A New Approach to Prosecuting Border Militias

Private militias epitomize the recent resurgence in domestic terrorist activity in the United States. One of the more alarming interactions between militias and civilians—especially in the Southwest—is during militia patrols along the U.S.-Mexico border. In these patrols, armed private citizens will surveil, chase, and even detain migrants until state or federal law enforcement arrive. These vigilantes sometimes operate in concert with law enforcement, yet their activities can complicate law enforcement efforts. Border vigilantes have jeopardized the safety of federal agents, trespassed into Mexican territory, and even been charged with murder.

Two incidents are particularly notable. In April 2019, a border militia called United Constitutional Patriots (UCP) detained around 200 migrants at gunpoint in the New Mexican desert. Camping along a 52-mile stretch of the border, UCP had about 20 associates who were known to arm themselves with AK-47 rifles and other weapons. Afterward, it emerged that the same border militia was allegedly training to assassinate Barack Obama and Hillary Clinton, and the group’s numbers dwindled. Later, in December 2021, a border militia called Patriots for America (PFA) detained three migrants. In footage reviewed by Lawfare and disseminated on Facebook by PFA leader Samuel Hall, the vigilantes commanded the migrants to sit down, questioned them, and supervised them for at least seven minutes (according to an edited PFA video) until a sheriff’s deputy arrived. Of the four militia volunteers visible in the video, at least three carried handguns, three displayed American flag insignia, and all four wore plate carriers. PFA had around 17 volunteers operating in Kinney County at the time, although it is unclear if the group is still active today.

Earlier this year, three U.S. senators sent a letter to the Biden administration highlighting the resurgence of these militia patrols. The letter references one statute (18 U.S.C. § 912) that the federal government could better enforce against militias. Section 912 punishes individuals who impersonate an officer or employee of the United States with up to three years in prison. Although militia associates have been prosecuted under this statute, the statute is limited. If militia associates wore civilian clothes or identified themselves truthfully, federal prosecutors cannot prevail on a § 912 charge, even if militia associates continue to detain migrants. 

Since armed militias pose a risk to migrants and the rule of law along the border, what else could federal prosecutors charge? Two overlooked provisions are the federal kidnapping (18 U.S.C. § 1201) and hostage-taking (18 U.S.C. § 1203) statutes. Section 1201 prohibits holding an individual for some reason after abducting, confining, or otherwise deceiving them. Section 1203 prohibits detaining an individual in order to compel someone else to do something as a condition for the individual’s release. These statutes have long been used to protect migrants through human smuggling prosecutions.

The main prosecutorial advantage to these charges emerges in plea negotiations and sentencing. Kidnapping can trigger significant mandatory minimums and upward departures. And hostage taking is included in the 51 predicate offenses punished by federal law as domestic terrorism. Through 18 U.S.C. § 2332b(g)(5)(B), both acts could subject defendants to a minimum recommended sentence of 17 and a half years. Enhanced sentences for militia associates can better punish militia detentions of migrants, as well as provide leverage for encouraging cooperation in federal investigations.

Applying the Federal Kidnapping Statute to Border Militia Activities

The federal kidnapping statute has four elements. First, the defendant must seize, confine, inveigle, decoy, kidnap, abduct, or carry away an individual. While most of these terms contemplate deception or physical restriction, force is not necessary for a § 1201 conviction. Terms like “confine” have been defined broadly as actions that hold an individual “within a location” or keep them “within limits.” Second, the defendant must kidnap the individual for some purpose. The statute applies broadly to any confinement for “ransom or reward or otherwise” (emphasis added), and legal purposes have even satisfied this requirement. Third, the defendant usually must travel in interstate or foreign commerce to further the offense, unless the kidnapping occurs “within the special maritime and territorial jurisdiction of the United States.” Fourth and finally, the defendant must have acted unlawfully and willfully. Yet if the kidnapping occurs in “the special maritime and territorial jurisdiction of the United States,” the offense is considered a general intent crime, and a prosecutor must prove only that the defendant acted “unlawfully.”

There is evidence that the activities of UCP and PFA along the border might have violated § 1201. First, a migrant is ostensibly confined—and not reasonably free to leave—when surrounded by armed militia associates questioning them in a foreign language and searching them in unfamiliar terrain. Because there is nowhere for a migrant to go, the border’s geographic isolation arguably enhances the confining nature of the situation, but such a determination is ultimately for a jury to make. Second, the purpose element should be satisfied by militia activities that seek to elicit a response from law enforcement. Third, unlawful detentions on federal land can be sufficient for jurisdiction under § 1201(a)(2). Since the border regions of California, Arizona, and New Mexico are largely federal property, border militias in those states are at a heightened risk of violating § 1201. For example, the Bureau of Land Management has vast holdings in southeastern New Mexico, and the exact coordinates of the UCP incident are unclear. Finally, a fact-specific inquiry would be necessary to determine if the defendant acted unlawfully and, depending on where the incident occurred, willfully.

Federal kidnapping sentences can be severe. If any migrant child was involved, a mandatory minimum sentence of 20 years applies. Moreover, if any militia associate conspired to cross into Mexico and confine a migrant—as might have happened in a separate June 2022 incident—that conspiracy violates 18 U.S.C. § 956(a)(1), which would subject the defendant to the minimum recommended sentence of 17 and a half years. Compared with the 21-month sentence that the UCP leader eventually received, a kidnapping charge is a much stronger punishment for  detaining migrants.

