Supreme Court sides with Pentagon in military protest case

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] unanimously on Wednesday in United States v. Apel [SCOTUSblog backgrounder] that 18 USC § 1382 [text], 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 an installation that is subject to a public roadway easement and that contains a designated protest area. A protester, John Apel, was barred from a military base in California, but continued to protest on a public roadway on government-owned land outside the entrance. He was convicted of three counts of trespassing. The US Court of Appeals for the Ninth Circuit [official website] reversed Apel's convictions. Wednesday's Supreme Court decision, which was delivered by Chief Justice John Roberts, effectively vacated that of the Ninth Circuit. The court held:

Where a place with a defined boundary is under the administration of a military department, the limits of the "military installation" for purposes of §1382 are coterminous with the commanding officer's area of responsibility. Those limits do not change when the commander invites the public to use a portion of the base for a road, a school, a bus stop, or a protest area, especially when the commander reserves authority to protect military property by, among other things, excluding vandals and trespassers.
Justice Samuel Alito filed a concurring opinion, as did Justice Ruth Bader Ginsburg, who was joined by Justice Sonia Sotomayor. The case is now on remand to the district court.

The court heard arguments [JURIST report] in the case in December. Apel's attorney argued that the federal statute in fact was applied only if there is exclusive federal possession. He further noted that any other interpretation would infringe upon an individual's First Amendment rights. The Supreme Court however continuously advised the respondent's counsel to focus on the easement issue rather than the First Amendment. Justice Antonin Scalia noted that respondent's counsel keeps "sliding into the First Amendment issue, which is not the issue on which we granted certiorari. We're only interested in whether the statute applies." Apel's counsel claimed that the US wants the benefit of having an easement so that the state would be responsible for maintenance and liabilities while assuming control over the public road as it would within the base. However, he argued that "[o]nce they've created a public road, once they've created a designated protest zone, it is different, functionally, than the rest of the base."

 

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