[Pnews] Federal Judge Reverses Conviction of Border Volunteers, Challenging Government’s “Gruesome Logic”

[Prisoner News]

https://theintercept.com/2020/02/04/reversal-conviction-border-volunteers-gruesome-logic/ 



  Federal Judge Reverses Conviction of Border Volunteers, Challenging
  Government’s “Gruesome Logic”

Ryan Devereaux - February 4, 2020
------------------------------------------------------------------------

_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 
<https://www.tucsonsentinel.com/local/report/030119_no_more_deaths/no-more-deaths-volunteers-fined-250-sentenced-15-mos-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 
<https://theintercept.com/2019/01/17/no-more-deaths-border-documents-trial/> 
for their aid work in 2019.

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 
<https://www.documentcloud.org/documents/6763128-2020-02-03-Hoffman-DE22-Order-Reversing.html>, 
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 
<https://lawrightsreligion.law.columbia.edu/content/whosefaithmatters> 
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 
<https://theintercept.com/2019/11/23/scott-warren-verdict-immigration-border/> 
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 
<https://theintercept.com/2019/05/04/no-more-deaths-scott-warren-migrants-border-arizona/> 
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 
<https://theintercept.com/2019/08/10/scott-warren-trial/>. 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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