Case 2:18-cr-00022-LGW-BWC Document 489 Filed 08/14/19 Page 1 of 11

FILE0
U.S. DISTRICT COURT
BRUiNS'A'IC^ r;iv.
UNITED STATES DISTRICT COURT H II* SS
FOR THE SOUTHERN DISTRICT OF GEORGIA'' " ^
BRUNSWICK DIVISION CLFrj" ^ ^
L lo r. CT GA.
UNITED STATES OF AMERICA,

Plaintiff,
CaseNo. 2:I8cr22
vs.

STEPHEN M. KELLY,SJ.,

Defendant.

DEFENDANT'S POST-HEARING BRIEF

This post-hearing brief is filed in response to the Court's order for any post-hearing brief

to be filed within 7 days from the date of the oral argument(held on August 7, 2019)on the

Defendants' Objections to the Magistrate Judge's Report & Recommendation ("R&R")that was

issued on April 26, 2019(Dkt. Doc. 411).'

With regard to the Religious Freedom Restoration Act("RFRA"),42 U.S.C. § 2000bb et

seq., each Defendant has testified concerning her or his sincerely-held religious beliefs, which

motivated her or him to perform nonviolent sacramental acts of symbolic disarmament at

religiously significant locations inside the perimeter fence - for example, as close as possible to

the site of the idolatry and sin, or where the prophetic message could be more effectively

preached.- Magistrate Judge Cheesbro found every Defendant credible in testifying about their

This hearing brief incorporates and assumes all arguments by all Defendants in this case provided in their
Supplemental Briefs on RFRA in September 2018, in their Supplemental Evidentiary Briefs on RFRA in January
2019, and in their Objections to the R&R in May 2019. In addition, each Defendant adopts the arguments of every
other Defendant, including the arguments made at the oral argument on August 7,2019.
- See Defendant McAlister's Objections to the R&R, Doc. 429, at 8-9. For convenience, citations to
Defendants' Objections will be made only to Defendant McAlister's filing.
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sincerely-held religious beliefs. The Government has long known that in this case it is seeking to

punish and prevent what is a peaceful and sincere religious exercise. It knew this soon after the

arrests on April 5,2018; it certainly knew this during the summer of2018; or after the

evidentiary hearing in November 2018; or when it chose not to object to the Magistrate Judge's

factual findings. Therefore, this Court must apply strict scrutiny to the Government's actions.

The Government's ongoing refusal to comply with the particularized and individual assessments

required by RFRA leave this Court with only one Judicial remedy -the criminal charges must be

dismissed.

I. Where to "Draw the Line" Inside the Perimeter Fence

At the oral argument, the Court asked the hypothetical question of"where to draw the

line" inside the perimeter fence. That is, hypothetically, how would RFRA operate if the

Defendants' sacramental actions had taken place at a location closer to the Trident missiles?^

The Supreme Court in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal. 546 U.S.

418(2006), Burwell v. Hobbv Lobbv Stores. Inc.. 573 U.S. 682(2014), and Holt v. Hobbs. 135

S.Ct. 853(2015), provided the principles for drawing that line."* It is possible to draw a line

where, depending upon the nature ofthe religious exercise, the Government has an interest that

is so compelling that it warrants a "no exceptions" policy. The burden is on the Govemment to

produce affirmative evidence and prove where it has a compelling marginal interest to draw that

line.^ One example in the case law is that if the religious exercise causes harm or detriment to

^ The Govemment asserted at oral argument that the Defendants were not near any nuclear weapons on the
Kings Bay naval base.
'• See Defendant McAlister's Objections to the R&R,Doc. 429, at 17-19.
® See generally Defendant McAlister's Objections to the R&R,Doc. 429, at 16-26.
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other parties, then that might warrant imposing a "no exceptions" policy on a category of

defendant actions.® But for cases like the present one, involving only peaceful, sacramental

actions of symbolic disarmament,'the lawful limit of a "no exceptions" policy would vary

depending upon the facts ofeach case. On the issue of where that line is at Kings Bay,the

evidence is solely in the Government's possession, so the requirement that the burden of

production is on the Government, as well as the burden of persuasion, makes perfect sense.

