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Gregory J. Kuykendall, Bar # 012508

Amy P. Knight, Bar # 031374

KUYKENDALL & ASSOCIATES

531 S Convent Avenue

Tucson, AZ 85701

(520) 792-8033

greg@kuykendall-law.com

amyknight@kuykendall-law.com

Pro Bono Attorneys for Defendant Scott Daniel Warren

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

SCOTT DANIEL WARREN,

Defendant.

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No. 17-mj-00341-RCC(JR)

DEFENDANT’S TRIAL 

BRIEF/MEMORANDUM OF LAW 

REGARDING DEFENSES

CONTENTS

Introduction............................................................................................1

I. RFRA..................................................................................................2

II. Necessity.............................................................................................15

III. Lack of Notice.......................................................................................23

Conclusion..............................................................................................26

INTRODUCTION

Defendant Scott Warren submits this memorandum of law on his asserted defenses: the 

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (“RFRA”), necessity, and lack 

of notice under the Due Process Clause of the Fifth Amendment. This memorandum covers 

both the substantive contours of each defense and the procedures necessary to ensure Dr. 

Warren’s right to present these defenses fully while producing a complete record. Dr. 

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Warren specially requests that this Court “state its specific findings of fact in open court or 

in a written decision or opinion” regarding these defenses, pursuant to Federal Rule of 

Criminal Procedure 23(c). 

I. RFRA

“Congress enacted RFRA in 1993 in order to provide very broad protection for 

religious liberty.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014). RFRA 

provides that the government may not “substantially burden a person’s exercise of religion 

. . . unless the Government ‘demonstrates that application of the burden to the person—(1) 

is in furtherance of a compelling governmental interest; and (2) is the least restrictive means 

of furthering that compelling governmental interest.’” 42 U.S.C. § 2000bb-1(a), (b). RFRA 

can be raised as a “defense in a judicial proceeding,” including criminal proceedings. 42 

U.S.C. § 2000bb-1(c). 

A RFRA defense proceeds in two parts. Navajo Nation v. United States Forest Serv., 

535 F.3d 1058, 1068 (9th Cir. 2008). First, the defendant must show that the government has 

imposed a “substantial burden” on his religious exercise. Id. Second, if the defendant makes 

that showing, “the burden of persuasion shifts to the government to prove” that the 

imposition of the burden on the defendant satisfies strict scrutiny. Id. “If the government 

cannot so prove, the court must find a RFRA violation.” Id.

Here, the government has imposed a substantial burden on Dr. Warren’s sincere 

religious exercise by prosecuting him for his religious practice of traveling to remote 

locations where migrant deaths are known to have been concentrated, searching for human 

remains, and placing humanitarian aid supplies to prevent future deaths. And the government 

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cannot satisfy strict scrutiny, because it cannot show that declining to prosecute Warren 

would undermine a compelling governmental interest. And even if the government could 

show that allowing Dr. Warren an exception meaningfully undermines a compelling 

government interest, it cannot show that denying him that exception is the least restrictive 

means of protecting that compelling interest.

Procedurally and in order to make a clear record, this Court should take these two 

distinct parts one at a time. First, it should rule, at the close of Defendant’s case, on whether 

Dr. Warren has met his burden to show that the government has imposed a substantial burden 

on the exercise of his sincere religious beliefs. If it so finds, it should then provide the 

government with the opportunity, in its rebuttal case, to present evidence that its imposition 

of this burden on Dr. Warren satisfies strict scrutiny. Dr. Warren must then have the chance, 

in a surrebuttal presentation strictly limited to his RFRA defense, to present any additional 

evidence tending to establish that the government’s prosecution of him is not the least 

restrictive means of accomplishing the as-yet-unspecified compelling government interest. 

This procedure is necessary because the government is not expected to identify its 

compelling interest in its case in chief against Dr. Warren, nor present evidence concerning 

strict scrutiny, since it is the defendant’s case that triggers that burden. Accordingly, Dr. 

Warren cannot present any case challenging the as-yet-unidentified interest during his case 

in chief; he must instead be afforded the chance to do so after the government’s rebuttal 

case. For this reason the Court must clearly state, at the close of Defendant’s case, its finding 

as to whether Dr. Warren has made his prima facie case under RFRA.

A. The government has imposed a substantial burden on Dr. Warren’s religious 

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exercise.

To determine whether the government has imposed a substantial burden on a 

defendant’s religious exercise, a court must first identify the relevant religious exercise. 

RFRA defines a religious “exercise” to include “any exercise of religion, whether or not 

compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc5(7)(A). Accordingly, courts do not assess or weigh theological questions, such as whether 

a defendant’s religious beliefs are “mistaken or insubstantial,” Hobby Lobby, 573 U.S. at 

725; accord Oklevueha Native Am. Church of Haw., Inc. v. Lynch, 828 F.3d 1012, 1016 (9th 

Cir. 2016) (noting it is “of course correct” that “a court must not decide the plausibility of a 

religious claim”). Likewise, protected religious exercise under RFRA need not be 

“acceptable, logical, consistent, or comprehensible to others” United States v. Zimmerman, 

514 F.3d 851, 854 (9th Cir. 2007) (per curiam), and is “not limited to beliefs which are 

shared by all members of a religious sect.” Holt v. Hobbs, 135 S. Ct. 853, 862-63 (2015) 

(quoting Thomas v. Review Bd., 450 U.S. 707, 715-16 (1981)).1 Rather, the court’s role is 

limited to identifying “the precise scope” of a practice and asking whether it is motivated by 

a “religiously based” belief. Zimmerman, 514 F.3d at 854; see Hobby Lobby, 573 U.S. at 

725 (describing the “narrow function” to identify “an honest conviction” (citation omitted)).

