throbber
(Slip Opinion)
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`
`
` OCTOBER TERM, 2013
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`
`Syllabus
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`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` UNITED STATES v. APEL
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE NINTH CIRCUIT
` No. 12–1038. Argued December 4, 2013—Decided February 26, 2014
`
`Vandenberg Air Force Base has been designated a “closed base,” mean-
`ing that civilians may not enter without express permission. The Air
`Force has granted an easement over two areas of the Base, with the
`result that two public highways traverse the Base. Adjacent to one of
`those highways is an area that the Government has designated for
`peaceful protests. The Base commander has enacted several re-
`strictions to control the protest area and has issued an advisory stat-
`ing that anyone who fails to adhere to the protest area policies may
`
`be barred from entering the Base.
`
`Petitioner Apel was barred from the Base for trespassing and van-
`
`dalism, but continued to enter the protest area. A Magistrate Judge
`
`convicted him of violating 18 U. S. C. §1382, which makes it a crime
`to reenter a “military. . . installation” after having been ordered not
`to do so “by any officer or person in command.” On appeal, the Fed-
`eral District Court rejected Apel’s defense that §1382 does not apply
`to the designated protest area. The Ninth Circuit reversed. It held
`that because the easement through Vandenberg deprived the Gov-
`ernment of exclusive possession, §1382 did not cover the portion of
`
`the Base where Apel’s protest occurred.
`Held: A “military. . . installation” for purposes of §1382 encompasses
`the commanding officer’s area of responsibility, and it includes Van-
`denberg’s highways and protest area. Pp. 6–14.
`
`(a) Contrary to Apel’s argument, §1382 does not require exclusive
`
`possession and control. The statute is written broadly to apply to
`many different kinds of military places, and nothing in its text de-
`fines those places in terms of the access granted to the public or the
`
`nature of the Government’s possessory interest. See United States v.
`Albertini, 472 U. S. 675, 682. Nor have military places been defined
`
`
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`UNITED STATES v. APEL
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`Syllabus
`
`historically as land withdrawn from public use. The common feature
`
`of the places described in §1382 is that they have defined boundaries
`and are subject to the command authority of a military officer. This
`conclusion is confirmed by United States v. Phisterer, 94 U. S. 219,
`
`222, which defined the term “military station” as a place “where mili-
`tary duty is performed or military protection afforded.” And while
`some Executive Branch documents have said that §1382 requires ex-
`
`clusive possession, those opinions are nonbinding, and this Court has
`never held that the Government’s reading of a criminal statute is en-
`
`titled to any deference. Pp. 7–10.
`(b) Section 1382 applies to any place with a defined boundary that
`
`is under the command of a military officer. Apel contends that the
`
`highways and protest area are outside the Base because they lie out-
`side fenced areas on the Base, but this argument assumes the conclu-
`sion. The United States has placed the entire Vandenberg property
`under the administration of the Air Force. The Air Force’s choice to
`
`secure a portion of the Base more closely does not alter its boundaries
`or diminish its commander’s jurisdiction. Apel’s further contention
`that the highways and protest area are uncontrolled spaces where
`military operations are not performed is contrary to the record: The
`Base commander has enacted rules to restrict the manner of protests
`in the designated area and has publicly stated that persons barred
`from Vandenberg may not enter the Base to protest; the District
`
`Court found that the Government exercises substantial control over
`the protest area; the easement itself reserves to the Base commander
`the authority to restrict access to the entire Base when necessary and
`reserves to the United States rights of way for all purposes; and the
`Base commander has occasionally closed the highways to the public
`for security purposes or when conducting a military launch. In any
`event, §1382 does not require base commanders to make continuous,
`uninterrupted use of a place within their jurisdiction, lest they lose
`authority to exclude certain individuals. Such a use-it-or-lose-it rule
`
`would frustrate the administration of military facilities, raise diffi-
`cult questions for judges, and discourage commanders from opening
`portions of their bases for public convenience. Pp. 10–13.
`
`(c) Apel’s argument that the statute was unconstitutional as ap-
`
`plied was not reached by the Ninth Circuit and, thus, is not ad-
`dressed here. P. 13.
