O'Melveny & Myers associate Ephraim McDowell.

Of all the ugly, mean-spirited cases to bring, it's hard to top prosecuting people for leaving caches of water and food in the desert wilderness so that undocumented immigrants crossing the border don't die of thirst.

But actually beating the federal criminal charges against border activists for entering the Cabeza Prieta National Wildlife Refuge in Arizona without a permit and leaving supplies in violation of regulations? That took some lawyering. 

Credit O'Melveny & Myers 4th year associate Ephraim McDowell, who convinced U.S. District Judge Rosemary Márquez in Tucson to overrule a magistrate judge and reverse the convictions of four volunteers with "No More Deaths/No Más Muertes" on religious freedom grounds.

In a 22-page decision released Monday, Márquez found that the volunteers were being prosecuted for actions that constituted a sincere "exercise of religion," and that the government had no compelling interest in going after them. 

"Although defendants were not charged with any immigration-related offense, the government nonetheless claims that defendants' actions 'furthered and encouraged illegal smuggling activity in the [wildlife refuge],'" the judge wrote. "The government seems to rely on a deterrence theory, reasoning that preventing clean water and food from being placed on the refuge would increase the risk of death or extreme illness for those seeking to cross unlawfully, which in turn would discourage or deter people from attempting to enter without authorization."

"In other words," Márquez continued, "the government claims a compelling interest in preventing defendants from interfering with a border enforcement strategy of deterrence by death. This gruesome logic is profoundly disturbing. It is also speculative and unsupported by evidence."

McDowell, a Harvard Law School grad who joined O'Melveny after clerking for U.S. Supreme Court Justice Elena Kagan and Chief Judge Merrick Garland on the U.S. Court of Appeals for the D.C. Circuit, became involved in the case after seeing a newspaper account of the No More Deaths volunteers' criminal convictions. The four defendants were ordered to pay fines and sentenced to probation by Magistrate Judge Bernardo Velasco in the District of Arizona.

"I thought they had a viable legal theory" to reverse their convictions, McDowell said in an interview.

A member of O'Melveny's appellate and Supreme Court practice group, he pitched the idea to practice chair Jonathan Hacker, who enthusiastically backed the pro bono representation—and handed McDowell the reins to the case.

"It's one reason I decided to join O'Melveny," McDowell said. "The firm leadership is very encouraging of young attorneys, giving them the opportunity to take lead roles, especially in high-profile pro bono cases."

Indeed, McDowell first came on my radar in October, when he was a key part of the multi-firm team that won Litigator of the Week for challenging President Trump's bid to secure border wall funding by declaring a national emergency. 

At the time, O'Melveny partner Anton Metlitsky said McDowell "really mastered the materials as we were preparing for and drafting the summary judgment papers."

Metlitsky continued, "It was particularly gratifying when the team entrusted Ephraim—who had not argued in court before but was obviously fluent with the materials and issues in the case—with the responsibility to argue the merits of our summary judgment motion."

With the win on behalf of No More Deaths, McDowell's star continues to rise.

In appealing the magistrate judge's ruling, he argued that the prosecution against the four defendants was barred by the Religious Freedom Restoration Act, which exempts religious believers from laws that substantially burden the exercise of their religious beliefs.

On August 13, 2017, the defendants entered the Cabeza Prieta National Wildlife Refuge, drove down a restricted-access road, and left bottles of water and cans of food along foot trails used by people entering the United States unlawfully.

The previous month, the permit application to visit the refuge was amended to specifically prohibit leaving "water bottles, water containers, food, food items, food containers, blankets, clothing, footwear, [and] medical supplies."

It was a hot day—above 100 degrees—and the 860,000-acre refuge contains no safe sources of drinking water. In 2017, 32 sets of human remains were found there. The No More Deaths volunteers left the supplies in places where people had died. 

The volunteers got caught by a Fish and Wildlife Services officer, who told them to leave, which they did. No citations were issued.

But five months later, they were charged by criminal information with entering the refuge without a permit and abandoning property there. One defendant was also charged with driving in a wilderness area.

After a three-day bench trial, they were convicted of all counts.

In invoking the Religious Freedom Restoration Act defense, McDowell needed to show that the governmental action burdened a sincere "exercise of religion" and that the burden was "substantial."

No More Deaths is a "ministry" of the Unitarian Universalist Church of Tucson, and the truck that the defendants were driving was registered to the church. While none of the defendants considered themselves to be members of specific congregations, all testified about the deeply spiritual nature of their volunteer work. "Defendants hold views which, although perhaps idiosyncratic, are 'closely tied' to traditional Christian beliefs," Márquez found.

But are their beliefs sincere? The government argued that the defendants "recited" religious beliefs "for the purpose of draping religious garb over their political activity."

The judge was not persuaded. "It is well established that sincere religious beliefs are no less deserving of protection merely because they may overlap with political or other secular beliefs," she found.

She also distinguished the facts here from cases where courts found claimants to be insincere, such as the man who said his religious beliefs prohibited drawing blood for a legally mandated DNA test, yet he had no problem with getting tattoos and shooting IV drugs.

The No More Deaths defendants, by contrast, "were convicted for activities that included hiking food and water into a rugged, unforgiving wilderness during Southern Arizona's extreme August heat," Márquez wrote. As one defendant put it, "[H]iking around in 110 degrees is not what I want to be doing with my time, but I do it because I feel the need to and obligated to be there and do my part."

Nor did the judge find the government had a compelling interest in imposing a substantial burden on the volunteers' ability to exercise their faith.

In addition to blasting the government's "strategy of deterrence by death," Márquez rejected the claim that the restrictions on leaving food and water were necessary to protect the "pristine" nature of the refuge. 

The site is a former active military bombing range with unexploded munitions strewn about, she noted, plus it's already littered with trash from border crossers.  Also, the U.S. Border Patrol zips around both on-road and off to apprehend undocumented immigrants, which also takes an environmental toll.

"Given this context, the government cannot claim a compelling interest in 'maintain[ing]' the CPNWR as 'pristine,'" the judge found. Besides, she noted, the No More Deaths volunteers bring garbage bags and pick up trash, mitigating any damage from leaving fresh food and water. 

McDowell said he and his clients were "very grateful" that Márquez penned such a thorough and thoughtful opinion. "I'm extremely happy for my clients," he said. "They really were sincere in testifying about their religious beliefs."