Leaving Water for Migrants Not a Crime, Court Says

The court clears a border activist charged with littering.

By Julianne Hing Sep 03, 2010

A border activist charged with littering for leaving jugs of water in the Arizona desert for migrants was cleared of any wrongdoing by the Ninth Circuit Court of Appeals on Thursday.

Dan Millis, a volunteer with the humanitarian aid group No More Deaths, was convicted in a federal court of littering when he and three other volunteers left water for border crossers in 2008 along a section of the Arizona desert that was a designated wildlife refuge. He faced a $5,000 fine and six months in jail for refusing to pay the $125 ticket.

On Thursday the Ninth Circuit overturned his conviction and ruled 2-1 that the statute was vague enough such that water did not constitute garbage. The dissenting opinion was written by Judge Jay Bybee, a former Bush administration assistant attorney general who co-wrote that administration’s torture memos. Bybee wrote: "Leaving plastic bottles in a wildlife refuge is littering under any ordinary, common meaning of the word."

"It’s a win," Millis said. "We’re happy with the outcome but we’re not happy with the situation that continues to exist. I’m thinking about how this can hopefully turn into better border policy."

Not if the federal government can help it. Millis said that his defense, led by Arizona attorney Bill Walker, was forbidden to mention in court why he was out there in the first place, and why No More Deaths does its work. Millis was forced to argue his case without what he called a necessity defense.

"We are out there because of a flawed, inhumane border policy," Millis said. "There are human lives at stake."

Since 2001, No More Deaths has provided water and operated medical stations for border crossers in the Southern Arizona deserts. It’s organizational policy to return to the locations of their water drops to pick up emptied jugs, and pick up any trash they find when they’re out and about. Millis said they recycle, too.

On February 22, 2008 he was stopped by two U.S. Fish and Wildlife Service officers who cited Millis for "dumping of waste" along oft-traveled trails. Millis said that while they confiscated the 22 gallons of water he planned to leave for migrants that day, they did not take away the trash Millis had also collected. Just two days prior to his run-in, Millis had also discovered the body of a 14-year-old Salvadoran girl named Josseline Jamileth Hernandez Quinteros. Hernandez was traveling with her younger brother. The two were traveling to the U.S. to be reunited with their family in Arizona. But he arrived alone.

The verdict comes on the heels of reports of a year of unprecedented deaths along the border. Millis said that in the six months between when the Ninth Circuit first heard his case and yesterday, when they issued their verdict, 126 migrants had perished in Arizona. Most die from dehydration and heat-related illnesses in the region where daytime temperatures soar into the triple digits.

"That’s 126 too many," he said. "It’s inexcusable."

In recent years, multiple border activists have been cited for littering by the Fish and Wildlife officers. In June 2009, a federal jury convicted another activist on a similar littering charge. No More Deaths activist Walt Staton was sentenced to 300 hours of community service and a year of probation.

On Thursday the Ninth Circuit reminded Millis that their verdict would likely not protect humanitarian aid groups from future prosecution. Still, it’s some vindication for a group that has no plans to stop helping people who make the treacherous journey through the country’s dangerous borders. "It’s a moral admission by the U.S. government," Millis said. "It’s a little bit of their conscience peeping out, that maybe this is not the best use of our taxpayer money."

"We should probably start looking at the root causes, and changing our border policies, demilitarize our border and reform our trade policies. That’s what it means to me anyway."