15.
ON THE MORNING OF JANUARY 17, 2018, THE HUMANITARIAN aid group No More Deaths released a report that documented Border Patrol agents impeding the efforts of volunteers to provide humanitarian assistance to people in distress in the deserts of Arizona. The report included photos of destroyed water containers with knife slashes in them and videos of Border Patrol agents pouring out water at desert aid stations while smiling at the camera. The report also blamed the Border Patrol and its “prevention through deterrence” policy for forcing migrants into the deserts in the first place. The report was shared across social media and in newspapers around the world, including The Guardian and The Washington Post.1
Within a few hours of the release of the report, the Border Patrol arrested Dr. Scott Warren, one of the leaders of No More Deaths, and charged him with two felonies for harboring undocumented immigrants. He faced twenty years in prison if convicted.
No More Deaths was established in 2004 as residents of southern Arizona became concerned about the increase in migration through the dangerous deserts of the region. The group is affiliated with the Unitarian Universalist Church in Tucson, and for many of the volunteers the motivation for their work can be found in the religious obligation to provide aid to those in need. In the Gospel of Luke, Jesus tells the parable of the Good Samaritan. A Jewish traveler with no clothes is left for dead on the side of a road. Two other travelers encounter the dying man but do not provide aid. The third man to arrive is a Samaritan, a group that was in conflict with Jews at the time. Nevertheless, the Good Samaritan provided aid for the injured man.
In the border zone, the No More Deaths volunteers play the role of Good Samaritans by leaving water, food, socks, blankets, and other supplies at aid stations on migrant trails in the desert. They also offer first aid to those in distress, both when they happen upon people in the desert and at properties in towns in the border zone, including a building in Ajo, Arizona, known as “the Barn.” For the volunteers of No More Deaths, the identity or immigration status of the people dying in the deserts of Arizona is immaterial. They feel obligated to provide care for those in need.
The Border Patrol does not see it that way. Max Granger, a longtime volunteer with No More Deaths, explained, “The Border Patrol is a militarized law enforcement organization and they consider us an enemy.” He continued, “They consider No More Deaths a smuggling organization that aids and abets terrorists. That is basically their perspective.”2
The Border Patrol first raided a No More Deaths medical facility in Arivaca, Arizona, on June 15, 2017, when they arrested the undocumented people receiving medical treatment but did not arrest the American volunteers.3 In the months before Warren’s arrest, a Border Patrol agent named John Marquez had begun to surveil some of the No More Deaths volunteers. He texted with Fish and Wildlife Service (FWS) employees to get information on who had requested permits to hike in the Cabeza Prieta National Wildlife Refuge, an area where No More Deaths volunteers regularly dropped water and searched for the remains of people who died in the desert. The FWS employee gave Marquez several names.
Marquez also determined that another FWS employee lived beside “the Barn,” the property in Ajo that was a staging location and medical facility for No More Deaths. Marquez texted descriptions of the vehicles driven by No More Deaths volunteers, including Warren’s truck, to that FWS employee. Marquez even sent Warren’s home address. The FWS employee monitored the Barn and would text Marquez about the vehicles he saw on the property.4 In a court filing by Warren’s legal team, they described Marquez as “actively tracking NMD members, and, based on the tone of the exchanges, was doing so with a kind of relish not reflective of proper law enforcement motives.”5
On the morning that the No More Deaths report was released, Marquez decided to surveil the Barn along with two other agents, Brendan Burns and Alberto Ballesteros. The Barn is a small building at the end of a residential street on the western edge of Ajo that has a ramshackle appearance, with each side made of different materials. A gate at the edge of the property is decorated with two wagon wheels and opens to a worn gravel parking area surrounded by saguaro cactus. A hand-painted white sign above the door says THE BARN. Ajo is forty-three miles north of the border.
Throughout the day, the agents texted back and forth, documenting who was coming and going from the Barn. In the afternoon, Burns spotted two young Latino men at the facility, whom he immediately assumed were undocumented. He texted the other agents, “2 toncs at the house,” using a racial slur common in the Border Patrol to refer to undocumented people. Ballesteros replied “What!?!?!?!?!?! Nice!” As they made their plans, Marquez texted with the FWS employee who lived beside the Barn. “Yup. We are gonna be live soon. Ha.” The text messages demonstrate that the Border Patrol agents did not yet have any evidence of undocumented people at the Barn because they did not request a search warrant for the property. However, their excitement reveals that their real target were the leaders of No More Deaths, specifically Scott Warren.
