United States District Court, S.D. Georgia, Brunswick Division
LISA GODBEY WOOD, JUDGE
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'
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.
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.
The Religious Freedom Restoration Act of 1993
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
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 ...