surrounding the Weaver cabin. The agents made their way slowly up the steep and rocky terrain and only came within view of the cabin at 5:30 p.m. Once there, the agents broke into teams of two and three along a ridge overlooking the cabin. Hori-uchi, armed with a high-powered rifle and scope, took a position about 200 yards from the cabin.
At around 6 p.m., Kevin Harris, Randy Weaver and Weaver’s sixteen-year-old daughter, Sara, walked out of the Weaver cabin towards the birthing shed, where Samuel’s body was located. Horiuchi did not know the identities of the individuals, but he determined that at least one of them was holding a “long gun.”3 At the same time, Horiuchi says he heard the engines of the FBI helicopter in the general vicinity, although he was uncertain as to its location. According to Horiuchi, he saw the armed individual (later identified as Randy Weaver) look up to the sky as if he might fire at the helicopter.4 Horiuchi fired once, wounding Weaver and causing him to drop from sight.
Horiuchi’s shot alerted the Weavers and Harris to the presence of snipers, and they took cover behind the nearest object, the birthing shed. They remained there for ten to twenty seconds, at which point they started running back toward the cabin. Horiuchi watched through his rifle’s scope as Randy and Sara Weaver ran into the cabin through a door which opened outwards, perpendicular to Horiuchi’s line of sight. Harris was the last of the three to disappear behind the cabin door and, as he did, Horiuchi pulled the trigger. The bullet penetrated the glass pane of the door and eventually found its mark. Before hitting Harris, however, it struck Randy’s wife, Vicki, who had been standing behind the door cradling an infant in her arms. Shot through the head, Vicki Weaver died instantly.
After investigating the incident, the Department of Justice decided not to prosecute Horiuchi. The DOJ issued a press release announcing that a case of “willfulness, or knowing, intentional use of unreasonable force cannot be made out against [364]*364FBI Agent Lon Horiuchi.”5 Idaho thereupon charged Horiuchi with involuntary manslaughter, in violation of Idaho Code § 18-4006(2). The complaint alleged that Horiuchi:
did unlawfully, but without malice, kill Vicki J. Weaver, a human being, in the operation of a firearm in a reckless, careless or negligent manner, to wit: discharging the firearm through the front door of the Weaver residence in an attempt to shoot Kevin Harris as he entered the door from the outside, without first determining whether any person other than his intended target was present on the other side of the door.
State Magistrate Judge Quentin Harden held a preliminary hearing and, after taking live testimony and considering transcripts from Weaver’s criminal trial,6 found sufficient evidence to support the complaint. The state then issued an information and, a week later, Horiuchi removed the case to federal district court pursuant to 28 U.S.C. § 1442(a)(1).
Once in district court, Horiuchi moved to dismiss the indictment on grounds of Supremacy Clause immunity. The district court granted Horiuchi’s motion without an evidentiary hearing and Idaho appealed., A panel of this court affirmed, see 215 F.3d 986 (9th Cir.2000), and we granted Idaho’s petition for rehearing en banc. See 228 F.3d 1069 (9th Cir.2000).
II
A. The Supremacy Clause of the United States Constitution, at its textual core, provides that states are bound by federal law, and nullifies any inconsistent state laws. See U.S. Const, art. VI, cl. 2. However, it became clear from the early days of the Republic that states could interfere with the operation of the federal government in ways much subtler than passing inconsistent laws. In response, the McCulloch Court read the Supremacy Clause broadly as prohibiting any action by the states that would interfere with the operation of the federal government. See 17 U.S. (4 Wheat.) at 427 (“It is of the very essence of supremacy, to remove all obsta[365]*365cles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence.”). Over the years, the federal courts have been vigilant in protecting the federal government from interference by the states in many areas of its operations. See, e.g., Crosby v. National Foreign Trade Council, 530 U.S. 363, 120 S.Ct. 2288, 2290-91, 147 L.Ed.2d 352 (2000) (foreign relations); Ridgway v. Ridgway, 454 U.S. 46, 54, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981) (insurance); Bryan v. Itasca County, 426 U.S. 373, 376-77, 376 n. 2, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976) (relations with Indian tribes).
