Four people arrested during a November protest at the University of Arizona’s Tech Park argued trespassing charges should dismissed because they were exercising their sincere beliefs and are protected under a federal law intended to protect religious freedom.
In a 15-page filing, defense attorney Greg Kuykendall asked the Green Valley Justice Court to dismiss third-degree trespassing charges against Jacyln Hubersberger, Katherine Oftedahl, Josie Shapiro and Seth Wispelwey, arguing they were acting on their religious beliefs when they protested against Raytheon Missiles Systems last November.
Raytheon has become a lightning rod for protests because the defense contracting giant
produces weapons, including missiles and other munitions destined for
the Israel Defense Force, which has hammered Gaza after the militant
group Hamas launched an attack on Oct. 7. Since the attack, which left 1,400 people dead, the Israeli military invaded the Palestinian area, killing as many as 34,000 people, the majority of them women and
children, the Guardian reported. Another 77,000 people have been
wounded.
Kuykendall told Justice of the Peace Ray Carroll that under the federal Religious Freedom Restoration Act and Arizona’s Free Exercise of Religion Act the government should not “substantially burden a
person’s exercise of religion.” In Arizona, the government may burden religious beliefs, but
“only if it demonstrates that application of the burden to the person is
both in furtherance of a compelling governmental interest and the least
restrictive means of furthering that compelling governmental
interest.”
He wrote Arizona’s version of the law, “provides a
defense to criminal prosecution that substantially burdens an
individual’s exercise of religion.”
Under Arizona law, a person can be shielded from prosecution if
they establish three elements: an otherwise illegal action or refusal
to act is motivated by a religious belief; that belief is sincerely
held, and the government’s actions substantially burdens their exercise
of their religious beliefs.
On the morning of Nov. 30, members of the group Tucson Coalition for Palestine blocked the entrances to the UA Tech Park, part of a protest against Raytheon, IBM
and Citigroup for their role in Israel’s military campaign in Gaza.
Raytheon Missile Systems has
multiple sites in Tucson, and the University of Arizona and Raytheon are two of community’s largest employers.
Among those arrested was KJZZ reporter Alicia Reznick, who was covering the protest.
Raytheon representatives asked the Pima County Sheriff’s Department to tell the demonstrators to leave the property, Sheriff Chris Nanos told the Tucson Sentinel. The area in which Reznick was arrested is a paved section of road on the Tech Park campus, much of which is so open to the public that it appears in Google Street View.
The UA Science and Technology Park property is owned by the Arizona Board of Regents. The government leases a building there to Raytheon.
The Tech Park is run by the nonprofit Campus Research Corporation. UA representatives said the lease between CRC — set up by ABOR in 1994 to operate “solely to assiste the Arizona Board of Regents” in the UA’s educational and research mission — and Raytheon is “confidential.” They declined to provide the lease between the state agency and CRC for the operation of the park.
A group of around 25 people were later arrested by the Pima County
Sheriff’s Department.
Reznick and the 25 protestors were released
several hours later from PCSD’s San Xavier District Office and
cited for criminal trespassing.
Reznick was wearing her press pass and carrying reporting gear and a camera as deputies took her into custody around 7:30 a.m. Her arrest came despite being clearly identified as a working reporter, her move to leave the property as requested, and PCSD policies that lay out allowances for journalists undertaking their duties.
The leftist activist journalism group Unicorn Riot posted video and said the group of about 60 protestors blocked the roadway into the Raytheon site near South Rita Road and Interstate 10 for about an hour that morning.
The person who took the video posted by the nonprofit group—which often
focuses on protests and demonstrations—was not among those who were
arrested, despite being in the same place at the same time as the
working reporter who was handcuffed and led away, sources told the
Sentinel.
A few weeks after Resnick’s arrest, the Pima County Attorney’s Office dismissed the charges citing “prosecutorial discretion,” however, the county has pursued charges against the protestors.
Earlier that month, nearly 80 people held a “die in” at the main entrance to Raytheon’s facility along East Hermans Road, blocking access for the defense contractor.
On Oct. 7, during the Jewish holiday of Simchat Torah, the militant
group Hamas attacked Israel, killing as many as 1,400 people and taking
nearly 200 hostages. Israel responded immediately, launching a series of
counter-strikes, called Operation Swords of Iron, against military and
civilian targets in the Gaza Strip, a stretch of land pressed up against
Israel and Egypt and facing the Mediterranean Sea.