Here, Dr. Warren’s religious practice consists of traveling to remote locations where 

migrant deaths are known to have been concentrated, searching for human remains, 

 1 Holt involved the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies 

“the same standard as set forth in RFRA.” Holt, 135 S. Ct. at 860 (quoting Gonzales v. O Centro 

Espírita Beneficente Uniõ do Vegetal, 546 U.S. 418, 436 (2006)).

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notifying authorities of those remains,2 and placing humanitarian aid supplies to prevent 

future deaths. He has identified this practice as deriving from a religious belief that all beings 

and things have a life force owed dignity and respect, and that dignity and respect for living 

beings requires the provision of assistance to those in immediate need. Any challenge the 

government may mount to the religious nature of Dr. Warren’s belief is misplaced. Appellate 

courts consistently conclude religion is not defined by theism, but by “‘address[ing] 

fundamental and ultimate questions having to do with deep and imponderable matters’” and 

“often . . . address[ing] a reality which transcends the physical and immediately apparent 

world” such as “souls.” United States v. Meyers, 95 F.3d 1475, 1483 (10th Cir. 1996) 

(quoting Africa v. Com. of Pa., 662 F.2d 1025, 1032 (3d Cir. 1981)). 

Notably, a belief does not lose its religious character merely because it coincides with 

a particular political belief. Rigdon v. Perry, 962 F.Supp.150, 164 (D.D.C. 1997) (priest’s 

“desire to urge his Catholic parishioners to contact Congress on legislation that would limit 

what he and many other Catholics believe to be an immoral practice—partial birth 

abortion—is no less religious in character than telling parishioners that it is their Catholic 

duty to protect every potential human life by not having abortions and by encouraging others 

to follow suit.”); see also Hobby Lobby, 537 U.S. at 721 (opposition to provision in 

healthcare law recognized as religiously motivated regardless of whether others hold similar 

views for non-religious reasons). 

In addition to identifying the religious practice, courts may in some cases be called

 2 This practice permits the proper recovery of the remains by law enforcement personnel, which facilitates their identification and allows the notification of loved ones who may then 

obtain some degree of solace and closure, as well as dignified burial.

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upon to determine whether the religious motivation for a particular practice is “sincerely 

held.” Zimmerman, 514 F.3d at 854; see Holt, 135 S. Ct. at 862-63 (religious exercise “must 

be sincerely based on a religious belief and not some other motivation”). The question in the 

sincerity inquiry is not whether the religious belief is “tru[e],” but whether it is “truly held.” 

Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (RLUIPA) (citation omitted). That is, 

RFRA defendants do not receive protections when their alleged religious motivation is 

“obviously [a] sham[],” AA ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 701 F. Supp. 

2d 863, 876 (S.D. Tex. 2009) (citing Wisconsin v. Yoder, 406 U.S. 205 (1972)), aff’d, 611 

F.3d 248 (5th Cir. 2010), or where the conduct is rooted in “‘purely secular’ philosophical 

concerns,” Zimmerman, 514 F.3d at 853 (citation omitted); see also Betenbaugh, 611 F.3d 

at 261 (noting that in the sincerity inquiry, “courts are reticent to draw a line” based on their 

own expectations of the ordinary expression of a religious belief). But even practices with 

mixed secular and religious motives can be sincerely religious. See Hobby Lobby, 573 U.S. 

at 721 (rejecting the view that RFRA-invoking objectors to regulation could alternatively 

comply with law by dropping health insurance for all employees, when their provision of 

coverage was due to both “religious beliefs” and “conventional business reasons”).

Finally, once the court has identified a sincere religious practice, it must determine 

whether the government has imposed a “substantial[ ] burden” on that practice. 42 U.S.C. 

§2000bb-1(a). In the Ninth Circuit, a “substantial burden” occurs “when individuals are 

forced to choose between following the tenets of their religion and receiving a governmental 

benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or 

criminal sanctions (Yoder).” Navajo Nation, 535 F.3d at 1069-70. The latter is most relevant 

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here. In Wisconsin v. Yoder, the government required Amish parents to send their children 

to high school or else face a $5 criminal fine. 406 U.S. at 208. The Court held that this 

“severe” and “inescapable” burden “affirmatively compel[led]” Amish parents to violate 

their religious beliefs. 406 U.S. at 218; see also United States v. Antoine, 318 F.3d 919, 921-

23 (2003) (finding “the burden on religion is inescapable” where act with ‘religious 

significance” faced penalty of fine up to $5,000, jail up to a year, or both); Warsoldier v.

Woodford, 418 F.3d 989, 996 (9th Cir. 2005) (reduced prison privileges and “additional duty 

hours” qualified as a “substantial burden” where “punishments [served] to coerce a religious 

adherent to forgo her or his religious beliefs”).