`676 F. 3d 1202, vacated and remanded.
`
` ROBERTS, C. J., delivered the opinion for a unanimous Court. GINS-
`
`BURG, J., filed a concurring opinion, in which SOTOMAYOR, J., joined.
`
`
` ALITO, J., filed a concurring opinion.
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` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
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`
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`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 12–1038
`_________________
`UNITED STATES, PETITIONER v. JOHN DENNIS
`
`
`APEL
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE NINTH CIRCUIT
`
`
`[February 26, 2014]
`
` CHIEF JUSTICE ROBERTS delivered the opinion of the
`
`Court.
`
`Federal law makes it a crime to reenter a “military . . .
`
`installation” after having been ordered not to do so “by any
`officer or person in command.” 18 U. S. C. §1382. The
`question presented is whether a portion of an Air Force
`base that contains a designated protest area and an ease-
`ment for a public road qualifies as part of a “military
`installation.”
`
`
`
`I
`
`A
`
`
`Vandenberg Air Force Base is located in central Califor-
`nia, near the coast, approximately 170 miles northwest of
`
`Los Angeles. The Base sits on land owned by the United
`States and administered by the Department of the Air
`Force. It is the site of sensitive missile and space launch
`facilities. The commander of Vandenberg has designated
`it a “closed base,” meaning that civilians may not enter
`without express permission. Memorandum for the Gen-
`eral Public Re: Closed Base, from David J. Buck, Com-
`mander (Oct. 23, 2008), App. 51; see also 32 CFR
`
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`Opinion of the Court
`§809a.2(b) (2013) (“Each [Air Force] commander is au-
`thorized to grant or deny access to their installations,
`
`and to exclude or remove persons whose presence is
`unauthorized”).
`
`Although the Base is closed, the Air Force has granted
`to the County of Santa Barbara “an easement for a right-
`of-way for a road or street” over two areas within Vanden-
`berg. Department of the Air Force, Easement for Road or
`Street No. DA–04–353–ENG–8284 (Aug. 20, 1962), App.
`35. Pursuant to that easement, two state roads traverse
`the Base. Highway 1 (the Pacific Coast Highway) runs
`through the eastern part of the Base and provides a route
`between the towns of Santa Maria and Lompoc. Highway
`246 runs through the southern part of the Base and allows
`
`access to a beach and a train station on Vandenberg’s
`western edge. The State of California maintains and po-
`
`lices these highways as it does other state roads, except
`
`that its jurisdiction is merely “concurrent” with that of
`
`
`
`the Federal Government. Letter from Governor Edmund G.
`
`Brown, Jr., to Joseph C. Zengerle, Assistant Secretary of
`the Air Force (July 21, 1981), App. 40. The easement in-
`strument states that use of the roads “shall be subject to
`such rules and regulations as [the Base commander] may
`prescribe from time to time in order to properly protect the
`interests of the United States.” Easement, App. 36. The
`United States also “reserves to itself rights-of-way for all
`purposes” that would not create “unnecessary interference
`with . . . highway purposes.” Id., at 37.
`
`As relevant to this case, Highway 1 runs northwest
`several miles inside Vandenberg until it turns northeast
`at a 90 degree angle. There Highway 1 intersects with
`Lompoc Casmalia Road, which continues running north-
`west, and with California Boulevard, which runs south-
`west. In the east corner of this intersection there is a
`middle school. In the west corner there is a visitors’ center
`
`and a public bus stop. A short way down California
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` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
`Boulevard is the main entrance to the operational areas of
`the Base where military personnel live and work. Those
`areas are surrounded by a fence and entered by a security
`checkpoint. See Appendix, infra (maps from record).
