18 U.S.C. s. 1382: precedent or predicament in the Ninth Circuit?
I. INTRODUCTION II. LEGAL AUTHORITIES FOR DEFENDING MILITARY PROPERTY A. Generally B. Debarment C. 18 U.S.C. [section] 1382 1. Legislative History of 18 U.S.C. [section] 1382 2. Elements 3. The Onerous Ownership Element III. THE CIRCUITS' APPROACH TO THE "OWNERSHIP PRONG" A. Fourth Circuit, 1948 B. Eighth Circuit, 1960 C. Early Ninth Circuit, 1964-2001 1. United States v. Packard. 2. United States v. Mowat 3. United States v. Douglass 4. United States v. Vasarajs D. The Sixth Circuit, 1989 E. The Second Circuit, 1991 F. The First Circuit, 2001 IV. A DEPARTURE--THE NINTH CIRCUIT, 2011-2012 A. Background 1. Acquisition of the Land 2. Federal Grant Easements 3. Closed Base Orders 4. Protest History B. The Parker Decision, 2011 C. United States v. Apel, 2012 D. Critique of the Ninth Circuit's Approach 1. No Clear Standard for the Ownership Prong 2. No True Precedent 3. Lack of Analysis V. ALTERNATIVE APPROACHES WHERE 18 U.S.C. [section] 1382 Is UNAVAILABLE A. A 50 USC [section] 797 Alternative B. Revising Debarment Letters C. Considering Base Jurisdiction VI. CONCLUSION
"This isn't a protest. This is an anti-test. Stop your missile testing now!" The voices of protestors on megaphones cut through the midnight stillness at the front gates of Vandenberg Air Force Base, California. Protestors and military personnel alike anxiously waited on opposite sides of the street--protestors were standing in the designated protest area along Highway 1 and California Boulevard while Vandenberg Security Forces personnel monitored the protestors every movement from the Visitor's Center on the opposite side of California Boulevard. Everyone waited for the Minuteman III to launch from the western shores of California. Several protestors had been previously debarred from Vandenberg Air Force Base by the Installation Commander for failing to remain in the designated peaceful protest area, for acts of civil disobedience, or, as in the case of John Apel, for throwing his own blood on a Vandenberg entrance sign in 2003. Their debarment orders forbade them to even stand in the designated protest area to protest.
Why were Security Forces personnel standing by and allowing the debarred protestors to remain? Their inaction stemmed from advice given to them from the base legal office as a result of a recent Ninth Circuit decision, United States v. Parker. (1) In Parker, the three-judge panel, while examining the specific property at Vandenberg Air Force Base, ruled that precedent and case law in sister circuits demanded the court find the Government lacked the requisite ownership and control of its own property to protect its land from trespassers. The Parker decision held that 18 U.S.C. [section] 1382, Entering a Military, Naval, or Coast Guard Property, was unavailable to the military in this particular case. Instead, the court held that a military installation must have absolute ownership or exclusive possession or control sufficient to charge a violation of that statute when debarred individuals are standing in an easement in an area of concurrent jurisdiction. (2)
An installation commander's authority to debar individuals from base is enforced by statute; if an individual violates a valid debarment order, he can be charged with a violation of 18 U.S.C. [section] 1382. While the text of 18 U.S.C. [section] 1382 does not include the term "trespass," courts and installations alike frequently refer to that statute as one prohibiting trespass onto a military installation. One court even noted that the text of the statute seemed to derive from the common law of trespass. (3) Rather than relying upon common law principles of trespass, a relatively small and intertwined body of case law has developed in the circuits regarding trespass onto military installations. This article will explore the origins of 18 U.S.C. [section] 1382 and pertinent case law in the Supreme Court and several circuits. In particular, this article will also review the apparent addition of an element of absolute ownership or exclusive possession and control into 18 U.S.C. [section] 1382 analysis by the courts. The Parker court stated it was following precedent. However, a closer look reveals that establishing a precedent is troublesome when nearly every court has created a different definition for absolute ownership or exclusive possession and control. This issue is ripe for Supreme Court review because of the numerous inconsistencies in the circuits. As a bottom line, base legal offices should be aware of how the recent trend in the line of trespass cases may impact its advice to their installation commander as well as the steps it may take when 18 U.S.C. [section] 1382 is not available as a base defense.