One potential area of tension is law enforcement, where the states and the federal government sometimes have concurrent jurisdiction. When federal law enforcement agents carry out their responsibilities, they can cause destruction of property, loss of freedom and, as in this ease, loss of life-all which might violate the state’s criminal laws. More than a century ago, in Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55, the Supreme Court recognized the Supremacy Clause as a source of protection for federal agents facing state criminal charges for actions taken in the course of their duties. In that case, the Court held that a Deputy United States Marshal was immune from state prosecution for killing a man he suspected was about to stab Justice Field.7
The question that commanded the Court’s attention in Neagle was whether the deputy marshal was authorized to protect Justice Field even though “[no] special act of Congress exists which authorizes the marshals or deputy marshals of the United States in express terms to accompany the judges of the Supreme Court through their circuits, and act as a body-guard to them.” Id. at 58, 10 S.Ct. 658. The Court concluded that Neagle did have such authority and found it appropriate to “extend in a liberal manner the benefit of the writ of habeas corpus to persons imprisoned for the performance of their duty.” Id.
Neagle addressed only whether the deputy marshal acted in a way that was generally authorized by federal law. Though Deputy Marshal Neagle killed a man who did not pose a deadly threat to Justice Field, see n. 7 supra, the Supreme Court appeared convinced that Neagle acted reasonably in light of what he knew. See Neagle, 135 U.S. at 53-54, 10 S.Ct. 658. Neagle therefore had no occasion to address the more difficult question of whether a federal agent will lose his immunity if he carries out his responsibilities in an unreasonable manner.
The Court answered this question sixteen years later in the case of two soldiers who were charged in state court with the murder of a civilian. See United States ex rel. Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343 (1906). The soldiers claimed the civilian was fleeing arrest when they shot him,8 but witnesses testified that he was shot after he had surrendered. The Court noted that shooting a suspect after he surrenders was unlawful and so, if the allegations were true, the officers could not claim they were reasonably discharging their duties under federal law. See id. at 8, 26 S.Ct. 229. Because the soldiers may have acted unlawfully, depending on whose testimony was be[366]*366lieved, the Court held that the state could prosecute them for murder.
Drury squarely holds that a state may prosecute federal agents if they have acted unlawfully in carrying out their duties.9 Cases since Drury have refined the standard applicable to the immunity inquiry. To be immune from state prosecution, “a federal officer [must do] no more than is necessary and proper in the performance of his duty.” Clifton v. Cox, 549 F.2d 722, 730 (9th Cir.1977). For an agent’s actions to be adjudged necessary and proper, he must show “ ‘that he had an honest and reasonable belief that what he did was necessary in the performance of his duty.’ ” Id. at 729 (emphasis omitted) (quoting In re McShane, 235 F.Supp. 262, 274 (N.D.Miss.1964)); see also Whitehead v. Senkowski, 943 F.2d 230, 234 (2d Cir.1991) (Supremacy Clause immunity applies if the agent shows he “reasonably believed that his actions were necessary to perform that job and had no motive other than to do his job” (citation omitted)); Kentucky v. Long, 837 F.2d 727, 745 (6th Cir.1988) (“the agent must have an honest belief that his action was justified” and “his belief must be reasonable”).10 Federal agents will be immune from state prosecution if they acted in an objectively reasonable manner in carrying out their duties.11
[367]*367B. The use of deadly force to apprehend a suspect is a seizure under the Fourth Amendment. See Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Law enforcement agents may use deadly force only if they reasonably believe that killing a suspect is necessary to prevent him from causing immediate physical harm to the agents or others, or to keep him from escaping to an area where he is likely to cause physical harm in the future. Even then, deadly force may not be deployed until the suspect has been given a warning and an opportunity to surrender, unless giving a warning will materially increase the risk of bodily injury or escape. See id. at 11-12, 105 S.Ct. 1694.
