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9th Reversed: Highway or Not, Government Controls Military Bases

By William Peacock, Esq. on February 26, 2014 | Last updated on March 21, 2019

And so, another odd legal dispute comes to a ... well, it's still going, thanks to the First Amendment. But we at least know this: the government controls military bases, even if there is a public highway passing through.

The case, with its odd plaintiff (a man who sprayed his own blood on a military sign, and who has been arrested seventeen times for protesting on the base, with three convictions), will be returned to the lower courts in order to hear the First Amendment implications of barring certain protestors from designated protest areas.

Statute + Ninth Circuit Precedent

Dennis Apel was charged with violating 18 U.S.C. § 1382, which states, in relevant part:

"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."

And yes, he was apparently banned from the base. (It might've been the blood.)

That would seem to make this an open-and-shut case, First Amendment issues aside, but then there is Ninth Circuit precedent (a shaky proposition, as always), which states that the government must have "absolute ownership, or an exclusive right to the possession" of the land.

There's a big highway running through the base, along with the protest zone, both of which are on an easement, which means possession definitely isn't exclusive.

As we noted in our preview, this was a case of brilliant lawyering. A fellow protester, who likes wearing tightie-whities on the outside of his jeans, pressed this theory first, and won. Apel's team asked the Ninth Circuit to publish Hobert Parker's case, then used that as controlling precedent to attack Apel's convictions.

A per curiam Ninth Circuit realized their mistake and noted, "Although we question the correctness of Parker, it is binding, dispositive of this appeal, and requires that Apel's convictions be REVERSED."

The Solicitor General was not amused, and appealed.

= Reversal.

Did you see "exclusive possession" in that statute? Neither did we, nor did the unanimous Supreme Court. That's the gist of the court's holding:

"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."

Justice Ginsburg wrote separately to hint at her First Amendment view, namely that kicking Apel out of the protest area for "security reasons" when there is open public access to the area, nearby facilities, and the highway running through, may be both disingenuous and a content-based restriction. But, of course, the court isn't ruling yet and is reserving the issue for remand.

Justice Alito wrote separately to express that Ginsbug shouldn't be expressing anything, since the Ninth didn't touch First Amendment issues in its opinion. ("This Court ... is one of final review, 'not of first view.'"

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