Dr. Warren faces a far more significant burden on his religious exercise than the 

parents in Yoder. He faces prison time of up to a year as well as hundreds of dollars in fines, 

see 16 U.S.C. § 668dd(f)(2). That easily qualifies as a substantial burden. See Antoine, 318 

F.3d at 923 (maximum of a year in jail “inescapabl[y]” a substantial burden); Navajo Nation, 

535 F.3d at 1070 (“threat of civil or criminal sanctions” suffices, as with Yoder’s $5 fine).

It is no answer for the government to say that Dr. Warren can still practice his religion 

in other ways, such as by searching for human remains in areas accessible on foot or by 

supporting other methods of saving migrant lives. In Holt, for example, a Muslim prisoner 

requested permission to grow a half-inch beard. 135 S. Ct. at 861. Although the prison denied 

his request, the District Court found there was no substantial burden because “he had been 

provided a prayer rug and a list of distributors of Islamic material, he was allowed to 

correspond with a religious advisor, and was allowed to maintain the required diet and 

observe religious holidays.” Id. at 862. The Supreme Court rejected that argument, 

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explaining that whether an individual is “able to engage in other forms of religious exercise” 

has no relevance to whether the government has “substantially burdened” the specific 

religious practice at issue in a case. Id.; accord Oklevueha, 828 F.3d at 1017 (availability of 

“other forms of religious exercise” does not affect RFRA analysis (citation omitted)). 

So too here. Dr. Warren faces criminal prosecution for his specific religious practice 

of traveling to remote locations where he knows migrant deaths to have been concentrated, 

searching for human remains, and placing humanitarian aid supplies to prevent future deaths. 

That is a substantial burden even if the practice is not compelled by his faith or the only way 

to live out his beliefs. See 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A) (protecting religious 

practices “whether or not compelled by, or central to, a system of religious belief”); Holt, 

135 S. Ct. at 862 (“error” to find a burden insubstantial because petitioner testified that “his 

religion would ‘credit’ him for attempting to follow his religion, even if that attempt proved 

to be unsuccessful” due to government restrictions). Thus, under Holt, the government may 

not justify imposing restrictions that deprive Dr. Warren of his particular religious practice

simply because the belief system accommodates doing the best he can within the restrictions 

the government imposes on him. 

Further, it would be incorrect to say that Dr. Warren could have avoided the sanction 

had he applied for a special use permit to drive on limited access roads. The evidence 

establishes that representatives of No More Deaths specifically requested permission from 

the Fish and Wildlife Service to undertake these very actions (driving on administrative 

roads for the recovery of human remains, as well as placement of life-saving supplies) just 

over a month before Dr. Warren was stopped in the refuge. As the Refuge Manager testified 

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this past January, he firmly denied this permission. Dr. Warren thus faced a choice when 

undertaking his religiously motivated work in the refuge: he could either turn back when

reaching the wilderness boundary, limiting himself to accessing by foot an area where

human remains had rarely been found and virtually guaranteeing that his efforts would be 

ineffective, or he could continue on, using the truck that was necessary to carry supplies 

across several extremely rugged miles of administrative road in the June desert heat to the 

area where the deaths were clustered, but risk criminal prosecution. That forced choice is 

the epitome of a substantial burden.

B. The government cannot satisfy strict scrutiny.

Once Dr. Warren has shown a substantial burden on his religious exercise, the burden 

shifts to the government to prove that burdening his religious exercise is the “least restrictive 

means of advancing a compelling interest.” O Centro, 546 U.S. at 423 (citing 42 U.S.C. § 

2000bb-1(b)). This is “the most demanding test known to constitutional law.” City of Boerne 

v. Flores, 521 U.S. 507, 534 (1997). This test has several components.

1. The government cannot show that this prosecution furthers a compelling 

interest.

First, the government must identify a “compelling” interest. A compelling interest is 

an interest “of the highest order.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 

508 U.S. 520, 546 (1993) (citations and alterations omitted). A “law cannot be regarded as 

protecting an interest of the highest order when it leaves appreciable damage to that 

supposedly vital interest unprohibited.” Id. Thus, if the law includes exceptions for various 

reasons, the interest is by definition not compelling. See O Centro, 546 U.S. at 433-34 

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(“well-established peyote exception” demonstrated strength of interest was overstated).

Second, the government’s actions must actually “further[]” its allegedly compelling 

interest. 42 U.S.C. § 2000bb-1(b). That is, the government must show that its action—here, 

prosecuting Dr. Warren—prevents “harms” that “are real, not merely conjectural, and that 

the regulation will in fact alleviate these harms in a direct and material way.” Turner Broad. 

Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (intermediate scrutiny); Holt, 135 S. Ct. at 865 

(prison failed to show allowing requested beard would cause “meaningful increase in 

security risk” where it allowed similar beards for medical reasons).

