The Arizona Murder Case Behind A Republican-Backed Gun Law

When George Alan Kelly saw a group of camouflaged men traveling across his 170-acre ranch on Jan. 30, 2023, he suspected the worst. Drug traffickers frequently pass through the area outside Kino Springs, Arizona, which lies about two miles north of the U.S.-Mexico border. 

Both Kelly and his wife, Wanda, later told police that they saw at least one of the trespassers carrying a rifle. Kelly said that when he confronted the intruders, one of them pointed a rifle toward him. In response, Kelly said he fired warning shots from his AK-47 above the group’s heads.  

Arizona prosecutors tell a different story. The state accuses Kelly, 75, of shooting an unarmed migrant named Gabriel Cuen Butimea in the back from a concealed position. Cuen Butimea died on Kelly’s property. No one in the group carried either guns or drugs, prosecutors say — they were cutting through Kelly’s ranch on their way to Phoenix, where they planned to work as roofers. Kelly faces charges of second degree murder and aggravated assault. 

“Kelly issued no warnings and made no requests,” prosecutors wrote in court filings. “He just started shooting at them.” 

The case, which goes to trial on Friday, is now spurring a debate that fuses two of the country’s most polarizing issues — guns and immigration — in a purple state that could play an outsize role in this year’s presidential election. 

George Alan Kelly enters court for his preliminary hearing in Nogales Justice Court in Nogales, Arizona, on Feb. 22, 2023. Kelly, faces a first-degree murder charge in the fatal shooting of Gabriel Cuen-Butimea, who lived just south of the border in Nogales, Mexico.
George Alan Kelly enters court for his preliminary hearing in Nogales Justice Court in Nogales, Arizona, on Feb. 22, 2023. Kelly, faces a first-degree murder charge in the fatal shooting of Gabriel Cuen-Butimea, who lived just south of the border in Nogales, Mexico. Mark Henle/The Arizona Republic via Associated Press

Arizona Republicans are pushing a law that would expand the state’s Castle Doctrine to allow people to use deadly force if they feel threatened when confronting trespassers. The law’s author, Rep. Justin Heap, told the state’s House Judiciary Committee last month that the change was needed to help ranchers remove trespassers from their property, specifically noting the problem of unauthorized migrant trespassers. 

Democratic opponents liken it to legalizing murder, contending that it will encourage people to shoot migrants traveling through expansive borderland ranches.

Heap, who did not respond to interview requests, told the House Judiciary Committee last month that he filed the bill at the request of prosecutors in Yuma and Yavapai counties. 

But the county attorneys for both Yuma and Yavapai told Capitol Media Services they never asked Heap to change the law. And Heap’s proposal applies so clearly to Kelly’s murder case that opponents see it as the obvious inspiration for the bill.

“This proposal happened because George Alan Kelly was accused of killing a migrant who basically crossed his property,” said Abhi Rahman, a spokesperson for the Democratic Legislative Campaign Committee. “Murder is something that should definitely not be legal.” 

“Military-Looking Guys With Big Backpacks”

Kelly hasn’t attracted many public champions, but the themes his case raises have natural appeal to a conservative-backed gun rights movement that has spent the last two decades championing state legislation to reduce liability for self-defense killings and making it easier to carry handguns without a license. Unauthorized migrants, human smugglers and drug traffickers routinely trespass across privately owned land near the border. There’s not much the owners can do about it, other than call law enforcement for help. 

That apparent lawlessness reinforces the widely held view that the U.S.-Mexico border presents a serious public safety threat, despite the fact that border towns typically boast low crime rates

Kelly told police and friends that he had been shot at several times after moving to Arizona about two decades ago, claiming in one case that a bullet fired by an unknown person “clipped his ear,” according to court records. Border Patrol agents routinely found migrant camps along a wash on Kelly’s property.  

This proposal happened because George Alan Kelly was accused of killing a migrant who basically crossed his property. Murder is something that should definitely not be legal.Abhi Rahman, a spokesperson for the Democratic Legislative Campaign Committee

But Kelly and his wife noticed a profound change in December of 2021, when “military-looking guys with big backpacks and guns walked right by our house,” Wanda Kelly said in depositions. Shortly after that, Wanda Kelly said, a woman was killed on the road heading toward her house.