`
`In the south corner of the intersection is an area that
`
`
`has been designated by the Federal Government for peace-
`ful protests. A painted green line on the pavement, a
`temporary fence, Highway 1, and Lompoc Casmalia Road
`mark the boundaries of the protest area. Memorandum
`for the General Public Re: Limited Permission for Peaceful
`Protest Activity Policy, from David J. Buck, Commander
`(Oct. 23, 2008), App. 57–58. The Base commander has
`enacted several restrictions to control the protest area,
`including reserving the authority “for any reason” to with-
`draw permission to protest and “retain[ing] authority and
`control over who may access the installation, including
`access to roadway easements for purposes other than
`traversing by vehicle through the installation.” Ibid. A
`
`public advisory explains other rules for the protest area:
`demonstrations “must be coordinated and scheduled with
`[B]ase Public Affairs and [Base] Security Forces at least
`two (2) weeks in advance”; “[a]nyone failing to vacate
`installation property upon advisement from Security
`Forces will be cited for trespass pursuant to [18 U. S. C.
`§1382]”; and “[a]ctivities other than peaceful protests in
`this area are not permitted and are specifically prohib-
`ited.” U. S. Air Force Fact Sheet, Protest Advisory, App.
`
`52–53.
`The advisory states, consistent with federal regulations,
`
`that anyone who fails to adhere to these policies may
`“receive an official letter barring you from entering Van-
`denberg.” Id., at 55; see also 32 CFR §809a.5 (“Under the
`authority of 50 U. S. C. [§]797, installation commanders
`may deny access to the installation through the use of a
`barment order”). And for any person who is “currently
`barred from Vandenberg AFB, there is no exception to the
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`UNITED STATES v. APEL
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`Opinion of the Court
`barment permitting you to attend peaceful protest activity
`
`on Vandenberg AFB property. If you are barred and
`attend a protest or are otherwise found on base, you will
`be cited and detained for a trespass violation due to the
`non-adherence of the barment order.” Protest Advisory,
`
`App. 54.
`
`
`
`
`B
`John Dennis Apel is an antiwar activist who demon-
`
`
`strates at Vandenberg. In March 2003, Apel trespassed
`beyond the designated protest area and threw blood on a
`sign for the Base. He was convicted for these actions, was
`
`sentenced to two months’ imprisonment, and was barred
`from the Base for three years. In May 2007, Apel returned
`to Vandenberg to protest. When he trespassed again and
`was convicted, he received another order barring him from
`Vandenberg, this time permanently, unless he followed
`
`specified procedures “to modify or revoke” the order.
`Memorandum for John D. Apel Re: Barment Order (Oct.
`22, 2007), App. 63–65. The only exception to the barment
`was limited permission from the Base commander for Apel
`to “‘traverse’, meaning to travel . . . on [Highway] 1 and
`. . . on [Highway] 246 . . . . You are not authorized to
`deviate from these paved roadways onto [Vandenberg]
`property.” Id., at 64. The order informed Apel that if
`he reentered Vandenberg in violation of the order, he
`would “be subject to detention by Security Forces personnel
`and prosecution by civilian authorities for a violation of
`[18 U. S. C. §1382].” Ibid.
`
`Apel ignored the commander’s order and reentered
`
`Vandenberg several times during 2008 and 2009. That led
`the Base commander to serve Apel with an updated order,
`
`which informed him:
`“You continue to refuse to adhere to the rules and
`guidelines that have been put in place by me to pro-
`tect and preserve order and to safeguard the persons
`
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`Opinion of the Court
`and property under my jurisdiction by failing to re-
`main in the area approved by me for peaceful demon-
`
`strations pursuant to [50] U. S. C. §797 and 32
`C. F. R. §809a.0–[809]a.11. You cannot be expected
`
`or trusted to abide by the protest guidance rules based
`upon this behavior. I consider your presence on this
`installation to be a risk and detrimental to my re-
`sponsibility to protect and preserve order and to safe-
`
`guard the persons and property under my jurisdiction.
`You are again ordered not to enter onto [Vandenberg]
`
`property, as provided in the October 22, 2007 order.
`
`The content and basis of that order is hereby incorpo-
`rated by reference herein, EXCEPT that your barment
`will be for a period of three (3) years from the date
`of this supplemental letter.” Memorandum for John D.
`Apel Re: Barment Order Dated Oct. 22, 2007 (served
`Jan. 31, 2010), App. 59–62.
