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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1038
_________________
UNITED STATES, PETITIONER v. JOHN
DENNISAPEL
on writ of certiorari to the united states
court of appeals for the ninth circuit
[February 26, 2014]
Chief Justice Roberts
delivered the opinion of the Court.
Federal law makes it a
crime to reenter a “military . . .
installation” after having been ordered not to do so
“by any officer or person in command.” 18
U. S. C. §1382. The question presented is whether a
portion of an Air Force base that contains a designated protest
area and an easement for a public road qualifies as part of a
“military installation.”
I
A
Vandenberg Air Force
Base is located in central California, near the coast,
approximately 170 miles northwest of Los Angeles. The Base sits on
land owned by the United States and administered by the Department
of the Air Force. It is the site of sensitive missile and space
launch facilities. The commander of Vandenberg has designated it a
“closed base,” meaning that civilians may not enter
without express permission. Memorandum for the General Public Re:
Closed Base, from David J. Buck, Commander (Oct. 23, 2008), App.
51; see also 32 CFR §809a.2(b) (2013) (“Each [Air Force]
commander is au-thorized to grant or deny access to their
installations,and to exclude or remove persons whose presence
isunauthorized”).
Although the Base is
closed, the Air Force has granted to the County of Santa Barbara
“an easement for a right-of-way for a road or street”
over two areas within Vandenberg. Department of the Air Force,
Easement for Road or Street No.
DA–04–353–ENG–8284 (Aug. 20, 1962), App.
35. Pursuant to that easement, two state roads traverse the Base.
Highway 1 (the Pacific Coast Highway) runs through the eastern part
of the Base and provides a route between the towns of Santa Maria
and Lompoc. Highway 246 runs through the southern part of the Base
and allows access to a beach and a train station on
Vandenberg’s western edge. The State of California maintains
and po-lices these highways as it does other state roads, except
that its jurisdiction is merely “concurrent” with that
ofthe Federal Government. Letter from Governor Edmund G. Brown,
Jr., to Joseph C. Zengerle, Assistant Secretary of the Air Force
(July 21, 1981), App. 40. The easement in-strument states that use
of the roads “shall be subject to such rules and regulations
as [the Base commander] may prescribe from time to time in order to
properly protect the interests of the United States.”
Easement, App. 36. The United States also “reserves to itself
rights-of-way for all purposes” that would not create
“unnecessary interference with . . . highway
purposes.” Id., at 37.
As relevant to this
case, Highway 1 runs northwest several miles inside Vandenberg
until it turns northeast at a 90 degree angle. There Highway 1
intersects with Lompoc Casmalia Road, which continues running
northwest, and with California Boulevard, which runs southwest. In
the east corner of this intersection there is a middle school. In
the west corner there is a visitors’ center and a public bus
stop. A short way down California Boulevard is the main entrance to
the operational areas of the Base where military personnel live and
work. Those areas are surrounded by a fence and entered by a
security checkpoint. See Appendix, infra (maps from record).
In the south corner of
the intersection is an area that has been designated by the Federal
Government for peaceful protests. A painted green line on the
pavement, a temporary fence, Highway 1, and Lompoc Casmalia Road
mark the boundaries of the protest area. Memorandum for the General
Public Re: Limited Permission for Peaceful Protest Activity Policy,
from David J. Buck, Commander (Oct. 23, 2008), App. 57–58.
The Base commander has enacted several restrictions to control the
protest area, including reserving the authority “for any
reason” to withdraw permission to protest and
“retain[ing] authority and control over who may access the
installation, including access to roadway easements for purposes
other than traversing by vehicle through the installation.”
Ibid. A public advisory explains other rules for the protest area:
demonstrations “must be coordinated and scheduled with [B]ase
Public Affairs and [Base] Security Forces at least two (2) weeks in
advance”; “[a]nyone failing to vacate installation
property upon advisement from Security Forces will be cited for
trespass pursuant to [ 18 U. S. C. §1382]”;
and “[a]ctivities other than peaceful protests in this area
are not permitted and are specifically prohib-ited.”
U. S. Air Force Fact Sheet, Protest Advisory, App.
52–53.
