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Case of longtime Vandenberg protester reaches Supreme Court

Dec. 7, 2013 - 06:00AM   |  
John Dennis Apel
John Dennis Apel, left, joins his supporters in front of the Supreme Court in Washington on Wednesday following an argument on the right to protest at a military base. Apel had been barred from entering any part of Vandenberg Air Force Base on the central California coast, including the protest area on a public highway that passes near the main gate. (Manuel Balce Ceneta/The Associated Press)
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John Dennis Apel has been visiting the designated protest zone at Vandenberg Air Force Base, Calif., for 14 years. In 2003, he threw 4 ounces of his own blood on the Vandenberg sign to protest the base’s use of missiles and space weapons.

That incident led to the first of several orders barring him from entering any part of the base, including the protest area on a public highway that passes near the main gate.

On Dec. 4, Apel tried to persuade the Supreme Court that his case raised important First Amendment issues. But the justices focused instead on the federal law under which Apel was convicted of trespassing, which gives commanding officers authority to prevent people from entering military installations.

When Erwin Chemerinsky, the constitutional scholar representing Apel, tried to get the court to turn to Apel’s free speech rights, Justice Antonin Scalia cut him off.

“You can raise it, but we don’t have to listen to it,” Scalia said.

Apel was convicted of trespassing and vandalism, then convicted again for trespassing in 2007, and ultimately barred from the property under a section of the U.S. Code. Still, he joined three protests in 2010, remaining in the designated protest zone across from Vandenberg’s main gate. Each time, he was arrested and escorted away. For his trouble, he was ordered to pay a total of $355 in fines and fees.

Apel sued and lost twice in lower federal courts before winning a simple, one-page reversal from the 9th Circuit Court of Appeals. The appeals court overturned Apel’s conviction because the military shares control of the highway with local authorities. The Justice Department appealed the case to the Supreme Court.

The military owns the highway but grants the state and Santa Barbara County an easement so the public can use it. The protest zone was set up in the late 1980s as part of the settlement of a federal lawsuit.

Chemerinsky, Apel’s attorney, said the law giving commanders authority to deny access to bases cannot be enforced outside the base fence and a green line painted on the road that marks the start of the area in which access is restricted.

There was little support on the court to reading the law in favor of Apel. Most of the justices appeared to agree that the government owns the land and can allow for traffic, protests, schools and anything else without ceding its rights to clamp down when it sees fit.

“They’re entitled to have it both ways,” Scalia said. “It’s their base.”

The justices appeared to agree with concerns raised by Justice Stephen Breyer, who said requiring the military to have exclusive land rights would throw into question “thousands” of instances involving routine easements.

Justice Anthony Kennedy noted that a utility company has an easement on his property in California, but “they can’t hold a picnic there.”

“If the commander wants to close the base for a rocket launch,” Kennedy said, “he certainly can.”

The Obama administration is eager to get the ruling from the 9th U.S. Circuit Court of Appeals erased from the books because it could affect similar arrangements at roughly three dozen bases in the nine Western states covered by the San Francisco-based court.

The justices could throw out that ruling and yet still give the appeals court the chance to consider Apel’s First Amendment claims. The administration favors this approach, although it said Apel’s rights were not violated.

A decision is expected by late June.

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