We applied this standard in Forrett v. Richardson, 112 F.3d 416 (9th Cir.1997), where we upheld the police shooting of a fleeing suspect. Forrett had committed a vicious assault during a home invasion robbery, was identified by police with reasonable certainty, was known to be armed and had been running loose in a densely populated area for almost an hour. See id. at 420-21. We held that the shooting was justified because the police reasonably feared that Forrett “would seize an opportunity to take an innocent bystander hostage.” Id. at 421. Forrett was also given a chance to surrender: “The officers approached to within 20-30 feet and shouted at Forrett to stop and surrender,” but he refused. Id. at 418. Under Gamer, as applied in Forrett, an officer may respond with deadly force to the attenuated threat presented by a fleeing suspect only if two conditions are met. First, there must be reasonable cause to believe that the suspect is dangerous and will escape to a location where he will be able to cause physical harm to others. And, second, the officers must identify themselves and give the suspect a chance to surrender, unless giving the warning would itself risk serious harm to the officers or to members of the public, or materially increase the likelihood of escape.
C. Horiuchi raised his Supremacy Clause immunity defense by way of a motion to dismiss; while he submitted a variety of materials in support of his motion-including transcripts of prior proceedings-the court held no evidentiary hearing.12 In such circumstances, the district court may grant the motion only if the facts supporting the immunity claim are not in dispute. See, e.g., Long, 837 F.2d at 752 (the court will not grant the motion where the evidence “raise[s] a genuine factual issue whether the federal officer was acting pursuant to the laws of the United States and was doing no more than what was necessary and proper for him to do” (emphasis omitted)); cf. Morgan v. California, 743 F.2d 728, 732 (9th Cir.1984) (“[A] grant of a writ of habeas corpus prior to a state criminal trial is inappropriate when there are material factual disputes” over the claim of Supremacy Clause immunity.). In determining whether material facts are in dispute, the district court must give the non-moving party the benefit of all doubts, both as to the basic facts and the inferences to be drawn from those facts. See, e.g., United States v. Jensen, [368]*36893 F.3d 667, 669 (9th Cir.1996); Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir.1998).
Ill
Horiuchi claims he acted reasonably in trying to kill Harris in order to keep him from harming the law enforcement agents on the scene, specifically those in the helicopter.13 He points to his initial briefing, which depicted Randy Weaver as a Rambo-like figure, commanding an unknown number of heavily armed white separatists who had fired indiscriminately at the deputy marshals the previous day, killing Deputy Marshal Degan. See Excerpt of Testimony of Lon T. Horiuchi at 198, United States v. Weaver, No. 92-080-N-EJL (D. Idaho June 3, 1993) [hereinafter Horiuchi Testimony].14 At Weaver’s criminal trial, Horiuchi also testified that he saw three individuals step out of the cabin, at least one of them armed with a long gun; at the same time, he heard the FBI helicopter in the area. Horiuchi saw the man with the long gun (Weaver) make a threatening gesture towards the helicopter. See id. at 87-90. Responding to this threat, Horiuchi took aim and fired once, striking Weaver in the shoulder. Based on what he saw of Weaver’s reaction, Horiuchi believed he had missed. See id. at 91. Ten to twenty seconds later, Horiuchi observed the same three individuals running toward the door of the cabin, which stood open outwards, perpendicular to Horiuchi’s line of sight. One of the men (Harris) was carrying a gun, and Horiuchi believed it was the same man he had seen threatening the helicopter. Without first calling out a warning, Horiuchi shot Harris; he did so in order to keep him from reaching the safety of the cabin, from where he could shoot at the helicopter or escape. Horiu-chi did not see Mrs. Weaver standing behind the door, nor was he aware that she had stepped out of the cabin. Were we to accept Horiuchi’s story at face value, as the dissent does, we too would conclude that he was entitled to immunity. However, Horiuchi’s explanation hinges on a series of explicit or implicit factual assertions, and we cannot accept the explanation unless we find that the underlying assertions are established beyond dispute. Broken into its constituent parts, Horiuchi’s explanation consists of six key factual elements:
1. Horiuchi heard the FBI helicopter and believed that it was positioned so that it could be brought down by rifle fire from the Weaver cabin.