`
`Apel ignored this barment order too, and on three occa-
`sions in 2010 he reentered Vandenberg to protest in the
`designated area. Each time Vandenberg security person-
`
`nel reminded him of the barment order and instructed him
`to leave. Each time Apel refused. He was cited for violat-
`
`ing §1382 and escorted off Base property.
`
`A Magistrate Judge convicted Apel and ordered him to
`pay a total of $355 in fines and fees. Apel appealed to the
`Federal District Court for the Central District of Califor-
`nia. The District Court rejected Apel’s defense that §1382
`does not apply to the designated protest area, holding that
`the military “has a sufficient possessory interest and
`exercises sufficient control over” the area. App. to Pet. for
`Cert. 14a. The court also concluded that Apel’s conviction
`would not violate the First Amendment. Id., at 13a.
`
`The United States Court of Appeals for the Ninth Cir-
`
`cuit reversed, holding that the statute does not apply.
`Based on Circuit precedent, the Ninth Circuit interpreted
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`Opinion of the Court
`§1382 to require the Government to prove that it has “the
`exclusive right of possession of the area on which the
`trespass allegedly occurred.” 676 F. 3d 1202, 1203 (2012)
`(citing United States v. Parker, 651 F. 3d 1180 (CA9
`2011)). The court found that the easement through Van-
`denberg deprived the Government of exclusive possession
`of the roadway, so it concluded that §1382 does not cover
`the portion of the Base where Apel’s protest occurred.
`We granted certiorari, 569 U. S. ___ (2013), and now
`
`vacate the judgment.
`
`
`
`
`II
`
`Section 1382 provides in full:
`
`“Whoever, within the jurisdiction of the United
`
`States, goes upon any military, naval, or Coast Guard
`reservation, post, fort, arsenal, yard, station, or instal-
`lation, for any purpose prohibited by law or lawful
`regulation; or
`“Whoever reenters or is found within any such res-
`
`ervation, post, fort, arsenal, yard, station, or installa-
`tion, 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.”
`Apel does not dispute that he was “found within” the
`
`lawful boundaries of Vandenberg, “within the jurisdiction
`of the United States,” after having been “ordered not to
`reenter” by the Base commander. §1382. And certainly
`Vandenberg would naturally be described as a “military
`installation”: it is an Air Force base, which a military
`commander has closed to the public (with limited excep-
`tions), located on land owned by the United States and
`under the jurisdiction of the Air Force, where military
`personnel conduct sensitive missile operations.
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`
`Opinion of the Court
`Against this straightforward interpretation, Apel insists
`
`that §1382 applies only where the military exercises exclu-
`sive possession and control, which, he contends, does not
`include land subject to a roadway easement. Apel further
`
`argues that the fence enclosing Vandenberg’s operational
`facilities marks the real boundary of the Base and that
`Vandenberg’s commander lacks authority to control the
`rest, or at least the designated protest area. We take his
`arguments in turn.
`
`
`
`A
`Apel asserts that the Ninth Circuit’s exclusive posses-
`
`sion and control requirement “derives directly from the
`text of §1382.” Brief for Respondent 23. It does not.
`Section 1382 is written broadly to apply to many different
`kinds of military places: a “reservation, post, fort, arsenal,
`yard, station, or installation.” Nothing in the text defines
`those places in terms of the access granted to the public or
`the nature of the Government’s possessory interest. See
`United States v. Albertini, 472 U. S. 675, 682 (1985) (“The
`language of the statute does not limit §1382 to military
`bases where access is restricted”).
`
`Apel contends that the listed military places have histor-
`
`
`ically been defined as land withdrawn from public use.
`
`Not so. Historical sources are replete with references to
`military “forts” and “posts” that provided services to civil-
`ians, and were open for access by them. See, e.g., R.
`Wooster, Soldiers, Sutlers, and Settlers 64 (1987) (“The
`frontier forts of Texas were not simply army bases occu-
`pied solely by military personnel. They were often bus-
`tling communities that attracted merchants, laborers,
`settlers, and dependents”); Davis, The Sutler at Fort
`Bridger, 2 Western Hist. Q. 37, 37, 40–41 (Jan. 1971)
`(describing a 19th-century post in southwestern present
`Wyoming which included a “sutler,” a civilian merchant
`who set up shop inside the fort and sold wares both to
`
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`UNITED STATES v. APEL
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`Opinion of the Court
`soldiers and to civilians from outside the base).
