blog # 26

​Dear Friends,

In this blog, I am providing you with a truncated (by me) version of the verdict in federal District Court in Tucson last week reversing the conviction of four No More Deaths volunteers. As you will read, they were convicted earlier in 2019 for placing water and food near Ajo, Arizona for migrants traveling north through the most deadly area of the Sonoran Desert.

I have used ellipses (...) to indicate where material has been omitted. If you want to quote from or refer to the verdict, I suggest you go to the original court document. The underlining is mine to highlight important information.

TRUNCATED BY SUE LEFEBVRE, 2-8-2020
ORDER NO.  CR-19-00693-001-TUC-RM (PARTIAL)
 

1. INTRODUCTION

 
Defendants Natalie Hoffman, Oona Holcomb, Madeline Huse, and Zaachila Orozco-McCormick (collectively “Defendants”) appeal from convictions for violations of the regulations governing the Cabeza Prieta National Wildlife Refuge (“the CPNWR” or “the Refuge”). 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. Defendants, who are volunteers with a charitable organization affiliated with the Unitarian Universalist Church, admit the factual allegations made by the Government. 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, 42 U.S.C. § 2000bb et seq. (“RFRA” or “the Act”). The Court finds that Defendants demonstrated that their prosecution for this conduct substantially burdens their exercise of sincerely held religious beliefs, and that the Government failed to demonstrate that prosecuting Defendants is the least restrictive means of furthering any compelling governmental interest.  

II. FACTUAL BACKGROUND
​On August 13, 2017, Defendants entered the CPNWR, drove down a restricted-access road, and left bottles of water and cans of food at several pre-selected locations along foot trails used by people entering the United States unlawfully. Fish and Wildlife (“FWS”) Officer Michael West encountered Defendants, who admitted that they did not have a permit to be on the CPNWR. Officer West directed Defendants to exit the Refuge, which they did. No citations or notices of violation were issued at that time.
  
Defendants are volunteers with “No More Deaths/No Más Muertes,” a “faith-based organization” and “ministry of the Unitarian Universalist Church of Tucson.” A founding volunteer of that organization testified that No More Deaths is a “humanitarian aid organization” that was founded in 1999 (actually, 2004—editor SL)“ to provide food and water and medical care in the desert.” At that time, increased immigration enforcement in Texas and California began to “funnel the migration pattern right through the Tucson sector of the border,” leading to large numbers of unauthorized migrants dying while attempting to cross the remote desert wilderness of southern Arizona on foot.

According to the Pima County Medical Examiner, 2,816 sets of “undocumented border crosser remains” were recovered in Arizona between the years 2000 and 2017.* No More Deaths began tracking those deaths and leaving jugs of water in areas where human remains had been recovered.
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The month before Defendants entered the CPNWR without a permit, the permit application was amended to specifically prohibit the leaving of “water bottles, water containers, food, food items, food containers, blankets, clothing, footwear, [and] medical supplies” on the CPNWR.
 
*This figure reflects only the number of recovered sets of human remains. Testimony introduced at trial suggested that remains are recovered for as few as one in ten migrants who die in this unpopulated area.
 
III.      PROCEDURAL BACKGROUND
On December 6, 2017, Defendants were charged by criminal information with entering the CPNWR without a permit in violation of 50 C.F.R. § 26.22(b) and abandoning property in violation of 50 C.F.R. § 27.93. (Doc. 1.) Defendant Hoffman was also charged with driving in a wilderness area in violation of 50 C.F.R. § 35.5. (Id.) 
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Defendants are volunteers with “No More Deaths/No Más Muertes,” a “faith-based organization” and “ministry of the Unitarian Universalist Church of Tucson.” A founding volunteer of that organization testified that No More Deaths is a “humanitarian aid organization” that was founded in 1999 “to provide food and water and medical care in the desert.” At that time, increased immigration enforcement in Texas and California began to “funnel the migration pattern right through the Tucson sector of the border,” leading to large numbers of unauthorized migrants dying while attempting to cross the remote desert wilderness of southern Arizona on foot. According to the Pima County Medical Examiner, 2,816 sets of “undocumented border crosser remains” were recovered in Arizona between the years 2000 and 2017.[1] No More Deaths began tracking those deaths and leaving jugs of water in areas where human remains had been recovered.

