When Scott Daniel Warren was arrested last year after allegedly providing food, water, beds and clean clothes to undocumented immigrants near Arizona’s Sonoran Desert, the question was whether he had broken the law or upheld it.
The government, however, sees Warren, 36, as a felon. Arrested by Border Patrol agents in January 2018 at a property offering aid for immigrants in Ajo, Ariz., he was accused of helping border-crossers evade authorities, which is prohibited under federal law.
The activist faced up to 20 years in prison on charges of harboring and conspiring to transport undocumented immigrants.
At his trial, which began last month, a federal jury in Tucson was presented with two different versions of the accused. Had he acted on “basic human kindness,” providing only the necessities enabling migrants to survive, as his lawyer contended? Or had he aided and abetted those making a mockery of the nation’s immigration laws? Of the migrants he assisted, “They were not injured,” a federal prosecutor said, according to the Associated Press. “They were not sick. They were not resting and recuperating.”
Deciding who Warren is and what he did proved a task too tortuous for jurors, who said on Tuesday they remained deadlocked in their deliberations and could not reach a unanimous verdict.
The judge, Raner C. Collins, dismissed them and scheduled a status hearing in the case for July 2. The U.S. attorney’s office in Arizona did not immediately indicate whether it would seek another trial.
Addressing reporters outside the courthouse, Warren called on Americans to link arms with immigrants, a stance that activists claim is being criminalized as part of the Trump administration’s hard-line approach to border control. The geography instructor is one of numerous members of the “No More Deaths” group who have run afoul of law enforcement for trying to assist migrants in recent years. He is the first, however, to be tried on felony charges.
Since his arrest, Warren said, “at least 88 bodies were recovered from the Ajo corridor of the Arizona desert.” The government’s response, he added, amounted to “policies to target undocumented people, refugees and their families, prosecutions to criminalize humanitarian aid, kindness and solidarity.”
Thousands of migrants have perished in the desert region since President Bill Clinton’s 1994 Border Patrol strategy, known as “prevention through deterrence,” closed off major urban entry points, shifting journeys to more perilous locations.
No More Deaths emerged in 2004 as a coalition of community and faith groups dedicated to shielding migrants from punishing conditions in the desert. Since 2008, it has been an official ministry of the Unitarian Universalist Church of Tucson. Its aim, the group says, is to “uphold fundamental human rights.”
In addition to leaving water, food, socks, blankets and other supplies in the remote corners of Arizona’s deserts, No More Deaths also seeks to “document the abuse, neglect, and mistreatment endured by detainees in short-term Border Patrol custody as well as in the immigration-detention system.” Six migrant children have died since December after being taken into custody by federal authorities.
The group conducts its work from a small building in Ajo known as “the Barn,” about 35 miles from the border. Federal agents began surveilling the headquarters in January 2018, according to court documents.
Days before the surveillance began, two migrants — Kristian Perez Villanueva of El Salvador and Jose Sacaria Goday of Honduras — had crossed the border near the Mexican town of Sonoyta, they said in a deposition. They trekked through the desert, arriving at a gas station where a stranger offered to drive them to a better location. Authorities identified the driver as Irineo Mujica, the director of Pueblo Sin Fronteras, a migrant rights group that has organized caravans from Central America to the United States. Mujica was arrested last week in Mexico, in a move that his organization says is an attempt by the Mexican government to appease Trump.
Mujica took them to the Barn, according to court records. There was no one on the premises, but the two men were able to find their way into a bathroom on the site. When Warren discovered them about 40 minutes later, the men said they were cold and tired, requesting food and water, as well as a place to rest, as detailed in court records. Warren provided that aid and, according to defense counsel, never hid the men or encouraged them to make an unlawful entry.
During surveillance of the site, agents observed Warren standing outside the Barn, appearing to provide directions to the migrants, though authorities acknowledge they could not hear what he was saying. Agents approached the building. Warren told them to leave, but they determined that the two migrants who had been conversing with the aid worker were in the country illegally, according to court documents, and proceeded to arrest all three men.
The judge rejected pretrial motions from Warren’s defense attorney, Gregory J. Kuykendall, to dismiss the charges. Kuykendall argued that the arrest of his client represented selective enforcement of the laws, based on “discriminatory retaliation,” in violation of the right to equal protection guaranteed by the 14th Amendment. He observed that Border Patrol officials arrested the No More Deaths volunteer on the same day that the activist group released a report criticizing the agency, which included “video footage of agents behaving cruelly and unprofessionally.”
Kuykendall also failed to convince the court that prosecution would endanger his client’s religious freedom — his adherence to Christian principles compelling him to “provide emergency aid to fellow human beings in need.”
The government answered that its actions had neither discriminatory intent nor impact. Instead, U.S. attorneys maintained that the sting was aimed simply at enforcing criminal law.
Enforcement of the harboring statute was stepped up in 2017 at the direction of then-Attorney General Jeff Sessions, who ordered federal prosecutors to prioritize “any case involving the unlawful transportation or harboring of aliens.”
Niels W. Frenzen, the director of the immigration clinic at the University of Southern California Gould School of Law, said the directive from Sessions brought to a head the conflict between immigration enforcement and a sanctuary movement that reaches back to the 1980s. While maintaining a spiritual element, the movement has become more political and less religious, he noted, especially as the Trump administration draws stark battle lines on immigration.
The trial of the 36-year-old activist spurred protests outside the courthouse. A petition circulated.
The case also drew global attention, as United Nations human rights experts called on American authorities to drop the charges.
“Providing humanitarian aid is not a crime,” the U.N. officials said, pointing to the hazards of Arizona’s migrant corridors, which account for over a third of the more than 7,000 border fatalities recorded over the last 20 years.
The contest has parallels in other Western countries, where the tension between nativism and humanitarian obligation has become just as acute.
Last year, France’s highest constitutional court ruled that an olive farmer had not committed a crime when he smuggled dozens of migrants into the country — a more defiant act than the one Warren’s attorney says he took.
The dissident farmer was protected, the judicial body said, by the “principle of fraternity” enshrined in the French constitution. The finding reversed a judgment from a lower court, which had ordered him to pay a fine of more than $3,000.
Still, other European states are pressing ahead with criminal proceedings against people who endeavor to protect migrants. Pia Klemp, a German boat captain, said in an interview last week with the Swiss newspaper Basler Zeitung that she was preparing to stand trial in Italy for coming to the aid of asylum seekers in the Mediterranean Sea. More than 80,000 people have signed an online petition calling on Italy to drop the charges against her and other crew members.
Most courts in the United States require the government to prove an element of intent in proceedings under the harboring statute, Frenzen said. In addition to technical acts of shelter, he said, a defendant typically must be “trying affirmatively to prevent officials from detecting the migrants.”
At least one juror may have been unconvinced that the prosecution had proven this element of its case, thwarting a unanimous verdict, the law professor said.
So, too, he allowed, it was “very possible” that the decision not to convict arose from “jury nullification,” when jurors believe that a defendant is guilty but refuse to deliver such a verdict, deciding that the underlying law is unjust.