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United States v. Kelly

United States District Court, S.D. Georgia, Brunswick Division

August 26, 2019

UNITED STATES OF AMERICA
v.
STEPHEN KELLY, et al., Defendants.

          ORDER

          HON. LISA GODBEY WOOD, JUDGE

         Before the Court are Defendants Stephen Michael Kelly, Mark Peter Colville, Clare Therese Grady, Martha Hennessy, Elizabeth McAlister, Patrick M. O'Neill, and Carmen Trotta's Motions to Dismiss. Dkt. Nos. 87, 102, 118, 122, 141, 158, 171. These Motions are largely identical, and each Motion moves to dismiss the respective indictment on four grounds. The Magistrate Judge issued a Report and Recommendation that recommended the denial of these Motions on all four grounds. Dkt. No. 411. Defendants have filed Objections to the Report and Recommendation. Dkt. Nos. 429, 432, 433, 437, 498, 499, 502. The Court held oral argument on August 7, 2019. Dkt. No. 480. After a careful, de novo review of the record, with respect to Defendants' Religious Freedom Restoration Act defenses the Court OVERRULES Defendants' Objections to the Report and Recommendation and DENIES Defendants' Motions to Dismiss. After a careful, de novo review of the record, with respect to Defendants' remaining argued grounds for dismissal-Selective or Vindictive Prosecution, Duplicitous or Multiplicitous Counts, and Failure to State an Offense-the Court CONCURS with the Magistrate Judge's Report and Recommendation and subject to the additional analysis set forth below ADOPTS the Magistrate Judge's Report and Recommendation DENYING Defendants' Motions.

         BACKGROUND

         As the Magistrate Judge's Report and Recommendation summarizes the events that give rise to this action:

Late on the night of April 4, 2018, seven Catholics-Defendants in this action-equipped with bolt-cutters, spray-paint, and a hammer made of melted-down guns, cut a padlock, opened a gate, and stepped onto the property of the Naval Submarine Base Kings Bay in Kingsland, Georgia. Once inside the main perimeter fence, three of the seven Defendants walked toward another enclosed area. When the three arrived, they cut through the secondary fence and concertina wire and entered the "Limited Area," a highly secured area where the Naval Security Force is prepared to use deadly force against intruders. The other four Defendants, while on the base, poured blood on the ground, hammered on the sides of a monument, hung banners and painted messages protesting nuclear weapons, and joined together in prayer. Base security personnel located and arrested all seven Defendants.
Defendants are members of the Plowshares Movement, a Christian protest and activism group opposed to nuclear weaponry. Defendants include four grandparents, one Jesuit priest, and a descendant of Dorothy Day, a co-founder of the Catholic Worker movement who is currently under consideration by the Catholic Church for canonization as a saint. Doc. 313 at 23, 125, 145; Doc. 316 at 24-25, 124, 151. Defendants entered the base that night intending to perform, in their words, "nonviolent acts of prophetic witness against the governments possession of nuclear weapons . . . ." Doc. 245 at 5.

Dkt. No. 411 at 1-2.

         Each Defendant has since been indicted and charged by the United States with the following offences, three felonies and one misdemeanor: (1) 18 U.S.C. § 1363, Destruction of Property on Naval Installation; (2) 18 U.S.C. § 1361, Depredation of Government Property; (3) 18 U.S.C. § 1382, Trespass; and (4) 18 U.S.C. § 371, Conspiracy. See Dkt. No. 1. Defendants have each moved to dismiss the respective indictment against them on the following grounds: (1) unlawful prosecution under the Religious Freedom Restoration Act of 1993 ("RFRA"); (2) selective and vindictive prosecution; (3) duplicitous and multiplicitous counts; and (4) failure to state an offense under international and domestic law.

         DISCUSSION

         I. The Religious Freedom Restoration Act of 1993

         Defendants move to dismiss this case under the Religious Freedom Restoration Act of 1993. The impetus for Congress's passage of RFRA was the United States Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872 (1990). In Smith,

the Supreme Court held that the Constitution's Free Exercise Clause does not exempt religious persons from the dictates of neutral laws of general applicability. The devout must obey the law even if doing so violates every article of their faith. When Smith was handed down, some worried that it upset existing free exercise doctrine dating back to Sherbert v. Verner, 374 U.S. 398 (1963) . In Sherbert and its progeny the Supreme Court had suggested that no law, not even a neutral law of general applicability, may "'substantially burden" the exercise of religion unless that burden amounts to the "'least restrictive means" of achieving a "compelling governmental interest." Smith, 4 94 U.S. at 883; id. at 899 (O'Connor, J., concurring in the judgment). What protections Sherbert appeared to afford religious observances, Smith appeared ready to abandon
Concerned with just this possibility, worried that Smith left insufficient room in civil society for the free exercise of religion, Congress set about the business of "restoring" Sherbert, at least as a matter of statute. It opened its efforts with the Religious Freedom Restoration Act of 1993. See 42 U.S.C. § 2000bb(b) (1). Passed nearly unanimously, RFRA was (and remains) something of a "super-statute." Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249, 253 (1995). It instructed that all forms of governmental action-state or federal-had to satisfy Sherbert's test or risk nullification.
But as it turned out, this marked only the opening lines in what proved to be a long dialogue between Congress and the Court. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that RFRA stretched the federal hand too far into places reserved for the states and exceeded Congress's Section 5 enforcement authority under the Fourteenth Amendment. As a result, the Court held RFRA unconstitutional as applied ...

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