472 U.S. 675 (1985), 83-1624, United States v. Albertini

Docket Nº:No. 83-1624
Citation:472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536, 53 U.S.L.W. 4844
Party Name:United States v. Albertini
Case Date:June 24, 1985
Court:United States Supreme Court

Page 675

472 U.S. 675 (1985)

105 S.Ct. 2897, 86 L.Ed.2d 536, 53 U.S.L.W. 4844

United States



No. 83-1624

United States Supreme Court

June 24, 1985

Argued April 15, 1985




Title 18 U.S.C. § 1382 makes it unlawful to reenter a military base after having been "ordered not to reenter by any officer in command or charge thereof." In 1972, respondent received from the commanding officer of Hickam Air Force Base in Hawaii a letter (bar letter) forbidding him to reenter the base without written permission from the commanding officer or his designate. The letter was issued after respondent and a companion entered the base and destroyed Government property. In 1981, respondent, with some friends, entered Hickam again during the base's annual open house for Armed Forces Day. Respondent's companions engaged in a peaceful demonstration criticizing the nuclear arms race, but respondent only took photographs of the displays at the open house, and did not disrupt the activities there. The commanding officer directed the chief of the security police to have the individuals cease their demonstration, and further informed him that he believed one of the individuals involved had been barred from Hickam. Respondent and his companions were escorted off the base, and respondent was subsequently convicted in Federal District Court of violating § 1382. The Court of Appeals reversed, holding that respondent had a First Amendment right to enter Hickam during the open house because the base had been transformed into a temporary public forum.


1. Section 1382 applies to respondent's conduct. Viewed in light of the ordinary meaning of the statutory language, respondent violated § 1382 when he reentered Hickam in 1981. Moreover, § 1382's legislative history and its purpose of protecting Government property in relation to the national defense support the statute's application to respondent. There is no merit to respondent's contentions that § 1382 does not allow indefinite exclusion from a military base, but instead applies only to reentry that occurs within some "reasonable" period of time after a person's ejection; that § 1382 does not apply when a military base is open to the general public for purposes of attending an open house; and that reentry is unlawful under § 1382 only if a person knows that his conduct violates an extant order not to return, whereas respondent did not subjectively believe that his attendance at the open house was contrary to a valid order barring reentry. And the assertion that respondent lacked

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notice that his reentry was prohibited is implausible, since the bar letter did not indicate that it applied only when [105 S.Ct. 2900] public access to Hickam was restricted, and any uncertainty he had in this regard might have been eliminated had he sought, in accord with the bar letter, permission to reenter from the commanding officer. Pp. 679-684.

2. The Court of Appeals erred in holding that the First Amendment bars respondent's conviction for violating § 1382 by his reentry during the open house. Flower v. United States, 407 U.S. 197, distinguished. A military base generally is not a public forum, and Hickam did not become a public forum merely because the base was used to communicate ideas or information during the open house. Moreover, regardless of whether Hickam constituted a public forum on the day of the open house, respondent's exclusion did not violate the First Amendment. The fact that respondent had previously received a valid bar letter distinguished him from the general public and provided a reasonable ground for excluding him from the base. Nor does the general exclusion of recipients of bar letters from military open houses violate the First Amendment on the asserted ground that such exclusion is greater than is essential to the furtherance of Government interests in the security of military installations. Exclusion of holders of bar letters in such circumstances promotes an important Government interest in assuring the security of military installations. Nothing in the First Amendment requires military commanders to wait until persons subject to a valid bar order have entered a military base to see if they will conduct themselves properly during an open house. Pp. 684-690.

3. Since the Court of Appeals did not address whether, on the facts of this case, application of the 1972 bar letter to respondent was so patently arbitrary as to violate due process, this Court does not decide that issue. P. 690.

710 F.2d 1410, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 691.

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O'CONNOR, J., lead opinion

JUSTICE O'CONNOR delivered the opinion of the Court.