2. Horiuchi shot Harris, and by extension Mrs. Weaver, in order to eliminate an imminent risk to the helicopter and not because he was following the Rules of Engagement.
3. Horiuchi had reasonable cause to believe that giving a warning and opportunity to surrender before taking the second shot would have been futile or dangerous.
4. At the time Horiuchi shot Harris, he believed him to be the same man who had made threatening gestures at the helicopter 10 to 20 seconds earlier.
[369]*3695. Horiuchi did not know, and had no reason to believe, that Mrs. Weaver (or some other person) was standing behind the cabin door at the time he shot at Harris through the door.
6. Horiuchi had reason to believe that, once the armed man reached the safety of the cabin, he would be able to escape and cause harm to others.
We consider which, if any, of these components of Horiuchi’s story were established beyond doubt.15
1. The location of the helicopter. We start with Horiuchi’s own statements about the helicopter. In his testimony at Weaver’s trial, Horiuchi admits that he never actually saw the helicopter, and he gave inconsistent answers about where he believed it was. On direct examination, Horiuchi testified that the helicopter was behind him. See Horiuchi Testimony, p. 368 supra, at 83 (Weaver “looked up at the helicopter or what I perceived to be a helicopter somewhere behind my location.” (emphasis added)). But Horiuchi’s first shot hit Weaver in the back. On cross-examination, Horiuchi was asked, if Weaver was looking at a helicopter that was hovering behind Horiuchi, then Weaver would have been facing him; how then could Horiuchi have shot Weaver in the back? At this point, Horiuchi backpedaled and said that he didn’t know where the helicopter was, and “I would be guessing if I told you where it was.” Id. at 259. But if Horiuchi did not see the helicopter and did not know where it was, it is difficult to conclude that a reasonable agent in his position would have believed it to be in danger.16
And, indeed, neither Horiuchi nor any of the other agents on the scene reacted as if they thought the helicopter was in danger. The agents on the ridge were in radio contact with the FBI command center and were reporting significant developments. Thus, when the three individuals strayed outside the cabin, one of the agents promptly reported it. See id. at 77 (“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 [370]*370post that three individuals had come out of the building.”)- If Horiuchi and the other agents thought the helicopter was in danger from the man with the long gun, one would have expected them to warn the pilot to move out of rifle range. Assuming there had been no time to do so before the first shot, there would have been ample time afterwards, when Horiuchi thought his bullet had missed, leaving the man with the long gun at large and presumably still dangerous.17
There is other evidence that a reasonable officer in Horiuchi’s position would not have believed that the helicopter was within rifle range of the cabin. This was not an aircraft piloted by a civilian who might have stumbled into the danger zone; Horiuchi knew that the FBI pilot was aware of the danger and was taking appropriate precautions. Earlier that day, Hor-iuchi had been aboard on a reconnaissance mission and noted that the pilot “popped over the hill low and then came back over” so as not to present a clear target to the armed and presumably dangerous people in the Weaver cabin. Id. at 191. Horiuchi first testified that during his flight, the helicopter “wasn’t necessarily well out of rifle range” of the cabin. Id. at 258. But he was impeached by his prior testimony, where he had stated unequivocally, “[w]e stayed well out of range of the cabin during the flight.” Id. Horiuchi also knew that the helicopter had taken several other flights over the area, all without incident. By returning to the cabin, the two men and the young girl restored the situation to precisely where it had been before they exited.
