UNITED STATES v. APEL
No. 12-1038
SUPREME COURT OF THE UNITED STATES
February 26, 2014
571 U. S. ____ (2014)
ROBERTS, C. J.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
OCTOBER TERM, 2013
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. APEL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 12-1038. Argued December 4, 2013—Decided February 26, 2014
Vandenberg Air Force Base has been designated a “closed base,” meaning that civilians may not enter without express permission. The Air Force has granted an easement over two areas of the Base, with the result that two public highways traverse the Base. Adjacent to one of those highways is an area that the Government has designated for peaceful protests. The Base commander has enacted several restrictions to control the protest area and has issued an advisory stating that anyone who fails to adhere to the protest area policies may be barred from entering the Base.
Petitioner Apel was barred from the Base for trespassing and vandalism, but continued to enter the protest area. A Magistrate Judge convicted him of violating
Held: A “military... installation” for purposes of
(a) Contrary to Apel‘s argument,
(b) Section 1382 applies to any place with a defined boundary that is under the command of a military officer. Apel contends that the highways and protest area are outside the Base because they lie outside fenced areas on the Base, but this argument assumes the conclusion. The United States has placed the entire Vandenberg property under the administration of the Air Force. The Air Force‘s choice to secure a portion of the Base more closely does not alter its boundaries or diminish its commander‘s jurisdiction. Apel‘s further contention that the highways and protest area are uncontrolled spaces where military operations are not performed is contrary to the record: The Base commander has enacted rules to restrict the manner of protests in the designated area and has publicly stated that persons barred from Vandenberg may not enter the Base to protest; the District Court found that the Government exercises substantial control over the protest area; the easement itself reserves to the Base commander the authority to restrict access to the entire Base when necessary and reserves to the United States rights of way for all purposes; and the Base commander has occasionally closed the highways to the public for security purposes or when conducting a military launch. In any event,
(c) Apel‘s argument that the statute was unconstitutional as applied was not reached by the Ninth Circuit and, thus, is not addressed here. P. 13.
676 F. 3d 1202, vacated and remanded.
ROBERTS, C. J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, in which SOTOMAYOR, J., joined. ALITO, J., filed a concurring opinion.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 12-1038
UNITED STATES, PETITIONER v. JOHN DENNIS APEL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[February 26, 2014]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
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.”
I
A
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
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
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 [B]ase 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
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
B
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 “traverse’, meaning to travel... on [Highway] 1 and... on [Highway] 246 .... You are not authorized to deviate from these paved roadways onto [Vandenberg] property.” 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
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:
“You continue to refuse to adhere to the rules and guidelines that have been put in place by me to protect and preserve order and to safeguard the persons
and property under my jurisdiction by failing to remain in the area approved by me for peaceful demonstrations pursuant to [50] U.S. C. §797 and32 C. F. R. §809a.0 –[809]a.11 . You cannot be expected or trusted to abide by the protest guidance rules based upon this behavior. I consider your presence on this installation to be a risk and detrimental to my responsibility to protect and preserve order and to safeguard the persons and property under my jurisdiction. You are again ordered not to enter onto [Vandenberg] property, as provided in the October 22, 2007 order. The content and basis of that order is hereby incorporated by reference herein, EXCEPT that your barment will be for a period of three (3) years from the date of this supplemental letter.” 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
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
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
We granted certiorari, 569 U. S. ___ (2013), and now vacate the judgment.
II
Section 1382 provides in full:
“Whoever, within the jurisdiction of the United States, goes upon any military, 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, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof—”
“Shall be fined under this title or imprisoned not more than six months, or both.”
Apel does not dispute that he was “found within” the lawful boundaries of Vandenberg, “within the jurisdiction of the United States,” after having been “ordered not to reenter” by the Base commander.
Against this straightforward interpretation, Apel insists that
A
Apel asserts that the Ninth Circuit‘s exclusive possession and control requirement “derives directly from the text of
Apel contends that the listed military places have historically been defined as land withdrawn from public use. Not so. Historical sources are replete with references to military “forts” and “posts” that provided services to civilians, and were open for access by them. See, e.g., R. Wooster, Soldiers, Sutlers, and Settlers 64 (1987) (“The frontier forts of Texas were not simply army bases occupied solely by military personnel. They were often bustling communities that attracted merchants, laborers, settlers, and dependents”); Davis, The Sutler at Fort Bridger, 2 Western Hist. Q. 37, 37, 40-41 (Jan. 1971) (describing a 19th-century post in southwestern present Wyoming which included a “sutler,” a civilian merchant who set up shop inside the fort and sold wares both to
The common feature of the places described in
Apel responds by invoking our decision in United States v. Phisterer, 94 U. S. 219 (1877), which held that the term “military station” (in a different statute) did not include a soldier’s off-base home. But Phisterer only confirms our conclusion that
Apel also relies on the fact that some Executive Branch documents, including the United States Attorneys’ Manual and opinions of the Air Force Judge Advocate General, have said that
Today, as throughout our Nation’s history, there is significant variation in the ownership status of U. S. military sites around the world. Some are owned in fee, others are leased. Some are routinely open to the public, others are open for specific occasions or purposes, and no public access whatsoever is permitted on others. Many, including such well-known places as the Washington Navy Yard and the United States Air Force Academy, have roads running through them that are used freely by the public. Nothing in
B
Section 1382 is most naturally read to apply to places with a defined boundary under the command of a military officer. Apel argues, however, that Vandenberg’s commander has no authority on the highways running through the Base or, apparently, in the designated protest area. His arguments more or less reduce to two contentions: that the highways and protest area lie “outside the entrance to [a] closed military installation[],” Brief for Respondent 22, and that they are “uncontrolled” spaces where “no military operations are performed,” id., at 23. Neither contention is sound.