The question presented is whether respondent may be convicted for violating 18 U.S.C. § 1382, which makes it unlawful to reenter a military base after having been barred by the commanding officer. Respondent attended an open house at a military base some nine years after the commanding officer ordered him not to reenter without written permission. The Court of Appeals for the Ninth Circuit held that respondent could not be convicted for violating § 1382 because he had a First Amendment right to enter the military base during the open house. 710 F.2d 1410 (1983). We granted certiorari, 469 U.S. 1071 (1984), and we now reverse.


The events underlying this case date from 1972, when respondent and a companion entered Hickam Air Force Base (Hickam) in Hawaii ostensibly to present a letter to the commanding officer. Instead, they obtained access to secret Air Force documents and destroyed the documents by pouring animal blood on them. For these acts, respondent was convicted of conspiracy to injure Government property in violation of 18 U.S.C. §§ 371, 1361. Respondent also received a "bar letter" from the Commander of Hickam informing him that he was forbidden to

reenter the confines of this installation without the written permission of the Commander or an officer designated by him to issue a permit of reentry.

App. 43; cf. Greer v. Spock, 424 U.S. 828, 838 (1976). The bar letter directed respondent to 18 U.S.C. § 1382 and quoted the statute, which provides:

Whoever, within the jurisdiction of the United States, goes upon any military, [105 S.Ct. 2901] naval, or Coast Guard Reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or

Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation,

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after having been removed therefrom or ordered not to reenter by any officer in command or charge thereof --

Shall be fined not more than $500 or imprisoned not more than six months, or both.

In subsequent years, respondent, according to his own testimony, received bar letters from a number of military bases in Hawaii. App. 30. In March, 1981, he and eight companions improperly entered the Nuclear War Policy and Plans Office at Camp Smith in Hawaii and defaced Government property. Ibid. Respondent testified that he was not prosecuted for what he termed his "rather serious clear-cut case" of civil disobedience at Camp Smith, ibid., and that the 1972 bar letter was the only one he had ever received for Hickam. Id. at 28, 30.

Respondent entered Hickam again on May 16, 1981, during the base's annual open house for Armed Forces Day. On that day, members of the public, who ordinarily can enter Hickam only with permission, are allowed to enter portions of the base to view displays of aircraft and other military equipment and to enjoy entertainment provided by military and nonmilitary performers. Press releases issued by the base declared that,

[w]hile Hickam is normally a closed base, the gates will be open to the public for this 32nd Annual Armed Forces Day Open House.

Id. at 45. Radio announcements similarly proclaimed that "the public is invited, and it's all free." Id. at 48.

With four friends, respondent attended the open house in order to engage in a peaceful demonstration criticizing the nuclear arms race. Id. at 27-28. His companions gathered in front of a B-52 bomber display, unfurled a banner reading "Carnival of Death," and passed out leaflets. Respondent took photographs of the displays, and did not disrupt the activities of the open house. The Commander of Hickam summoned Major Jones, the Chief of Security Police at the

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base, and told him to have the individuals cease their demonstration. Id. at 9. Before respondent was approached by military police, the Commander further informed Major Jones that he believed one of the individuals involved in the demonstration had been barred from Hickam. Id. at 9-10, 13-14. Respondent and his companions were apprehended and escorted off the base.

An information filed on July 1, 1981, charged respondent with violating § 1382 because, on May 16, 1981, he "unlawfully and knowingly" reentered Hickam Air Force Base "after [he] had previously been ordered not to reenter by an officer in command." Id. at 3. Respondent was convicted after a bench trial and sentenced to three months' imprisonment. Id. at 1. On appeal, respondent challenged his conviction on three grounds. 710 F.2d at 1413. First, he argued that he had written permission to reenter based on the advertisements inviting the public to attend the open house. Second, respondent contended that the 9-year-old bar letter was ineffective, because it violated due process. Finally, he argued that his presence at Hickam during the open house was protected by the First Amendment. The Court of Appeals rejected respondent's first argument and found it...

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