Third, the government must establish its interest with specificity, and must show not 

only that the regulation generally supports that interest, but that this particular prosecution 

meaningfully furthers the interest. It is not enough to identify a compelling interest “in very 

broad terms.” Hobby Lobby, 573 U.S. at 726-28. Rather, “RFRA requires a “‘more focused’ 

inquiry.” Id. at 726 (citation omitted). The government must show that “application of the 

challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is 

being substantially burdened”—furthers the asserted compelling interest. O Centro, 546 

U.S. at 430-31 (quoting 42 U.S.C. § 2000bb-1(b)); accord Zimmerman, 514 F.3d at 855. In 

other words, the government cannot simply show that enforcing this law furthers its interest 

as a general matter; it must prove that its denial of this claimant’s particular requested 

exception itself advances the compelling interest. This analysis requires “look[ing] to the 

marginal interest in enforcing [the law] in these cases” and “scrutiniz[ing] the asserted harm 

of granting specific exemptions to particular religious claimants.” Hobby Lobby, 573 U.S. 

at 726-27 (citation omitted); accord Holt, 135 S. Ct. at 863; cf. Brown v. Entm’t Merchs. 

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Ass’n, 564 U.S. 786, 803 n.9 (2011) (“[T]he government does not have a compelling interest 

in each marginal percentage point by which its goals are advanced.”). This is true even where 

the interest is “paramount” and “admittedly strong.” O Centro, 546 U.S. at 431 (example of 

well-being of children, quoting Yoder, 406 U.S. at 213, 236).

Here, the government asserts only a very broad interest in protecting the wildlife 

refuge and wilderness area. That does not satisfy the “more focused” inquiry of RFRA, as it 

does not demonstrate that the “marginal interest” in preventing Dr. Warren’s behavior 

specifically is sufficiently compelling to preclude an exception or justify this prosecution. 

Hobby Lobby, 573 U.S. at 726. 

Moreover, the government’s allegedly compelling interest is undermined by a variety 

of exceptions. For example, the government permits access to the refuge, including 

administrative roads in wilderness areas, by all-terrain vehicles for camping and hunting 

purposes. Even if these activities had a 100% compliance rate with leave-no-trace 

regulations—a doubtful proposition—it is implausible that the occasional leaving of water 

bottles or driving on already-established roads by Dr. Warren would pose any “meaningful 

increase” in damage to the overall integrity of the national refuge, see Holt, 135 S. Ct. at 

865. Indeed, the government has never presented evidence of emergency supplies 

themselves specifically causing any harm to wildlife. Moreover, the Border Patrol is broadly 

permitted to drive in the refuge, on the administrative trails, and in the wilderness. If the 

interest in protecting the wilderness were really so compelling that making a tightly limited 

exception for Dr. Warren’s religious exercise would meaningfully compromise it, Congress 

would not have written this massive exception into the statute (The Arizona Desert 

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Wilderness Act of 1990) creating this wilderness area.

3 And the refuge staff not only permits, 

but encourages the placement of CBP rescue beacons in the wilderness; these structures, 

visible for miles, include lights, mirrors, and sometimes telephones, and thus undermine the 

“wilderness character” of the refuge far more than jugs of water tucked under trees.

Finally, the government has never even attempted to identify its “marginal interest” 

in enforcing the law against Dr. Warren specifically, much less identified any specific harms 

that would follow from not prosecuting Dr. Warren. It may well recognize that it is 

implausible that the placing of limited quantities of lifesaving supplies or travel of his 

church-owned vehicle on established administrative trails will do any appreciable harm to a 

national wildlife refuge, which is why the Border Patrol is directed “to not tamper with 

humanitarian aid.” Associated Press, Arizona group: Border Patrol agents have emptied 

water bottles left for migrants (Jan. 22, 2018), https://www.abc15.com/news/regionphoenix-metro/central-phoenix/arizona-group-border-patrol-agents-have-emptied-waterbottles-left-for-migrants. Nor can it produce a shred of evidence to support the notion that 

these small acts of religious practice have any effect on the flow of migration through the 

area, as it has occasionally speculated. Indeed, the government’s own analysis conducted in 

the past has concluded directly the opposite. Thus, it cannot show that prosecuting Dr. 

Warren furthers a compelling interest under RFRA.

2. The government’s prosecution is not the least restrictive means.

 3 This is not to suggest that the interest in border enforcement is not compelling; rather, it shows 

that the interest in protecting the Wilderness is not as compelling as the government might suggest, 

as it gives way to other interests where necessary. If it can give way for a law enforcement interest, 

then it can give way for religious exercise by one individual creating no identifiable harm.

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Even assuming prosecuting Dr. Warren furthered a compelling interest “of the 

highest order,” the government still must show that prosecuting Dr. Warren is the “least 

restrictive means” of furthering its interest. 42 U.S.C. § 2000bb-1(b)(2). That is, the 

government must show that it “lacks other means of achieving its desired goal without 

imposing a substantial burden on the exercise of religion.” Hobby Lobby, 573 U.S. at 728.

The government’s power to use other means is not confined to what the executive 

branch can do unilaterally; rather, “both RFRA and its sister statute, RLUIPA, may in some 

circumstances require the Government to expend additional funds to accommodate citizens’ 

religious beliefs,” even though funds must be allocated by the legislature on the state and 

federal level. Hobby Lobby, 573 U.S. at 729-30. Moreover, the government “cannot meet its 

burden to prove least restrictive means unless it demonstrates that it has actually considered 

and rejected the efficacy of less restrictive measures before adopting the challenged 

practice.” Warsoldier, 418 F.3d at 999. If the solutions adopted in other contexts demonstrate 

that the government’s interests can be served by means that would not impose a substantial 

burden, then it has not met the least-restrictive-means standard. Hobby Lobby, 573 U.S. at 

730-32 (agency “has demonstrated that it has at its disposal an approach that is less 

restrictive” of religious practice that would equally “protect the asserted needs” at issue in 

the case); Warsoldier, 418 F.3d at 999 (government failed to explain why success of “other 

prison systems . . . [in] meet[ing] the same penological goals” without challenged restriction 

could not be replicated). Likewise, if the government cannot demonstrate that an obvious 

alternative, or an alternative posed by the religious party, would not suffice to serve its 

interests, again, it cannot meet the least-restrictive-means standard. Holt, 135 S. Ct. at 864 

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(declining to defer to prison officials’ security expertise when Department “offered no sound 

reason” that beard could not be searched for contraband as readily as hair or clothing).