II. LEGAL AUTHORITIES FOR DEFENDING MILITARY PROPERTY
Installation commanders are responsible for protecting the property and persons under their command in order to effectuate their military mission. (4) Inherent in that responsibility is the authority to issue appropriate rules and regulations to ensure the security of the installation and to exclude or remove persons that may present a threat to the security of the installation or mission. (5) The United States Supreme Court has held that the military has the authority to protect or limit access to its property under the War Powers in the Constitution, Article 1, Section 8, clauses 11-14. (6) Notably, the Supreme Court upheld the inherent power of the legislative and executive branches of the federal government to create regulations to protect military property under Article 1, Section 8 in Cafeteria and Restaurant Workers Union v. McElroy: "The control of access to a military base is clearly within the constitutional powers granted to both Congress and the President." (7) In that case, the Supreme Court concluded a Navy installation commander could deny a cafeteria worker's access to the installation without a hearing if she failed to meet the security clearance requirements without violating the Due Process Clause of the Fifth Amendment. (8) The Cafeteria Workers Court cited to opinions of the United States Attorney General and of the various services' Judge Advocate General as proof of the "historically unquestioned power of the a commanding officer summarily to exclude civilians from the area of his command." (9) While Cafeteria Workers did not address 18 U.S.C. [section] 1382, the Court upheld the Secretary of the Navy's authority to enforce a naval regulation giving the commanding officer the discretion to authorize the presence of particular tradesmen or their agents on the military property. (10) Also reliant upon the constitutional power, under Article 1, Section 8, Congress authorized the ability to prosecute unauthorized access to military installations under 18 U.S.C. [section] 1382 and 50 U.S.C. [section] 797 as a means for installation commanders to legally protect the property under their command. (11) Armed with the authority of 18 U.S.C. [section] 1382 and 50 U.S.C. [section] 797, an installation commander may issue written regulations forbidding unauthorized entry to the base or a written debarment order preventing one from re-entering base property.
B. Debarment (12)
An installation commander's authority and duty to protect the installation under his or her command by debarring individuals is delineated in Department of Defense Instruction 5200.08, Security of DoD Installations and Resources and the Physical Securities Review Board. (13) An installation commander is charged, therein, for taking "reasonably necessary and lawful measures" to protect the persons and property on the installation. (14) The power to protect the installation includes the ability to issue debarment orders so long as the individual threatens "the orderly administration of the site," the debarment orders are based upon reasonable grounds, and the debarment orders are not issued in an "arbitrary, unpredictable, or discriminatory manner." (15) In the event an individual violates the debarment order, the installation commander may take appropriate legal action in accordance with 18 U.S.C. [section] 1382. (16) Consistent with the Department of Defense policy, the Air Force issued two instructions that further specify debarment requirements. Air Force Instruction 31-201, Integrated Defense, allows an installation commander to "deny access to the installation through the use of a barment order." (17) A more recent Instruction, AFI 31-113, Installation Perimeter Access Control, allows an installation commander to deny access to the installation for individuals whose prior actions are inherently threatening to the orderly administration of the base. (18) For example, an individual may be debarred if he has a known "involvement in the commission of a criminal offense, when access is inconsistent with the interests of national security, ... or when access adversely affects the health, safety, or morale of personnel on that installation." (19) An installation commander can decide the terms and the length of time for debarment orders, from short term to permanent orders. (20) Base legal offices play an important gate-keeper role in this process as all debarment orders are first subject to review by the servicing Staff Judge Advocate. (21)
An installation commander's authority to issue debarment orders has rarely been questioned by courts. Courts frequently defer to an installation commander's discretion in issuing a debarment order in spite of the duration or other underlying reason for issuing the order. For example, in United States v. Albertini, the respondent was issued a debarment order nine years prior to the incident in question which forbade him to "'reenter the confines of [Hickam Air Force Base] without the written permission of the Commander or an officer designated by him to issue a permit of reentry.'" (22) While the Albertini Court questioned, without deciding, whether a lifetime debarment order would be valid because of either military regulations or due process, the Court held that the nine-year debarment order was valid on its face. (23) The Court further bolstered debarment orders in Albertini by holding that "[w]here a bar letter is issued on valid grounds, a person may not claim immunity from its prohibition on entry merely because the military has temporarily opened a military facility to the public." (24) While not discussing a debarment order per se, the Supreme Court upheld the installation commander's denial of defendants' request to enter exclusive federal jurisdiction for the purpose of distributing political leaflets in Greer v. Spock. (25) In it's holding, the Court noted that several Army regulations empowered the installation commander to prohibit certain actions and speech on the installation and also referenced Cafeteria Workers for the proposition that the installation commander has "historically unquestioned power ... to exclude civilians from the are of his command." (26) In similar fashion, some circuit courts have upheld debarment orders or orders limiting an individual's actions on base without providing an in-depth analysis. (27)
C. 18 U.S.C. [section] 1382
1. Legislative History of 18 U.S.C. [section] 1382
Before muddying the waters with the interpretation of the statute by case law, it is important to understand the plain language of the statute at issue. Since its inception in 1909, 18 U.S.C. [section] 1382 has had relatively few alterations. The 1909 version of the statute reads as follows:
Whoever shall go upon any military reservation, army post, fort or arsenal, for any purpose prohibited by law or any military regulation made in pursuance of law, or Whoever shall reenter or be found within any such reservation, post, fort, or arsenal, after having been removed therefrom or ordered not to reenter, shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both. (28)
The current version of 18 U.S.C. [section] 1382, Entering Military, Naval, or Coast Guard Property, reads virtually the same:
Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, 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. (29)
As one can see, the phrase "within the jurisdiction of the United States" was added along with an expanded definition of military property that would qualify under the statute's protections.
