Judge rejects motion to dismiss migrant harboring case vs. No More Deaths volunteer

The case against Scott Warren, a No More Deaths volunteer who faces harboring charges after he was arrested by Border Patrol in 2018, will move forward after a federal judge rejected a motion to dismiss the case. 

In a terse, one-page decision released Tuesday, U.S. District Judge Raner C. Collins wrote that after considering the evidence and reviewing all admitted exhibits, he would deny two motions filed in April, including one that asked the court to dismiss the criminal charges against Warren. 

Warren was arrested on Jan. 17, 2018, at the "Barn," a privately owned building in Ajo regularly used as a staging point for volunteers offering humanitarian aid in the harsh deserts surrounding the small Arizona town west of Tucson. 

After his arrest, federal officials sought to expand the charges from the single count of harboring that Warren was arrested for, and a grand jury agreed, indicting him with two counts of harboring illegal aliens and one count of conspiracy to transport and harbor illegal aliens. If convicted and sentenced to consecutive terms, Warren could face more than two decades behind bars.

In recent months, Warren's lawyers argued that the indictment against their client be dismissed because his arrest "arose from selective enforcement of the laws by the Border Patrol, in violation of the Fifth Amendment’s equal protection guarantee." 

Warren is "an active, vocal, and highly visible" of No More Deaths in Ajo, and law enforcement agents in that small town "certainly knew who he was" when they arrested him, his lawyers told the court. And, the attorneys argued that Border Patrol agents began keeping watch over "the Barn" after No More Deaths released a report that was sharply critical of the agency. 

"That afternoon, the BP decided to surveil an NMD facility and provided a patently pretextual explanation for this choice," wrote Knight. "Agents then swiftly arrested Dr. Warren for harboring, without evidence that he had done anything illegal and despite their professed belief that he had no control over the facility." 

In an 80-page document filed in March by attorney Amy Knight, who is representing Warren pro bono along with attorney Gregory Kuykendall, she wrote that the court must dismiss the charges against Warren, or "at the very least, order the disclosure of evidence necessary" to show that Warren was the subject of selective enforcement. 

In their motion, the lawyers included text messages between Border Patrol agents, and officials with U.S. Fish and Wildlife Services which show that on the afternoon of January 17, Border Patrol agents "decided to begin surveilling a NMD facility and provided a patently pretextual explanation for this choice."

The summer before, FWS officers had already cited several No More Deaths volunteers, including Warren, for entering the protected Cabeza Prieta National Wildlife Refuge—a remote 800,000-acre wilderness area near Ajo—without permits and driving on an administrative road. 

At the edge of Ajo, the ramshackle building has become central to an effort to place water, food, blankets, and other humanitarian aid in a corridor of desert, where volunteers have found an increasing number of human remains. 

At least 137 human remains have been found from 2001 to 2018, including 32 in 2017 alone in the Cabeza Prieta corridor, according to database operated as a joint collaboration between Humane Borders, its own humanitarian organization, and Pima County's Office of the Medical Examiner. 

Warren faced a misdemeanor trial in front of Collins earlier this month, however, the judge has yet to issue a verdict. Eight other No More Deaths volunteers were prosecuted by U.S. officials following incidents in 2017 and 2018.

As Warren's recent trial drew to a close, volunteers were in the desert searching for a missing man, and during their search they found four sets of human remains.

In February, federal prosecutors agreed to drop charges against four NMD volunteers, agreeing to issue civil infractions and levy fines of $250. 

Meanwhile, four other volunteers were found guilty by U.S. District Judge Bernardo Velasco on Jan. 18; on March 1, they were sentenced to 15 months unsupervised probation and each fined $250. 

Knight argued that there was "strong evidence" that the actions of one of the Border Patrol agents who arrested Warren "were motivated by his feelings about the group and its activities, rather than by legitimate law enforcement interests." 

And, Knight wrote that in a report describing his decision to keep watch over the Barn, the agent’s explanations were "abjectly false; even a cursory examination of the details reveals that this was not the true reason for the Border Patrol’s actions in setting up surveillance." 

Despite the evidence, and an hour-long hearing held on May 13, Collins rejected these arguments. 

Collins also denied a motion filed by the defense that the government has shifted its opinion from a preliminary hearing, where it argued successfully that Warren could be charged with harboring because had had some authority or control of the Barn, to arguing that Warren lacked the standing to challenge two Border Patrol agents when they went to search the remote building, allowing them to ignore his "direct and specific request that they leave the property." 

In their motion, Kuykendall and Knight argued that "allowing the assertion of inconsistent positions on this front would be grossly unfair. The evidence gained from the search is essential to the Government’s case, and thus only in prevailing on the motion to suppress—which entailed an argument that Dr. Warren had very little authority or control over The Barn—could the Government realistically maintain this prosecution." 

However, Collins rejected this claim, writing simply "The Government’s position is not inherently inconsistent." 

This moves forward the case against Warren, which is slated to begin Wednesday, May 29, at 9:30 a.m.