Even if one assumes that, on the Kings Bay naval base, there must exist some line beyond which

no unauthorized person should be permitted to go, even for religious purposes, such an

assumption would be irrelevant to this case. Here, the base area consists of 17,000 acres

containing a wide variety of land uses; the Defendants were never near any nuclear weapon (as

the Govemment admitted at oral argument); and the evidence shows that at least some

sacramental actions occurred at a location within the perimeter fence where the Government

itself conducts public tours(the "missile shrine" or "static missile display").® The burden is on

the Govemment to produce evidence and justify why it has banned religious exercises ofany

nature from a location open to public tours. Captain Lepine testified that no religious exercises

would be allowed anywhere inside the perimeter fence under any circumstances.^

® See Defendant McAlister's Objections to the R&R,Doc.429, at 23-24.

^ The evidence shows that there was never any harm posed to any person. See Defendant McAlister's
Objections to the R&R,Doc.429, at 21-22.
^ As for the other primary location where some Defendants performed nonviolent sacramental actions, the
Limited Area,there is also no evidence to justify a"no exceptions" policy for religious exercise. It is the Government's
burden to produce such evidence.
'Dkt. Doc.316 at 270, lines 11-13("members ofthe general public are not authorized access inside the fence
line in any capacity to exercise their religious rights"). See Defendant McAlister's Objections to the R&R,Doc.429,
at 9-10.
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The Supreme Court's refusal to be satisfied with mere assertions of general governmental

interests, and its requirement that the Govemment particularize its claim of a compelling interest,

applies also to any types of property damaged by the Defendants. While the Defendants cut

several padlocks and fences, spray-painted a sidewalk, and removed letters on a sign and a piece

ofa missile shrine, no property of any importance to military operations or national security was

damaged. Just as the Govemment must establish for the Court a location's degree of

importance to govemmental interests, the Govemment must also establish that its interest in

protecting particular padlocks, fences, signs and a missile shrine compels a "no exceptions"

policy for religious exercise. The Govemment asserts, in effect, that it can erect a perimeter

fence wherever it wishes, and it can impose a "no religious exceptions" policy for every location,

padlock and blade of grass inside that fence, without needing a justification that passes strict

Judicial scrutiny. The Govemment asserts that the Defendants' RfRA rights do not extend past

the perimeter fence, wherever that fence happens to be.

The case law ofthe Supreme Court and ofthe Eleventh Circuit clearly rejects the

Govemment's position. The RFRA rights ofthese Defendants do not automatically stop at the

perimeter fence. If the Supreme Court in 0 Centro(by a vote of8-0)rejected the Govemment's

blanket"no exceptions" claim under Schedule I ofthe Controlled Substances Act, and that Court

instead demanded a justification particularized to the situation,^' then this Court must also

require a particularized justification for locations and property on Kings Bay naval base. If the

Supreme Court in Holt(by a vote of9-0)rejected a categorical "no exceptions" claim for a

personal-grooming policy (which allegedly maintained prison security by mitigating escape

See Defendant McAlister's Objections to the R&R,Doc.429, at 24-25.

"5ee546 U.S. at 430-37.
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schemes and preventing the smuggling of contraband into a prison), and that Court instead

demanded a particularized justification,'^ then this Court must also require the Government to

produce a particularized justification for routine tour sites and ordinary padlocks and sign letters

at Kings Bay. If the Eleventh Circuit required a particularized justification in Davila v. Gladden.

777 F.3d 1198(11th Cir. 2015),for a prohibition on religious articles coming into a prison,'^
then this Court must also require the Government to produce a particularized justification for a

"no exceptions" policy on religious sacramental actions at sites at Kings Bay regularly open to

the public. Without such evidence in the record, this Court has no basis for allowing the

Government's "no exceptions" policy everywhere inside the perimeter fence.

II. Clarifying "Least Restrictive Means"

Even if this Court overlooks the lack of a particularized assessment, and it allows the

Government's unsubstantiated claim to a compelling interest everywhere inside the perimeter

fence, the Court must not excuse the Government's failure to make an individualized

determination ofthe "least restrictive means" for each Defendant. The burden is on the

Government to provide testimony, produce evidence and prove, with respect to each Defendant

considered individually, that pursuing these criminal charges is the Government's least

restrictive means ofachieving its compelling interests.'®

•2 See 135 S.Q. at 863-67.

