Between the seven of them, the Kings Bay Plowshares defendants filed 161 pages of supplemental briefs — plus one exhibit — further explaining that their actions in damaging property at Naval Submarine Base Kings Bay in April 2018 are covered under the federal Religious Freedom Restoration Act as an exercise of their Catholic faith.
U.S. Magistrate Judge Benjamin Cheesbro ordered the supplemental briefing following two hearings in November. Each defendant filed a common explanation as the first part of their filings, then arguments particular to each defendant in the second parts.
In their common explanation, they state the evidence shows it’s clear they’ve satisfied their responsibilities to prove they’re covered by RFRA, and the burden now shifts to federal prosecutors to prove they aren’t.
The briefs continue, “The evidence also demonstrates, as a matter of law, that the government has failed to prove that it has a compelling interest to prosecute any of these individual defendants, and that the government has failed to prove that such prosecution is the least restrictive means of furthering any compelling governmental interests.
“Therefore, on this evidentiary record, the court must grant the defendants’ motions to dismiss the charges. If the court decides not to rule on any of the prima facie factual issues as a matter of law, then the available evidence is clearly sufficient to create triable issues of fact for the jury.
“However, on the two factual issues for which the government bears the burden of production and proof — marginal compelling interest and least-restrictive means — the government has failed to even produce sufficient evidence for the jury to find in the government’s favor.”
In the prior hearings, the defendants talked at length about their faith, how that faith informs their views of war and nuclear weapons, and how that faith compels them to act regarding the United States government’s possession of nuclear weapons. All of those arguments are reconstituted in each of the briefs.
Elizabeth McAlister attached to her brief a statement she made in federal court in Syracuse, N.Y., on March 19, 1984, when she was a defendant in a different plowshares case. Clare Therese Grady, another of the Kings Bay Plowshares, was also a defendant in the 1984 case.
On Thanksgiving 1983, seven people later referred to as the Griffiss Plowshare 7 broke into a hangar at Griffiss Air Force Base in the early morning hours and hammered away at the engines and bomb-bay doors of a B-52 bomber, writing anti-nuclear slogans in paint and blood.
The action was generally similar to what occurred at Kings Bay a little more than 24 years and four months later.
RFRA didn’t become law until November 1993, but some of the arguments made in Syracuse bear a striking likeness to the arguments made in Brunswick over the past year.
Back in 1984, McAlister said, “The religion of national sovereignty or nuclearism is alive and flourishing. And its existence, its preeminence, its rituals, gods, priests and high priests make serious encroachments on all of us. In fact — and this is the second part of our argument — violating our freedom of religion. The state religion not only compels acts that are prohibited by the laws of God but the state religion itself prohibits the free exercise of religion.”
The jury in the case found all seven guilty of conspiracy to damage government property and damaging government property, but not guilty of damaging national defense. In the case at hand, they’re each charged with conspiracy, depredation of property on a naval installation, depredation of government property and trespassing.
Federal prosecutors in this case argue they had to move forward with a criminal prosecution, because taking an avenue of a less-restrictive punishment — as provided under RFRA — would do no good.
As stated in the government’s brief, “Considering each of the defendants’ ‘precepts and longstanding patterns’ of engaging in disruptive and criminal protests involving trespass and destruction of government property, the court or government cannot be reasonably assured that defendants would comply with any exemption afforded to them on the naval base. …
“Even prior criminal prosecution has not proven an effective deterrent for these defendants, so the notion that a civil remedy or ban-and-bar letter would equally serve the government’s interest is far-fetched. Likewise, defendants ask for a ‘space on the government’s land’ where they would protest …, but that space was already available to them at the Bancroft Memorial; they made no attempt to use it lawfully.”