Federal judge hears Kings Bay Plowshares’ motion to dismiss charges under RFRA

2018 photo of the Kings Bay Plowshares

from the Kings Bay Plowshares

BRUNSWICK, GA – On August 7, the Kings Bay Plowshares 7 made oral arguments in federal court concerning the denial of the pre-trial motions to dismiss the charges against them.  Appearing for the first time before Judge Lisa Godbey Wood, who will be the trial judge, four of the pro-se defendants and two of the lawyers spoke about why they felt Magistrate Benjamin Cheesbro had improperly ruled against them after two days of hearings last November. The main focus of the August 7 hearing was the Religious Freedom Restoration Act (RFRA), which is being used for the first time in a case like this.

Defendants were only given 90 minutes for all arguments. The government used 30 minutes of its allotted time.  The courtroom was packed with more than 60 supporters inside, including actor and activist Martin Sheen, and 25 were kept outside for lack of space. It was the first time this year that the three defendants still incarcerated in the Glynn County Detention Center for 16 months – Mark Colville, Fr. Steve Kelly, SJ, and Elizabeth McAlister – saw their codefendants.  They have been prevented from in-person legal preparation since last November.

Stephanie McDonald, attorney for Martha Hennessy, began by arguing that the government failed to meet its obligations under RFRA. The law requires that there be specific and individual consideration for each defendant’s beliefs and actions. 
Defendant Clare Grady said that the government’s attempted criminalization of the defendants’ religious practice is not only an undue substantial burden but is also a violation of RFRA, the law of the land. Mark Colville, Patrick O’Neill, and Carmen Trotta also spoke in court.
Bill Quigley, attorney for Elizabeth McAlister, began the closing argument by reminding the court of the bedrock religious belief “Thou shalt not kill.” He summed up his comments by noting that the atrocities committed by Hitler and Stalin would pale in comparison were the Trident nuclear weapons ever used.  He said, “In 30 minutes after launch, millions of innocent people would be killed.”
The judge invited additional responses within a week to arguments made today. She indicated that she would give thoughtful attention to these complex issues, and if necessary, would promptly schedule a trial.

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from the Brunswick News

The line was out the door an hour before the hearing was scheduled. Not long after, word came that fewer than 10 spaces were left in the courtroom. Inside were around 50 people in the gallery — including Emmy award-winning actor Martin Sheen — another 30 or so waiting outside, an enhanced law enforcement presence and a backup chiller for courthouse air conditioning.
It was one of the more unusual mornings for the Frank M. Scarlett Federal Building.

Provided with around 90 minutes of time, the Kings Bay Plowshares defendants and their attorneys had the opportunity to counter U.S. Magistrate Judge Benjamin Cheesbro’s report and recommendations that their request to throw out the charges against them and dismiss the case be denied.

Before entering the courthouse, Sheen expressed a belief held by many there. As a young man in New York City, he met Dorothy Day — grandmother of defendant Martha Hennessy — and became involved with the Catholic Worker movement, of which the defendants are also a part.

“I’ve been inspired most of my life by people who take the gospel seriously and live the gospel as a basic truth,” Sheen said. “If what you believe doesn’t cost you anything, then what is it good for? I think that’s the fundamental value of the Plowshares’ action.”

In April 2018, the seven — Hennessy, Father Stephen Michael Kelly, Mark Peter Colville, Clare Therese Grady, Elizabeth McAlister, Patrick Michael O’Neill and Carmen Trotta — cut through fencing and concertina wire at Naval Submarine Base Kings Bay under the cover of night and allegedly vandalized a building and static missile display.

The alleged vandalism is a matter of law rather than action — what the federal government perceives as property destruction is considered by the defense as symbolic nuclear disarmament, a necessary exercise of their Catholic faith, protected under the federal Religious Freedom Restoration Act.

Defense attorney Stephanie McDonald argued the government, following the defendants’ arrest, had a legal obligation under RFRA to react in the least-restrictive manner possible, and a prosecution on three felonies and a misdemeanor was not close to that standard.

O’Neill and Colville, given their chances to speak before the court, openly speculated as to what could have been a more-restrictive action, like possibly a firing squad or public flogging.

McDonald said it was key to the exercise of their religious beliefs that the defendants conduct their symbolic nuclear disarmament at the site, inside the base’s perimeter fencing, and that this couldn’t be accomplished the same outside the fence line.

As discussed at length in a two-day hearing in November, the defendants hold a belief in the primacy of conscience, that inaction is the same as complicity, and that according to their faith they were compelled to act because nuclear weapons are blasphemous.
McDonald also mentioned that per earlier court rulings, the government needed to develop well-defined and particular compelling interests in halting or otherwise hindering the defendants’ religious exercise, whereas in this case there are only general ones expressed regarding security and property protection.

And in regard to a less-restrictive action, she referred to the base commander’s own testimony that previous ban-and-bar letters worked well in keeping people from coming back on base property.

The prosecution argued that such particulars aren’t necessary, that enforcing policies protecting property and access to the base does not amount to a substantial burden on the defendants, who could have done their symbolic nuclear disarmament without violating the law.

The fact that both could be accomplished, the argument went, is made clear by the defendants saying that ban-and-bar letters would be fine. If those letters would keep them off the property, and the defendants are OK with that, then they didn’t need to be on the base to conduct their protest.

What it came down to, and what the prosecution touched on, was these defendants weren’t likely to commit the same acts at Kings Bay, but may well do so elsewhere. The defendants have lengthy histories of involvement in this movement which included what courts and juries over the decades decided were criminal violations of the law, regardless of the intentions behind the actions.

So, the only punishment that could lead to a certainty on the part of the government that the defendants wouldn’t engage in similar behavior elsewhere in the next few years, given the chance, is a conviction on the charged counts and a sentence involving prison time.

U.S. District Judge Lisa Godbey Wood, in her questioning, spent notable time going over whether the surreptitiously breaking in to the nuclear submarine base was a part of the defendants’ religious exercise as well, which was confirmed by the defense. She also pushed on where the defense drew the line regarding the base protest — if they had to be within the perimeter, how close to the nuclear weapons did they need to be, and what would RFRA say about that?

Although anything is possible, the direction of the questions indicate that like Cheesbro, Wood takes the defendants’ beliefs and arguments quite seriously, but also takes quite seriously the government’s interest in national security and protection of property. If the case is allowed to continue, the court would follow with a scheduling order so both sides can prepare for a trial.