Applying the Federal Hostage-Taking Statute to Border Militia Activities

Section 1203 has four elements. First, the defendant must seize or detain an individual. Section 1203 does not require any use of force or a risk of physical injury. Rather, actions that frighten a victim into staying with the defendant for an “appreciable” period of time are sufficient for detention—at least 15 minutes according to one circuit court decision. Second, § 1203 requires a threat to kill, injure, or continue to detain an individual. A threat can be implied, and carrying guns has been held by a federal court to be an implicit threat. Third, there must be an international nexus. Section 1203 is not violated if the detention occurred in the United States and every defendant and detainee is a U.S. national, unless the defendant is seeking to compel the federal government. Fourth and finally, § 1203 has a “compulsory purpose” element. The defendant must act with the purpose of compelling a third party or governmental organization to do or abstain from doing “any act” as a condition for releasing the detained individual.

Prosecutors might prefer § 1203 to § 1201 because of its stronger sentencing enhancements. While kidnapping is an element of a predicate terrorism offense under 18 U.S.C. § 956(a)(1), § 1203 is a predicate terrorism offense. Due to a quirk in the Sentencing Guidelines, prosecutors can still advocate for a terrorism enhancement at sentencing under § 1203 even without proving the necessary intent for a federal crime of terrorism. Rather, Sentencing Guideline § 3A1.4 permits upward departures if the defendant’s motive is to intimidate or coerce a civilian population, like migrants. It would be difficult to argue that the end goal of armed citizens along the border or the means by which they accomplish their end goals are anything but intimidating migrants into terminating or reversing their journey across the border. As one circuit court has said in the context of Sentencing Guideline § 3A1.4, the terrorism enhancement can apply even if the defendant’s conduct sought “to accomplish other goals simultaneously.”

In contrast to § 1201, it is less clear whether UCP and PFA patrols violated § 1203. Under the totality of the circumstances, a migrant would probably be frightened and not reasonably feel free to leave when confronted by armed militia associates. The threat element would be satisfied by some militia volunteers’ overt display of firearms, and a single migrant victim would satisfy the international nexus requirement. However, alerting a government agency in order to get it to respond—while maintaining constant supervision of the migrant until law enforcement arrives—may or may not meet the “compulsory purpose” element, as explored below.

Downsides to the Federal Hostage-Taking Statute: Two Possible Defenses to the “Compulsory Purpose” Element 

Prosecuting a border militia under § 1203 would hinge on the reach of the “compulsory purpose” element, which could be complicated by two scenarios. First, what if a militia associate was acting with the approval of state law enforcement? If the government knew of and acquiesced to the conduct, and the militia associate intended to assist law enforcement, then the associate would be an approved agent of state officials. Thus, there would be no compulsion of state officials. The approval of state officials is more than hypothetical: Local law enforcement in Texas considered deputizing PFA a couple years ago, and Texas’s proposed House Bill 20 could allow private citizens to participate in immigration enforcement.

Yet such approval would have downsides for state officials. State officials could be civilly liable under a host of statutes, including the federal anti-conspiracy statute and the Failure to Prevent Conspiracy Act. And these downsides can be both politically and monetarily significant. In Arizona, lawsuits against Sheriff Joe Arpaio—many regarding state enforcement of immigration laws, and some involving deputized citizen volunteers—cost county taxpayers over $140 million and eventually forced Arpaio out of office. 

Second, what if a militia associate was not seeking any governmental response? With no compulsion of any outside party, § 1203 would cease to apply. Given the ease with which a defendant could invoke these defenses, it’s more straightforward for a prosecutor to prove purpose under § 1201 than under § 1203. 

Conclusion

Given the greater uncertainty around § 1203, charging border militia associates under § 1201 is prudent for several reasons. A § 1201 charge comports with Department of Justice policy, which advises prosecutors to charge the most serious and readily provable offense. Such a charge may also strengthen the sustainability of a conviction. The felon-in-possession statute was used to prosecute UCP’s leader, yet various provisions of that statute have increasingly been challenged in lower courts. Lastly, while migrant detentions might seem unrelated to domestic terrorism, border militias maintain broad networks. Over the years, UCP hosted Stewart Rhodes, Brian Kolfage, and other individuals who were eventually subject to federal investigation, charge, and conviction. 

Migrant detentions are a unique occasion when militias peacefully contact the federal government, and the Department of Justice should take advantage of these occasions to strengthen its domestic terrorism investigations. Section 1201 could radically change a defendant’s cooperation calculus: While a kidnapping conviction against a border militia is unprecedented, the potential sentence might be too high for militia associates not to cooperate with the government. With an active community of far-right organizations and a history of anti-immigrant movements, the Southwest is one of the most vulnerable regions for extremist violence. Arizona alone has been home to the Oklahoma City bomber, a 9/11 hijacker, and the “QAnon shaman” of the Jan. 6 attack on the Capitol. By using § 1201, the government can increase sentences for militia associates, gain greater insight into their networks, and reduce militia activity along the border.