Here, the government has many less restrictive means of preserving the refuge. Most 

obviously, it could simply decline to prosecute religiously motivated water drops and 

wilderness travel for search-and-recovery purposes, given the de minimis impact on the 

refuge and the fact that it already instructs Border Patrol to not disturb “water stations, food, 

and other resources.” Rafeal Carranza, Border Patrol accused of vandalizing water aid 

stations in the desert, AZ. CENTRAL (Jan. 17, 2018), 

https://www.azcentral.com/story/news/politics/border-issues/2018/01/17/border-patrolaccused-vandalizing-water-aid-stations-desert/1041532001/. If it is concerned primarily 

about the small amounts of trash emergency supplies might leave behind, it could simply 

work a little bit harder to collect and remove trash from the refuge (although the evidence 

will show that No More Deaths volunteers already do this quite effectively). If it believes 

too many people are driving on the administrative roads, it could issue fewer special use 

permits to recreational hunters to reduce the driving, rather than prosecuting Dr. Warren’s 

religious exercise. The government has not shown that these alternatives are ineffective—

much less that it “actually considered and rejected” them before prosecuting Dr. Warren. 

Warsoldier, 418 F.3d at 999. Accordingly, it has not carried its burden under RFRA. 

Because Dr. Warren will demonstrate a substantial burden on his exercise of religion, 

and because the government can show neither a compelling interest in this specific 

prosecution nor that prosecution is the least restrictive means of accomplishing its asserted 

interests, the charges must be dismissed. 

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Again, this Court should make an explicit ruling at the close of the defense case in chief 

as to whether Dr. Warren has established a substantial burden on his exercise of a sincerely 

held religious belief. After finding this burden met, the Court should hear the government’s 

evidence of compelling interest and least restrictive means during its rebuttal case, and then 

must afford Dr. Warren the opportunity to rebut this evidence in a surrebuttal limited to the 

RFRA defense. A surrebuttal presentation will allow Dr. Warren to respond to any evidence 

the government offers of its putative compelling interests and the least restrictive means for 

accomplishing them, evidence it has thus far avoided disclosing.

II. NECESSITY 

The necessity defense “justifies criminal acts taken to avert a greater harm, 

maximizing social welfare by allowing a crime to be committed where the social benefits of 

the crime outweigh the social costs of failing to commit the crime. . . . Pursuant to the 

defense. . . a person lost in the woods could steal food from a cabin to survive.” United States 

v. Schoon, 971 F.2d 193, 196 (9th Cir. 1992). The Ninth Circuit has expressed these 

requirements as a four-part test: a defendant must prove “(1) that he was faced with a choice 

of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he 

reasonably anticipated a causal relation between his conduct and the harm to be avoided; 

and (4) that there were no other legal alternatives to violating the law.” United States v. 

Arellano-Rivera, 244 F.3d 1119, 1125-26 (9th Cir. 2001).

A. Political protest cases distinguished.

The necessity defense has often been asserted unsuccessfully in cases of political protest. 

It is crucial to understand the difference between those cases and what is occurring here. In 

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the protest cases, the actors’ goal is either to disrupt a course of government action the 

protestor views as harmful, or to generate political attention through breaking laws with the 

ultimate goal of securing policy change. In such cases, the defense generally fails, either 

because the defendant’s actions could not reasonably be believed to actually avert the harm 

asserted, because the defendant had the legal alternatives of using the political process 

instead, or both. Thus, in United States v. May, 622 F.2d 1000 (9th Cir. 1980), protesters 

climbed over a fence into a naval base, and were charged with unlawfully entering. The 

Court rejected a proffered necessity defense because the defendants’ actions would not avert 

the harm they had identified as flowing from the missile program they were protesting. 

Similarly, in United States v. Dorrell, 758 F.2d 427, 430-31 (9th Cir. 1985), the defendant 

went onto an Air Force base and spray-painted its missile assembly building, acting out of 

concern about nuclear war. The Court refused to allow him to present his evidence of 

necessity because alternative courses of action existed and because he could not establish he 

reasonably anticipated his actions would prevent nuclear war. 

The Ninth Circuit has also discussed politically motived action specifically. In United 

States v. Schoon, 971 F.2d 193 (9th Cir. 1992), the defendants, who claimed their actions 

were necessary to avoid further bloodshed in El Salvador, were convicted of obstructing 

activities of an IRS office and failing to comply with an order of a federal police officer after 

they entered the office, chanted, splashed fake blood, and failed to disperse when instructed. 