The CPNWR, which is in southwestern Arizona, shares a 56-mile border with Sonora, Mexico. Visitors are required to obtain permits and sign a hold harmless agreement to enter the Refuge. The hold harmless agreement describes the Refuge as “one of the most extreme environments in North America,” and warns that the area “contains no sources of safe drinking water.” The CPNWR contains numerous trails used by migrants, and, according to the Pima County Medical Examiner, 32 sets of human remains were recovered from the CPNWR in 2017 alone. (Tr. Ex. 133.) Those deaths are despite the presence of “rescue beacons” installed and operated by the United States Border Patrol.
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RFRA provides “very broad protection for religious liberty” by exempting religious believers from laws that substantially burden the exercise of their religious beliefs. Burwell  v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014). 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. An RFRA claim may be brought as an affirmative defense to criminal charges. United States  v. Christie, 825 F.3d 1048, 1065 (9th Cir. 2016). 
 
*The Court is not convinced that the sufficiency-of-evidence standard proposed by the Government is applicable here, as Defendants do not challenge whether the Government established the elements of the regulatory violations for which they were convicted but, instead, challenge Magistrate JudVelasco’s rejection of their RFRA defense. To succeed on their RFRA defense, Defendants bore the initial burden of demonstrating that their prosecution substantially burdened their sincere religious exercise. As Defendants bore that burden, the Court cannot evaluate the “sufficiency” of the Government’s evidence.
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To succeed on a RFRA defense, a claimant must first make two showings: (1) governmental action burdens a sincere “exercise of religion” and (2) the burden is “substantial.” A RFRA claim that does not establish these two elements fails. If a claimant does demonstrate a substantial burden on her sincere exercise of religious belief, a court must find a RFRA violation unless the Government demonstrates that “application of the burden to the person” both (1) “furthers a compelling governmental interest” and (2) “is the least restrictive means of furthering that compelling government interest.”

A.          Sincere “Exercise of Religion” under RFRA
 To prevail on their RFRA defense, Defendants must first demonstrate that they are being prosecuted for actions that constitute a sincere “exercise of religion.” Although Defendants do not claim to be members of mainstream or traditional congregations, they do argue that their volunteer activities with No More Deaths are exercises of sincerely held religious and spiritual beliefs.

The Supreme Court has long recognized that “a determination of what is a ‘religious’ belief or practice” is “a most delicate question[.]” The Court’s analysis cannot “turn upon a judicial perception of the particular belief or practice in question.” Beliefs do not need to be “acceptable, logical, tent, or comprehensible to others” to constitute religious beliefs. “[R]eligious experiences which are as real as life to some may be incomprehensible to others.”

In determining whether a set of beliefs should be protected as “religious,” the Ninth Circuit has analyzed “whether the beliefs professed … are sincerely held and whether they are, in [a claimant’s] own scheme of things, religious.” ‘Religious’ beliefs, then, are those that stem from a person’s ‘moral, ethical, or religious beliefs about what is right and wrong’ and are ‘held with the strength of traditional religious convictions.’”
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The Court finds that the proper standard to apply here is whether the beliefs professed are sincerely held and whether they are, in Defendants’ own scheme of things, religious. Defendants here are volunteers with an organization, No More Deaths, which is a “ministry” of the Unitarian Universalist Church of Tucson and a faith-based organization that was founded by religious leaders. The body camera footage of the FWS Officer who encountered the Defendants on the CPNWR shows that the Defendants immediately identified themselves as “from the Church in Tucson.” (The truck Defendants were driving was registered to the Unitarian Universalist Church. 

Reverend John Fife, a retired Presbyterian minister and “founding volunteer” of No More Deaths, testified that “the life of faith is not simply a matter of belief or creed,” but is fundamentally “a matter of what you do in relationship to those who are in most need.” He explained that this belief flows, in part, from the New Testament parable that describes Jesus’ teaching at the Last Judgment that, “I was hungry, I was thirsty, I was naked, I was in prison, I was an alien, and as you do it to least of these, my brothers and sisters, you do it to me.” Volunteers therefore exercise their “faith out there in the desert through No More Deaths” by providing “humanitarian aid directly where most of the death [is] occurring in the desert.” The “faith basis” of No More Deaths and “the spirituality and the spiritual principles that have founded [that] organization and formed that community” is made “very clear” in No More Deaths’ volunteer training.
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Additionally, the nature of Defendants’ conduct itself suggests sincerity.  Defendants were convicted for activities that included hiking food and water into a rugged, unforgiving wilderness during Southern Arizona’s extreme August heat. The temperature at the time of the Defendants’ conduct was over 100 degrees Fahrenheit.6 As one Defendant testified, providing aid in this environment was “incredibly straining on the body” because  “at that temperature . . . you’re dehydrated just by being there” and so “your brain is kind of fuzzy” and it is “hard to think clearly.” As another described the heat: “I mean, it’s exhausting. It’s heavy. Like, it feels like . . . a blanket. There’s nowhere to hide from the sun.”  As another put it: “[H]iking around in 110 degrees is not what I want to be doing with my time, but I do it because I feel the need to and obligated to be there and do my part.”*
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*There was a dispute at trial whether the temperature at the time was 102 degrees or 110 degrees.religious objection to taking an oath of honesty was sincere in his religious beliefs.  The Court explained that the claimant’s choice not to testify in his defense, notwithstanding his professed innocence, suggested “the sincerity of true religious conviction.” As in Ward, Defendants’ willingness to suffer for their beliefs likewise suggests such sincerity. The Government has not identified any evidence in the record that would support a conclusion that Defendants are “patently devoid of religious sincerity[.] ”The Court concludes that Defendants’ beliefs are sincerely held.
 