Wanda Kelly didn’t see the men with guns again, but assumed that they continued to pass through because someone kept cutting their fences. From that time, she avoided venturing far from their house. She attributed the drastic changes to the election of Joe Biden in November 2021, though the election had actually occurred the year before that. 

George Alan Kelly had previously carried a sidearm on the property. After the events of December 2021, his wife said he began carrying an AK-47 too. 

Warning Shots

Court records at times paint Kelly himself as an instigator with an unusual penchant for firing warning shots. In 2004, Kelly heard gunshots coming from his property and went to investigate them. As he approached, he fired four shots into the air to warn the person that he was approaching. 

The man, Gerardo Espinosa, told Kelly that he had used the area for target practice since he was a kid. Kelly’s property borders the Coronado National Forest, where target shooting is permitted. Espinosa later told police that Kelly “made racial comments toward him” during the confrontation. Espinosa responded by saying, “I’m gonna tell all the wetbacks I see to come cut down your fences.”

The next year, Kelly arrived one day to find his gate unlocked and cattle roaming off his property. Kelly called the police.  

While retrieving the cattle, Kelly encountered a group of people he presumed to be unauthorized migrants. Two of them walked toward him. Kelly yelled “párate,” Spanish for “stop,” several times, and then fired a pistol into the air to warn them, according to police records. The men walked away. 

Border Patrol agents swept the area, but found no migrants. Police found no damage to the gate latch. 

“My investigation revealed that Kelly may have left the gate unlocked himself,” the police report says. “No criminal activity was revealed.” 

Prosecutors likewise are skeptical of Kelly’s claims that violent criminality is overtaking his ranch. During Wanda Kelly’s deposition, a prosecutor told her that the woman who died on the road to her ranch passed away due to a medical condition. 

And in court filings, prosecutors disputed her vision of rifle-toting criminals crossing through the ranch, deriding it as a “claim that the equivalent of a 20-member military platoon armed with AK-47s marched on Kino Springs but made no news.” 

Whatever the case, George Alan Kelly appeared to increasingly see himself as a vigilante in the years after 2021, with a growing hostility toward unauthorized migrants. In a 2022 text message described in court records, Kelly referenced 27 migrants “growin daisies as of last night,” a euphemism for burying bodies that prosecutors described as “written fantasies about mass murdering a dehumanized group.” When he and his wife contracted COVID that year, he blamed it on “COVD INFTD ILGALS” (“covid-infected illegals”) encountered at Wal-Mart. 

And three weeks before the death of Cuen Butimea, Kelly told a friend in a text that his ranch was overrun by cartel traffickers and that his AK-47 was “getting a lot of work.”

Clashing Stories

The day of the shooting, George Alan and Wanda Kelly say they were in their house eating lunch when they heard gunshots and saw a horse set off running. The couple then saw a group of men through the window walking on their property, according to court records. Both of them say they then saw “numerous armed men carrying rifles and large backpacks running through the trees,” Kelly’s defense attorney, Brenna Larkin,wrote in a court filing. Kelly asked his wife to stay in the house, then grabbed his AK-47 and went outside “in order to deter the drug traffickers from approaching his house.”  

When one of the trespassers pointed a rifle at him, Kelly says he fired several warning shots into the air, well above the group’s heads. 

A Border Patrol agent arrived at the scene to take Kelly’s report, then left. Kelly only found 48-year-old Cuen Butimea’s body a couple of hours later, when he passed through the area with his dogs. He backed away from it and called Border Patrol once again. Cuen Butimea had worn “tactical boots,” a fanny pack, a backpack and a two-way radio, which Kelly’s defender described as evidence that he was trafficking either people or drugs through Kelly’s property. 

Kelly denies shooting Cuen Butimea. His defender contends that the distance from Kelly’s location to that of the victim’s body made it a “very difficult shot to take with any sort of weapon” and that “Gabriel was almost certainly a victim of an armed encounter between these traffickers.”

Law enforcement officers responding to the scene, however, immediately suspected Kelly, at times coaxing him to admit it, according to court filings. Prosecutors faulted Kelly for changing his story several times over the course of the day. 

