United States v. John Apel ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50003
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00830-
JFW-1
JOHN DENNIS APEL,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 11-50004
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00869-
JFW-1
JOHN DENNIS APEL,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 11-50005
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00831-
JFW-1
JOHN DENNIS APEL,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
2 UNITED STATES V. APEL
On Remand From The United States Supreme Court
Filed August 14, 2014
Amended September 22, 2014
Before: Barry G. Silverman and Johnnie B. Rawlinson,
Circuit Judges, and John R. Tunheim, District Judge.*
Per Curiam Opinion
COUNSEL
Erwin Chemerinsky, Selwyn Chu (argued) and Matthew
Plunkett (argued), law students, University of California,
Irvine School of Law, for Defendant-Appellant.
André Birotte Jr., United States Attorney, Robert E. Dugdale
and Mark R. Yohalem (argued), Assistant United States
Attorneys, Los Angeles, California, for Plaintiff-Appellee.
ORDER
Appellant John Apel’s Petition for Panel Rehearing is
GRANTED. The Per Curiam Opinion filed on August 14,
2014 is amended to conform to the attached Amended
Opinion.
*
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
UNITED STATES V. APEL 3
OPINION
PER CURIAM:
On February 26, 2014, the United States Supreme Court
vacated our opinion at 676 F.3d 1202 and remanded the case
to us for further proceedings consistent with its opinion.
United States v. Apel, __ U.S. __, 134 S. Ct. 1144 (2014).
Appellant John Apel was barred from Vandenberg Air Force
Base, a “closed base,” after he twice trespassed beyond the
designated protest area, including one incident where he
threw blood on a sign for the base, and he has conceded that
he does not challenge the validity of the barment order.1 In
light of the Supreme Court’s decision, Apel’s challenge to the
applicability of 18 U.S.C. § 1382 to the facts of his case is
denied. As to Apel’s defense that his conviction violates the
First Amendment, we agree with the district court’s
conclusion that “whether or not the designated protest area at
Vandenberg Air Force Base is a public forum, the military
may properly exclude recipients of valid bar letters, such as
Mr. Apel, without violating the First Amendment.” See
United States v. Albertini, 472 U.S. 675, 687–89 (1985);
United States v. Walsh, 770 F.2d 1490, 1493 (9th Cir. 1985)
(“Albertini indicates that whether or not a base is a public
forum, the military may exclude recipients of bar letters
without violating the First Amendment.”).
The judgment of the district court is AFFIRMED.
1
S. Ct. Oral Arg. at 36, available at http://www.supremecourt.gov/oral_
arguments/argument_transcripts/12-1038_d18f.pdf