See 777 F.3d at 1205-07 ("the Defendants' [a number of prison employees] generalized statement of
interests, unsupported by specific and reliable evidence, is not sufficient to show that the prison restriction furthered
a compelling governmental interest").
See Defendant McAlister's Objections to the R&R,Doc.429, at 18-19.
Defendants have argued extensively why Captain Lepine's speculative testimony is inadequate, given the
inconsistencies within the Government's evidence, and the questions left unanswered. See Defendant McAlister's
Objections to the R&R,Doc.429, at 26-31.
The Government's caricature at oral argument that Defendants would require base security personnel to
go through a RFRA least-restrictive-means checklist prior to making an arrest was amusing, but not to be taken
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At the oral argument, the Government blurred the distinction between alternative means

of achieving a governmental interest(with the burden ofjustification on the Government)and

alternative religious exercises available to the Defendants. Least restrictive means and

alternative religious exercises are two completely distinct concepts. The fact that a particular

Defendant might consider accepting an accommodation that allows sacramental action of

symbolic disarmament inside the perimeter fence (if the Government were ever to create such an

accommodation) is completely consistent with the fact that on April 4, 2018, when no religious

exercises were permitted on Kings Bay naval base under any circumstances, that same Defendant

felt compelled by Catholic teaching and primacy of conscience to enter the base to perform a

nonviolent sacramental action at a religiously meaningful location. The decision rule for

choosing among altemative governmental means was created by Congress- under RfRA,the

Govemment must employ the means that is least restrictive on a Defendant's religious exercise,

so long as that means is equally effective at achieving the Government's interests. The

Govemment must use least restrictive means in order to fulfil its le2al obligations. By contrast,

as we argue in the next section, the Govemment(including the courts) has no authority

whatsoever to decide which other religious exercises would have had equal value for achieving a

Defendant's religious obligations.

The Govemment also raised the "straw argument" that "less punitive" does not mean

"less restrictive," when Defendants have never made such an argument. It is factually possible,

as is true in this case,for a means to be less harsh while also being less restrictive of religious

seriously. Defendants have never argued this. What the Defendants have argued is that in the more than 16 months
since the arrests, the Government knew, or should have known, with near certainty, that these Defendants were
conducting themselves as peaceful, religious people.
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exercise. An order barring a Defendant from the naval base would be less punitive than

imprisonment for up to 20 years, but it would also be less restrictive on the Defendant's religious

practices, because the Defendant would still remain free to engage in prophetic witness against

nuclear weapons at other times and locations. Or an accommodation permitting a sacramental

action inside the perimeter fence under certain restrictions would be less punitive, but it would

also be less restrictive of religious freedom. Degrees of punitive force are indeed irrelevant

under RFRA, but Defendants have never argued that they were relevant.

In addition, the Government misleadingly argued that there is "no evidence" that the

Defendants would comply with any means less restrictive than imprisonment. The Government

ignores the critical point that the burden is on the Government to produce such evidence. And in

fact, the evidence proves that the Government has made no attempt, over the course of 16

months, to assess whether any of the less restrictive means proposed by the Defendants would be

ineffective. And it has ignored the positive evidence by some individual Defendants that such

means would in fact be effective in their cases. The Government blatantly disregards both the

law and the evidence.

It is reasonable to conclude that the Government is trying to prevent religious actions like

the Defendants' simply because it does not want them to occur. But the Government has no

legitimate (let alone compelling) interest in imposing such prior restraint. RFRA restricts the

Government's actions to the least restrictive means that would be effective against an individual

Some Defendants testified that they would in fact consider the option of practicing symbolic disarmament
with accommodation inside the perimeter fence if that were permitted. See Defendant McAIister's Objections to the
R&R,Doc. 429, at 34-35.

See Defendant McAIister's Objections to the R&R,Doc. 429, at 33 and note 39,34-35 and note 40.
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Defendant, and under RFRA each Defendant is guaranteed such an individual assessment. The

Court must not allow the Govemment's ongoing RPRA violation to continue.

