Oral Argument Preview: United States v. Apel and the First Amendment Right to Protest

Protesting near a military facility such as the Vandenberg Air Force Base in California can be fraught, but contours of the First Amendment as well as the actual property are before the United States Supreme Court in United States v. Apel, to be argued December 4.

The Ninth Circuit per curium opinion subject to the certiorari grant is very brief and does not address the constitutional issue:

Appellant John Apel, who was subject to a pre-existing order barring him from Vandenberg Air Force Base, was convicted of three counts of trespassing on the base in violation of 18 U.S.C. § 1382. After his convictions became final in district court, we decided United States v. Parker, 651 F.3d 1180 (9th Cir. 2011). Parker held that because a stretch of highway running through Vandenberg AFB is subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," the federal government lacks the exclusive right of possession of the area on which the trespass allegedly occurred; therefore, a conviction under 18 U.S.C. § 1382 cannot stand, regardless of an order barring a defendant from the base. 651 F.3d at 1184.

However, the Ninth Circuit does specifically "question the correctness of Parker," the case upon which it is relying.  In Parker, the defendant also raised First Amendment issues, but the panel decided the case on the powers of jurisdiction over the relevant strip of land.

Complicating matters is that the site where Apel was arrested is the fact that not only was Apel on a road that was under concurrent jurisdiction of federal, state, and county governments, but, according to his brief, was  also in the area "set aside" for public protests. 

Apel has been protesting near the Vanderburg Air Force for 14 years.  Here's some great reporting on the background of the case from Scott Fina at the Santa Barbara Independent.