Finally, Horiuchi himself admitted that he did not fire the second shot because he believed the man with the long gun would pose a threat to the helicopter if he reached the safety of the cabin. At the Weaver criminal trial, Horiuchi testified that he decided to kill the man as soon as he saw him looking menacingly at the helicopter, and did not reconsider this decision before taking 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.” Id. at 107.18 If accepted at face value, this statement suggests that Horiuchi had decided to shoot the man with the gun, whether or not he continued to be a threat to the helicopter.
On this record, it seems highly debatable whether a reasonable agent in Horiu-chi’s position would have believed that the helicopter would be endangered if the man with the gun reached the cabin.
2. The Rules of Engagement. There is also doubt about whether Horiuchi is making up the helicopter story to cover up his real reason for the shooting, which was [371]*371to follow the orders he had been given to shoot any armed man on sight. Horiuchi testified that he believed he had the authority to shoot an armed man without making any judgment about the existence of an immediate threat. “[T]he decision that we were already in danger had already been made for us prior to going up the hill.” Id. at 159. When asked on cross whether he intended to shoot the men “irrespective of a threat,” he replied, “[b]ased on the Rules of Engagement, sir, we could.” Id. at 264.
Horiuchi, as leader of the sniper team, instructed his men about how they should carry out their mission. His instructions did not reflect our constitutional rules as to the use of deadly force-such as shooting only in case of a threat. Rather, Horiu-chi’s instructions closely mirrored the Rules of Engagement:
I said what we wanted to do was to try and get as many people, both of the subjects out before we take the shot. In other words, if only one subject had come out [of the cabin], we were going to pretty much wait maybe wait a minute, 30 seconds, maybe more before anyone took the shot to try and eliminate having taken one shot and then the rest of them pretty much all inside. We wanted them all outside if we were going to shoot the two subjects.
Id. at 203-04.
Horiuchi also described his decisions at the scene in terms of the Rules of Engagement, rather than any independent assessment of a threat. Soon after he reached his position, he watched Sara Weaver exit, move towards the shed and then return to the cabin. He testified that he didn’t shoot her because “the female was not armed at that time, and I was assuming she was a child because of the size of the stature.” Id. at 62. A few minutes later, Horiuchi saw a man come out on the back porch. He decided against shooting him because “[t]he individual did not appear to be armed, there was nothing in his hand, and I did not see any weapons around or on his person.” Id. at 64-65. Horiuchi did not testify that he decided against shooting because these individuals posed no threat. Instead, he focused on their age and sex, as well as the absence of weapons, precisely as specified in the Rules of Engagement, which directed him to shoot only at armed men. This is also consistent with the fact that, as soon as he had a clean shot at an armed man, Horiu-chi aimed and fired.
This evidence suggests that Horiuchi shot Harris because he was following the unconstitutional Rules of Engagement, not because he thought Harris would pose a danger to the helicopter if he reached the cabin.19 If a trier of fact finds that Horiu-chi lied about his motives, this would undermine other portions of his story as well, such as his description of the location and vulnerability of the helicopter.20
[372]*3723. Would a warning have been futile or dangerous?- Giving a warning is a condition on the use of deadly force, except in those rare circumstances where doing so would materially increase the danger to law enforcement personnel or bystanders. See Gamer, 471 U.S. at 11-12, 105 S.Ct. 1694 (“deadly force may be used if necessary ... if, where feasible, some warning has been given”). This contemplates a narrow class of cases, such as where the suspect has opened fire, or pointed a gun at vulnerable targets.21
The FBI had been in the area for a full day, and had deployed snipers to within 200 yards of the cabin, yet the occupants were never alerted or warned to surrender. The first they learned that they were under siege was when Horiuchi’s bullet struck Randy Weaver. Had Horiuehi identified himself as a law enforcement officer and ordered them to surrender, it is entirely possible they would have come out with their hands in the air, and the tragedy could have been averted. But when the two men and young girl found themselves the targets of an unseen, unidentified sniper, what were they to do? Not hearing the kind of warning and surrender demand one has come to expect from law enforcement officers, they could not be sure who was shooting at them, or that a surrender would be accepted. By failing to give a warning, Horiuehi left Harris and the Weavers no option except to fight or flee, escalating an already dangerous situation. Having used deadly force without a warning, Horiuehi is only entitled to immunity if he could have reasonably believed that giving a warning in this case would be futile or dangerous. To prevail on the motion to dismiss, he has to show that there is no material dispute on this point.22
Assuming that Horiuehi reasonably believed Weaver was about to shoot at the helicopter, he would have been entitled to take his first shot without giving a warning because the danger appeared to be direct and immediate. But after that first shot, neither Harris nor Randy Weaver nor anyone else connected with the cabin was shooting or aiming weapons at any vulnerable targets. At first they were hiding, for a period of up to twenty seconds, then they were running, giving Horiuehi ample time to shout a surrender demand.23 It is pos[373]*373sible that giving a warning at that point would have been futile or dangerous, but Horiuchi has presented no factual basis for so concluding. At the very least, the point is in dispute. Accord Harris, 126 F.3d at 1203. 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.