President Joe
Biden said after the attacks that at least 11 U.S. citizens were killed.
On
Tuesday, U.N. rights chief Volker Turk said was “horrified” by the
destruction of medical facilities in Gaza and “reports of mass graves
containing hundreds of bodies there,” Reuters reported.
Palestinian authorities said they found hundreds of bodies in mass
graves at Nasser hospital and blamed Israeli troops, however, Israeli
military officials argued forces unearthed the bodies and then interred
them while searching for hostage.
The conflict has fueled
claims of genocide by Israeli forces and thousands of protests have
erupted across the U.S. Further, local groups have pushed city and
county officials to demand a cease-fire in Gaza.
Raytheon ‘facilitates Israel’s siege’ — defense attorney
In his filing, Kuykendall wrote Raytheon “directly and materially facilitates Israel’s ongoing siege and bombardment of Gaza,” and his clients went to the UA Tech park because it hosts 14,000 square feet of office spaces “dedicated to furthering Raytheon’s development of ‘new technologies and enhance existing capabilities in integrated air and missile defense, smart weapons, missiles’ and other technologies of war.”
There, his clients “stood arm in arm at the west shipping entrance at the Tech Park where they sang, chanted and prayed,” Kuykendall said. He said his clients were told they were trespassing by PCSD officials, however “compelled by their sincere religious beliefs,” they refused to move.
He added deputies “chose to physically arrest” his clients “rather than simply cite and release, as is typically done with misdemeanors.”
Kuykendall wrote that Josie Shapiro is an observant Jew currently in the second year of a two-year fellowship to study the Talmud, and is working to become a rabbi. He wrote Shapiro was motivated to protest because a section of the Talmud—a central text of the Jewish faith—requires people “with the power to intervene to prevent wrongdoing must do so.”
Similarly, Kuykendall argued Seth Wispelwey is an ordained Protestant minister and was wearing his clerical collar when he was arrested.
“Wispelwey’s attendance at the the protest was motivated by his religious conviction that all people — including Gazans presently under bombardment by weapons designed and manufactured by Raytheon—are image-bearers of the Divine,” he wrote.
“Although none of the defendants share the same domination, they each share a protected religious belief in the sanctity of human life and in the necessity of conscientious action to prevent genocidal acts from being carried out with the support of their government,” Kuykendall wrote.
He added officials could have allowed the “brief and peaceable” protest to continue and directed traffic around them, or dispersed them, but instead Sheriff’s deputies chose to arrest them.
“The state,” he wrote “cannot demonstrate that prosecuting them for the brief and peaceable trespass alleged here is the least restrictive means of vindicating any public interest.”
While the Religious Freedom Restoration Act was crafted as
legislation for religious conservatives, Kuykendall and other attorneys have used the law, which states that the government may not “substantially burden a
person’s exercise of religion,” to shield liberal
and left-wing activists in Arizona’s southwestern deserts.
In 2020, Kuykendall successfully defended Scott
Warren, an activist facing federal misdemeanor charges for leaving food,
water, clothing and other humanitarian supplies in the desert was
protected from prosecution because of RFRA. During his trial, Warren
argued that leaving water and food to help mitigate the deaths of people
who attempt to cross the remote and hostile wilderness, was a “sacred
act.”
U.S. District Judge Raner C. Collins ruled in Warren’s favor, writing that while “it was clear that the government
had presented sufficient evidence beyond a reasonable doubt to prove the
two charges,” Warren’s religious belief “functions as a successful
affirmative defense.”
Similarly, in 2020, U.S. District Judge Rosemary Marquez reversed the conviction
of four members of No More Deaths, ruling that the members of the
humanitarian aid group successfully established they were exercising
“sincere religious beliefs” when they placed water and food for migrants
in Arizona’s protected Cabeza Prieta National Wildlife Refuge in the
summer of 2017.
Two years later, U.S. Magistrate Judge Leslie A. Bowman dismissed charges against
Amber Ortega, a Southern Arizona border activist, ruling the federal
government had imposed a “substantial burden” on Ortega’s exercise of
her religious faith by closing access to the border road that runs just
south of Quitobaquito Spring and keeping Ortega and others from an area
that remains central to the spiritual practices of the Hia C-ed O’odham.