United States v. Apel

PETITIONER: United States
LOCATION: Vandenberg Air Force Base

DOCKET NO.: 12-1038
DECIDED BY: Roberts Court (2010-2016)

CITATION: 570 US (2013)
GRANTED: Jun 03, 2013
ARGUED: Dec 04, 2013
DECIDED: Feb 26, 2014

Benjamin J. Horwich - Assistant to the Solicitor General, Department of Justice, for the United States
Erwin Chemerinsky - for the respondent

Facts of the case

The Department of the Air Force owns a section of land that Highway 1 crosses, and the Department has granted roadway easements to the State of California and Santa Barbara County. Highway 1 runs next to the main gate of Vandenberg Air Force Base (Vandenberg). Near the gate is a designated area for public protesting that falls under the Highway 1 easement.

John D. Apel was barred from Vandenberg's property in 2007 for trespassing. In 2010, while the order barring him was still in effect, he entered the designated protest area three times and was asked to leave. On all three occasions the respondent failed to leave. In two separate trials, Apel was convicted of three violations of a federal statute prohibiting a person from reentering a military installation after a commanding officer has ordered him not to reenter. Apel appealed, arguing that the federal statute requires that the base has exclusive possession over the area. The district court affirmed the convictions by holding that, under the terms of the easement, the land is subject to base rules and regulations. The U.S. Court of Appeals for the Ninth Circuit reversed and held that, because the area is subject to an easement, the federal government does not have an exclusive right of possession, so the conviction cannot stand.


Can a federal statute be enforced on a portion of a military installation that is subject to a public roadway easement?

Media for United States v. Apel

Audio Transcription for Oral Argument - December 04, 2013 in United States v. Apel

Audio Transcription for Opinion Announcement - February 26, 2014 in United States v. Apel

I have the opinion of the Court in case 12-1038 United States v. Apel.

This case concerns a federal statute that makes it a crime to enter or reenter a “military reservation, port, fort, arsenal, yard, station or installation” after having been ordered not to do so by the officer in command.

The question here is what constitutes a military installation.

That issue is Vandenberg Air Force Base in Central California.

You would think that the base is pretty clearly a military installation.

It is the site of sensitive missile and space launch facilities.

It is under the jurisdiction of the Air Force and it is close to the public.Civilians may not enter base property without permission.

But there are two wrinkles that are the reason this case is here.

First, the Air Force has granted an easement to the state and county for a public road across two portions of the base.

As a result, Highway 1, the Pacific Coast Highway runs through the eastern part of Vandenberg.

The state police is this portion of Highway 1 just at it does all other highways except that it shares jurisdiction with the federal government.

The path of Highway 1 runs through Vandenberg near the main entrance to the operational area of the base where military personnel live and work.

That area is surrounded by a fence and you have to go through a security checkpoint to get in.

Also nearby outside the fence in area are a bus stop, a visitor center and a middle school.

Second, there is a portion of the base adjacent to Highway 1 that the base commander has set aside for peaceful protest.

The boundaries of the protest area are formed by the highway, a fence and a green line painted on the pavement.

The protest area is generally open for demonstrations by civilians but it is not open to any person who is been barred from entering Vandenberg.

One such person is petitioner John Apel, he was barred from entering Vandenberg after he trespassed beyond the designated protest area and through blood on a sign for the base.

But after Apel ignored the barment order and after trespassing several more times, he received another barment order.

He ignored that order too and continued to come on to Vandenberg property to protest.

When he refused to leave, he was cited for violating the statute at issue here and was convicted on three counts.

He got a $355 fine.

The Court of Appeals from the Ninth Circuit reversed those convictions.

The Ninth Circuit held that the statute applies only if the government proves that it has “the exclusive right of possession of the area.”

The Court found that Vandenberg fails this requirement because the government does not have exclusive possession of the highways running through the base.

We now reverse.

Nothing in the statutory language defines military installation in terms of the access granted to the public or the particular nature of the government's interest in the property.

Apel argues that the various military places listed in the statute “reservation, post, fort, arsenal, yard, station or installation” have all historically been on land withdrawn from public use, but that is not so.

Historical sources are replete with references to forts and post that were open for access by civilians.

To cite just one example, frontier forts in the west were often bus line communities frequently having a sutler, a merchant who sold goods to military personnel and civilians who would come on to the property.