The Court refused a necessity defense because the actions would not abate the evil, and legal 

alternatives existed (i.e., the political process). The Court discussed the issue of civil 

disobedience as it relates to the necessity defense, drawing a clear distinction between 

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indirect civil disobedience (breaking laws to attract attention to an issue and spur policy 

change) and direct civil disobedience (breaking laws that the actor considers unjust for the 

purpose of ultimately changing those very laws). The court ultimately created a blanket rule 

that indirect civil disobedience could never support a necessity defense.

Crucially, the actions alleged here do not constitute civil disobedience (direct or indirect), 

and are not a form of political protest. It is undisputed here that the purpose of the placement 

of water and other supplies is to directly prevent the deaths of individual migrants crossing 

the particular area where the supplies are placed, and that the purpose of driving on 

administrative roads is to access the remote areas where migrant deaths have been clustered, 

thus allowing the placement of supplies in the areas where they are most likely to used by

people who need them. The end goal of these actions is not a change in the law—it is the 

direct prevention of individual deaths. No evidence exists that Dr. Warren or any other No 

More Deaths volunteer has any problem with the refuge regulations generally, and the harm 

they are seeking to avert (death of migrants) is not caused by the regulations. Nor are they 

using law-breaking as a means to attract attention; indeed, the evidence shows that No More 

Deaths went to some lengths to attempt to undertake their necessary actions without breaking 

the law by seeking permission from FWS. Accordingly, this Court must analyze the elements 

of the defense on the evidence presented, and must not simply lump it in with cases 

presenting the very different situation where defendants intentionally broke a law because 

they wanted to change that law.

B. The Four Requirements of the Necessity Defense.

1. Choice of evils 

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The Ninth Circuit has not discussed at length the first element, but the primary question 

is whether the harm the defendant sought to avert constitutes an “evil” the law recognizes is 

worth averting, even at the cost of strict compliance with laws. Thus, in Schoon, the Court 

explained that “the mere existence of a constitutional law or governmental policy cannot 

constitute a legally cognizable harm. . . . The most immediate harm the appellants sought to 

avert was the existence of the government’s El Salvador policy, which is not in itself a 

legally cognizable harm. Moreover, any harms resulting from the operation of this policy 

are insufficiently concrete to be legally cognizable as harms for purposes of the necessity 

defense.” 971 F.2d at 198.

Contrast that with the harm here: the documented and likely preventable deaths of over 

a hundred migrants in the Arizona desert each year, often from exposure (which includes 

dehydration). Indeed, evidence will show that decisions on where to place water are made 

shortly before the trips begin, using data collected at least monthly from the Pima County 

Office of the Medical Examiner. This is concrete and specific; No More Deaths volunteers 

base these decisions on current data about the human remains recovered in different areas in 

any given period. Thus, they are not merely speculating; they are responding to reliable 

information about where people are likely to be dying. The choice between breaking the law 

and allowing someone to die is the quintessential “choice of evils.” The Court must 

accordingly find this element satisfied. 

2. Imminent harm

Courts do not recognize a necessity defense if the asserted harm is not genuinely 

imminent. Thus, in United States v. Perdomo-Espana, 522 F.3d 983 (9th Cir. 2008), when 

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the defendant claimed illegal re-entry after deportation was necessary because he was about 

to have a stroke due to lack of insulin, the Court relied on a doctor’s testimony “that Perdomo 

was in no immediately dire medical condition when he was treated in the emergency room 

soon after crossing the border; thus Perdomo's crossing was not averting any objective, 

imminent harm, causing his defense to fail on the second element.” Id. at 988. In United 

States v. Cervantes-Flores, 421 F.3d 825 (9th Cir. 2005), the defendant was also convicted 

of illegal re-entry. His necessity defense was that he was dying from HIV/AIDS and was 

attempting to locate his children in the United States before he died. The Court explained 

“that Cervantes’ testing positive for HIV did not constitute imminent harm. He failed to 

demonstrate that the disease created a threat of death or other serious, immediate harm. For 

the same reason, Cervantes did not show that he was in imminent danger of losing his final 

opportunity to speak to his children.” Id. at 829.

Here, reliable evidence shows that migrants are regularly dying of exposure in these 

areas. This is especially true in the summer months. While of course some migrants survive 

the journey, it is beyond dispute that many do not. This is the “threat of death or other 

serious, immediate harm” that was lacking in Cervantes-Flores. The threat here should be 

considered particularly immediate in light of the vastness and remoteness of the area; getting 

word to those who could help at the last moment when any particular specific death could 

be averted is obviously not feasible and would be ineffective, given how long it would take 

for anyone to locate and travel to the imperiled person. In other words, under these 

circumstances, the Court can readily assume that deaths are imminent in the remote areas 

where Dr. Warren and other No More Deaths volunteers are placing supplies.

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3. No available options

The law also requires the absence of legal avenues for averting the harm. Where the 

defendant can address the need through legal avenues, the requirement is not met. Thus, in 

United States v. Richardson, 588 F.2d 1235 (9th Cir. 1978), defendants, were convicted of 

smuggling a cancer drug into the U.S. They smuggled it because the FDA had classified it 

as a “new drug” which would require an approval process, and it had not issued the approval; 

accordingly, when defendants attempted to import the drug, it was seized at the border. 

