The pursuit of criminal charges against nine border-aid volunteers by federal prosecutors in Tucson is awakening dormant legal arguments after more than a decade of slumber.
At what point does humanitarian aid become human smuggling? Does religious freedom protect leaving food and water on federal land without a permit? Is aid work protected by international treaties on migrants’ rights?
Those questions are being hashed out in U.S. District Court in Tucson for the first time since 2006 as volunteers with Tucson-based No More Deaths face charges ranging from felony human smuggling in Ajo to misdemeanors for leaving food and water in the Cabeza Prieta National Wildlife Refuge.
Defense lawyers say the arrests were guided by animosity toward No More Deaths, rather than a legitimate law enforcement goal. Federal prosecutors argue the charges are based on clearly unlawful behavior, such as hiding suspected border-crossers from Border Patrol agents and failing to follow simple procedures for obtaining permits.
The backdrop to the arguments is a political environment that welcomes hard-line border enforcement, as well as the recovery of 105 human remains believed to belong to border crossers who have died in Southern Arizona this year.
Many of the remains consist of bones lying in the wilderness, Pima County Office of the Medical Examiner records show. Where cause of death could be determined, the most common causes were exposure to high temperatures or dehydration.
As judges weigh competing arguments about the specifics of each case, the larger question of why criminal charges were brought in December and January after years of relative détente between No More Deaths and federal agencies remains unclear, as does the future of humanitarian aid in Southern Arizona if any convictions occur.
Humanitarian work will continue “so long as there is a need along our southern border,” said Justine Schnitzler, a No More Deaths volunteer.
Outside the federal courthouse in downtown Tucson, volunteer Paige Corich-Kleim said she wants to “know the level of surveillance and reasons for targeting No More Deaths.”
“The government is sending the message that helping save lives is criminalized,” she said.
Meanwhile, signs are popping up at houses around Tucson in support of the No More Deaths volunteers, saying “Humanitarian aid is never a crime, Drop the charges.”
A spokeswoman with the Border Patrol’s Tucson Sector declined to comment, citing the ongoing prosecutions.
The allegations
In the Ajo case, Scott Warren, a 36-year-old volunteer with No More Deaths and former instructor at Arizona State University, is accused of harboring two illegal border-crossers in January as part of a human-smuggling conspiracy.
Warren’s lawyers say he was providing food and shelter to migrants in distress after they walked for days through the desert.
Warren also faces misdemeanor charges, accused of driving in the Cabeza Prieta National Wildlife Refuge and abandoning property there.
A U.S. Fish and Wildlife officer found water jugs and crates of food and supplies in the refuge on June 1, 2017. The officer then found a truck parked just off a road and spoke with Warren and three other people. Warren’s lawyers said he was leaving food and water for border-crossers in a remote and dangerous area.
Caitlin Deighan is accused of driving in a wilderness area on July 19, 2017. She and Zoe Anderson, Logan Hollarsmith and Rebecca Grossman-Reicheimer also face charges, accused of entering a wilderness area without a permit.
Their lawyers say a woman in Phoenix called a No More Deaths hotline and said two of her cousins and a friend were lost near Growler Valley, an area of the refuge where many remains of migrants have been found.
The volunteers called the Border Patrol, but agents didn’t respond for hours, their lawyers said. The volunteers went to the wildlife refuge to find the border-crossers and the Border Patrol later sent a helicopter. One of the lost men was never found.
Lawyers for Deighan and her co-defendants asked the court to dismiss the charges because the volunteers were acting out of necessity in a life-or-death situation.
Natalie Hoffman faces a charge of driving in a wilderness area on Aug. 13, 2017. She and Oona Holcomb, Madeline Huse and Zaachila Orozco McCormick are accused of abandoning property there and entering a wilderness area without a permit.
Their lawyers said they were leaving humanitarian supplies and would have obtained a permit if U.S. Fish and Wildlife Service hadn’t changed the permit rules earlier in 2017. The new rules specifically prohibited leaving food, water, blankets and medical supplies. The volunteers had obtained permits under the previous rules, but could not in good faith sign the new permits, their lawyers said.
All of the misdemeanor charges against No More Deaths volunteers were filed Dec. 6, 2017, several months after the alleged violations.
A list of citations issued by fish and wildlife officers at Cabeza Prieta between 2015 and 2018, obtained by the lawyers through a records request, showed the only citations referred for criminal prosecution were those involving No More Deaths. Another humanitarian aid group, Aguilas del Desierto, or Eagles of the Desert, was cited, but no criminal charges were filed.