First, to say that the highway and protest area are “outside” the Vandenberg installation is not a legal argument; it simply assumes the conclusion. Perhaps recognizing as much, Apel tacks: He suggests that because Vandenberg’s operational facilities are surrounded by a fence and guarded by a security checkpoint, the Government has determined that it does not control the rest of the Base. The problem with this argument is that the United States has placed the entire Vandenberg property under the administration of the Air Force, which has defined that property as an Air Force base and designated the Base commander to exercise jurisdiction. Federal law makes the commander responsible “for the protection or security of ” “property subject to the jurisdiction, administration, or in the custody of the Department of Defense.”
As for Apel‘s claim that the protest area specifically is uncontrolled, the record is conclusively to the contrary. The Base commander “at all times has retained authority and control over who may access the installation,” including the protest area. Buck Memorandum Re: Protest Activity, App. 58. He has enacted rules to restrict the manner of protests in the designated area. Protest Advisory, App. 53. In particular, he requires two weeks’ notice to schedule a protest and prohibits the distribution of pamphlets or leaflets. Id., at 52–53. The Base commander has also publicly stated that persons who are barred from Vandenberg—for whatever reason—may not come onto the Base to protest. Id., at 54. And the District Court found, after hearing testimony, that “the Government exercises substantial control over the designated protest area, including, for example, patrolling the area.” App. to Pet. for Cert. 14a-15a. Apel has never disputed these facts.
Instead Apel tells us that, by granting an easement, the military has “relinquished its right to exclude civilians from Highway 1,” Brief for Respondent 36, and that the easement does not “permit[]” use by the military, id., at 43. But the easement itself specifically reserves to Vandenberg’s commander the authority to restrict access to the entire Base, including Highway 1, when necessary “to
Apel likewise offers no support for his contention that military functions do not occur on the easement highways. The Government has referred us to instances when the commander of Vandenberg has closed the highways to the public for security purposes or when conducting a military launch. Reply Brief 12, and n. 5; Tr. of Oral Arg. 8-9. In any event, there is no indication that Congress intended
In sum, we decline Apel’s invitation to require civilian judges to examine U. S. military sites around the world, parcel by parcel, to determine which have roads, which have fences, and which have a sufficiently important, persistent military purpose. The use-it-or-lose-it rule that Apel proposes would frustrate the administration of military facilities and raise difficult questions for judges, who are not expert in military operations. And it would discourage commanders from opening portions of their bases for the convenience of the public. We think a much better reading of
III
Much of the rest of Apel‘s brief is devoted to arguing that
*
*
*
Where a place with a defined boundary is under the administration of a military department, the limits of the “military installation” for purposes of
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Gate Entrance and Green Line
Visitor Control Center
Vandenberg Middle School
Protest Site
Inner Gate Barrier with Guard Shack
Santa Maria-Highway 1 Gate to Vandenberg Air Force Base
Vandenberg AFB
SUPREME COURT OF THE UNITED STATES
No. 12-1038
UNITED STATES, PETITIONER v. JOHN DENNIS APEL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[February 26, 2014]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, concurring.
I agree with the Court‘s reading of
When the Government permits the public onto part of its property, in either a traditional or designated public forum, its “ability to permissibly restrict expressive conduct is very limited.” United States v. Grace, 461 U. S. 171, 177 (1983). In such venues, the Government may enforce “reasonable time, place, and manner regulations,” but those regulations must be “content-neutral [and] narrowly tailored to serve a significant government interest.” Ibid. (internal quotation marks omitted).
The stated interest of the Air Force in keeping Apel out of the area designated for peaceful protest lies in ensuring base security. Brief for United States 22-26. See also Reply Brief 21-22. That interest, however, must be assessed in light of the general public‘s (including Apel‘s)
As the Air Force has exhibited no “special interes[t] in who walks [or] talks” in these places, Flower v. United States, 407 U. S. 197, 198 (1972) (per curiam), it is questionable whether Apel’s ouster from the protest area can withstand constitutional review. The Court has properly reserved that issue for consideration on remand. Ante, at 13. In accord with that reservation, I join the Court’s opinion.
SUPREME COURT OF THE UNITED STATES
No. 12-1038
UNITED STATES, PETITIONER v. JOHN DENNIS APEL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[February 26, 2014]
JUSTICE ALITO, concurring.
The Ninth Circuit did not rule on the constitutionality of