NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
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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.