The Supreme Court has affirmed that when courts interpret statutory language, such as 18 U.S.C. [section] 1382, the court "'must follow the plain and unambiguous meaning of the statutory language.'" (30) The Court held that because Congress has the power to make law, courts should assume that the ordinary meaning of the statute applies, rather than insert legal requirements from legislative history without a pressing need. (31) Few cases, then, have had reason to comment upon the legislative history of the statute. In United States v. Albertini, the Court did ultimately examine the legislative history of 18 U.S.C. [section] 1382 in a case where a debarred defendant entered Hickam Air Force Base during an open house event. According to the Court's interpretation of legislative history, 18 U.S.C. [section] 1382 was designed not only to protect the military mission, but also to "punish spies and panderers for repeated entry into military installations" because there was no other law to punish them. (32) The Court held that 18 U.S.C. [section] 1382 did not just apply to closed military installations; instead, the statute reasonably applied to bases that were open to the public. (33)
Even from its origin, the 18 U.S.C. [section] 1382 created two separate and distinct types of trespass: initial trespass and subsequent trespass. Initial trespass, applies where an individual enters military property for a purpose prohibited by law or regulation. The prohibited purpose, however, "can consist of unauthorized entry itself, and no 'specific intent,' in the strict sense, to violate the law or regulation prohibiting such entry need be shown." (34) The Government does not need to show that the prohibited purpose was the commission of a serious crime or even that the individual knew that he was violating a law or regulation. (35) Rather, the Government need only show that the individual acted with the intent to enter the property and the individual knew such entry was prohibited. (36) Subsequent trespass is trespass for unauthorized entry or reentry after being removed or debarred. In order to prevail under a subsequent trespass theory, the Government must show that the individual been previously removed or ordered not to return to the property. (37) Thus, under a subsequent trespass theory, it does not matter what the individual's purpose is for being present on military property, only that he has been removed previously and ordered not to return. As one court noted, "motive is not a component of the offense charged under the second paragraph of [section] 1382." (38)
An additional element of the statute is that the Government prove that the defendant was within the jurisdiction of the United States and on military property. The text of 18 U.S.C. [section] 1382 does not require a specific type of criminal jurisdiction over the area involved. Relying upon Utah Power and Light Co. to distinguish between the exercise of control over territorial jurisdiction and legislative jurisdiction, the United States v. Holmes court determined that the term "jurisdiction" in 18 U.S.C. [section] 1382 was meant to refer "to the situs of the geographical areas within which the statute applies rather than to any concept of the particular type of jurisdiction or control which the United States Government exercises over said geographical areas." (39) The Holmes court's plain-language analysis of the jurisdiction requirement in 18 U.S.C. [section] 1382 demonstrates that the statute applies regardless of the nature of the Government's legislative jurisdiction. (40)
3. The Onerous Ownership Element
While the plain language of 18 U.S.C. [section] 1382 does not require the Government to prove, as an element of the crime, that the Government has absolute ownership or exclusive right of possession or control of the property, several cases suggest that this requirement exists. (41) The plain language of the statute only requires that the individual must be "within the jurisdiction of the United States." (42) Even in its lengthy examination of the legislative history, the Albertini Court did not address whether the statute demanded a showing of ownership. (43) One could reasonably presume that because the ownership requirement was not in the plain language of the statute or of importance for the Supreme Court to discuss in the legislative history, ownership was not a key to the crime for the Albertini Court. In distinguishing and limiting a previous Supreme Court decision, the Albertini Court did note that the military needed to exercise some amount of control over the area from which it sought to exclude persons, but ownership of the property itself was not addressed. (44) Despite the Supreme Court's lack of discussion of an ownership element in Albertini, ownership has nonetheless become an issue in 18 U.S.C. [section] 1382 cases.