Warren, tall with straight brown hair pulled back in a ponytail and a perpetual five o’clock shadow, has a PhD in geography and taught classes at Arizona State University in Phoenix. As a No More Deaths volunteer, he was regularly out in the desert restocking aid stations and searching for remains. He would also lead student groups on service learning trips into the desert, including a group from a high school in Flagstaff that resulted in a profile in local newspaper in February 2017. The profile recounted how during the hike, Warren and the high school students stumbled upon two men fleeing the Border Patrol. The men told Warren that one of their friends had died nearby, and Warren was able to locate the body as the stunned teenagers waited. Warren told the newspaper that being a witness to what was happening in the desert “feels like one of the most important and almost sacred things that we do. Just being present for somebody.”6 Agent Marquez first learned about Warren after reading the article, which prompted him to begin his surveillance of the No More Deaths volunteers.
On that January 2018 afternoon, Border Patrol agents Marquez and Burns observed Warren gesturing to the north while talking to the two Latino men at the Barn in Ajo. They decided to enter the property to conduct a “knock and talk,” a maneuver in which police who lack probable cause to get a warrant enter a property to knock on the door and ask a few questions to see if they can gather more evidence. As soon as the agents passed the wagon wheel gate at the entrance, Warren informed them they were on private property and asked them to leave if they did not have a warrant. They told Warren that they did not have a warrant but they asked if Warren was the property owner, which they already knew he was not. Since it was not his property, the Border Patrol agents told Warren they wanted to knock on the door to see if they could find the owner. When they got to the door, Marquez said that he saw the two Latino men inside the Barn through a window, along with several other No More Deaths volunteers. The agents decided this was enough evidence to continue their investigation.
Once they determined that the men were undocumented, they arrested them. Unlike previous raids on No More Deaths facilities, they also handcuffed and arrested Warren on charges of harboring the undocumented men. Prosecutors later added a conspiracy charge. The Border Patrol agents did not arrest any of the other No More Deaths volunteers on the site, a fact that Warren’s lawyers interpreted as evidence that the arrest was retaliation against Warren, one of the leaders of the group and an outspoken critic of the Border Patrol.
As the case went to trial in 2019, no one disputed the basic facts that Warren and the other No More Deaths volunteers were providing medical aid and supplies to people in need as they walked through the deserts of the American Southwest. The only question for the jury was whether Warren provided “food, water, beds, and clean clothes,” as the charges stated, with an intent to hide the two men from the Border Patrol, or simply as humanitarian assistance to people in need in a dangerous situation. The jury was asked to decide if being a Good Samaritan was a crime.
Left to Die
The deserts of southwestern Arizona are a stunning landscape dotted by stately saguaros and red mesas that glow during the sunset. The rugged beauty masks the dangerous reality that water is almost impossible to find in an area where summer temperatures routinely pass 110°F. The region was historically populated by the Tohono O’odham, who moved seasonally following water and animal migrations in an extended area that is now bisected by the border. Beyond the Tohono O’odham lands, much of the rest of the Sonoran Desert is managed by the federal government as nature preserves and military testing grounds. These include the Organ Pipe Cactus National Monument on the border itself, the Cabeza Prieta National Wildlife Refuge around the small town of Ajo, and the Barry M. Goldwater Range, a huge military bombing range that is larger than the state of Connecticut.
All these places have become graveyards in the aftermath of the Border Patrol’s “prevention through deterrence” strategy.7 The Border Patrol implemented prevention through deterrence in 1994 with a goal of forcing immigrants over “more hostile terrain, less suited for crossing and more suited for enforcement.”8 By the time Scott Warren was arrested in 2018, the consequences of this policy were clear. There was a decline in overall apprehensions from a high of 1.6 million in 2000 to just over 400,000 per year in the 2010s. However, the rate of migrant deaths in the deserts and remote sections of the border skyrocketed.9 Whereas in the 1990s, the Tucson morgue handled on average fewer than twenty dead bodies from the border zone each year, by 2010, that number had increased tenfold, to over two hundred per year. In total, the Border Patrol reported 7,805 migrant deaths from 1998 to 2019.10 These numbers are certainly an undercount—many bodies go undiscovered in the sparsely populated deserts. A USA Today analysis estimated that the true death toll could be as much as three times higher.11
As “prevention through deterrence” funneled people to the deserts of Arizona, the local residents found themselves at the center of a humanitarian crisis. The deaths are the result of a grim calculus. In order to reach the interior of the United States, migrants and their guides need to cross not only the border itself but also the interior checkpoints the Border Patrol operates on highways up to one hundred miles north of the border. Consequently, the trek through the desert often involves walking sixty or seventy miles in the parched and inhospitable landscape. In these conditions, the average person needs six or seven liters of water per day, and the migrants may be in the desert up to a week. Few are able to carry enough water, leaving many in life-threatening situations in remote locations, far from roads and even cell phone service.
