public easement

Issues

John Apel was convicted of violating 18 U.S.C. § 1382, which prohibits the reentry of persons barred from a military installation. The Ninth Circuit overturned his conviction, interpreting § 1382 as requiring the military’s exclusive control over the area, which did not exist here because the area was subject to a public easement. The United States disputes the Ninth Circuit’s interpretation of § 1382 and argues that the military need not have exclusive possession or control of an area for a military installation commander to exclude a civilian trespassing. According to the government, it is sufficient that the easement be under the jurisdiction of the military. The United States also argues that § 1382 is a content-neutral restriction that does not violate the First Amendment. Apel responds that § 1382 requires that the military have exclusive control and possession of an area and that the area be used for a military purpose to be considered a “military installation” under the statute. Apel also argues that his conduct is protected under the First Amendment. The Supreme Court’s decision will help determine the scope of the military’s power in relation to easements on their property. It may also affect the scope of First Amendment protections afforded soldiers and others who would protest the government on or near military installations.

Questions as Framed for the Court by the Parties

Written by

Edited by