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<div class="header reader-header reader-show-element"> <font
size="-2"><a class="domain reader-domain"
href="https://theintercept.com/2020/02/04/reversal-conviction-border-volunteers-gruesome-logic/">https://theintercept.com/2020/02/04/reversal-conviction-border-volunteers-gruesome-logic/</a></font>
<h1 class="reader-title">Federal Judge Reverses Conviction of
Border Volunteers, Challenging Government’s “Gruesome Logic”</h1>
<div class="credits reader-credits">Ryan Devereaux - February 4,
2020<br>
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<p><u>A federal judge</u> 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.”</p>
<p>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.</p>
<p>The defendants in the case — Natalie Hoffman, Oona
Holcomb, Madeline Huse, and Zaachila Orozco-McCormick
— were <a
href="https://www.tucsonsentinel.com/local/report/030119_no_more_deaths/no-more-deaths-volunteers-fined-250-sentenced-15-mos-probation/">fined
and given probation</a> 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 <a
href="https://theintercept.com/2019/01/17/no-more-deaths-border-documents-trial/">trial</a>
for their aid work in 2019.</p>
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<p>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.</p>
<p>The defendants established that they were exercising
their “sincere religious beliefs,” Márquez <a
href="https://www.documentcloud.org/documents/6763128-2020-02-03-Hoffman-DE22-Order-Reversing.html">wrote</a>,
while the government failed to demonstrate that its
application of the refuge rules was carried out in the
“least restrictive” manner available.</p>
<p>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 <a
href="https://lawrightsreligion.law.columbia.edu/content/whosefaithmatters">report</a>
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.</p>
<p>“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.”</p>
<p>Márquez’s decision comes just four months after U.S.
District Judge Raner Collins reached a <a
href="https://theintercept.com/2019/11/23/scott-warren-verdict-immigration-border/">similar
decision</a> 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 <a
href="https://theintercept.com/2019/05/04/no-more-deaths-scott-warren-migrants-border-arizona/">felony
charges</a> 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 <a
href="https://theintercept.com/2019/08/10/scott-warren-trial/">hung
jury</a>. 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.</p>
<p>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.”</p>
<p>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.”</p>
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<p>“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.”</p>
<p>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.”</p>
<p>“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.”</p>
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