Criminalizing trespass onto a military installation is tantamount to a means of defense for the base. The Court in Albertini recognized the impetus behind drafting 18 U.S.C. [section] 1382: the military installation needs to protect the mission against threats from repeated and unwanted entries onto the base. (45) Unauthorized personnel may not be present on a military installation without consequence. Even if that person lacks criminal intent, that person may be removed from the installation and cited with trespass in violation of 18 U.S.C. [section] 1382. (46) Unique missions make the military familiar with and a target of those who would wish to speak out against it. Trespass citations are common to those military bases with protestors wishing to make a statement by being arrested for their cause. Because military bases across the United States rely upon 18 U.S.C. [section] 1382 to protect the installations and missions, it is important to understand the view of the circuits across the country. The next section will provide a discussion of prominent case law from several circuit courts.
III. THE CIRCUITS' APPROACH TO THE "OWNERSHIP PRONG"
In United States v. Parker, the Ninth Circuit held that a finding of either absolute ownership or the exclusive right of possession is necessary for a successful prosecution under 18 U.S.C. [section] 1382. (47) Case law has created or interpreted that absolute ownership or exclusive right of possession or control is a required element of 18 U.S.C. [section] 1382. A closer look reveals that these terms are used loosely without a clear definition and without a consistent use between courts or circuits. This section will review the key federal circuit decisions so that the base practitioner may develop a working knowledge of the primary cases in this area. (48)
A. Fourth Circuit, 1948
The Fourth Circuit's United States v. Watson case was the first in line of cases to specifically mention the ownership prong as an element of 18 U.S.C. [section] 1382. In Watson, the defendant was debarred from the Marine Corps Barracks at Quantico, Virginia because of previous misconduct. The defendant was then cited for trespass in violation of 18 U.S.C. [section] 1382 when he was stopped on a roadway for reckless driving as he was passing through the installation. The roadway preexisted the creation of the base. Even though the Marine Corps took the land by fee simple absolute in 1918, the public was allowed to continue using the road because it was the only way to reach the landlocked village of Quantico, Virginia. (49) The court concluded that there was an implied easement on that particular road for public necessity and held that the Government could not cite the defendant for trespass when the defendant was on the implied easement. The Watson court held:
[T]he United States must show an absolute ownership, or an exclusive right to the possession, of the road, in order to enforce the commandant's interdiction of the defendant. To punish an infraction of the order, as an offense under title 18, section 1382, U.S.C.A., proof of criminal jurisdiction of the road alone was not enough. Sole ownership or possession, as against the accused, had to be in the United States or there was no trespass. (50)
Seemingly, the Watson case is the first time that the terms of absolute ownership or exclusive right of possession appear in the 18 U.S.C. [section] 1382 line of cases. Several circuits have either relied upon or distinguished the facts and resulting law of the case, even though the Watson court did not rely upon or cite to any other cases in its trespass analysis. (51) Even though the military took the area in fee simple absolute and maintained exclusive legislative jurisdiction of the road area, the Government had insufficient control of the area because the condemnation proceedings did not expressly include the highway and the public relied upon and continued to use the road. (52) The court opined,
[e]vidence that the road is within the area taken does not alone justify the sweeping inference that the capture destroyed the strip as a road, and dissolved all rights of use theretofore held by the public or by certain persons having a special interest therein. Such evidence may prove absolute ownership or possession. (53)
A broad reading of the Watson case, standing alone, leads to the conclusion that in order for a trespass case to be upheld, the Government must be the only entity that could be using the property at the time of the trespass. Therefore, the terms absolute possession and exclusive right of possession are interchangeable. As such, instead of carving out an exception for a debarred defendant to traverse a public road through a base, the Watson court created a new element for 18 U.S.C. [section] 1382. Since this decision, sister-circuit decisions have either limited Watson to its facts or embraced the broad strokes of the opinion.
