US Attorney challenges judge on military zone prosecutions

The U.S. Attorney in New Mexico is criticizing the chief U.S. Magistrate judge for seeking legal views about trespassing violations in the state’s new military defense zone, urging the judge to “correct course” to avoid “further impropriety.”

In a nine-page “objection” filed Sunday, U.S. Attorney Ryan Ellison sought to preempt a judicial opinion about the elements of criminally charging people illegally crossing into the U.S. with additional crimes of entering a restricted military zone and violating defense property security regulations.

The unusual court filing from the government comes just weeks after the Trump administration began the prosecution practice by designating a 60-foot-wide swath along New Mexico’s southern border as military property called the New Mexico National Defense Area. The action was viewed as a way to legally use military troops for domestic law enforcement on American soil.

The 170-mile long stretch is part of the federal government’s “broader efforts to protect and defend the sovereignty and territorial integrity of the United States in light of the ‘National Emergency’ caused by, among other things, unchecked unlawful mass migration,” wrote Ellison, who was appointed April 19 by U.S. Attorney General Pam Bondi.

With hundreds of defendants now facing such misdemeanor charges in Las Cruces federal court, Chief U.S. Magistrate Judge Gregory Wormuth on May 1 requested input from the U.S. Attorney’s Office and the Federal Public Defender’s office citing the scarcity of case law relating to these offenses and “the unprecedented nature of prosecuting such offenses in this factual context.”

The judge wanted to hear about the standards of proof needed to find defendants guilty in these kinds of cases, such as whether offenders would have had to know they were on military property or willfully intended to violate the no-trespassing edict.

Ellison’s office on May 5 filed a 14-page brief defending the prosecution practice. But in his objection filed days later, Ellison called the judge’s solicitation of legal views an “extraordinary departure” from “foundational principles” because it wasn’t spurred by any particular case.

The request was issued without prompting from any party, outside the context of any particular case, “absent any relation to an identified defendant, on a miscellaneous docket, and untethered to any contemplated or requested relief,” Ellison wrote.

Moreover, the judge’s request “was an improper exercise of the Court’s authority,” he contended. He urged Wormuth to avoid “further impropriety of issuing an advisory opinion purporting to provide views on abstract questions of law that have not yet been properly raised in any case by any party.”

Amanda Skinner, of the federal public defender’s office, contended in her May 8 response to Wormuth that the signage warning those stepping into the defense zone is inadequate, but the U.S. Attorney’s office argued such notification wasn’t required to prove someone violated the military-related laws. The fact that someone has intentionally entered the zone from Mexico through an area other than a designated port of entry and knows that conduct is unlawful is enough to find someone guilty of the military zone infractions, federal prosecutors maintain.

The 12-by-18-inch signs, which are posted on stakes inside the zone, are in English and Spanish, but no other languages. Skinner, who couldn’t be reached for comment Monday, asked Wormuth to hear oral arguments on the issue.

Ellison wrote that it appeared the judge’s “premature and inappropriate effort to decide questions before it” was apparently “designed to provide legal guidance to courts across all cases, present and future, across the district.”

The New Mexico defense zone is a “crucial installation necessary to strengthen the authority of servicemembers to help secure our borders and safeguard the country. The Court should therefore be particularly reluctant to stray beyond the constitutional limits of ‘judicial power’ and unilaterally impose its legal views in cases implicating national sovereignty.”