The legal definition of hostilities does not require arms. If an action causes death or destruction to the US or its citizens, that is hostile. Weapons are not required. Bringing drugs and fentanyl to the US, which undoubtedly harms Americans, is a hostile act by every legal and reasonable definition.
Also, the US Constitution purposely does not define war as an armed conflict.
This retired judge is making things up to suit a political narrative. If this case was brought to an unbiased court, it would be cut and dry, but we have a lot of leftist activists judges just as biased as this retired one.