The advisory states,
consistent with federal regulations, that anyone who fails to
adhere to these policies may “receive an official letter
barring you from entering Vandenberg.” Id., at 55; see also
32 CFR §809a.5 (“Under the authority of 50
U. S. C. [§]797, installation commanders may deny
access to the installation through the use of a barment
order”). And for any person who is “currently barred
from Vandenberg AFB, there is no exception to the barment
permitting you to attend peaceful protest activity on Vandenberg
AFB property. If you are barred and attend a protest or are
otherwise found on base, you will be cited and detained for a
trespass violation due to the non-adherence of the barment
order.” Protest Advisory, App. 54.
B
John Dennis Apel is
an antiwar activist who demonstrates at Vandenberg. In March 2003,
Apel trespassed beyond the designated protest area and threw blood
on a sign for the Base. He was convicted for these actions, was
sentenced to two months’ imprisonment, and was barred from
the Base for three years. In May 2007, Apel returned to Vandenberg
to protest. When he trespassed again and was convicted, he received
another order barring him from Vandenberg, this time permanently,
unless he followed specified procedures “to modify or
revoke” the order. Memorandum for John D. Apel Re: Barment
Order (Oct. 22, 2007), App. 63–65. The only exception to the
barment was limited permission from the Base commander for Apel to
“ ‘traverse’, meaning to travel
. . . on [Highway] 1 and . . . on [Highway] 246
. . . . You are not authorized to deviate from these
paved roadways onto [Vandenberg] property.” Id., at 64. The
order informed Apel that ifhe reentered Vandenberg in violation of
the order, he would “be subject to detention by Security
Forces personnel and prosecution by civilian authorities for a
violation of [ 18 U. S. C. §1382].” Ibid.
Apel ignored the
commander’s order and reentered Vandenberg several times
during 2008 and 2009. That led the Base commander to serve Apel
with an updated order, which informed him:
“You continue to refuse to adhere to
the rules and guidelines that have been put in place by me to
protect and preserve order and to safeguard the persons and
property under my jurisdiction by failing to remain in the area
approved by me for peaceful demonstrations pursuant to [50]
U. S. C. § 797 and 32 C. F. R.
§ 809a.0–[809]a.11. You cannot be expectedor
trusted to abide by the protest guidance rules based upon this
behavior. I consider your presence on this installation to be a
risk and detrimental to my responsibility to protect and preserve
order and to safeguard the persons and property under my
jurisdiction. You are again ordered not to enter onto [Vandenberg]
property, as provided in the October 22, 2007 order. The content
and basis of that order is hereby incorporated by reference herein,
EXCEPT that your barment will be for a period of three (3) years
from the dateof this supplemental letter.” Memorandum for
John D. Apel Re: Barment Order Dated Oct. 22, 2007 (served Jan. 31,
2010), App. 59–62.
Apel ignored this
barment order too, and on three occasions in 2010 he reentered
Vandenberg to protest in the designated area. Each time Vandenberg
security personnel reminded him of the barment order and instructed
him to leave. Each time Apel refused. He was cited for violating
§1382 and escorted off Base property.
A Magistrate Judge
convicted Apel and ordered him to pay a total of $355 in fines and
fees. Apel appealed to the Federal District Court for the Central
District of California. The District Court rejected Apel’s
defense that §1382 does not apply to the designated protest
area, holding that the military “has a sufficient possessory
interest and exercises sufficient control over” the area.
App. to Pet. for Cert. 14a. The court also concluded that
Apel’s conviction would not violate the First Amendment. Id.,
at 13a.
The United States Court
of Appeals for the Ninth Circuit reversed, holding that the statute
does not apply. Based on Circuit precedent, the Ninth Circuit
interpreted §1382 to require the Government to prove that it
has “the exclusive right of possession of the area on which
the trespass allegedly occurred.” 676 F. 3d 1202, 1203
(2012) (citing United States v. Parker, 651 F. 3d 1180 (CA9
2011)). The court found that the easement through Vandenberg
deprived the Government of exclusive possession of the roadway, so
it concluded that §1382 does not cover the portion of the Base
where Apel’s protest occurred.
We granted certiorari,
569 U. S. ___ (2013), and now vacate the judgment.
II
Section 1382 provides
in full:
“Whoever,
within the jurisdiction of the United States, goes upon any
military, naval, or Coast Guard reservation, post, fort, arsenal,
yard, station, or installation, for any purpose prohibited by law
or lawful regulation; or
“Whoever
reenters or is found within any such reservation, post, fort,
arsenal, yard, station, or installation, after having been removed
therefrom or ordered not to reenter by any officer or person in
command or charge thereof—
“Shall be fined
under this title or imprisoned not more than six months, or
both.”