Consideration of sincerity, which is a question of fact, should include consideration of Defendants’ “credibility and demeanor” while testifying. Magistrate Judge Velasco heard testimony from each Defendant as to her beliefs and did not express any reservations about Defendants’ sincerity. Because the Court concludes that, on this record, it would find clear error even if Judge Velasco had made an adverse credibility finding and found Defendants insincere, the Court need not remand for additional factual findings. 

 B.       Substantial Burden
To claim an exemption under RFRA, Defendants must demonstrate that enforcement of the CPNWR regulations “substantially burden[s]” the exercise of their religious beliefs. A substantial burden exists “when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit” or when a believer is “coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” The substantial burden inquiry must not stray into a judgment as to whether a claimant’s beliefs are reasonable. See e.g., Hobby Lobby, 573 U.S. at 724 (explaining that “whether the religious belief asserted in a RFRA case is reasonable” is a “very different question that the federal courts have no business addressing”); Smith, 494 U.S. at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim”). 
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The evidence introduced at trial showed that 32 sets of human remains were recovered from the CPNWR during 2017 alone. Defendants are charged with conduct that took place in August, when the chance of death was highest due to the extremely high temperatures. Given Defendants’ professed beliefs, the concentration of human remains on the CPNWR, and the risk of death in that area, it follows that providing aid on the CPNWR was necessary for Defendants to meaningfully exercise their beliefs.  

Finally, the Government argues that Defendants’ admitted failure to obtain a permit bars them from bringing a RFRA challenge. However, it is undisputed that the amended permit application explicitly prohibited leaving food and water on the CPNWR. The regulation that Defendants are charged with violating, requires a CPNWR entrant to (1) obtain a permit and (2) follow the permit’s terms and conditions. Defendants could not have exercised their religious beliefs by leaving food and water on the CPNWR without violating the permitting regulation— either by not obtaining a permit or alternatively by not adhering to the permit’s terms and conditions. Because obtaining permits would not have allowed Defendants to lawfully conduct the activities for which they are being prosecuted, Defendants were not required to apply for permits to claim a RFRA exemption. Supp. 2d 1081, 1085 (N.D. Cal. 2008) (“[W]here it would have been futile to apply for a permit, that person need not apply for a permit to bring a RFRA challenge.”

The Court concludes that the prosecution of Defendants for these 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. 

C.        Compelling Interest
The Government argues on appeal that the burden on Defendants’ religious exercise is justified by a “compelling interest” in furthering “the national decision to maintain [the CPNWR] in its pristine nature.” The Government, however, has not established that providing an exemption to Defendants would frustrate that interest. The evidence at trial established that the CPNWR is a former active military bombing range that has unexploded munitions strewn about. The Refuge is currently both a corridor for unlawful entry into the United States which produces significant amounts of garbage and also a site of significant law enforcement activity, which takes its own environmental toll.

In other words, as Magistrate Judge Velasco found, the CPNWR is “littered with unexploded military ordinance, the detritus of illegal entry into the United States, and the on-road and off-road vehicular traffic of the U.S. Border Patrol efforts to apprehend illegal entrants/undocumented immigrants.” Given this context, the Government cannot claim a compelling interest in “maintain[ing]” the CPNWR as “pristine.”    The Court agrees the Government has a compelling interest in maintaining the environmental conditions on its public lands. But in the RFRA context, the compelling interest inquiry requires the Government to demonstrate a compelling interest in “the application of the challenged law to the person—the particular claimant whose sincere exercise of religion is being substantially burdened.” See Hobby Lobby, 573 U.S. at 726 (internal quotation marks and citations omitted). Particularly given the conditions on the CPNWR, the Government has failed to articulate any “marginal” compelling interest, beyond its general interests, in enforcing the CPNWR regulations against these “particular” Defendants..  