The responding Border Patrol agent, Jeremy Morsell, said Kelly originally told him the group fired at him and Kelly returned fire. Later, Kelly said the group was too far away to tell if they were armed. Kelly only mentioned hearing the group fire gunshots from within the house well after his initial discussions with agent Morsell. His wife, who uses a hearing aid, said in a deposition she didn’t hear the group fire at all — she only heard Kelly’s shots from the porch. 

As Kelly approached Cuen Butimea’s body with law enforcement officers, he noted that the man had died of a “heart-lung” wound. Officers were only able to establish the wound channel by repositioning Cuen Butimea’s body. 

Prosecutors later found two men, identified in court records as D.R.-R. and R.A.F.-G., who say they traveled with the group that day and witnessed the events directly. The group wasn’t trafficking drugs, they say, and the men were heading to Phoenix to find work. Both the witnesses and Cuen Butimea had crossed the U.S.-Mexico border illegally in the past. 

D.R.-R. said he traveled directly behind Cuen Butimea when Kelly began firing a series of at least eight rounds without warning from an obscured position. The witnesses saw a horse go running, which they thought that Kelly had hit. (The horse was fine.) As the shots flew, D.R.-R. said he heard Gabriel cry out, “I’m hit!” in Spanish, then grab his chest as he fell to the ground. 

“He saw Gabriel’s eyes roll back in his head and, when he could only see the whites of Gabriel’s eyes, he knew that Gabriel was dead,” prosecutors wrote in a court filing. “He felt like they were being hunted the way the shooter came out of the bush.” 

Both men fled south, back into Mexico.

Kelly listens to testimony during his preliminary hearing.
Kelly listens to testimony during his preliminary hearing. Mark Henle/The Arizona Republic via Associated Press

Cuen Butimea died of a gunshot wound that entered through his back and exited through his chest. He was traveling somewhere between 115 and 150 yards from Kelly’s position in front of his house, court records say. That is not a challenging distance for a competent shooter from a stable position, even using the iron sights affixed to Kelly’s rifle. 

“While the individuals were passing through his very large approximately 170 acre property, they posed no threat to him or his family,” prosecutors wrote. “Despite this, Kelly shot at them repeatedly with an AK-47, striking and killing one of them. This type of unprovoked attack presents a significant danger to the victims and the community.”

An Uncertain Case

The outcome of the case will depend in large part on the credibility of the state’s witnesses. Ultimately, it’s a case of he-said, she-said. Law enforcement never found the bullet that killed Cuen Butimea, so they cannot even definitively prove that he died from a round fired through Kelly’s AK-47. 

Kelly’s defense attorney has attacked the state’s two key witnesses repeatedly in court filings, claiming they came forward only in the hope of avoiding legal trouble in the United States and only knew the details of the case because it had gained public notoriety. Several of their statements — that Kelly’s horse was shot, that Cuen Butimea was shot at close distance, that a total of 15 shots were fired — contradict the physical evidence, Kelly’s lawyer says. 

Though his lawyer doesn’t mention it, it’s also unclear how D.R-.R. would have observed Cuen Butimea’s eyes roll back if D.R.-R. was traveling behind him and Cuen Butimea was shot in the back and fell to the ground face-down, as his body was discovered. 

R.A.F.-G. came forward after an arrest for human smuggling on Feb. 8, 2023. D.R.-R. has been arrested multiple times for crossing illegally and admitted to trafficking 20 kilos of marijuana back in 2015. 

Both, however, correctly described Kelly’s only horse as skinny and red, and appeared to accurately describe the clothing that Kelly wore that day — details that prosecutors say did not appear in the news media. 

Prosecutors downplayed D.R.-R.’s criminal history, noting that marijuana is now legal in Arizona. The fact that Cuen Butimea carried a two-way radio at the time proves nothing other than he was “trying to communicate with others,” they say, while the camo served only to conceal him as he attempted to cross into the United States illegally. 

It will take weeks for a jury to decide Kelly’s case. 

But if Arizona’s Castle Doctrine expansion were to become law, people in Kelly’s situation would have a much stronger defense.