`
`The common feature of the places described in §1382 is
`not that they are used exclusively by the military, but that
`they have defined boundaries and are subject to the com-
`mand authority of a military officer. That makes sense,
`because the Solicitor General has informed us that a
`military commander’s authority is frequently defined by
`the boundaries of a particular place: When the Depart-
`ment of Defense establishes a base, military commanders
`assign a military unit to the base, and the commanding
`
`officer of the unit becomes the commander of the base. Tr.
`of Oral Arg. 6–7.
`
`Apel responds by invoking our decision in United States
`v. Phisterer, 94 U. S. 219 (1877), which held that the term
`“military station” (in a different statute) did not include
`a soldier’s off-base home. But Phisterer only confirms
`our conclusion that §1382 does not require exclusive use,
`possession, or control. For there we interpreted “military
`station” to mean “a place where troops are assembled,
`where military stores, animate or inanimate, are kept or
`distributed, where military duty is performed or military
`protection afforded,—where something, in short, more or
`
`less closely connected with arms or war is kept or is to be
`done.” Id., at 222. To describe a place as “more or less
`closely connected” with military activities hardly requires
`that the military hold an exclusive right to the property.
`Rather, “military duty” and “military protection” are
`synonymous with the exercise of military jurisdiction.
`
`And that, not coincidentally, is precisely how the term
`“military installation” is used elsewhere in federal law.
`See, e.g., 10 U. S. C. §2687(g)(1) (defining “military instal-
`lation” as a “base . . . or other activity under the jurisdic-
`tion of the Department of Defense”); §2801(c)(4) (defining
`“military installation” as a “base . . . or other activity
`under the jurisdiction of the Secretary of a military de-
`
`partment”); 32 CFR §809a.0 (“This part prescribes the
`
`
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`
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`Opinion of the Court
`commanders’ authority for enforcing order within or near
`Air Force installations under their jurisdiction and con-
`trolling entry to those installations”).
`Apel also relies on the fact that some Executive Branch
`
`
`documents, including the United States Attorneys’ Man-
`ual and opinions of the Air Force Judge Advocate General,
`have said that §1382 requires exclusive possession. Brief
`for Respondent 44–47. So they have, and that is a point in
`his favor. But those opinions are not intended to be bind-
`ing. See Dept. of Justice, United States Attorneys’ Man-
`ual §1–1.100 (2009) (“The Manual provides only internal
`Department of Justice guidance. It is not intended to,
`does not, and may not be relied upon to create any rights,
`substantive or procedural, enforceable at law by any party
`in any matter civil or criminal”); 2 Civil Law Opinions
`of The Judge Advocate General, United States Air Force
`1978–1983 (Preface) (opinions of the Judge Advocate Gen-
`eral “are good starting points but should not be cited
`as precedence [sic] without first verifying the validity of
`the conclusions by independent research”). Their views
`may reflect overly cautious legal advice based on division
`in the lower courts. Or they may reflect legal error. Ei-
`ther way, we have never held that the Government’s
`
`reading of a criminal statute is entitled to any deference.
`See Crandon v. United States, 494 U. S. 152, 177 (1990)
`(SCALIA, J., concurring in judgment).
`Today, as throughout our Nation’s history, there is sig-
`
`nificant variation in the ownership status of U. S. mil-
`itary sites around the world. Some are owned in fee,
`others are leased. Some are routinely open to the public,
`others are open for specific occasions or purposes, and no
`public access whatsoever is permitted on others. Many,
`including such well-known places as the Washington Navy
`Yard and the United States Air Force Academy, have
`roads running through them that are used freely by the
`public. Nothing in §1382 or our history suggests that the
`
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`Opinion of the Court
`statute does not apply to a military base under the com-
`
`mand of the Air Force, merely because the Government
`has conveyed a limited right to travel through a portion of
`the base or to assemble in a particular area.