4. Was Horiuchi reasonably sure of his target? Even if Horiuchi’s story about his concern for the helicopter is believed, it still does not explain why he shot Harris rather than Randy Weaver. After all, Horiuchi only observed one of the two men holding a rifle and making menacing gestures toward the helicopter. This observation might have justified shooting that man, certainly not the other one. Knowingly shooting the man who did not threaten the helicopter, just because he was armed and in the vicinity, would not have been constitutionally permissible. Indeed, Horiuchi does not attempt to justify shooting Harris on this basis. Rather, he claims that he made a mistake-that he shot Harris when he meant to shoot Weaver.
Horiuchi, once again, contradicts himself. During the Weaver criminal trial, he testified that the two men were dressed in similar black clothing and he could not tell them apart. See Horiuchi Testimony, p. 368 supra, at 238-39. If this testimony is credited, then Horiuchi would have had no cause to believe that Weaver was the second man running into the cabin, rather than the first. At most, it would establish that Horiuchi thought there was a 50/50 chance the man he was shooting was the one he had seen threatening the helicopter. This is far less certainty than an officer must have before taking human life.
Before using deadly force, the officer must be reasonably certain that his target is, indeed, the one who is posing the threat. If Horiuchi was unable to tell the two men apart, as his testimony suggests, then he could not be reasonably certain of his target and he had no justification for taking the second shot. Pulling the trigger based on a fifty-percent probability of killing the wrong person does not fall into .the realm of the reasonable.
Given the current record, we have no way of ascertaining what factual basis Horiuchi had for believing, to a reasonable certainty, that he was shooting the man he had observed looking menacingly at the helicopter. As best the record discloses, this was not a case of mistaking one man for the other, but of shooting in the face of major uncertainty about the identity of the target. This is more akin to recklessness than reasonable conduct.
5. The position of Vicki Weaver. Horiuchi claims he was unaware that Mrs. Weaver was standing behind the door when he shot through it at Harris. Yet again, Horiuchi’s testimony on this point has been less than consistent. Horiuchi testified that, when he fired at Hams, he thought someone else might be standing behind the door, because Harris “was trying to hold the door open or moving somebody out of the way.” Id. at 108. Other witnesses, too, contradict Horiuchi’s claim. Sara Weaver testified that the curtain on the door was open, see Preliminary Hearing Testimony at 21, and so Horiuchi could have seen her mother through the glass pane on the door. 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. See id. at 10, 92. Of course, there is evidence that supports Horiuchi’s version as well. But there remain disputed facts on this issue. If Horiuchi shot through the door knowing, or having reason to believe, someone else was standing behind it, then his second shot could not be deemed reasonable.