Apel does not dispute
that he was “found within” the lawful boundaries of
Vandenberg, “within the jurisdiction of the United
States,” after having been “ordered not to
reenter” by the Base commander. §1382. And certainly
Vandenberg would naturally be described as a “military
installation”: it is an Air Force base, which a military
commander has closed to the public (with limited exceptions),
located on land owned by the United States and under the
jurisdiction of the Air Force, where military personnel conduct
sensitive missile operations.
Against this
straightforward interpretation, Apel insists that §1382
applies only where the military exercises exclusive possession and
control, which, he contends, does not include land subject to a
roadway easement. Apel further argues that the fence enclosing
Vandenberg’s operational facilities marks the real boundary
of the Base and that Vandenberg’s commander lacks authority
to control the rest, or at least the designated protest area. We
take his arguments in turn.
A
Apel asserts that the
Ninth Circuit’s exclusive possession and control requirement
“derives directly from the text of §1382.” Brief
for Respondent 23. It does not. Section 1382 is written broadly to
apply to many different kinds of military places: a
“reservation, post, fort, arsenal, yard, station, or
installation.” Nothing in the 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, 682 (1985) (“The language of
the statute does not limit §1382 to military bases where
access is restricted”).
Apel contends that the
listed military places have histor-ically been defined as land
withdrawn from public use. Not so. Historical sources are replete
with references to military “forts” and
“posts” that provided services to civilians, and were
open for access by them. See, e.g., R. Wooster, Soldiers, Sutlers,
and Settlers 64 (1987) (“The frontier forts of Texas were not
simply army bases occupied solely by military personnel. They were
often bustling communities that attracted merchants, laborers,
settlers, and dependents”); Davis, The Sutler at Fort
Bridger, 2 Western Hist. Q. 37, 37, 40–41 (Jan. 1971)
(describing a 19th-century post in southwestern present Wyoming
which included a “sutler,” a civilian merchant who set
up shop inside the fort and sold wares both to soldiers and to
civilians from outside the base).
The common feature of
the places described in §1382 is not that they are used
exclusively by the military, but that they have defined boundaries
and are subject to the command authority of a military officer.
That makes sense, because the Solicitor General has informed us
that a military commander’s authority is frequently defined
by the boundaries of a particular place: When the Department of
Defense establishes a base, military commanders assign a military
unit to the base, and the commanding officer of the unit becomes
the commander of the base. Tr. of Oral Arg. 6–7.
Apel responds by
invoking our decision in United States v. Phisterer, 94 U. S.
219 (1877) , which held that the term “military
station” (in a different statute) did not includea
soldier’s off-base home. But Phisterer only confirmsour
conclusion that §1382 does not require exclusive use,
possession, or control. For there we interpreted “military
station” to mean “a place where troops are assembled,
where military stores, animate or inanimate, are kept or
distributed, where military duty is performed or military
protection afforded,—where something, in short, more or less
closely connected with arms or war is kept or is to be done.”
Id., at 222. To describe a place as “more or less closely
connected” with military activities hardly requires that the
military hold an exclusive right to the property. Rather,
“military duty” and “military protection”
are synonymous with the exercise of military jurisdiction. And
that, not coincidentally, is precisely how the term “military
installation” is used elsewhere in federal law. See, e.g., 10
U. S. C. §2687(g)(1) (defining “military
installation” as a “base . . . or other
activity under the jurisdiction of the Department of
Defense”); §2801(c)(4) (defining “military
installation” as a “base . . . or other
activity under the jurisdiction of the Secretary of a military
department”); 32 CFR §809a.0 (“This part
prescribes the commanders’ authority for enforcing order
within or near Air Force installations under their jurisdiction and
controlling entry to those installations”).
