Can 18 U.S.C. § 1382, which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, be enforced on a portion of a military installation that is subject to a public roadway easement?
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
Whether 18 U.S.C. § 1382, which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement.
Vandenberg Air Force Base in California has two state highways that run through the base, Highway 1 and Highway 246. The military base is considered closed, meaning that entering the base is only possible through guarded areas. The borders of the base are demarcated by a “green line” that signifies where the base technically begins. Although owned by the United States, the base has granted an easement to California with certain restrictions so that the highways are open to the public. The Air Force base maintains concurrent jurisdiction over the easement with state and local governments. As part of the restrictions, the use of the roadway is subject to the rules and regulations of the Air Force base. Furthermore, the base has a designated area for peaceful public protests within the boundaries of the easement. Vandenberg’s commander has expressly forbidden anyone who has been banned from the base from entering the designated protest area.
John Apel was a visitor to the protest area for almost fourteen years. However, in 2003 and 2007, the base cited and barred Apel from Vanderberg for trespassing and vandalizing base property. In 2010—while still barred from the base—Apel entered the designated protest area on three more occasions. On those occasions, Apel was asked to leave, and when he did not, he was cited for violating 18 U.S.C. § 1382. Section 1382 bars the reentry of a military installation of any person who has been ordered not to reenter and subjects them to fines or imprisonment.
Apel moved to dismiss, arguing that the First Amendment precluded the enforcement of § 1382 in the “public” protest area.The court denied the motion, and Apel was convicted. On appeal to the Ninth Circuit, Apel argued that § 1382 required absolute ownership over the designated area, which the easement precluded. The Ninth Circuit agreed and reversed his conviction, reaffirming the Ninth Circuit’s prior decision in United States v. Parker, which held that § 1382 requires exclusive right of possession.
This case presents the Supreme Court with the opportunity to determine the limits of § 1382 in relation to the military’s power over their bases and surrounding public areas. According to Apel, his conviction under § 1382 violates his freedom of speech by precluding him from protesting in a public forum. Apel also argues that § 1382 requires exclusive military control of the land, which did not exist here because of California’s concurrent jurisdiction over the easement.
The United States stresses the statutory language of § 1382, which does not mention “exclusive control.” The United States contends that the phrase “within the jurisdiction of the United States” was intended to effect the statute on foreign military bases, not bar application in instances where, as here, the United States has concurrent jurisdiction with state and local governments. As to Apel’s First Amendment rights, the United States contends that the Court should not reach the issue, because the Ninth Circuit did not address it.
FIRST AMENDMENT IMPLICATIONS FOR PROTESTERS AND THE MEDIA
Amici such as the Reporters Committee for Freedom of the Press (“Reporters Committee”) are primarily concerned with the underlying First Amendment issue, which the Court may not address. In support of Apel, Reporters Committee argues that restrictions on speech in public areas must be consistent with the First Amendment. According to the committee, allowing the government to exclude certain people from what is considered a public area may hinder the ability of news media to provide information to the public. They contend that the real issue is under what circumstances may the government restrict access to public areas in the face of the First Amendment. If the Court does not reach that issue, amici would like the Court to remand the case for a ruling on Apel’s First Amendment claims.
Notwithstanding the First Amendment argument, the United States asserts that the government’s ability to exclude certain persons from military installations is necessary for the safety of military personnel and facilities. The United States fears that the Apel’s interpretation of § 1382 would undermine the commander’s ability to protect the base. According to the government, if the commander must wait until someone with a barment order crosses into the exclusively possessed area of the base (beyond the green line), it could be too late. The United States thus contends that because so many military facilities are subject to easements, these areas require the ability to exclude those with valid barment orders for safety concerns.
In response, the Ground Zero Center for Nonviolent Action does not view the government’s purported rationale as a valid interest that justifies the restriction of free speech in designated protest areas. Ground Zero is not only concerned about protestor rights in general, but also because their headquarters is located outside a Naval Base. By allowing the military to cite them under § 1382, they fear their members could be subject to improper treatment in areas around the base including hiking trails and public roads. In a broader sense, Ground Zero sees the government’s interpretation of § 1382 as giving the government the ability to arrest those simply standing in a public area similar to the area at hand, if they have a prior barment order.
The United States counters that there need not be a valid interest in justifying the restriction of speech on the easements. Relying on the Court’s decision in United States v. Albertini, the United States argues that a military base is not a public forum for First Amendment purposes, regardless of whether it is open to the public.
If the Court does reach the First Amendment issue, its opinion may define the scope of the military’s power over public areas owned by the military or other government bodies. This could have wide-ranging effects on protesters, media, and civilians that use public easements on military bases. If the Court does not reach the issue, it may simply remand the case to the Ninth Circuit. If the Court allows the exclusivity requirement to stand, it could pose new challenges for military base commanders tasked with maintaining the safety of their facilities and could threaten the grant of future easements.
DOES 18 U.S.C. § 1382 ONLY APPLY TO A PORTION OF A MILITARY INSTALLATION WITHIN THE EXCLUSIVE POSSESSION AND CONTROL OF THE FEDERAL GOVERNEMENT?
Apel argues that, because § 1382 only allows installation commanders to exclude trespassers from the area under their command, the statute requires that the military have exclusive possession and control of that area. Apel argues that the commander of Vandenberg does not control access to Highway 1, and therefore, the highway is not part of the area under his command for the purposes of § 1382. Apel argues that because the military has relinquished exclusive possession and control of the part of Highway 1 forming the easement through Vandenberg, the commander of Vanderberg had no power under § 1382 to exclude Apel from that area.