[374]*3746. The danger of escape. At oral argument before us, Horiuchi’s lawyer suggested that the armed man could have fled out the back door of the cabin and made his way to a populated area. We have examined the record and find no support for this contention. This was not a situation, as in Forrett, where the use of deadly force was justified by the need to avert danger to the public from a fleeing suspect. Forrett was loose in a residential neighborhood where he could have taken a hostage at any time. By contrast, Harris was running toward a cabin in the middle of nowhere, and the cabin itself was under siege by nine federal agents armed with M-16 rifles, and with backup that included a helicopter, an armored personnel carrier and a gun-toting robot. So far as the record discloses, there was no material risk that he would make his way to a populated area where he could harm somebody or take hostages.24 On the record before us, we cannot say that a reasonable agent in Horiuchi’s position would have concluded that Harris presented the kind of immediate danger that made the use of deadly force reasonable. At the very least, the matter is in dispute.
IV
Because we find that there are material questions of fact in dispute which, if resolved against Horiuchi would strip him of Supremacy Clause immunity, we must reverse the district court’s order dismissing the case. The question remains: What next? Presuming that Horiuchi wishes to press his immunity claim, a trier of fact will have to resolve these factual issues. Will this be the district judge, hearing the matter on a renewed motion to dismiss, or the jury during the course of the trial?
While there is practically no law, and very little guidance, we conclude that if Horiuchi renews his motion to dismiss, factual issues must be resolved by the district court prior to trial; and if there continues to be conflicting evidence pertaining to key aspects of Horiuchi’s immunity claim, as we expect there will be, the factual disputes must be resolved by the district court.
The only case to speak directly to this issue comes from the early part of the last century. In West Virginia v. Laing, 133 F. 887, 891 (4th Cir.1904), the court concluded that “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.”25 But cf. United States v. Lipsett, 156 F. 65, 71 (W.D.Mich. [375]*3751907) (suggesting that had there been facts in dispute, the court would let the state jury decide them).26
We also find persuasive modern courts’ practice of deciding factual questions underlying criminal immunity claims, rather than submitting them to juries. Having to live through the anxiety of a criminal trial destroys most of the benefits of immunity, and so courts often dispose of factual questions underlying immunity defenses prior to allowing the jury to deliberate on criminal liability. We have recognized that courts may decide the facts underlying a double jeopardy claim or the scope of an immunity deal with the prosecution. See, e.g., United States v. Mendoza, 78 F.3d 460, 464-65 (9th Cir.1996) (immunity deal); United States v. Gutierrez-Zamarano, 23 F.3d 235, 237 (9th Cir.1994) (double jeopardy). A defendant, such as Oliver North, who was given a grant of immunity, is entitled to a Kastigar hearing, where the district court makes determinations about whether the government has made its case based on immunized testimony. See Kastigar v. United States, 406 U.S. 441, 461, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); United States v. North, 920 F.2d 940, 941-42 (D.C.Cir.1990) (per curiam). And, of course, courts routinely decide any factual disputes underlying attorney-client privilege, executive privilege, probable cause and other evidentiary matters.
We recognize that none of these provides a perfect analogy because a claim of Supremacy Clause immunity is much more central to the subject matter of the criminal case than, for example, a claim of double jeopardy. Nevertheless, we find significant policy reasons supporting our decision. To begin with, the question of Supremacy Clause immunity, while very similar to the issues presented in the criminal case, is nevertheless quite distinct. While the jury must decide the case under state law, Supremacy Clause immunity is a matter of federal law. The state standard for justification may or may not be the same as the federal standard, and asking the jury to apply two similar-yet distinct-legal standards to the same set of facts can only lead to confusion.27 By contrast, fed[376]*376eral judges, versed in the subtleties of federal immunity law, are well equipped to make factual findings and legal conclusions. These rulings can then be reviewed on appeal much more easily than a jury verdict which, after all, is almost entirely opaque.
Perhaps most significant, however, is the fact that having the district court hear the evidence and make factual findings before the state prosecution can go forward will act as a substantial safeguard against frivolous or vindictive criminal charges by states against federal officers. As experience with qualified immunity cases shows, if merely presenting a disputed issue of fact were sufficient to get to a jury, then state prosecutions of federal agents could become quite common. Such prosecutions-whether successful or not-place a heavy burden on the agent charged and the agency that employs him.