People living in towns dozens of miles north of the border suddenly had sick and injured people knocking on their doors looking for water and medical care. Groups like No More Deaths were established by local residents to train their neighbors on the basics of wound care, sunstroke, and rehydration so they could help people while they waited for first responders to arrive.
Other organizations such as Coalición de Derechos Humanos, which previously worked on the needs of the local community, began to find much of their attention turning toward the crisis in the desert. As early as 1995, their office in Tucson began receiving calls from concerned family members of people who became stranded in the desert. Their loved ones were missing and they did not know who else to call. Over the years, the number of calls increased to the point that they trained their staff to receive missing-person reports. They eventually established the Missing Migrant Crisis Line as a dedicated call center, staffed twenty-four hours a day to provide assistance for panicked family members as well as people in distress in the desert. The number for the crisis line is widely posted in hostels and migrant staging areas in Mexico, so that people entering the desert have at least one lifeline to call if they get in trouble.
In February 2021, No More Deaths and Coalición de Derechos Humanos released a report about the Border Patrol’s failure to carry out search and rescue missions to locate people missing in the border zone.12 The report was the third in a series called “Disappeared,” following a 2016 report about how the Border Patrol’s apprehension tactics scatter groups, causing people to flee alone into the desert, and the 2018 report, released just hours before Scott Warren’s arrest, on how the Border Patrol destroys water and other supplies left in the desert by volunteers.
The 2021 report includes an appendix that lists 457 emergency calls received by the Missing Migrant Crisis Line from 2015 and 2016 with a brief description of the reason the person was in distress. The first call: cannot walk. The second: chest pain, cannot walk, alone and afraid, no water.
Third: lost, no food or water for three days
Fourth: no water, no food, cannot walk, traveling companion unconscious
Fifth: no water, no food, cannot walk, traveling companion unconscious
Sixth: three to four days walking, lost
Seventh: ill, cannot go on, alone
Eighth: four days alone in the desert, disoriented, exhausted
Ninth: bad physical condition, lost in the middle of the mountains
Tenth: lost and alone
Eleventh: lost, traveling companion cannot walk, is vomiting
The list continues like that until the 457th entry: unable to continue walking, lost in the desert.
Despite its role in funneling people to these dangerous crossings as part of their “prevention through deterrence” strategy, the Border Patrol presents itself as the primary humanitarian aid provider in the border zone. They established a Search, Trauma, and Rescue unit (BORSTAR) in 1998 to aid missing and injured migrants, and their press office often focuses on the humanitarian work of the agency. For example, a press release on March 16, 2021, titled “Border Patrol agents rescue man missing for eight days,” celebrates the rescue of a man who was reported missing by the Mexican consulate.13 The BORSTAR agents searched for him for just one afternoon, but did not locate him. Four days later, he was found by chance by different agents on patrol. At that point, BORSTAR agents were called in and administered aid.
Pima County, Arizona, transfers all distress calls involving presumed undocumented people to the Border Patrol, over 1,500 calls per year, or 4.5 per day.14 The No More Deaths analysis of the search and rescue call logs determined that the Border Patrol routinely declines to search for people reported missing. No More Deaths found that it was unclear if the Border Patrol conducted any search at all in 63 percent of referrals. In many cases, the Border Patrol said the information on the missing person was not specific enough to warrant a search.15 They also claimed that some of the calls were fake and were meant to waste their time by directing their attention away from a planned smuggling attempt. When the Border Patrol does conduct a search, it is often short and cursory, like the BORSTAR search that lasted for only one afternoon.
On other occasions, the dispatchers could not even get in touch with the Border Patrol’s search and rescue team. Although the Border Patrol celebrates the BORSTAR unit, its budget is only $1.3 million per year, a minuscule fraction of the agency’s overall budget of over $4 billion. Furthermore, from 2007 to 2015, Pima County 911 operators had only a single cell phone number that belonged to one BORSTAR agent as the contact for all search and rescue referrals. Sometimes the agent was in a remote area outside of cell phone coverage. At other times, the phone was turned off when the agent was not on duty.16
In addition to failing to properly search for missing people in the border zone, the Border Patrol also actively disrupts efforts by humanitarian agencies. Beyond the destruction of water drops and aid stations, they often refuse to provide location information to other rescuers, deny access to interview people in Border Patrol custody who were with the missing person, and harass search teams in the border zone.17
As No More Deaths volunteer Max Granger explained, “The agency itself is causing the deaths and disappearances. Any response, even if it is a more robust response, is going to be inadequate. Their entire overarching prevention through deterrence policy paradigm requires death and suffering to work. They are not invested in saving people’s lives.”18
“An Apostle of Humanitarianism”
By the time Scott Warren’s first trial began in May 2019, the prosecution of a humanitarian aid worker was international news. The United Nations released a report urging the United States to drop the charges against Warren, stating, “[P]roviding humanitarian aid is not a crime.”19 An online petition calling for the charges to be dropped was signed by over 139,000 people.20 The Washington Post published an op-ed by Warren about the dangerous precedent his arrest set.21 As the opening arguments began, the seats in the courtroom were full of Warren’s supporters along with media from around the world.
