Protester’s Military Base Trespass Charges Upheld

(CN) - On remand from the Supreme Court, the 9th Circuit affirmed the trespass convictions Thursday of an anti-war activist barred from a U.S. Air Force base in California.

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.

Among a series of protests Jon Apel has held there over the years, he once threw blood on a sign for the base in 2003. That incident got Apel barred from the base for three years but he returned in 2007 and again trespassed off the designated protest area.

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.

After he was permanently barred for the 2007 trespass, Apel was given 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.

Apel has nevertheless held numerous protests at Vandenberg since that ban.

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.

Though a three-judge panel of the 9th Circuit reversed Apel's conviction in 2012, the Supreme Court vacated that holding this past February.

"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."

In a brief order on remand Thursday, the 9th Circuit ruled against Apel.

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