The United States argues that § 1382 itself does not mention a requirement of possession or control by the government and insists that such a limitation is not supported by the plain words of the statute. The United States argues that this case is similar to Albertini, in which the Supreme Court declined to read into § 1382 an extratextual requirement that a reentry occur within a reasonable time period or that the reentry be done knowingly. The United States insists that this case is analogous to Albertini in that Apel asks the Supreme Court to read into § 1382 an extratextual requirement that the military exclusively possess and control the area for which the commander is barring entry.
Apel argues that requiring the military to have exclusive possession and control over an area is not an extratextual requirement, but rather, it is part of what constitutes a “military installation.” Apel argues that “military installation” does not simply include any place that is subject to the military’s jurisdiction. Apel argues that “military installation” only includes “facilities used for military purposes,” which would not include public roads, even if the road runs through land under the military’s jurisdiction. Apel asserts that the plain meaning of “military installation” excludes places that have a civil use, such as a public highway. Apel also notes that the Supreme Court ruled in United States v. Phisterer, a case involving the statutory predecessor to § 1382, that the term, “military station” only included places dedicated to a military purpose. Apel asks the Court to construe “military installation” consistent with “military station.”
The United States argues that the term, “military installation,” should be broadly construed to include “any place subject to military command.” The United States notes that nothing in § 1382 suggests that “military installation” should not include a public roadway running through a military base. Under this definition, the United States insists that the public highway onto which Apel entered is part of the “military installation” comprising Vandenberg. Further, the United States asks the Supreme Court to read § 1382 consistent with Title 10 of the United States Code, in which a “military installation” is defined as a facility “‘under the jurisdiction’ of the Department of Defense”.
Apel argues that the Air Force itself has interpreted “military installation” to require exclusive possession. Apel notes that the Air Force Judge Advocate General has opined that a commander may properly exercise authority under § 1382 if the United States has an exclusive possessory right. Apel also points out that Department of Defense regulations require installation commanders to control access to their installations and that the regulations only allow installation commanders to control access to installations under the military’s exclusive control.
The United States argues that the easement forming the part of Highway 1 on Vandenberg provides that the highway is subject to rules and regulations promulgated by the base commander. Further, the United States contends that a public-roadway easement does not contain an implicit right to engage in public protest and that the easement, here, does not contain such a provision. Further, the United States argues that at common law, exclusive possession is not required to maintain an action for trespass; a mere possessory interest is sufficient.
IS APEL’S CONDUCT PROTECTED BY THE FIRST AMENDMENT?
As a procedural matter, the United States asks the Supreme Court to remand to the Ninth Circuit to consider the First Amendment issue because the Ninth Circuit did not reach the issue in its opinion. Apel insists that it is appropriate for the Supreme Court to consider the First Amendment issue because it was raised by the parties before the Ninth Circuit and no further development of the record is necessary.
Apel argues that his conviction under § 1382 is unconstitutional because it violates the First Amendment. Apel asserts that the First Amendment protects his speech activity because he was peacefully protesting within a designated protest area by Highway 1, which is a public street outside of the closed portion of Vandenberg. Apel asserts that the Supreme Court has long held that public streets are proper places to conduct speech activities. Apel argues that the First Amendment right to freedom of expression applies to his protest activity because the part of Highway 1 adjacent to Vandenberg is no different than any other public street just because it happens to be on land that is owned by the military.
The United States asserts that military bases are generally not considered public forums for First Amendment purposes. The government further argues that the Supreme Court ruled in Albertini that § 1382 does not violate the First Amendment because it is a content-neutral restriction that addresses a significant governmental interest in barring individuals who may potentially be security threats from entering a military installation.
Apel responds that Albertini does not apply to this case because Albertini dealt with speech activities inside a closed military base, not speech activities on a portion of a military base open to public traffic. Instead, Apel analogizes this case to Flower v. United States, in which the Supreme Court ruled that, under § 1382, a person may not be excluded from a portion of a military base that is considered a public forum on the basis of conducting speech activities protected by the First Amendment. Here, Apel argues that the designated protest area by Highway 1 is a portion of Vandenberg that should be considered a public forum and that his protest activity is protected under the First Amendment.
The United States argues to the contrary that the Apel’s case is not analogous to Flower. The United States asserts that Apel is not challenging the order under § 1382 excluding him from Vandenberg, but rather he is challenging his conviction for re-entering Vanderberg. The United States argues that Apel’s conviction under § 1382 was not based on his speech activity; it was based on the content-neutral reason that he re-entered Vanderberg after being ordered not to do so.
Whether 18 U.S.C § 1382 requires the military’s exclusive possession over the area will be a key concern in deciding this case. If it does, then the Court would likely affirm the judgment of the Ninth Circuit, and Apel’s conviction would be dismissed. But even if the Court determines that the statute does not require exclusive possession, it could still uphold the Ninth Circuit’s judgment on First Amendment grounds or remand the case for further proceedings. If the Court does determine that the easements are subject to First Amendment protections, it could affect the ways in which commanders of military bases may constitutionally attempt to safeguard personnel and facilities. The Court’s decision may also affect the access of the media and protesters to military-owned land subject to public easements.