B. Eighth Circuit, 1960
Twelve years later, the Eighth Circuit decided United States v. Holdridge. In that case, the defendants were caught climbing over a fence onto Mead Ordinance Depot in Nebraska after having been removed and ordered not to reenter that same day. (54) The defendants were cited with violating 18 U.S.C. [section] 1382(b). (55) At issue was whether the Government could bring a trespass charge where it allowed tenants to remain in possession of homes with a right of ingress and egress across the property for a period of time after in took the land in condemnation proceedings. (56) The court also reviewed evidence that several public roads existed on the land prior to the Government's fee simple ownership. (57) Even though the defendants were not tenants on the property or even making use of the roads mentioned, the defendants argued that the Government's actions destroyed its absolute ownership under the Watson standard. (58) The Holdridge court interpreted, as an element, the requirement that the Government would need "exclusive possession of the property" but it did not address the disparate term "absolute ownership." (59) The Holdridge court distinguished the Watson court's implied easement by holding that the Government took fee simple absolute ownership in the condemnation proceedings regarding the land at issue where the county roads were now clearly within the missile site. (60)
The Holdridge court found that the Government could maintain exclusive possession of the property even if landowners retained limited possession of their homes and were permitted ingress and egress. (61) The Holdridge court held that exclusive possession did not mean absolute ownership where the Government was the only entity using the property, contrary to the Watson court. Instead, Holdridge implies that while exclusive possession of the property is an element, it can be met by a less strict standard than that proposed by Watson. Further, in the absence of the term "absolute ownership," the Holdridge decision implies that requirement may not exist in the Eighth Circuit.
C. Early Ninth Circuit, 1964-2001
1. United States v. Packard
Four years after Holdridge, the Ninth Ciruit issued its decision in United States v. Packard. In Packard, the defendant was cited with violating 18 U.S.C. [section] 1382 when he reentered an area of base housing on Mare Island Naval Shipyard, California, in order to solicit door-to-door sales after having been ordered not to reenter. (62) In its two-page opinion, the court's holding does not address whether the Government owned the base housing area in fee or whether the property was subject to any easements, even though the property was outside of the base's perimeter fence. (63) The defendant relied upon Watson, claiming that the Watson court's reasoning should prevail--that "the United States must show absolute ownership or an exclusive right to the possession, of the road." (64) Instead of following Watson's analysis, the court relied upon several factors to find that the Government had the "requisite ownership or possession" of a housing area outside of the base perimeter fence: patrol of the area by military police; signs at the entrance to the area; and notices that the area was government property. (65) The Packard court held that the Government prevailed under the ownership prong by loosely referencing the terms "requisite ownership or possession" and noting the factors above. (66) Whereas Watson held that the Government must show that it destroyed all other rights in the property in order to show absolute ownership, Packard held that Government ownership could be shown by a variety of factors. (67) Further, the Packard court distinguished the defendant's actions as being integral in its holding: the defendant was not just making regular use of a public thoroughfare as in Watson, rather, the defendant was making use of the property in base housing beyond the roadways. (68) Absent further rationale in the court's holding, one could argue that a defendant would be trespassing if using Government property inconsistent with the public's regular use of the property.
In three separate opinions, the Fourth, Eighth, and Ninth Circuits have all used different wording in discussing the ownership prong: "absolute ownership or exclusive right to possession"; (69) "exclusive possession of the premises"; (70) and "requisite ownership or possession." (71) The Packard court seemingly relied upon the outward and apparent demonstration of government control of the area in order to meet the ownership prong. Even though the public could pass through base housing, the Government maintained the authority to control the area and to protect it from trespassers. It is unclear whether the courts created a factors test or whether the Government must meet certain minimum requirements to establish ownership. Certainly, through 1964, an exacting standard of ownership and control had not been established when all circuits seem to have a different understanding and interpretation of the requirement.