Apel also relies on the
fact that some Executive Branch documents, including the United
States Attorneys’ Man-ual and opinions of the Air Force Judge
Advocate General, have said that §1382 requires exclusive
possession. Brief for Respondent 44–47. So they have, and
that is a point in his favor. But those opinions are not intended
to be binding. See Dept. of Justice, United States Attorneys’
Man-ual §1–1.100 (2009) (“The Manual provides only
internal Department of Justice guidance. It is not intended to,
does not, and may not be relied upon to create any rights,
substantive or procedural, enforceable at law by any party in any
matter civil or criminal”); 2 Civil Law Opinionsof The Judge
Advocate General, United States Air Force 1978–1983 (Preface)
(opinions of the Judge Advocate Gen-eral “are good starting
points but should not be citedas precedence [sic] without first
verifying the validity of the conclusions by independent
research”). Their views may reflect overly cautious legal
advice based on division in the lower courts. Or they may reflect
legal error. Either way, we have never held that the
Government’s reading of a criminal statute is entitled to any
deference. See Crandon v. United States, 494 U. S. 152, 177
(1990) (Scalia, J., concurring in judgment).
Today, as throughout
our Nation’s history, there is sig-nificant variation in the
ownership status of U. S. mil-itary sites around the world.
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.
B
Section 1382 is most
naturally read to apply to places with a defined boundary under the
command of a military officer. Apel argues, however, that
Vandenberg’s commander has no authority on the highways
running through the Base or, apparently, in the designated protest
area. His arguments more or less reduce to two contentions: that
the highways and protest area lie “outside the entrance to
[a] closed military installation[ ],” Brief for
Respondent 22, and that they are “uncontrolled” spaces
where “no military operations are performed,” id., at
23. Neither contention is sound.
First, to say that the
highway and protest area are “outside” the Vandenberg
installation is not a legal ar-gument; it simply assumes the
conclusion. Perhaps recognizing as much, Apel tacks: He suggests
that because Vandenberg’s operational facilities are
surrounded by a fence and guarded by a security checkpoint, the
Government has determined that it does not control the rest of the
Base. The problem with this argument is that the United States has
placed the entire Vandenberg property under the administration of
the Air Force, which has defined that property as an Air Force base
and designated the Base commander to exercise jurisdiction. Federal
law makes the commander responsible “for the protection or
security of” “property subject to the jurisdiction,
administration, or in the custody of the Department of
Defense.” 50 U. S. C. §§797(a)(2), (4);
see also 32 CFR §809a.2(a) (“Air Force installation
commanders are responsible for protecting personnel and property
under their jurisdiction”). And pursuant to that authority,
the Base commander has issued an order closing the entire base to
the public. Buck Memorandum Re: Closed Base, App. 51; see also 32
CFR §809a.3 (“any directive issued by the commander of a
military installation or facility, which includes the parameters
for authorized entry to or exit from a military installation, is
legally enforceable against all persons”). The fact that the
Air Force chooses to securea portion of the Base more
closely—be it with a fence, a checkpoint, or a painted green
line—does not alter the boundaries of the Base or diminish
the jurisdiction of the military commander.
As for Apel’s
claim that the protest area specifically is uncontrolled, the
record is conclusively to the contrary. The Base commander
“at all times has retained authority and control over who may
access the installation,” including the protest area. Buck
Memorandum Re: Protest Activity, App. 58. He has enacted rules to
restrict the manner of protests in the designated area. Protest
Advisory, App. 53. In particular, he requires two weeks’
notice to schedule a protest and prohibits the distribution of
pamphlets or leaflets. Id., at 52–53. The Base com-mander has
also publicly stated that persons who are barred from
Vandenberg—for whatever reason—may not come onto the
Base to protest. Id., at 54. And the District Court found, after
hearing testimony, that “the Government exercises substantial
control over the designated protest area, including, for example,
patrolling the area.” App. to Pet. for Cert. 14a–15a.
Apel has never disputed these facts.
Instead Apel tells us
that, by granting an easement, the military has “relinquished
its right to exclude civilians from Highway 1,” Brief for
Respondent 36, and that the easement does not
“permit[ ]” use by the military, id., at 43. But
the easement itself specifically reserves to Vandenberg’s
commander the authority to restrict access to the entire Base,
including Highway 1, when necessary “to properly protect the
interests of the United States,” and likewise “reserves
to [the United States] rights-of-way for all purposes.”
