Federal law criminalizes the reentry of a “military . . . installation” after having been ordered not to do so by “any officer or person in command.” 18 U.S.C. § 1382. But does that criminal prohibition apply to areas specifically designated by the military as civilian “protest areas”?
Today, in United States v. Apel, the Supreme Court unanimously held that military officers and commanders have statutory authority to determine whether---and under what conditions---civilians may access military bases, regardless of whether the area under question is actually used for military purposes.
Vandenburg Air Force Base is home to the 30th Space Wing, an Air Force wing responsible for space and missile testing. Given the sensitivity of the mission, Vandenberg is generally closed to civilians unless they have been given express permission. Despite this general prohibition, the Air Force granted to the County of Santa Barbara an easement to accommodate two public highways which cross the base. Just off of one of the highways, a spot has been demarcated by the government as an area for peaceful protest.
The Base commander reserved the authority to withdraw permission to protest in the area for any reason, and noted that those who violated orders to leave would be cited for trespass and may receive an order barring them from entering Vandenberg. John Dennis Apel is an anti-war activist who habitually reentered Vandenberg despite two orders from the commander and a subsequent official barment order. Finally, in 2010, Apel was cited for violation of § 1382. The Ninth Circuit overturned that conviction, holding that the government must prove exclusive right of possession--- meaning, no easements---to convict someone under the statute.
Chief Justice Roberts delivered the opinion. The Court first dismissed Apel’s argument that the highway and protest area are “outside” the installation as circular. Then, the Court noted that the fact that the protest area is outside of Vandenberg’s fences ---and is therefore rarely used for military activity---does not diminish the base commander’s control over the entirety of the jurisdiction. Further, the Court notes that a “use-it-or-lose-it rule” of military base jurisdiction would unacceptably invite the “parcel by parcel” scrutiny of whether base areas have sufficiently persistent military purpose.
Notably, the Court did not reach final disposition as to whether §1382 was an unconstitutional violation of Apel’s First Amendment rights.
Justice Ginsburg, joined by Justice Sotomayor, concurred, writing that the Court properly reserved the First Amendment challenge to §1382 for consideration upon remand.
Justice Alito also concurred, noting that the Court’s focus on the statutory question should not be interpreted as agreement or disagreement with the Constitutional question to be addressed on remand.