[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Wednesday in United States v. Apel [transcript, PDF; JURIST report]. The case addresses the issue of whether a statute [18 USC § 1382] that prohibits a person from reentering a military installation after a commanding officer ordered him not to reenter may be enforced on a portion of a military installation that is subject to a public roadway easement. John Apel was convicted of three counts of trespassing under the federal law for protesting near the Vandenberg Air Force Base, from which he had been banned. The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] for Apel, reasoning that because Apel protested on a highway that is partly controlled by the state of California and county of Santa Barbara, the federal government lacked the exclusive right of possession of the area where Apel protested. Thus, the Ninth Circuit determined that the “conviction under 18 USC § 1382 cannot stand, regardless of an order barring a defendant from the base.” Counsel for the US argued that the Ninth Circuit erred in requiring the federal government to have an exclusive possession over the place in which Apel was protesting to enforce the statute:

Section 1382 makes it a misdemeanor for a person to reenter a military base after having been ordered not to do so by the commanding officer. Now, the Ninth Circuit here added another requirement for conviction, which is that the defendant must be found in a place that, as a matter of real property law, is within the exclusive possession of the United States. That requirement isn’t anywhere in the text of the statute, no court has ever given an explanation of where it comes from, and Respondent no longer defends that requirement.

Respondent’s counsel 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.” Respondent’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.”