Easement, App. 36. We simply do not understand how Apel can claim
that “[n]othing in the easement contemplates, or even
permits, military use or occupation; it provides for exclusive
civil use and occupation.” Brief for Respondent 43. Moreover,
the Base commander, in an exercise of his command authority, has
notified the public that use of the roads is “limited to
. . . vehicular travel activity through the base,”
which does not include Apel’s protest activity. See Buck
Memorandum Re: Closed Base, App. 51.
Apel likewise offers no
support for his contention that military functions do not occur on
the easement highways. The Government has referred us to instances
when the commander of Vandenberg has closed the highways to the
public for security purposes or when conducting a military launch.
Reply Brief 12, and n. 5; Tr. of Oral Arg. 8–9. In any event,
there is no indication that Congress intended §1382 to require
base commanders to make continuous, uninterrupted use of a place
within their jurisdiction, lest they lose authority to exclude
individuals who have vandalized military property and been
determined to pose a threat to the order and security of the
base.
In sum, we decline
Apel’s invitation to require civilian judges to examine
U. S. military sites around the world, parcel by parcel, to
determine which have roads, which have fences, and which have a
sufficiently important, persistent military purpose. The
use-it-or-lose-it rule that Apel proposes would frustrate the
administration of military facilities and raise difficult questions
for judges, who are not expert in military operations. And it would
discourage commanders from opening portions of their bases for the
convenience of the public. We think a much better reading of
§1382 is that it reaches all property within the defined
boundaries of a military place that is under the command of a
military officer.
III
Much of the rest of
Apel’s brief is devoted to arguing that §1382 would be
unconstitutional as applied to him on this Base. But the Court of
Appeals never reached Apel’s constitutional arguments, and we
decline to do so in the first instance. Apel also attempts to
repackage his First Amendment objections as a statutory
interpretation argument based on constitutional avoidance. See
Brief for Respondent 54 (“the statute should be interpreted
. . . not to apply to peaceful protests on a public road
outside of a closed military base over which an easement has been
granted and that has been declared a protest zone”). But we
do not “interpret” statutes by gerrymandering them with
a list of exceptions that happen to describe a party’s case.
“The canon [of constitutional avoidance] is not a method of
adjudicating constitutional questions by other means.” Clark
v. Martinez, 543 U. S. 371, 381 (2005) . Whether §1382 is
unconstitutional as applied is a question we need not address.
* * *
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.
The judgment of the
Court of Appeals is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so
ordered.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1038
_________________
UNITED STATES, PETITIONER v. JOHN
DENNISAPEL
on writ of certiorari to the united states
court of appeals for the ninth circuit
[February 26, 2014]
Justice Ginsburg,
with whom Justice Sotomayor joins, concurring.
I agree with the
Court’s reading of 18 U. S. C. §1382: The
military’s choice “to secure a portion of the Base more
closely—be it with a fence, a checkpoint, or a painted green
line—does not alter the boundaries of the Base or diminish
the jurisdiction of the military commander.” Ante, at 11. But
a key inquiry remains, for the fence, checkpoint, and painted line,
while they do not alterthe Base boundaries, may alter the First
Amendment calculus.
When the Government
permits the public onto part of its property, in either a
traditional or designated public forum, its “ability to
permissibly restrict expressive conduct is very limited.”
United States v. Grace, 461 U. S. 171, 177 (1983) . In such
venues, the Government may enforce “reasonable time, place,
and manner regulations,” but those regulations must be
“content-neutral [and] narrowly tailored to serve a
significant government interest.” Ibid. (internal quotation
marks omitted).
The stated interest of
the Air Force in keeping Apel out of the area designated for
peaceful protest lies in ensuring base security. Brief for United
States 22–26. See also Reply Brief 21–22. That
interest, however, must be assessed in light of the general
public’s (including Apel’s) permission to traverse, at
any hour of the day or night, the highway located a few feet from
the designated protest area. See Appendix to opinion of the Court,
ante (displaying maps of the area). The Air Force also permits open
access to the middle school, bus stop, and visitors’ center,
all situated in close proximity to the protest area. See ante, at
2.
As the Air Force has
exhibited no “special interes[t] in who walks [or]
talks” in these places, Flower v. United States, 407
U. S. 197, 198 (1972) (per curiam), it is questionable whether
Apel’s ouster from the protest area can withstand
constitutional review. The Court has properly reserved that issue
for consideration on remand. Ante, at 13. In accord with that
reservation, I join the Court’s opinion.
