Feds drop case against No More Deaths volunteer Scott Warren
Defense attorney claims prosecution was part of 'deterrence policy' with goal of 'more dead bodies in the desert'
In a filing late Wednesday, prosecutors asked for the last remaining charge filed against Scott Warren to be dismissed, ending the misdemeanor case against the No More Deaths volunteer just months after the government's attempt to charge him with two felonies case collapsed in November.
The judge in the case quickly granted their request at a hearing Thursday morning.
A defense attorney said that the move made it "it's clear they changed their mind because the law is humanitarian aid is not a crime" and that the government's case against Warren had been part of a "deterrence policy" with a goal of having "more dead bodies in the desert."
In a 2-page filing, federal prosecutors Anna Wright and Nathaniel Walters wrote that "in the interests of justice" the court should dismiss the charge of operating a motor vehicle in a wilderness area "with prejudice" — meaning it could not be re-filed.
Warren was scheduled to be sentenced on Thursday at 10 a.m., but with the judge accepting the government's request, the Justice Department's nearly three-year pursuit of Warren has ended.
In a short 10-minute hearing in a nearly packed Tucson courtroom, U.S. District Judge Raner C. Collins said that he found the prosecutors' motion on his desk. After asking if there were any objections from Warren's lawyers — Greg Kuykendall and Amy Knight — he granted the motion, ending the case against Warren.
Kuykendall then asked for the court to ask the federal lawyers about their justification for prosecuting Warren if they could in "good faith" now seek a dismissal of the charge. "It begs the question, why was this case being prosecuted?"
Collins refused to push the question to prosecutors. "The press is here, his family is here, the motion is granted. Have a good day," he said, and then walked out of the courtroom.
Neither prosecutor would speak to the press, saying instead that reporters should send questions to a Department of Justice spokesperson.
A reporter asked Kuykendall if there was a goal "beyond simple prosecution," and he responded saying, "Yeah, I think the goal is to have more dead bodies in the desert by implication of stopping good people like Scott and No More Deaths from doing their work — that's part and parcel of the government's deterrence policy," he said.
Warren did not speak after the hearing, but a No More Deaths representative said that the organization would continue its work despite the possibility of future prosecutions.
Thursday afternoon, the U.S. Attorney for Arizona Michael Bailey said that the feds would "continue to prosecute those who intentionally help illegal immigrants evade law enforcement detection while deceptively cloaking their illegal acts as 'humanitarian aid,'" but that his office dismissed the case before sentencing "to ensure consistency" while it considers an appeal in another case involving No More Deaths.
Warren faced both felony & misdemeanor charges
The 37-year-old geography professor has faced a brace of charges since 2017, when he was cited with operating a motor vehicle in a wilderness area because he drove a white Dodge Ram pickup along an administrative road closed to the public, and for abandonment of property because he and the other members of his group left one-gallon plastic water bottles, cans of beans, blankets, and other supplies near Charlie Bell Well, a remote water station established by ranchers that is now resupplied periodically for animals in the 800,000-acre Cabeza Prieta National Wildlife Refuge in Southern Arizona.
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While those misdemeanor charges moved through federal court, in January 2018, U.S. Border Patrol agents arrested Warren and accused him of illegally harboring two Central American men at "the Barn," a ramshackle building used as a staging point for volunteers in the western edge of Ajo, an unincorporated town surrounded by remote deserts about 110 miles west of Tucson.
However, while federal prosecutors argued that Warren "harbored, concealed, and shielded" two men from the watchful gaze of Border Patrol agents, they struggled to convince juries during two separate trials. During the first in June 2019, a jury considered whether Warren was guilty of two counts of human smuggling and one count of criminal conspiracy, but after days of deliberation they announced that that could not reach a decision and the judge declared a mistrial. During the second trial, in November, the jury was far more certain, issuing a judgement that Warren was not guilty of the charges after just two hours of deliberation.
Related: Scott Warren found not guilty by jury in No More Deaths case
During his misdemeanor trial, Warren argued that he was leaving food, water, clothing and other humanitarian supplies in the desert to mitigate the deaths of people who attempt to cross the remote and hostile wilderness, and argued that he was compelled to act because leaving water and food is a "sacred act." Judge Collins agreed, and ruled that Warren was protected from prosecution because the 1993 Religious Freedom Restoration Act, a law which states that the government may not "substantially burden a person's exercise of religion."
At the tail end of Warren's second trial, Collins agreed in part, writing that while "it was clear that the government had presented sufficient evidence beyond a reasonable doubt to prove the two charges," Warren's religious belief "functions as a successful affirmative defense."
Related: Scott Warren to be retried on 2 migrant harboring charges
"And, make no mistake about it, the Defendant admitted to doing the very acts that the Government charged him with," Collins wrote. However, he took Warren at his word that his religious belief compels him to leave water in Cabeza Prieta's Growler Valley.
"Defendant was obliged to leave water jugs because of his religious beliefs, and the Government’s regulation imposes a substantial burden on this exercise of his religion," Collins wrote.
