United States v. Apel , 134 S. Ct. 1144 ( 2014 )

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
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
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
2 UNITED STATES v. APEL
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.
Cite as: 571 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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.
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
2 UNITED STATES v. APEL
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
Cite as: 571 U. S. ____ (2014) 3
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
4 UNITED STATES v. APEL
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
Cite as: 571 U. S. ____ (2014) 5
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
6 UNITED STATES v. APEL
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.
Cite as: 571 U. S. ____ (2014) 7
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
8 UNITED STATES v. APEL
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
Cite as: 571 U. S. ____ (2014) 9
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
10 UNITED STATES v. APEL
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-
Cite as: 571 U. S. ____ (2014) 11
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) 13
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.
* * *
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) 1
GINSBURG, J., concurring
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]
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 quotation marks omitted).
The stated interest of the Air Force in keeping Apel out
of the area designated for peaceful protest lies in ensuring
base security. Brief for United States 22–26. See also
Reply Brief 21–22. That interest, however, must be as-
sessed in light of the general public’s (including Apel’s)
2 UNITED STATES v. APEL
GINSBURG, J., concurring
permission to traverse, at any hour of the day or night, the
highway located a few feet from the designated protest
area. See Appendix to opinion of the Court, ante (display-
ing maps of the area). The Air Force also permits open
access to the middle school, bus stop, and visitors’ center,
all situated in close proximity to the protest area. See
ante, at 2.
As the Air Force has exhibited no “special interes[t] in
who walks [or] talks” in these places, Flower v. United
States, 407 U. S. 197, 198 (1972) (per curiam), it is ques-
tionable whether Apel’s ouster from the protest area can
withstand constitutional review. The Court has properly
reserved that issue for consideration on remand. Ante, at
13. In accord with that reservation, I join the Court’s
opinion.
Cite as: 571 U. S. ____ (2014) 1
ALITO, J., concurring
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]
JUSTICE ALITO, concurring.
The Ninth Circuit did not rule on the constitutionality of
18 U. S. C. §1382, and I see no reason to express any view
on that question at this time. See FCC v. Fox Television
Stations, Inc., 556 U. S. 502, 529 (2009). “ This Court . . .
is one of final review, ‘not of first view.’ ” Ibid. (quoting
Cutter v. Wilkinson, 544 U. S. 709, 719, n. 7 (2005)). Our
failure to address this question should not be interpreted
to signify either agreement or disagreement with the
arguments outlined in JUSTICE GINSBURG’s concurrence.