Moreover, the record shows that Defendants’ conduct does not have significant negative effects on the environmental conditions of the CPNWR. Any environmental damage caused by the “abandoning” of food and water is mitigated by Defendants’ practice of bringing garbage bags and picking up as much trash as possible. As one Defendant explained: “[O]ur packs are empty by the time we get there, and we replace that with the garbage that’s around the area, and it’s not always necessarily our garbage either.” Defendants’ testimony on this point is supported by FWS Officer West’s body camera footage, which shows at least one Defendant removing empty, crushed water bottles from her backpack upon returning to the truck.

Nor has the Government shown that Defendant Hoffman’s driving on a pre-existing “administrative” road in order to reach a remote area of the Refuge has a significant negative impact on the CPNWR. It is not alleged that Defendants ever went off-road in a vehicle. In contrast, Border Patrol and other law enforcement officers go off-road into the wilderness on the CPNWR with some regularity. Members of the public are also regularly granted permission to drive on restricted-access roads for research or other purposes. Given these exemptions, the Government cannot claim a compelling interest in uniform prevention of access to these roads. (finding that exemptions in Controlled Substances Act undercut an asserted compelling interest in uniform application of that law). 

 No more persuasive is the Government’s argument that “permitting an exemption for these four defendants” would “quickly lead” to a flood of religious objections. The Supreme Court has squarely rejected such “slippery slope” concerns, noting that such concerns “could be invoked in response to any RFRA claim for an exception to a generally applicable law.” The slippery-slope argument fails in the RFRA context, where a “case-by-case” application of the statutory test is required to determine whether, in a particular instance, a law of general applicability must give way to an individual’s free exercise of their religion.

The Government has also asserted a compelling governmental interest in “enforcing the border and controlling immigration.” Although Defendants were not charged with any immigration-related offense, the Government nonetheless claims that Defendants’ actions “furthered and encouraged illegal smuggling activity in the CPNWR.” 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. In other words, the Government claims a compelling interest in preventing Defendants from interfering with a border enforcement strategy of deterrence by death. This gruesome logic is profoundly disturbing. It is also speculative and unsupported by evidence.

As discussed above, 32 sets of human remains were recovered from the Refuge in 2017 alone, and the Government produced no evidence that these fatalities had any effect in deterring unlawful entry. Nor has the Government produced evidence that increasing the death toll would have such an effect. 

The Court concludes that the Government failed to demonstrate that it furthered any compelling interest by prosecuting Defendants.
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D.        Least Restrictive Means
 Even if the Government had established a compelling interest, it did not show that it cannot further that interest while accommodating Defendants’ religious beliefs.   “The least-restrictive-means standard is exceptionally demanding.” The Government “must demonstrate that ‘no alternative forms of regulation’ would” suffice to accomplish the Government’s compelling interest. This “focused inquiry” means that the Court may “not ease the government’s burden by rubber stamping vague or generalized arguments about means and ends.”

Defendants have suggested alternative means of maintaining the environmental integrity of the CPNWR while also allowing a religious exemption. For example, the Government “could allow these defendants to leave water and food at certain designated points on the refuge, so long as they maintained their practice of removing all trash they encountered on their hikes, including and especially used water bottles and food cans formerly left by No More Deaths volunteers.” The Government does not explain why such an arrangement would not allow it to achieve its interest in protecting the environmental integrity of the CPNWR. The Government states that Defendants’ “suggested alternatives do not address [harm to the CPNWR] in the slightest” but it fails to provide evidence or explanation of why this is so.   The Court concludes that the Government failed to demonstrate that the prosecution of Defendants is the least restrictive means of achieving a compelling governmental interest. 

 VI.      Conclusion

Defendants met their burden of establishing that their activities were exercises of their sincere religious beliefs, and the Government failed to demonstrate that application of the regulations against Defendants is the least restrictive means of accomplishing a compelling interest. Accordingly, the Court finds that application of the regulations against Defendants violates RFRA, and the Court will reverse Defendants’ convictions. 

            Accordingly, 

. . . .   IT IS ORDERED that Defendants’ convictions are reversed. The Clerk of Court shall randomly reassign this case to a magistrate judge for entry of a judgment of acquittal and vacatur of Defendants’ sentences. Any fines or fees paid by Defendants shall be returned to them, and Defendants’ probation shall be terminated. 
Dated this 31st day of January, 2020.

The Honorable Rosemary Marquez
United States District Judge

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