"But enforcing the regulation against abandonment of property is not the least restrictive means to achieve the Government’s interest in protecting the pristine state of the wildlife refuge or in securing the border," he added.
However, Collins ruled that Warren was "not forced to enter by vehicle onto restricted land to exercise his religion," and left in place the misdemeanor charge of operating a motor vehicle in a wilderness area—the case that prosecutors have now moved to completely dismiss. Collins ruled that Warren was guilty of the misdemeanor infraction on Nov. 20, 2019 — the same day he was found not guilty by a jury in the judge's courtroom in his felony case.
Collins set sentencing in the misdemeanor case for Feb. 28, but now the Justice Department prosecutors have decided to toss out what is the federal equivalent of a traffic ticket.
Warren's attorney criticized the government for pursuing the case at all.
"Today the government took the position that people of conscience could not be prosecuted for acts of humanitarian aid — in other words, humanitarian aid is by definition not a crime," said Kuykendall outside of the courtroom, adding that it was the only thing "logical to infer" that because "on the eve of Scott's sentencing, the government filed a motion in good faith to dismiss in the interests of justice."
"Justice demands that a person of Scott's background and faith and activities not be prosecuted," Kuykendall said.
The defense attorney said that he believed that the motion meant that prosecutors changed their minds. "I think it's clear they changed their mind because the law is humanitarian aid is not a crime, Scott's not guilty, and they recognized that would be writ large by the 9th Circuit if they continued their prosecution of Scott."
Kuykendall referenced an earlier ruling by U.S. District Judge Rosemary Marquez, telling the crowd of reporters and supporters that he believed prosecutors knew they would lose an appeal to the 9th Circuit Court of Appeals, which has rejected previous attempts to prosecute members of humanitarian aid organizations.
"I think it was pretty clear that they would fail on appeal and there would be 9th Circuit law explaining, and even larger terms than Judge Marquez explained, that humanitarian aid is not a crime," he said.
Remaining Cabeza 9
Since 2017, the federal government pursuit of the "Cabeza 9" — nine No More Deaths volunteers including Warren facing various charges — has earned the government only a plea agreement from four volunteers, who agreed to accept civil infractions and fines of $280 last year.
The convictions of four other volunteers — Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick — overturned on Feb. 3 when Judge Marquez ruled that the four women had "met their burden of establishing that their activities were exercises of their sincere religious beliefs," under guidelines set under RFRA. 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," she wrote.
All four were sentenced to unsupervised probation and fines of $250.
Prosecutors had asked Collins to give an additional 60 days more time on Warren's case so that they could consider Marquez's decision in the case against Hoffman and the others, because as she wrote federal officials were "currently considering whether to appeal the Court’s decision in Hoffman, a determination that must be made by the United States Solicitor General."
Later that February, four other volunteers — Caitlin Persis Deighan, Zoe E. Anderson, Logan Thomas Hollarsmith, and Rebecca Katie Grossman-Richeimer — had their charges dropped, after they each pleaded guilty to a civil infraction of entering the wildlife refuge without a permit, and paid a fine of $280. The group argued that they entered the refuge in search of three people who had been reported missing.
Feds vow continued prosecutions
In a statement emailed to reporters hours after the hearing, Michael Bailey, U.S. Attorney for the District of Arizona, said that his office was still considering seeking to appeal Marquez's decision in the case against Hoffman and some of the other More Deaths volunteers, but that he wanted to "ensure consistency in our prosecutions of these violations moving forward."
"But to be clear, these groups must follow the law, even when delivering true humanitarian aid, and we will continue to prosecute those who intentionally help illegal immigrants evade law enforcement detection while deceptively cloaking their illegal acts as 'humanitarian aid,'" he said.
No More Deaths pledges to continue
"As people of conscience we will continue to provide care and solidarity in the borderlands," said Paige Corich-Kleim, a volunteer with No More Deaths, who spoke in Warren's stead. "Our organization has extended its streak of legal wins now in 40 different victories in the past 18 years. Yet, despite our organization's victory today, we must also acknowledge the escalating violence against directly affected communities – many people who seek justice in this country never find it."
"This is not over, we will continue to find ways to intervene and reduce harm in the borderlands; thank you for your continued support," she said.
Later, Corich-Kleim said that No More Deaths was trying to weigh how Warren's case affected their work in the desert. "We're going to be talking to people about doing proactive litigation, but we're not sure where we're going to go with it. RFRA is very much about individuals, and these cases set good precedent, but they also don't define everything, so we are talking and looking into other steps."
She said that following the cases, people with the organization may "feel more comfortable" leaving water in the protected wilderness, but that there was still a risk that someone could get cited and would have to bring a RFRA claim, she said. "I know that many of us were dissuaded from leaving water out, while these cases were open, and now we're looking at ways that our freedom may have been violated," she said. "But we don't know, yet."
Corich-Kleim said that while the legal cases moved forward, No More Deaths had been "pretty transparent" with volunteers, but didn't stop volunteers from leaving water because "so many people feel really strongly" that leaving water is necessary, especially in an area "literally called the trail of death," she said.
"We haven't told volunteers not to leave water there, but we've been clear with them that there is potential for legal complications," she said.