The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Pro-Palestinian Protesters' Religious Beliefs Don't Preclude Trespass Prosecution
From Hubersberger v. State, decided yesterday by Arizona Court of Appeals (Division 2) Judge Eppich, joined by Judge Vásquez and Chief Judge Staring:
In November 2023, Appellants, motivated by their sincerely held religious beliefs, participated in a protest against Raytheon because of its role as a weapons supplier to Israel and the bombings occurring in Gaza. Appellants' demonstration occurred on private property, and their stated purpose was to disrupt Raytheon's daily operations by blocking Raytheon workers from entering the facility. The morning of the protest, Pima County Sheriff's deputies arrived and informed Appellants that they were trespassing. Appellants refused to move, and they were arrested….
Appellants moved to dismiss the [criminal trespass] complaints against them pursuant to FERA [the Arizona Free Exercise of Religion Act], arguing that because their protest was motivated by their religious faith, their arrest and prosecution substantially burdened their free exercise of religion….
FERA protects Arizonans' fundamental right to freely exercise their religion without undue government interference "even if laws, rules or other government actions are facially neutral." Under FERA, the government cannot substantially burden a person's exercise of religion unless it demonstrates that the burden both (1) furthers a compelling government interest and (2) is the least restrictive means of furthering that interest. This statute may be asserted in a judicial proceeding as a claim or a defense. It parallels the federal Religious Freedom Restoration Act (RFRA).
Appellants do not dispute on appeal that the government had a compelling interest to protect the peace and Raytheon's private property rights. We therefore only address the second prong of the FERA analysis: whether the arrest and prosecution of Appellants was the least restrictive means in which the government could have furthered its interests in this case…. To show it used the least restrictive means to further its interest, the state need not prove that the means used were the least restrictive means "conceivable," only that it used the least restrictive means available and that any proposed alternative is "ineffective or impractical."
Appellants first offer as an alternative to their arrest that the deputies on the scene could have waited for them to peacefully disperse. To support this contention, they cite examples of Tucson law enforcement making no effort to remove protesters in similar circumstances. While taking no action is certainly less restrictive, we do not read FERA as requiring the state to simply stand by in the hope that a violator will stop offending on their own, as inaction is ineffective in furthering the state's compelling interest. See also United States v. Grady (11th Cir. 2021) (permitting defendants to commit crimes is not an effective means of achieving the government's interests). {Because the FERA and the [federal] RFRA are substantially identical, we look to federal cases interpreting the RFRA as nonbinding, persuasive authority.}
We, like the superior court, find nothing on the record to indicate that Appellants would have left Raytheon's private property without state intervention. And, contrary to Appellants' assertion on appeal, the state sufficiently demonstrated that simply waiting for the protest to end would have been ineffective, citing the warnings given to Appellants by officers to lawfully protest "mere steps away" from private property, which Appellants refused to do. Thus, the state met its burden for the arrest under FERA.
Appellants next assert, as they did below, that the arrest alone was sufficient to further the government's interest, therefore their continued prosecution necessarily does not meet the least restrictive means test. The superior court rejected Appellant's argument, relying on United States v. Christie (9th Cir. 2016). There, appellants argued in part that under the RFRA, the government should have charged them under a less punitive provision, which would meet the less restrictive means standard. The Ninth Circuit rejected this argument, concluding that no matter the charges brought, both were equally restrictive of appellants' free exercise of religion. Further, such an interpretation would unjustifiably encroach on the prosecutor's discretion when making charging decisions.
On appeal, Appellants argue that Christie is inapposite because they are not asserting lesser charges should have been brought, but that the charges should not have been brought at all. We disagree that this sufficiently differentiates Christie. Here, the arrest and the prosecution are "equally restrictive of religion, even if they might not be equally punitive." We also conclude that analyzing whether the prosecutor should or should not bring charges "would plunge courts far too deep into the business of reviewing the most basic exercises of prosecutorial discretion." Our supreme court has warned that "judicial oversight of prosecutorial discretion generally constitutes 'inappropriate interference … with the broad discretion entrusted to the executive branch.'" We agree with the state that such a restriction on the state's power to prosecute would be an ineffective means of furthering a compelling government interest, considering Appellants' refusal to move from the private property.
Because the state has shown that the proposed alternatives for achieving the compelling government interest are ineffective or impractical, it has met the least restrictive means test to overcome a motion to dismiss based on a FERA claim….
J. William Brammer Jr., James W. Rappaport, and Ryan Klee of the Pima County Attorney's office represent the state. Thanks to Howard Friedman (Religion Clause) for the pointer.