Defendants could not prove necessity because rather than smuggling it, they could have 

appealed the FDA’s classification or mounted a legal challenge to the FDA’s seizure of the 

drug at the border; they also could have manufactured the drug in the U.S. Similarly, in 

United States v. Arellano-Rivera, 244 F.3d 1119 (9th Cir. 2001), the defendant attempted to 

assert a necessity defense, apparently claiming that he had to re-enter the United States to 

get treatment for his advanced AIDS. The claim was rejected because the law provided a 

specific remedy for precisely that situation: he could petition the he Attorney General for 

permission to re-enter due to his medical needs, “an alternative Arellano-Rivera never 

attempted.” In other words, it was not necessary for him to cross illegally, because the 

government provides a process by which he may have been able to do so legally.

Notably, the Schoon Court recognized that while use of legal and political processes 

provide viable alternatives in many of the protest cases, “we cannot say that this legal 

alternative will always exist in cases of direct civil disobedience, where protestors act to 

avert a concrete harm flowing from the operation of the targeted law or policy.” 971 F.2d 

at 197. The Court explicitly recognized that where there is a harm actively occurring, the 

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existence of courses of action which might serve to eventually abate the harm does not defeat 

the defense if the harms are occurring right now, but the proposed solutions would take time: 

“A prisoner fleeing a burning jail, for example, would not be asked to wait in his cell because 

someone might conceivably save him; such a legal alternative is ill-suited to avoiding death 

in a fire. In other words, the law implies a reasonableness requirement in judging whether 

legal alternatives exist.” Id at 198. This formulation is especially relevant here, given that 

alternative solutions such as the installation of permanent water stations and more rescue 

beacons takes time, and in the interim, individual migrants were continuing to die. Indeed, 

the evidence in this case shows that FWS agreed more beacons were needed in the Growler 

Valley—but additional beacons were not added until about a year after Dr. Warren was cited. 

Thus, in June 2017, they were not there to prevent the deaths that were occurring right then, 

even if they would prevent some future deaths. The government cannot claim the actions 

were unnecessary to prevent the deaths of the migrants crossing in June, 2017 by showing 

that it took some action to prevent others from dying over a year later.

Additionally, the particular harm Dr. Warren’s actions were directed at is not harm 

being worked directly by the government, and thus, such solutions as filing lawsuits and 

seeking injunctive relief would not prevent the harm. Cf. United States v. Aguilar, 883 F.2d 

662 (1989) (alleged harm was deportation by U.S. government, and defendants should have 

sought judicial relief). And indeed, this Court has previously ruled in another case that the 

government—and specifically, the Fish and Wildlife Service operating in the Cabeza Prieta 

National Wildlife Refuge—has no duty to aid the migrants crossing its harsh terrain. 

Ambros-Marcial v. United States, 377 F.Supp.2d. 767 (D. Ariz. 2005).

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Here, the government has repeatedly insisted that the placement of emergency 

humanitarian supplies is not justified because CBP has rescue beacons, which are also 

intended to save lives. The efficacy of the beacons is in dispute (i.e., whether they are 

consistently and swiftly responded to), but what is not in dispute is that even with rescue 

beacons in and around the refuge, the yearly acknowledged death toll has been over a 

hundred. Thus, beacons or no beacons, there are still hundreds of lives being lost. That is 

imminent harm.

Finally, this Court should note that the evidence will show that No More Deaths 

volunteers did attempt to secure legal authorization for its emergency life-saving work. 

Thus, unlike the defendants in Richardson and Arellano-Rivera, they did not eschew a legal 

process; no process was available, and certainly not with the immediacy necessary to prevent 

the deaths that were actively occurring on the refuge while they sought permission.

4. Direct causal relationship

Finally, a defendant asserting necessity must prove that he reasonably believed his 

actions would actually abate the harm. Thus, in the protest cases, the defense generally fails 

in part because the illegal acts themselves would not prevent the harm. For instance, in 

Dorrell, the defendant “offer[ed] no indication of how he expected his conduct [breaking 

onto an Air Force base and spray-painting a missile assembly building] to bring about a 

change in the MX missile program or a reduction in the risk of nuclear war. He cannot 

demonstrate that he reasonably anticipated a direct causal relationship between his acts and 

the harm he sought to remedy.” 758 F.2d at 434. Courts have emphasized proof not of perfect 

efficacy, but that a defendant “reasonably anticipated” the direct causal relationship “to exist 

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between the defender’s action and the avoidance of harm.” United States v. Simpson, 460 

F.2d 515, 518 (9th Cir. 1972). It is reasonable to anticipate that provision of water in areas 

where people routinely die of dehydration would avoid deaths. This is particularly clear 

given the evidence of the water being drunk and the empty bottles remaining. As the Schoon 

Court put it, “[o]rdinarily it is the volitional illegal act alone which, once taken, abates the 

evil.” 971 F.2d at 198. That is the case here—providing water directly prevents death by 

dehydration. 

In sum, necessity has four requirements, all of which Dr. Warren will establish. This 

type of direct lifesaving aid is manifestly different from the political protest cases in which 

courts have found the defense to be inapplicable. Providing water to prevent dehydrationrelated deaths in areas where they are reliably known to occur is a direct and immediate 

action which the volunteers reasonably believe will prevent imminent deaths. Although 

longer-term solutions are valuable, in June 2017, they were manifestly incomplete, allowing 

a significant number of deaths to continue to occur. Accordingly, direct, immediate 

intervention was and is necessary, other attempts to save lives notwithstanding.

