FEDERAL JUDGE REVERSES CONVICTION OF BORDER VOLUNTEERS, CHALLENGING GOVERNMENT’S “GRUESOME LOGIC”

Volunteers with humanitarian aid organization No More Deaths walk with jugs of water 

for undocumented immigrants on May 10, 2019, near Ajo, Ariz. Photo: John Moore/Getty Images

Ryan Devereaux February 4 2020, 7:05 a.m.

A FEDERAL JUDGE in Tucson, Arizona, reversed the conviction of four humanitarian aid volunteers on religious freedom grounds Monday, ruling that the government had embraced a “gruesome logic” that criminalizes “interfering with a border enforcement strategy of deterrence by death.”

The reversal, written by U.S. District Judge Rosemary Márquez, marked the latest rebuke of the Trump administration’s crackdown on humanitarian aid providers in southern Arizona, and the second time in matter of months that a religious freedom defense has prevailed in a federal case involving the provision of aid to migrants in the borderlands.

The defendants in the case — Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick — were fined and given probation in March of last year for entering the Cabeza Prieta Wildlife Refuge in the summer of 2017 without a permit, driving on a restricted access road and leaving food, water, and other humanitarian aid supplies for migrants passing through in the summer heat. They were the first among a group of volunteers with the faith-based humanitarian group, No More Deaths, to go to trial for their aid work in 2019.




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The remains of roughly 3,000 migrants have been recovered in Pima County alone since 2000. Experts are confident that the true death toll is much higher. Situated at the heart of the Sonoran Desert, the Cabeza Prieta refuge is one of the deadliest spaces in the region. As Márquez made clear in her decision, the No More Deaths volunteers admitted to the factual claims in the case: that they left aid supplies in “an area of desert wilderness where people frequently die of dehydration and exposure.” But in appealing their convictions, Márquez went on to write, the defendants had successfully argued that their actions — imbued “with the avowed goal of mitigating death and suffering” — were protected under the Religious Freedom Restoration Act, or RFRA.

The defendants established that they were exercising their “sincere religious beliefs,” Márquez wrote, while the government failed to demonstrate that its application of the refuge rules was carried out in the “least restrictive” manner available.

Katherine Franke, a law professor at Columbia, where she is faculty director of the Law, Rights, and Religion Project, called the reversal “fantastic.” Last year, Franke and her colleagues published a report illustrating how the federal government has routinely sided with right-wing or conservative causes in religious freedom cases. The law professor has followed the No More Deaths cases closely, filing motions in support of RFRA defenses. “The lower court’s opinion was so horrible just as a matter of legal reasoning, that it was really nice to see the judge apply a thorough and careful analysis of the religious liberty claim,” Franke told The Intercept. While she anticipates a government appeal, Franke said Monday’s reversal provides a solid foundation for applying RFRA in similar legal contexts.

“The government isn’t going to roll over just because they lose a case or two,” she explained. “But what we’ve got now is a developing record of careful analysis from federal courts on how RFRA ought to apply in contexts like this.”

Márquez’s decision comes just four months after U.S. District Judge Raner Collins reached a similar decision in the case of Scott Warren, another No More Deaths volunteer hit with federal misdemeanor charges for leaving humanitarian supplies on Cabeza Prieta, who also successfully deployed a RFRA defense against the government’s charges. In addition to the federal misdemeanor case, the U.S. attorney’s office in Arizona brought felony charges against Warren for providing food, water, and a place to sleep to two young migrants in 2018. He faced up to 20 years in prison. The first felony trial ended in hung jury. The second led to an acquittal in November. All told, Trump administration prosecutors, working alongside U.S. Border Patrol as well as Fish and Wildlife officials, have brought charges against nine No More Deaths volunteers in the past two and a half years.

Monday’s reversal offers the latest evidence that the lengthy prosecutorial campaign has not only failed, it has now resulted in two novel cases in which RFRA has been used to successfully defend the provision of humanitarian aid on the border. Not only that, Márquez included in her decision a critique of the government’s reasoning — one that Franke described as a “stinging defeat.”

Federal prosecutors had argued that the government had a compelling interest in “enforcing the border and controlling immigration,” Márquez wrote, and while the defendants were not charged with immigration offenses, the government “nonetheless” argued that their actions “furthered and encouraged illegal smuggling activity” on the wildlife refuge. “The government seems to rely on a deterrence theory, reasoning that preventing clean water and food from being placed on the refuge would increase the risk of death or extreme illness for those seeking to cross unlawfully, which in turn would discourage or deter people from attempting to enter without authorization,” the judge wrote. “In other words, the government claims a compelling interest in preventing defendants from interfering with a border enforcement strategy of deterrence by death.”

“This gruesome logic is profoundly disturbing,” Márquez wrote. “It is also speculative and unsupported by evidence.” In 2017, 32 sets of human remains were recovered on the Cabeza Prieta Wildlife Refuge, the judge noted. “The government produced no evidence that these fatalities had any effect in deterring unlawful entry,” she wrote. “Nor has the government produced evidence that increasing the death toll would have such an effect.”

Greg Kuykendall, the lead attorney in Scott Warren’s misdemeanor and felony cases, said the reversal was correct on both legal and moral grounds. “It’s an incredibly thoughtful and well-reasoned opinion,” Kuykendall told The Intercept. In addition to offering a clear historical account of when and how RFRA should be applied, Kuykendall argued that Márquez’s diagnosis of “strategy of deterrence by death” reflected a clear-eyed understanding of what’s at stake in criminalizing humanitarian aid. “That’s exactly what it is,” Kuykendall said. “That’s what the government refuses to actually openly state, but they need dead bodies in order for their deterrence strategies to work.”

“It’s been laid out for judges in the past,” Kuykendall went on to say, “but she has connected the dots and very clearly explains that for the government’s enforcement strategy to work, the more dead bodies the better, and in fact, if you don’t have dead bodies, then it’s not working.”

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