It’s true that, in the civil context, we have held that the disputed factual issues underlying the immunity defense must be put to the jury. See, e.g., Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993). But criminal liability threatens the officer personally in a way that civil liability does not and so calls for a more cautious approach. In the civil context, the government agency may indemnify an officer against suits, and agencies regularly do so. See, e.g., John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L.Rev. 47, 50 & n. 16 (1998). Thus, the principal aim of civil suits is not to punish the officers as much as it is to force law enforcement agencies to internalize social costs imposed by its officers, so that the agency will weigh those costs against the benefits it seeks to achieve. In other words, civil damages against law enforcement officers are as much about enterprise accountability, as they are about personal blame.
Criminal liability is quite another matter. The sanction is more severe, and the law enforcement agency cannot pay it. The agency can’t serve prison time for the officer; nor can it restore voting or other civil rights, or make up for the shame that results from a criminal conviction. Because an employing agency cannot protect the officer from criminal punishment, criminal liability (unlike civil damages) is not fundamentally about enterprise liability and internalizing costs; rather, it is fundamentally about personal blame and accountability.
Because the criminal sanction weighs entirely on the officer, rather than on the agency, we believe that the procedures we follow in the civil context will not sufficiently protect officers from the risk of state criminal prosecution. For this reason, as well as those stated above, we believe interposing a federal judge between the state prosecutor and the jury will provide a significant restraint on overzealous state prosecutors and ensure such prosecutions remain an avenue of last resort in our federal system.
V
The United States, as amicus curiae, cautions that subjecting federal agents to the criminal laws of the various states could chill their ability to carry out vital duties, such as guarding the President. But Supremacy Clause immunity is not absolute and so presupposes that federal agents can be prosecuted for violating state law. Had Congress found that state criminal prosecutions posed an intolerable [377]*377risk for federal agents, it could have tried to broaden the scope of that immunity. Instead, Congress has acquiesced in state prosecutions of federal agents and chosen to protect them by requiring that, when such prosecutions go forward, they do so in federal court. See 28 U.S.C. § 1442(a)(1).
Nor do we believe that allowing this case to proceed will open the floodgates to numerous state criminal prosecutions of federal agents, hampering federal law enforcement efforts. Assuming the facts alleged by the state, this is not a case where a law enforcement agent fired his weapon under a mistaken belief that his fellow agents or members of the public were in immediate danger. Rather, a group of FBI agents formulated rules of engagement that permitted their colleagues to hide in the bushes and gun down men who posed no immediate threat.
Such wartime rules are patently unconstitutional for a police action. As soon as the incident was over, the FBI disowned the rules and disciplined the officers who approved them. The incident led to a lengthy investigation by the DOJ Office of Professional Responsibility; Congress itself conducted extensive hearings and published a bipartisan report that was highly critical of the FBI in general and Horiuchi in particular.28 There is nothing run of the mill about this case, and we cannot conceive that it will provide a precedent for state prosecutions in more ordinary circumstances.
Conclusion
In keeping with the constitutional allocation of powers between the federal government and the states, federal agents enjoy immunity from state criminal prosecution. That immunity has limits. When an agent acts in an objectively unreasonable manner, those limits are exceeded, and a state may bring a criminal prosecution.
After carefully reviewing the record, we cannot agree with the district court that Agent Horiuchi’s use of deadly force against Harris and, by extension, Mrs. Weaver, was objectively reasonable as a matter of law. Accordingly, Agent Horiu-chi is not entitled to dismissal on the ground of Supremacy Clause immunity at this stage in the proceeding. On remand, the district court may conduct an eviden-tiary hearing to determine whether the evidence supports Agent Horiuchi’s entitlement to immunity under the legal principles applicable to the use of deadly force. We therefore REVERSE and REMAND with directions that the district court reinstate the criminal complaint and information and for further proceedings consistent with this opinion.