`B
`Section 1382 is most naturally read to apply to places
`
`with a defined boundary under the command of a military
`officer. Apel argues, however, that Vandenberg’s com-
`mander has no authority on the highways running
`through the Base or, apparently, in the designated protest
`area. His arguments more or less reduce to two conten-
`tions: that the highways and protest area lie “outside the
`entrance to [a] closed military installation[],” Brief for
`Respondent 22, and that they are “uncontrolled” spaces
`where “no military operations are performed,” id., at 23.
`
`Neither contention is sound.
`First, to say that the highway and protest area are
`
`“outside” the Vandenberg installation is not a legal ar-
`gument; it simply assumes the conclusion. Perhaps recog-
`nizing as much, Apel tacks: He suggests that because
`Vandenberg’s operational facilities are surrounded by a fence
`
`and guarded by a security checkpoint, the Government
`has determined that it does not control the rest of the
`Base. The problem with this argument is that the United
`States has placed the entire Vandenberg property under
`the administration of the Air Force, which has defined
`that property as an Air Force base and designated the
`Base commander to exercise jurisdiction. Federal law
`makes the commander responsible “for the protection or
`
`security of ” “property subject to the jurisdiction, admin-
`istration, or in the custody of the Department of Defense.”
`
`50 U. S. C. §§797(a)(2), (4); see also 32 CFR §809a.2(a)
`(“Air Force installation commanders are responsible for
`protecting personnel and property under their jurisdic-
`tion”). And pursuant to that authority, the Base com-
`
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`Opinion of the Court
`mander has issued an order closing the entire base to the
`
`public. Buck Memorandum Re: Closed Base, App. 51; see
`also 32 CFR §809a.3 (“any directive issued by the com-
`mander of a military installation or facility, which in-
`cludes the parameters for authorized entry to or exit from
`a military installation, is legally enforceable against all
`persons”). The fact that the Air Force chooses to secure
`a portion of the Base more closely—be it with a fence, a
`checkpoint, or a painted green line—does not alter the
`boundaries of the Base or diminish the jurisdiction of the
`military commander.
`As for Apel’s claim that the protest area specifically is
`
`uncontrolled, the record is conclusively to the contrary.
`The Base commander “at all times has retained authority
`and control over who may access the installation,” includ-
`ing the protest area. Buck Memorandum Re: Protest
`Activity, App. 58. He has enacted rules to restrict the
`manner of protests in the designated area. Protest Advi-
`sory, App. 53. In particular, he requires two weeks’ notice
`
`to schedule a protest and prohibits the distribution of
`
` pamphlets or leaflets.
`Id., at 52–53. The Base com-
`mander has also publicly stated that persons who are
`
`barred from Vandenberg—for whatever reason—may not
`
` come onto the Base to protest. Id., at 54. And the District
`Court found, after hearing testimony, that “the Govern-
`ment exercises substantial control over the designated
`
`protest area, including, for example, patrolling the area.”
`App. to Pet. for Cert. 14a–15a. Apel has never disputed
`these facts.
`
`Instead Apel tells us that, by granting an easement, the
`military has “relinquished its right to exclude civilians
`from Highway 1,” Brief for Respondent 36, and that the
`easement does not “permit[]” use by the military, id., at
`43. But the easement itself specifically reserves to Van-
`denberg’s commander the authority to restrict access to
`the entire Base, including Highway 1, when necessary “to
`
`
`
`
`
`

`
`12
`
`
`UNITED STATES v. APEL
`
`Opinion of the Court
`properly protect the interests of the United States,” and
`likewise “reserves to [the United States] rights-of-way for
`all purposes.” Easement, App. 36. We simply do not
`understand how Apel can claim that “[n]othing in the
`
`easement contemplates, or even permits, military use or
`occupation; it provides for exclusive civil use and occupa-
`tion.” Brief for Respondent 43. Moreover, the Base com-
`mander, in an exercise of his command authority, has
`notified the public that use of the roads is “limited to . . .
`vehicular travel activity through the base,” which does not
`include Apel’s protest activity. See Buck Memorandum
`Re: Closed Base, App. 51.
