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Santa Maria Sun / News

The following article was posted on December 17th, 2013, in the Santa Maria Sun - Volume 14, Issue 41 [ Submit a Story ]
The following articles were printed from Santa Maria Sun [santamariasun.com] - Volume 14, Issue 41

Apel case lands in the U.S. Supreme Court

BY RYAN MILLER

John Dennis Apel has long been a thorn in Vandenberg Air Force Base’s side.

The activist has participated in many protest actions at the base, including flinging his own blood on a base wall in 2003. For doing that he was arrested, convicted of vandalism, and sent briefly to jail. The stunt also resulted in an order for him to stay away from the base, which he ignored in 2007. That move netted him a letter that permanently barred him from access to Vandenberg.

Exactly where Vandenberg begins and ends in terms of access is a matter of some discussion now, since the U.S. Supreme Court is considering a case involving the protester—United States v. Apel—that’s been working its way up the judicial ladder since 2010. That’s when Apel refused to leave a public protest area on Highway 1 despite being told to do so by base officials, according to writings from Erwin Chemerinsky, who’s serving as Apel’s counsel.

At the start of the decade, Apel was arrested, prosecuted, and convicted for three counts of trespassing, under the idea that he had violated 18 U.S.C. §1382, a code that promises fines and or imprisonment for people found within any military, naval, or Coast Guard “reservation, post, fort, arsenal, yard, station, or installation” after being removed and barred from re-entry.

In April 2012, the U.S. Court of Appeals, 9th Circuit, said Apel’s conviction couldn’t stand, citing another ruling determining 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.”

The U.S. filed a writ on Feb. 22 of this year, and Chemerinsky finally presented his arguments before the Supreme Court on Dec. 4. A transcript of the proceedings shows that the justices weren’t interested in hearing about any First Amendment issue (“You can raise it,” Justice Antonin Scalia said, “but we don’t have to listen to it.”), so focus stayed mostly on the nature of easements and the scope and range of the base commander’s authority. Chemerinsky leaned heavily on the idea that a conviction could only stand in a situation in which Vandenberg had “exclusive right of possession,” which Benjamin Horwich, arguing for the United States, dismissed as non-binding in the Supreme Court.

Now everything seems to hinge on whether the justices consider the designated protest zone to technically be part of the military installation or some sort of gray area in which the base commander has ceded full authority in such matters.

A decision is expected this spring or early summer.