III. LACK OF NOTICE/DUE PROCESS

The due process clause of the Fifth Amendment “requires that a penal statute define the 

criminal offense with sufficient definiteness that ordinary people can understand what 

conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory 

enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). Courts specifically require 

that “the defendant had notice that his conduct was criminal” at the time. Pauling v. 

McKenna, 2005 U.S. Dist. LEXIS 33595 at *14 (W.D. Wash. 2005) (emphasis added); see 

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also Bouie v. Columbia, 378 U.S. 347, 350 (1964) (requiring statute to “give fair warning of 

the conduct that it makes a crime”) (emphasis added). This principle also requires that where 

court interpretation expands the scope of a criminal prohibition, conduct covered by that 

expansion may not be penalized if it was committed prior to the issuance of the expanded 

interpretation. United States v. Potts, 528 F.2d 883 (1975). 

Although notice is typically analyzed in terms of the text of a statute, courts consider the 

requirements of agency regulations in light of the direction provided by agency personnel. 

See, e.g., United States v. True, 946 F.2d 682, 687 & n.5 (9th Cir. 1991) (considering 

admonition by Forrest Service officer in analyzing closure order under governing regulation; 

court must consider “any limiting construction that a[n]. . . enforcement agency has 

proffered”); see also Grayned v. City of Rockford, 408 U.S. 104, 110 (court may consider 

“to some degree. . . the interpretation of the statute given by those charged with enforcing 

it.”). Here, two sources are relevant: the regulation itself, and the document the government 

distributes to all individuals entering the refuge (and requires them to sign), often referred 

to as the “permit application,” spelling out what refuge users agree to do and not do. 

A. Lack of Notice of Conduct Covered

The regulation at issue here states only that “Abandoning, discarding, or otherwise 

leaving any personal property in any national wildlife refuge is prohibited.” 50 CFR 27.93. 

It is not at all clear from this minimal text that this regulation encompasses placement of 

emergency humanitarian supplies for use by others in the near future. Indeed, the only 

existing judicial interpretation as of June, 2017 was in United States v. Walker, 2006 U.S. 

Dist. LEXIS 45542 (S.D. Ill. June 22, 2006), where the Court concluded that a boat moored 

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in a refuge and unclaimed long after a rental period expired was abandoned personal 

property. Thus, neither the regulation on its face nor any judicial interpretation of it provided 

notice that it encompassed emergency supplies belonging not to individuals but to an NGO,

intended for human use in the near future. 

The actions of FWS officials at Cabeza Prieta confirm that the officials themselves 

realized the scope of the prohibition was unclear when considering both the regulation and 

the permit application, as the evidence will show that they added clarifying language to the 

permit application after the incident involving Dr. Warren, specifically because the existing 

text of the application together with the regulation did not adequately advise refuge visitors 

of what was and was not allowed. The agency’s expanded interpretation of what constitutes 

abandoning personal property may now serve to advise the public of what would be 

prohibited, but that interpretation did not exist at the time of Dr. Warren’s conduct, and it 

would violate due process to apply it to him retroactively.

B. Lack of Notice of Criminality

The Supreme Court has explicitly recognized that important differences exist between 

enactments providing for civil penalties and those that provide for criminal punishment. See 

Hoffman Estates v. Flipside, Hoffman Estates, 455 US. 489, 498-99 (1982) (“The Court has 

also expressed greater tolerance of enactments with civil rather than criminal penalties 

because the consequences of imprecision are qualitatively less severe.”). Accordingly, 

advising individuals that their conduct is subject to civil penalties does not constitute notice 

that their conduct may also be considered criminal, and this difference is significant to the 

due process analysis. Indeed, advising them of the opposite—that conduct entails only civil 

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penalties when in fact criminal penalties may inure—eliminates any notice the regulation 

may have provided. 

The permit application in use on June 1, 2017 advised refuge users that “Anyone granted 

a range permit for access and use who violates the parameters of their permit is subject to 

judicial penalties to include a fine, civil action, and debarment.” This advisement served to 

indicate to users that any penalties they may incur would be civil. Thus, refuge users were 

absolutely not provided with the notice required by the due process clause that the placement 

of emergency humanitarian supplies for the use of others in the near future may be criminal. 

Accordingly, the due process clause forbids a criminal conviction on this basis. 

CONCLUSION

This memorandum identifies the required elements for each of three defenses Dr. 

Warren asserts here. It also identifies the procedures necessary to ensure full and fair 

opportunity for Dr. Warren to present his defense and a clear record. This Court should 

consider the evidence at trial in light of these requirements and should find Dr. Warren not 

guilty on both charges.

RESPECTFULLY SUBMITTED this 3rd day of May, 2019.

By /s/ Amy P. Knight

Gregory J. Kuykendall

Amy P. Knight

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott Daniel Warren

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CERTIFICATE OF SERVICE

I certify that on May 3rd, 2019, I electronically transmitted a PDF version of this 

document to the Clerk of Court using the CM/ECF System for filing and for transmittal of 

a Notice of Electronic Filing to the following CM/ECF registrants: 

Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov) 

Anna R. Wright, Esq. (email: anna.wright@usdoj.gov) 

United States Attorney’s Office 

405 W. Congress, Suite 4800 

Tucson, AZ 85701

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