III. Acknowledging a Substantial Burden

The Defendants are entitled under RFRA to strictjudicial scrutiny of the Govemment's

use of imprisonment to punish their nonviolent sacramental actions. The Govemment argues that

the R&R correctly recommends that criminal prosecution for engaging in a religious practice

does not constitute a substantial burden on that practice, and that the Government's actions need

not pass strictjudicial scrutiny. But if having a policy against permitting peaceful sacramental

action, prosecuting someone for engaging in such a religious practice, and imprisoning someone

to prevent such a religious practice in the future do not merit strict scrutiny by the courts, then

what governmental action would? If the Supreme Court in Holt(by a vote of9-0) held that

threatening a prisoner with disciplinary action for growing a i4-inch beard (out of religious

motivation) requires strict scrutiny,'^ then surely criminal prosecution for engaging in a

nonviolent sacramental action also merits strict scrutiny.^®

The Govemment argues that the Defendants are not deserving of strict scrutiny because

they could have engaged in some other religious practices, outside the perimeter fence. The

Govemment ignores the uncontested testimony ofthe Defendants that Catholic teaching and

primacy of conscience required them to undertake their religious sacramental actions within the

perimeter fence.^' The Govemment likewise ignores the Supreme Court's mandate that the

Govemment(including the courts) must stay out ofthe business of deciding which religious

See 135 S.Ct. 862-63.

Holt. 135 S.Ct. at 862-63;see Defendant McAlister's Objections to the R&R,Doc. 429, at 13,3-7.
See Defendant McAlister's Objections to the R&R,Doc. 429, at 8-9 and note 9.
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exercises would have been equally valuable religious substitutes for these Defendants. The

Government would have this Court decide that performing symbolic disarmament at the Bancroft

Memorial, outside the perimeter fence, would have been "just as good" from a religious

perspective. The Supreme Court, however, has sensibly ordered this Court not to make such a

religious determination.

The Government has also attempted to read into RPRA, with absolutely no basis in case

law, a "permission prong" and an "exhaustion of administrative remedies" requirement-that

unless a Defendant first seeks governmental permission to conduct a religious exercise, then that

Defendant forfeits her RFRA right to strict scrutiny if the Government brings criminal charges

against her after that religious exercise. If such an argument were to prevail, then it would

threaten to eliminate all RFRA protections as defenses in criminal cases, because there would be

no limit to the Government's imagining what else a Defendant "should have done first," before

engaging in the Defendant's religious exercise. RFRA,however, does not impose an

"exhaustion" prerequisite. Moreover, in the present case, the Government's argument that,

according to Scott Bassett, there existed a process for seeking permission to conduct sacramental

action at the static missile display inside the perimeter fence at Kings Bay is disingenuous,

because the Government knows full well that Captain Lepine's policy was not to allow any such

religious exercises.

If the Government is suggesting, on the other hand, that the Defendants could have taken a "tour" of the
missile display, and that a "tour" would have been "just as good" as sacramental symbolic disarmament, then the
analysis in the previous paragraph addresses this impermissible proposition.
See Defendant McAlister's Objections to the R&R,Doc. 429,at 9-10.
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In conclusion, this Court must subject the Government's ongoing punishment of these

religious Defendants to strict scrutiny. The Government has not presented evidence sufficient to

carry its specific burdens as set out in the law. It is not the role ofthis Court to do the Government's

job for them, and this Court must rule as a matter of law that the Government has persistently

failed in its RFRA obligations. This case must be dismissed.

As Defendant Clare Grady stated during her oral argument, RFRA has been a step forward

in protecting religious freedom in this country. And she reminded everyone that this case has arisen

from God's command to love all people. She said:

"Justice is what love looks like in public." Justice is about well-being for all
people and all creation, no exceptions. Nuclear weapons have become an idol,
replacing trust in God with the willingness to threaten and destroy all of God's
creation in the illusory pursuit of maintaining power and control."

RFRA requires our Government not to suppress peaceful, sacramental actions motivated by such

religious beliefs, unless the Government's actions pass the strict scrutiny required by our law. This

Court is the protector ofthat civil right for these Defendants. On the history and record ofthis case,

this Court has no other option than to dismiss all criminal charges against these Defendants.

Respectfully submitted this 14^^ day of August 2019.

Stephen M Kelly, S.J.

Pro Se Defendant
Glynn County Detention Center
100 Sulphur Springs,
Brunswick, GA 31520
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CERTIFICATE OF SERVICE

I hereby certify that on the 14^ day of August 2019, I had served upon the Clerk of

this Court, and by the Clerk's electronic filing(NEF),the Assistant United States Attorney, a copy

of the foregoing DEFENDANT'S POST-HEARING BRIEF.

Dated this 14*^ day of August 2019.

ST~
Stephen Kelly, S.J.
Pro Se Defendant
Glynn County Detention Center
100 Sulphur Springs,
Brunswick, OA 31520