`
`
`Apel likewise offers no support for his contention that
`military functions do not occur on the easement highways.
`The Government has referred us to instances when the
`commander of Vandenberg has closed the highways to the
`public for security purposes or when conducting a military
`launch. Reply Brief 12, and n. 5; Tr. of Oral Arg. 8–9. In
`any event, there is no indication that Congress intended
`§1382 to require base commanders to make continuous,
`uninterrupted use of a place within their jurisdiction, lest
`they lose authority to exclude individuals who have van-
`dalized military property and been determined to pose a
`threat to the order and security of the base.
`
`In sum, we decline Apel’s invitation to require civilian
`judges to examine U. S. military sites around the world,
`parcel by parcel, to determine which have roads, which
`have fences, and which have a sufficiently important,
`persistent military purpose. The use-it-or-lose-it rule that
`Apel proposes would frustrate the administration of mili-
`tary facilities and raise difficult questions for judges, who
`are not expert in military operations. And it would dis-
`courage commanders from opening portions of their bases
`for the convenience of the public. We think a much better
`reading of §1382 is that it reaches all property within the
`defined boundaries of a military place that is under the
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 571 U. S. ____ (2014)
`
`Opinion of the Court
`command of a military officer.
`III
`
`Much of the rest of Apel’s brief is devoted to arguing
`
`that §1382 would be unconstitutional as applied to him on
`this Base. But the Court of Appeals never reached Apel’s
`constitutional arguments, and we decline to do so in the
`first instance. Apel also attempts to repackage his First
`
`Amendment objections as a statutory interpretation ar-
`gument based on constitutional avoidance. See Brief for
`Respondent 54 (“the statute should be interpreted . . . not
`to apply to peaceful protests on a public road outside of a
`closed military base over which an easement has been
`granted and that has been declared a protest zone”). But
`we do not “interpret” statutes by gerrymandering them
`with a list of exceptions that happen to describe a party’s
`case.
`“The canon [of constitutional avoidance] is not a
`method of adjudicating constitutional questions by other
`means.” Clark v. Martinez, 543 U. S. 371, 381 (2005).
`
`
`Whether §1382 is unconstitutional as applied is a question
`
`we need not address.
`
`
`
` 13
`
`
`
`
`
`*
`*
`*
`
`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 cotermi-
`
`nous 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 com-
`mander reserves authority to protect military property by,
`among other things, excluding vandals and trespassers.
`
`The judgment of the Court of Appeals is vacated, and
`the case is remanded for further proceedings consistent
`
`with this opinion.
`
`
`
`
`
`
`
`
`It is so ordered.
`
`
`
`
`
`

`
`APPENDIX
`
`Santa Maria-Highway 1 Gate to Vandenberg Air Force Base
`
`

`
`
`
`
`
` Cite as: 571 U. S. ____ (2014)
`
` GINSBURG, J., concurring
`
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`_________________
`
` No. 12–1038
`_________________
`UNITED STATES, PETITIONER v. JOHN DENNIS
`
`
`APEL
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE NINTH CIRCUIT
`
`
`[February 26, 2014]
`
` JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR
`
`
` joins, concurring.
`I agree with the Court’s reading of 18 U. S. C. §1382:
`
`
`The military’s choice “to secure a portion of the Base more
`closely—be it with a fence, a checkpoint, or a painted
`green line—does not alter the boundaries of the Base or
`diminish the jurisdiction of the military commander.”
`Ante, at 11. But a key inquiry remains, for the fence,
`checkpoint, and painted line, while they do not alter
`the Base boundaries, may alter the First Amendment
`calculus.
`
`When the Government permits the public onto part of
`its property, in either a traditional or designated public
`forum, its “ability to permissibly restrict expressive con-
`duct is very limited.” United States v. Grace, 461 U. S.
`171, 177 (1983). In such venues, the Government may
`enforce “reasonable time, place, and manner regulations,”
`but those regulations must be “content-neutral [and]
`narrowly tailored to serve a significant government inter-
`est.” Ibid. (internal quotati

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