View Full Version : SCOTUS: A unanimous opinion upholding military control of access to military bases!

February 26th, 2014, 09:46 AM
( )
676 F. 3d 1202, vacated and remanded.

Syllabus (http://cts.vresp.com/c/?LegalInformationInst/a832d85edb/f14337922b/07fe57150c)

[Roberts] (http://cts.vresp.com/c/?LegalInformationInst/a832d85edb/f14337922b/24331a0b7e)

[Ginsburg] (http://cts.vresp.com/c/?LegalInformationInst/a832d85edb/f14337922b/69b0913702)

[Alito] (http://cts.vresp.com/c/?LegalInformationInst/a832d85edb/f14337922b/3523ff2524)


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 18 U. S. C. §1382 (http://cts.vresp.com/c/?LegalInformationInst/a832d85edb/f14337922b/09576d4b00), which makes it a crime to reenter a “military. . . installation” after having been ordered not to do so “by any officer or person in command.” On appeal, the Federal District Court rejected Apel’s defense that §1382 does not apply to the designated protest area. The Ninth Circuit reversed. It held that because the easement through Vandenberg deprived the Government of exclusive possession, §1382 did not cover the portion of the Base where Apel’s protest occurred.

Held: A “military. . . installation” for purposes of §1382 encompasses the commanding officer’s area of responsibility, and it includes Vandenberg’s highways and protest area. Pp. 6–14.

(a) Contrary to Apel’s argument, §1382 does not require exclusive possession and control. The statute is written broadly to apply to many different kinds of military places, and nothing in its text defines those places in terms of the access granted to the public or the nature of the Government’s possessory interest. See United States v. Albertini, 472 U. S. 675 (http://cts.vresp.com/c/?LegalInformationInst/a832d85edb/f14337922b/1fbb42d579/472+675) . Nor have military places been defined historically as land withdrawn from public use. The common feature of the places described in §1382 is that they have defined boundaries and are subject to the command authority of a military officer. This conclusion is confirmed by United States v. Phisterer, 94 U. S. 219 (http://cts.vresp.com/c/?LegalInformationInst/a832d85edb/f14337922b/ff17481f3e/94+219) , which defined the term “military station” as a place “where military duty is performed or military protection afforded.” And while some Executive Branch documents have said that §1382 requires exclusive possession, those opinions are nonbinding, and this Court has never held that the Government’s reading of a criminal statute is entitled to any deference. Pp. 7–10.

(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, §1382 does not require base commanders to make continuous, uninterrupted use of a place within their jurisdiction, lest they lose authority to exclude certain individuals. Such a use-it-or-lose-it rule would frustrate the administration of military facilities, raise difficult questions for judges, and discourage commanders from opening portions of their bases for public convenience. Pp. 10–13.

(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.