Warren’s human-smuggling prosecution also is unique in Southern Arizona, where nearly all smugglers are accused of trying to turn a profit, according to a review by the Arizona Daily Star of 119 human-smuggling cases filed in U.S. District Court in Tucson during the first six months of 2018.
Prosecutors have made no allegation Warren was trying to make money by allowing the two men to stay at the Barn, a structure used by aid groups.
The Arizona Daily Star found only two other suspected human-smugglers in the first half of 2018 who were not accused of trying to turn a profit. In one case, a passenger in a car was not accused of trying to make money, but the driver was. In another case, a seasoned smuggler did not admit he was trying to turn a profit.
The bust of a stash house also is relatively rare in human-smuggling prosecutions. The Star found six cases in the first half of 2018 that involved stash houses. The rest involved drivers on highways or foot guides in the desert.
So far, nearly 80 human-smuggling defendants have been sentenced to terms ranging from time-served to three years in prison, court records show.
The arguments
At an Oct. 16 hearing, Warren’s lawyers accused the Border Patrol of “selective enforcement” by targeting No More Deaths for exercising First Amendment rights.
When two border-crossers showed up at the Barn, Warren allowed them to stay and gave them food and clothes.
Defense lawyer Gregory Kuykendall said agents set up surveillance of the Barn on Jan. 17 because of a “humiliating” report No More Deaths released that morning. The report claimed agents destroyed thousands of water jugs left for border-crossers. An accompanying video, viewed by more than 275,000 people that day, showed agents destroying the jugs or dumping them out.
Assistant U.S. Attorney Nathaniel Walters called the Barn a “stash house” — a comment that elicited exasperated sighs from the courtroom’s packed gallery — and said the Border Patrol started an investigation into possible illegal activity at the Barn in April 2017, months before No More Deaths issued its report on water jugs.
Border Patrol agents testified at hearings in June and July that they set up surveillance after learning two suspected illegal border-crossers were seen in Ajo. They also said Warren pointed out landmarks to guide the two men if they headed north.
Walters said the defense presented no evidence that the agents who arrested Warren had seen the video. Kuykendall countered that the reason he doesn’t have “direct proof is they’re stonewalling and won’t provide it.”
Kuykendall asked Magistrate Judge Bernardo P. Velasco to order the release of all communications among Border Patrol agents and other agencies related to the Jan. 17 arrest of Warren.
Velasco took the request under advisement.
In a separate motion, Kuykendall said the evidence gathered at the Barn should be thrown out because the search started after Warren told agents to leave and agents did not have a search warrant, as the Star reported in May.
Velasco recommended on Aug. 7 that Judge Raner C. Collins deny that motion, saying the Barn was a “good place to start an investigation” of a report that several suspected illegal border-crossers were in Ajo. When an agent looked through a window and saw a man run toward the back of the house and heard a door slam, Velasco wrote, it “enhanced” the agent’s assumption the man was in the country illegally.
As a caretaker and handyman, Warren had no expectation of privacy at the Barn and no right to deny agents entry, Velasco wrote.
Collins has not yet issued an order on that motion.
Warren’s lawyers also asked Velasco to dismiss two human-smuggling counts, arguing he was acting according to his sincerely-held beliefs that his actions were protected by religious freedom.
Warren testified in May his beliefs “compel him to act” to help people who may die in the desert near Ajo, where he has worked since 2013. He said his conscience is “what drives me to show up fully for those who are suffering.”
After reviewing Velasco’s recommendation to deny the request, Collins said in a Sept. 17 order that he agreed with Velasco that too many facts were still in dispute to grant the motion before trial, such as whether the two men needed humanitarian aid and whether Warren gave them directions to continue their illegal crossing.
At the Oct. 16 hearing, defense lawyer Amy Knight argued a treaty ratified by the United States protected the human rights of migrants and shielded those who provide humanitarian aid from prosecution.
The fact that more than 2,800 human remains have been found in the deserts of Southern Arizona since 2000 “establishes the need” for humanitarian aid, Knight said. If all Warren did was provide food, shelter, clothes and medical care, then that is humanitarian aid and is “never criminal.”
Prosecutor Anna Wright countered that the treaty was aimed at fostering cooperation among countries to fight transnational crime. The United States is still free to file criminal charges in immigration-related cases. She said the border-crossers showed no sign of needing medical care and Warren provided none.
Velasco took that motion under advisement.
