On Monday of this week, four volunteer workers for the humanitarian group No More Deaths had their misdemeanor convictions of entering a federal wildlife refuge without a permit, operating a motor vehicle without a permit in the refuge, and abandoning property there overturned in federal court
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In a novel finding, district court judge Rosemary Marquez found that the four acted “with the avowed goal of mitigating death and suffering,” and were protected under the Religious Freedom Restoration Act, or RFRA, a 1993 law introduced by U.S. Senator – now Minority Leader – Chuck Schumer. Often viewed as a tool for protecting discriminatory religious practices, the RFRA is emerging as a powerful potential shield for border activists from aggressive prosecution for humanitarian work. The RFRA requires that when potentially conflicting with religious practices, federal actions be carried out in the least restrictive manner possible. Judge Marquez specifically found that the U.S. Fish and Wildlife service, and federal prosecutors, did not meet this test in their actions against the four volunteers.
The four had initially been convicted during a short bench trial – no jury involved, only a judge – in January of 2019 for their work leaving jugs of water in the Cabeza Prieta National Wildlife Refuge in 2017, in an effort to help save the lives of migrants passing through. Migrant deaths in the refuge are common, with hundreds documented by the local Medical Examiner’s office and Customs and Border Protection in recent years.
A local attorney had represented the four in their initial trial. For the appeal, national corporate law firm O’Melvany lent an associate, Ephraim McDowell who had formerly clerked for U.S. Supreme Court Justice Elena Kagan, to the volunteers, supported by a senior partner at the firm. O’Melvany is committed to continue representing the volunteers if the federal government appeals the decision to the Supreme Court.
The judge in the initial trail of the four volunteers sentenced them each to a $250 fine and 15 months of unsupervised probation. At the same time, federal prosecutors dropped the criminal charges against another group of volunteers accused of abandoning property in the refuge – also working for No More Deaths – following a settlement in which those volunteers agreed to pay fines of $250 each for civil infractions.
As the Tucson Sentinel reported on March 1, 2019, these prosecutions represented a change in attitude by federal authorities in the area, as part of a wave of arrests and prosecutions that included the human-trafficking charges against No More Deaths volunteer Scott Warren, who was found not-guilty by a jury following his second federal trial in November. His first trial had ended in a hung jury, after which federal prosecutors offered to sentence him to time served for the misdemeanor charges he had faced, and to dismiss the high-stakes felony trafficking charge, if he would plead guilty. Warren refused.
From the Sentinel:
While federal officials once attempted to prosecute a No More Deaths member in 2008 for littering in the Buenos Aires National Wildlife Refuge, another federal refuge managed by FWS — a conviction that was overturned two years later by the 9th Circuit Court of Appeals — up until recently, there has been a long standing détente between humanitarian groups and federal wildlife officers.
However, in 2016 federal officials increasingly began to interfere with the work of No More Deaths. In December 2016, security guards banned volunteers from the Barry M. Goldwater bombing range and the adjacent Cabeza Prieta refuge. Then, during the summer of 2017, Border Patrol agents raided the permanent No More Deaths camp near Arivaca, southwest of Tucson, after setting up a temporary checkpoint nearby and conducting surveillance on the camp.
Then, in July 2017, FWS cited Deighan’s group for entering Cabeza Prieta, and in August of that year, Hoffman’s group was cited and the food and water they hoped to leave was collected by FWS officers, and they were later cited. Then, in January 2018 just following the release of a NMD report that argued Border Patrol agents “are responsible for the widespread interference of essential humanitarian efforts” in the 800-square-mile corridor near Arivaca, Warren was arrested at the barn.
With this second high-profile loss in court and with the potential downside for the Trump agenda, some observers expect the U.S. Attorney for Arizona to forgo an appeal to the Supreme Court rather than risk the further establishment of the RFRA as a shield for activists. Other expect a brawl in the press and the courts to build as the presidential election approaches, and the Trump/Pence ticket bets more on their anti-migrant agenda.