The final criminal charge brought against nine border-aid volunteers in Southern Arizona was dismissed Thursday, closing out a series of cases that led borderland humanitarian groups to fear they might be dismantled by federal agencies.
Instead, the cases against volunteers with Tucson-based No More Deaths ended with an acquittal by a jury, four convictions overturned by a judge, a case dismissed at the request of prosecutors, and four civil infractions that each carried $280 fines.
“This case has gone on for 2½ years and it ended with the government throwing in the towel at the very last second,” said Greg Kuykendall, one of the pro bono lawyers representing the last defendant, Scott Warren, whose case was dismissed Thursday.
Warren, a teacher with a doctorate in geography, was convicted in November of a misdemeanor charge of driving a vehicle in a wilderness area in June 2017. He and other No More Deaths volunteers were leaving water and food for migrants in remote areas of the Cabeza Prieta National Wildlife Refuge about 150 miles southwest of Tucson.
Warren was set to be sentenced Thursday morning, but federal prosecutors asked U.S. District Judge Raner C. Collins on Wednesday evening to dismiss the case with prejudice. That means it cannot be refiled.
During a brief hearing Thursday morning, Collins granted the prosecutors’ request and dismissed the case.
“We celebrate another victory today and we celebrate the overwhelming support of our Southern Arizona community,” Paige Corich-Kleim, a spokeswoman for No More Deaths, said after the hearing.
“But this is not over. We will continue to find ways to intervene and reduce harm in the borderlands,” Corich- Kleim said.
Prosecutors did not say at the hearing why they asked for the case to be dismissed.
In an interview Thursday, U.S. Attorney Michael Bailey said his office was going to “take a step back” after a federal judge in Tucson overturned four convictions of No More Deaths volunteers earlier this month. The judge said she found they acted according to sincere religious beliefs.
Bailey cautioned that “nobody should look at this as an opportunity to break the law.”
He did not object to giving water to thirsty people, but he said federal prosecutors in Arizona will “continue to vigorously prosecute people whose true intent is to assist immigrants in evading authorities, regardless of whether they call it humanitarian aid.”
Bailey said the request to dismiss the Warren case was made in light of the overturned convictions as well as a desire to stay “consistent” with how his office prosecuted misdemeanor cases related to leaving water for migrants or entering federal land without a permit.
From left to right, attorneys Greg Kuykendall and Amy Knight, defendant Scott Warren and Paige Corich-Kleim, a spokeswoman for No More Deaths, talk to reporters.
Earlier this month, U.S. District Judge Rosemary Marquez reversed the convictions of four No More Deaths volunteers after she found they were acting according to sincere religious beliefs. They were charged with misdemeanors related to leaving aid supplies on the Cabeza Prieta refuge in 2017.
Marquez wrote that 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,” Marquez wrote.
“This gruesome logic is profoundly disturbing,” she wrote.
The U.S. Attorney’s Office did not agree with Marquez’s decision and is still evaluating whether to appeal, Bailey said.
Kuykendall said after Thursday’s hearing that “it was pretty clear they would fail on appeal” in Warren’s case.
“The law is humanitarian aid is not a crime. Scott’s not guilty and they recognized that that was going to be writ large by the 9th Circuit if they continued their prosecution of Scott,” Kuykendall said.
In terms of leaving water, “I think people probably feel more comfortable about it, but it doesn’t mean they won’t get cited and have to go through the same process,” Corich-Kleim said.
The freedom-of-religion protection applies to individual cases, and although the recent cases “set good precedent,” they “don’t completely define everything,” she said.
Warren would not comment after Thursday’s hearing. He was acquitted in November of felony charges of harboring two Central American migrants who spent several days at an aid station in Ajo.
The charge of driving on the refuge was dismissed Thursday. In November, a separate charge of abandoning property, in his case leaving food and water there, was dismissed by Judge Collins, who said Warren showed he was acting according to his religious beliefs.
Four other No More Deaths volunteers pleaded guilty in early 2019 to civil infractions of entering a wildlife refuge without a permit and each paid $280 in fines. Their pleas came after they struck a deal with prosecutors, who initially charged them with misdemeanors.