The federal prosecutors alleged that Warren was actively harboring the two men. The prosecutors argued that the men were not in distress at all, but rather resting at the equivalent of a smuggling stash house. One critical piece of evidence for the prosecution was the moment that the Border Patrol agents observed Warren talking with the two men outside the Barn and pointing to the north. The prosecutors said he was instructing the men on how to evade the Border Patrol by making their way around the interior checkpoint north of Ajo. Warren testified that he was simply pointing out a mountain that they could use as a landmark to avoid accidentally stumbling into the nearby active military bombing range. He was also informing them of the location of roads, so if they became disoriented or in distress, they would know how to make their way out of the desert. Warren said his actions were shaped only by his religious obligation to provide aid for those in need: “an apostle of humanitarianism,” as The Washington Post called him.22
After eight days of testimony, the case went to the jury, which deliberated for three days, but reported that they could not reach a verdict. There were eight jurors in favor of acquittal, but four held out for a conviction on the harboring charges. The judge declared a mistrial based on the hung jury. Warren was free to go, but the prosecutors could decide to retry him.
After a few weeks, the prosecutors opted to drop the conspiracy charge, but retry Warren on the harboring charges that had received at least some support on the first jury. Warren’s second trial was held in Tucson in November 2019. This time the jury acquitted him, finding that the prosecutors did not prove that his intent was to harbor rather than simply aid the two men.
On the same day that District Judge Raner Collins presided over Warren’s acquittal in his second trial, he also read the verdict in a separate case in which Warren, along with several other No More Deaths volunteers, were charged with trespassing in a protected area and littering. These charges stemmed from the aid group’s efforts to leave water and supplies on migrant trails in the desert, including in the Cabeza Prieta National Wildlife Refuge. Judge Collins found that the prosecutors proved their case on both counts but ruled that the volunteers were protected from prosecution on the littering charge based on the Religious Freedom Restoration Act of 1993. This law is meant to ensure that First Amendment rights to freedom of religion are not infringed, even by laws that seem to be religiously neutral. It says the “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Judge Collins ruled that because the aid to migrants was done based on the religious beliefs of the volunteers, the government was infringing on their First Amendment rights by prosecuting them for littering.23 In early 2020, the convictions for trespassing were also reversed on appeal and the prosecutors decided to drop all the charges against all the volunteers.24
Although the arrest and prosecution resulted in two extremely stressful years for Warren and the other No More Deaths volunteers, the end result was a validation of their original belief that humanitarian aid to people in need was not a crime. Now they had a legal precedent that backed them up.
The verdicts, however, did not change the relationship between No More Deaths and the Border Patrol. Agents continue to harass volunteers when they are dropping off supplies in the desert, and they searched No More Deaths aid facilities twice in 2020. In both instances, they had warrants that allowed them to carry out armed SWAT-style raids with an armored tank, helicopters, and dozens of agents. During the raids, the agents smashed windows, broke down doors, and destroyed the first aid supplies at the site. However, they did not arrest any of the American volunteers, only the people receiving aid.25
Despite the efforts of No More Deaths and Coalición de Derechos Humanos to provide aid to people in distress in the deserts, the death rate has continued to climb. The highest number of migrant remains ever discovered in the Arizona deserts was recorded in 2020. The Border Patrol, whose tallies are criticized by humanitarian groups as under counts, reported 557 deaths at the U.S.–Mexico border in the 2021 fiscal year, which was the highest number ever.26
In the 1970s, the Supreme Court accepted the Border Patrol’s argument that internal patrols and fixed checkpoints up to one hundred miles inside the United States were necessary because the agency did not have the resources to stop immigration at the border line itself. However, the court was clear that that authority was limited to immigration enforcement. In the decades since, the Border Patrol has expanded its mission beyond immigration to countering drug cartels and terrorism prevention. Despite the massively increased capacity to control large stretches of the border itself, the Border Patrol has not ended internal checkpoints and patrols. Today, it operates well over one hundred interior checkpoints throughout the border zone. The Supreme Court authorized these internal checkpoints because it was convinced they were the most effective and least intrusive method for the Border Patrol to do immigration checks inside the United States. However, the experiences of millions of American citizens who have to pass through the checkpoints suggest neither justification was correct.