Judge reverses convictions of 4 No More Deaths volunteers

A federal judge has reversed the convictions of four members of No More Deaths, finding that the members of the humanitarian aid group successfully established that they were exercising "sincere religious beliefs" when they placed water and food for migrants in Arizona's protected Cabeza Prieta National Wildlife Refuge in the summer of 2017.

In a 22-page opinion issued Monday, U.S. District Judge Rosemary Marquez wrote that Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick had "met their burden of establishing that their activities were exercises of their sincere religious beliefs," under guidelines set by the Religious Freedom Restoration Act, passed by Congress in 1993. Furthermore, the government had "failed to demonstrate" that the charges filed against the four volunteers were the "the least restrictive means of accomplishing a compelling interest." 

On Jan. 18, 2019, following a short bench trial, U.S. District Court Judge Bernardo Velasco found all four volunteers guilty of federal misdemeanors. The volunteers had been cited by U.S. Fish and Wildlife Services officers during an incident in the summer of 2017. 

Hoffman was found guilty of operating a motor vehicle in a wilderness area and entering a national refuge without a permit while Holcomb, Huse, and Orozco-McCormick were found guilty of entering without a permit and abandonment of property — each a "Class B" misdemeanor.

The volunteers drove a Dodge truck down a poorly maintained road in the wilderness area in August 2017, and left one-gallon bottles of water in milk crates, along with other supplies, in an attempt to stave off the deaths of people who attempt to cross Cabeza Prieta, where hundreds of bodies have been found over the years across the rugged and remote terrain.

A FWS officer was notified that the volunteers for the humanitarian aide group were within the refuge and went to investigate, and after interviewing the women, he escorted them out of the area and collected the supplies they left.

During the sentencing hearing, Velasco said that he while he didn’t have “any doubt” in his mind that the women wouldn’t violate federal law again, he felt it was necessary to tell No More Deaths that they should be "aware that their conduct may be against the law."

Marquez wrote that the violations "were committed in the course of leaving supplies of food and water in an area of desert wilderness where people frequently die of dehydration and exposure," and that the four women were affiliated with the Unitarian Universalist Church. 

"They entered the Refuge without a permit, drove on a restricted-access road, and left food and water for those in need to find. Defendants argue that those actions, taken with the avowed goal of mitigating death and suffering, were sincere exercises of religion and that their prosecution is barred by the Religious Freedom Restoration Act," Marquez wrote. 

RFRA provides "very broad protection for religious liberty," by exempting religious believers from laws that substantially burden the exercise of their religious beliefs, she wrote, adding that the government must "provide such an exemption unless the application of the law to the believer is the “least restrictive means” of furthering a “compelling government interest." 

Based on the testimony, Marquez wrote that "the depth, importance, and centrality of these beliefs caused Defendants to restructure their lives to engage in this volunteer work," and she concluded that their prosecution for their actions "substantially burdens their religious exercise. 

"As Defendants successfully carried this burden, it fell to the Government to demonstrate that prosecution of Defendants was the least restrictive means of achieving a compelling governmental interest," Marquez wrote. However, the government had failed  to show a compelling interest. While the government has a "compelling interest in maintaining the environmental conditions on its public lands," Marquez doubted that the defendants conduct had a "significant negative effects on the environmental conditions" in the wildlife refuge. 

And, in a sharply issued criticism, Marquez rejected the government's arguments that the four volunteers "furthered and encouraged illegal smuggling activity." 

"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," she wrote. "In other words, the Government claims a compelling interest in preventing Defendants from interfering with a border enforcement strategy of deterrence by death," Marquez wrote. "This gruesome logic is profoundly disturbing." 

"It is also speculative and unsupported by evidence," she added. "The government had produced no evidence" that the deaths of at least 37 people, based on remains found in the wilderness refuge in 2017 "had any effect in deterring unlawful entry," Marquez wrote. 

"Nor has the Government produced evidence that increasing the death toll would have such an effect," she wrote. 

Marquez's decision is another loss for the federal government, which pursued charges against nine No More Deaths volunteers during a series of incidents in 2017 and 2018. 

This includes the felony prosecution of No More Deaths volunteer Dr. Scott Warren, who was charged with two counts of harboring illegal aliens and one count of conspiracy to transport and harbor illegal aliens. Last Spring, a jury said it was unable to reach a decision on the charges, resulting in a mistrial. The government withdrew the conspiracy charge, and tried to charge Warren with two counts of harboring, but in November, a second jury refused to convict him. 

While Hoffman and the others faced sentencing, federal prosecutors decided to drop the charges against four other volunteers — Caitlin Persis Deighan, Zoe E. Anderson, Logan Thomas Hollarsmith, and Rebecca Katie Grossman-Richeimer — who faced their own prosecutions for entering Cabeza Prieta without a permit, and for operating a motor vehicle there in June 2017. 

On Feb. 22, 2019, prosecutors announced in a short three-minute hearing, backed by 100-word court document, that the government had agreed to settle the matter, and issue civil infractions carrying fines of $250 for each. 

Katherine Franke, the director of the Law, Rights, and Religion Project at Columbia Law School, praised Marquez's decision, writing that overturning the convictions "marks a significant defeat for the Department of Justice in its effort to protect religious liberty rights only when they advance the White House's political agenda."

Franke filed a friend of the court brief, along with seven other scholars, about the RFRA's application in the case in April 2019.

"This is now the second time in several months that a federal judge has granted a faith-based defense raised by immigrants' rights activists who are being criminally prosecuted by the federal government for coming to the aid of people crossing the deadly Arizona desert," Franke wrote. Along with the four women, Warren's misdemeanor charge for leaving humanitarian supplies in the wildlife refuge was overturned by U.S. District Judge Raner Collins, also based on a defense supported by RFRA.

"We are quite pleased to see that Judge Márquez applied an analysis of the RFRA claim that mirrored the structure we provided in our brief," she noted.