Protester Loses Challenge to Air Force Base Ban

WASHINGTON (CN) - An anti-war activist barred from a U.S. Air Force base failed to show that the government does not own the land it has opened up to California, the Supreme Court ruled Wednesday.

Located near the coast about 170 miles northwest of Los Angeles, the Vandenberg Air Force Base is the site of sensitive missile and space launch facilities, according to the decision.

Jon Apel has been protesting there for years, having thrown blood on a sign for the base back in 2003.

Though the base is designated as "closed," meaning that civilians may not enter the federal land without express permission, Santa Barbara County has an easement over two areas within the base, and two California highways cut through the base pursuant to that easement.

The U.S. government has designated a spot near the Pacific Coast Highway, also known as Highway 1, as an area for peaceful protests on the base.

That spot sits at an intersection where there is also a middle school, a visitor's center and a public bus stop. An entrance to the base is nearby.

Apel was barred from the base for three years after he was convicted of trespassing related to the blood-throwing incident. He returned in 2007, however, and again trespassed off the designated protest area. This time he was permanently barred, with limited permission to travel on Highway 1 or Highway 246, which allows access to a beach and a train station at the western edge of the base.

Despite the ban, Apel has protested at Vandenberg repeatedly over the years.

He challenged subsequent trespassing convictions by taking aim at a section of federal law codified at Section 1382, which makes it a crime to re-enter a "military ... installation" after having been ordered not to do so "by any officer or person in command."

Apel said the law did not apply to designated protest areas, but a federal judge disagreed and also found that Apel's conviction would not violate the First Amendment.

A three-judge panel of the 9th Circuit reversed Apel's conviction in 2012, however, based on the court's 2011 ruling in United States v. Parker.

The judges reached this decision despite noting that they "question the correctness of Parker."

The Supreme Court vacated that holding Wednesday without touching on Parker.

"Today, as throughout our nation's history, there is significant variation in the ownership status of U. S. military sites around the world," Chief Justice John Roberts wrote for the unanimous court. "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 §1382 or our history suggests that the statute does not apply to a military base under the com­mand of the Air Force, merely because the government has conveyed a limited right to travel through a portion of the base or to assemble in a particular area."

Justice Ruth Bader Ginsburg noted in a concurring opinion, joined by Justice Sonia Sotomayor, that a fence, checkpoint and painted line on the base "may alter the First Amendment calculus," if not the base's boundaries.

"As the Air Force has exhibited no 'special interes[t] in who walks [or] talks' in these places, it is ques­tionable whether Apel's ouster from the protest area can withstand constitutional review," Ginsburg wrote. "The court has properly reserved that issue for consideration on remand."

In yet another concurring opinion, Justice Samuel Alito noted that the 9th Circuit never ruled on the constitutionality of Section 1382, "and I see no reason to express any view on that question at this time."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit