United States v. Apel
| Decision Date | 26 February 2014 |
| Docket Number | No. 12–1038.,12–1038. |
| Citation | 186 L.Ed.2d 75,134 S.Ct. 1144,571 U.S. 359 |
| Court | U.S. Supreme Court |
| Parties | UNITED STATES, Petitioner v. John Dennis APEL. |
Benjamin J. Horwich, for the petitioner.
Erwin Chemerinsky, Venice, CA, for the respondent.
Erwin Chemerinsky, Counsel of Record, Kathryn M. Davis, Peter R. Afrasiabi, Appellate Litigation Clinic, University of California, Irvine School of Law, Irvine, CA, Selwyn Chu, Klatte, Budensiek & Young–Agriesti, LLP, Newport Beach, CA, Paul L. Hoffman, Schonbrun DeSimone, Seplow Harris & Hoffman, Venice, CA, Steven R. Shapiro, Ben Wizner, Brian M. Hauss, American Civil Liberties, Union Foundation, New York, NY, Peter J. Eliasberg, ACLU Foundation of Southern California, Los Angeles, CA, for Respondent.
Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Mythili Raman, Acting Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Benjamin J. Horwich, Assistant to the Solicitor General, David M. Lieberman, Attorney, Department of Justice, Washington, DC, for Petitioner.
Federal law makes it a crime to reenter a "military ... installation" after having been ordered not to do so "by any officer or person in command." 18 U.S.C. § 1382. The question presented is whether a portion of an Air Force base that contains a designated protest area and an easement for a public road qualifies as part of a "military installation."
Vandenberg Air Force Base is located in central California, near the coast, approximately 170 miles northwest of Los Angeles. The Base sits on land owned by the United States and administered by the Department of the Air Force. It is the site of sensitive missile and space launch facilities. The commander of Vandenberg has designated it a "closed base," meaning that civilians may not enter without express permission. Memorandum for the General Public Re: Closed Base, from David J. Buck, Commander (Oct. 23, 2008), App. 51; see also 32 CFR § 809a.2(b) (2013) ().
Although the Base is closed, the Air Force has granted to the County of Santa Barbara "an easement for a right-of-way for a road or street" over two areas within Vandenberg. Department of the Air Force, Easement for Road or Street No. DA–04–353–ENG–8284 (Aug. 20, 1962), App. 35. Pursuant to that easement, two state roads traverse the Base. Highway 1 (the Pacific Coast Highway) runs through the eastern part of the Base and provides a route between the towns of Santa Maria and Lompoc. Highway 246 runs through the southern part of the Base and allows access to a beach and a train station on Vandenberg's western edge. The State of California maintains and polices these highways as it does other state roads, except that its jurisdiction is merely "concurrent" with that of the Federal Government. Letter from Governor Edmund G. Brown, Jr., to Joseph C. Zengerle, Assistant Secretary of the Air Force (July 21, 1981), App. 40. The easement instrument states that use of the roads "shall be subject to such rules and regulations as [the Base commander] may prescribe from time to time in order to properly protect the interests of the United States." Easement, App. 36. The United States also "reserves to itself rights-of-way for all purposes" that would not create "unnecessary interference with ... highway purposes." Id., at 37.
As relevant to this case, Highway 1 runs northwest several miles inside Vandenberg until it turns northeast at a 90 degree angle. There Highway 1 intersects with Lompoc Casmalia Road, which continues running northwest, and with California Boulevard, which runs southwest. In the east corner of this intersection there is a middle school. In the west corner there is a visitors' center and a public bus stop. A short way down California Boulevard is the main entrance to the operational areas of the Base where military personnel live and work. Those areas are surrounded by a fence and entered by a security checkpoint. See Appendix, infra (maps from record).
In the south corner of the intersection is an area that has been designated by the Federal Government for peaceful protests. A painted green line on the pavement, a temporary fence, Highway 1, and Lompoc Casmalia Road mark the boundaries of the protest area. Memorandum for the General Public Re: Limited Permission for Peaceful Protest Activity Policy, from David J. Buck, Commander (Oct. 23, 2008), App. 57–58. The Base commander has enacted several restrictions to control the protest area, including reserving the authority "for any reason" to withdraw permission to protest and "retain[ing] authority and control over who may access the installation, including access to roadway easements for purposes other than traversing by vehicle through the installation." Ibid. A public advisory explains other rules for the protest area: demonstrations "must be coordinated and scheduled with [B]ase Public Affairs and [Base] Security Forces at least two (2) weeks in advance"; "[a]nyone failing to vacate installation property upon advisement from Security Forces will be cited for trespass pursuant to [ 18 U.S.C. § 1382 ]"; and "[a]ctivities other than peaceful protests in this area are not permitted and are specifically prohibited." U.S. Air Force Fact Sheet, Protest Advisory, App. 52–53.
The advisory states, consistent with federal regulations, that anyone who fails to adhere to these policies may "receive an official letter barring you from entering Vandenberg." Id., at 55; see also 32 CFR § 809a.5 (). And for any person who is Protest Advisory, App. 54.
John Dennis Apel is an antiwar activist who demonstrates at Vandenberg. In March 2003, Apel trespassed beyond the designated protest area and threw blood on a sign for the Base. He was convicted for these actions, was sentenced to two months' imprisonment, and was barred from the Base for three years. In May 2007, Apel returned to Vandenberg to protest. When he trespassed again and was convicted, he received another order barring him from Vandenberg, this time permanently, unless he followed specified procedures "to modify or revoke" the order. Memorandum for John D. Apel Re: Barment Order (Oct. 22, 2007), App. 63–65. The only exception to the barment was limited permission from the Base commander for Apel to Id., at 64. The order informed Apel that if he reentered Vandenberg in violation of the order, he would "be subject to detention by Security Forces personnel and prosecution by civilian authorities for a violation of [ 18 U.S.C. § 1382 ]." Ibid.
Apel ignored the commander's order and reentered Vandenberg several times during 2008 and 2009. That led the Base commander to serve Apel with an updated order, which informed him:
Memorandum for John D. Apel Re: Barment Order Dated Oct. 22, 2007 (served Jan. 31, 2010), App. 59–62.
Apel ignored this barment order too, and on three occasions in 2010 he reentered Vandenberg to protest in the designated area. Each time Vandenberg security personnel reminded him of the barment order and instructed him to leave. Each time Apel refused. He was cited for violating § 1382 and escorted off Base property.
A Magistrate Judge convicted Apel and ordered him to pay a total of $355 in fines and fees. Apel appealed to the Federal District Court for the Central District of California. The District Court rejected Apel's defense that § 1382 does not apply to the designated protest area, holding that the military "has a sufficient possessory interest and exercises sufficient control over" the area. App. to Pet. for Cert. 14a. The court also concluded that Apel's conviction would not violate the First Amendment. Id., at 13a.
The United States Court of Appeals for the Ninth Circuit reversed, holding that the statute does not apply. Based on Circuit precedent, the Ninth Circuit interpreted § 1382 to require the Government to prove that it has "the exclusive right of possession of the area on which the trespass allegedly occurred." 676 F.3d 1202, 1203 (2012) (citing United States v. Parker, 651 F.3d 1180 (C.A.9 2011) ). The court found that the easement through Vandenberg deprived the Government of exclusive possession of the roadway, so it concluded that § 1382 does not cover the portion of the Base where Apel's...
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