2. United States v. Mowat
A new wrinkle appeared in 1978, just fourteen years after the Packard decision in another Ninth Circuit case. In United States v. Mowat, the defendants were attempting to gain unauthorized entry onto the island of Kahoolawe, which then belonged to the Fourteenth Naval District. (72) The Hawaiian island was transferred to the United States during the annexation of Hawaii in 1898 and had been designated for Navy use since 1953. (73) Additionally, the Navy published a regulation that restricted the public's access to the island. (74) The court held that "[t]he parties agree that the Government was required to prove, as an element of the offense, absolute ownership or the exclusive right to the possession of the property upon which the violation occurred." (75) In making that comment, the court cited to the Eighth Circuit's Holdridge decision and the Ninth Circuit's Packard decision as a basis of that stipulation. (76) Aside from recognizing the parties' agreement that the ownership prong was an element, the court did not explicitly hold that this was always a requirement for sustaining a conviction under 18 U.S.C. [section] 1382. Conversely, in finding the Government had established of the ownership prong, the court noted that "[e]ven if the Navy did not possess a fee simple absolute title to the Island of Kahoolawe, the maintenance of the 'naval reservation' there suffices to support the convictions under 18 U.S.C. [section] 1382." (77) The court recognized that by merely establishing and maintaining control of a military installation, the Government would meet the requirement to prove absolute ownership or exclusive right to possession, even if they did not own the land in fee upon which the installation rested. (78) This language illustrates that the requirement for "absolute ownership or the exclusive right to the possession" is far less exacting than might be assumed from the plain language of the standard. Furthermore, this language is far less exacting than the Watson requirement that all other rights be expressly extinguished.
This statement, that fee simple absolute title was not required, makes it apparent that the Government can meet the ownership prong by exercising the degree of control necessary to establish an installation along with the need for the Government to safeguard such installation. Reliance upon Packard and Holdridge for the strict requirement language from Watson is misplaced since neither court actually relied upon a strict use of the phrase "absolute ownership or the exclusive right of possession." On the contrary, the Mowat court was not reliant upon fee simple absolute ownership to determine the Government had met its burden.
3. United States v. Douglass
In the same year as Mowat, the Ninth Circuit also decided United States v. Douglass. (79) In that case, the defendant was previously debarred from entry to Naval Submarine Base, Bangor/Bremerton, Washington, after an act of civil disobedience during a protest. (80) Nonetheless, the defendant crossed a white boundary line into base property to use a public phone booth to contact the media that other protestors were being arrested. (81) After being charged with 18 U.S.C. [section] 1382, the defendant claimed that the Government lacked sufficient ownership of the property in question because the area was outside the base perimeter fence and gate and it was open to the public. (82) The defendant did not claim that the Government did not own the area or that the area was subject to an easement. (83) The Douglass court addressed whether the Government had an "exclusive right of use" or the "requisite ownership and possession" of the property. (84) That case stated that "'[m]ere toleration of certain uses by the public designed for their convenience does not result in the loss of the right to exclusive use.'" (85) While Douglass cited to Packard, it did not use the terms absolute possession or exclusive right of control in its discussion. (86) Instead, Douglass used terms that applied a less exacting standard.
The Douglass court relied upon several factors to hold that the Government met the ownership prong of trespass even though the area was outside the secured area, specifically: there was no evidence of an easement, either by grant or reservation; the Government had not relinquished control of the area; and the white boundary line of the military reservation was clearly marked. (87) The court held, therefore, the use of an area by the public, therefore, is not sufficient to destroy the government's exclusive right of use. (88) Rather than further define the requirements of possession or creating elements for the ownership requirement, the Douglass court, like Packard, merely discussed factors. While the court noted the apparent absence of an easement, the court did not go so far as to hold that an easement automatically diminishes the requisite ownership. Again, one can see the absolute ownership or exclusive right to possession terms are used loosely, if used at all, to convey many different meanings.
4. United States v. Vasarajs
In 1990, the Ninth Circuit again examined the ownership prong in United States v. Vasarajs. (89) In Vasarajs, a defendant was barred from reentry onto a military installation after committing misconduct involving illegal drugs on the base. (90) Base police stopped the defendant at the main gate of Fort Richardson, Alaska as she exited a main highway that bisected the base. (91) The access road from the highway leading to the main gate marked with two signs that notified her that she was on the base and subject to search at any time. (92) The defendant was charged with trespass under 18 U.S.C. [section] 1382 at the main gate of the base. (93) The defendant admitted that the Government owned the access road upon which she was detained but alleged that the Government relinquished requisite control over the area because the public was allowed to traverse the roadway comprising part of the installation, i.e.--the Government no longer had absolute ownership because the road was open to the public. (94) The Vasarajs court then focused its analysis on the "absolute ownership" portion of the ownership prong rather than the "exclusive right to the possession." Citing to Watson, the court noted that mere title to the property in question is insufficient to show that the property is still a part of the base. (95) However, the Vasarajs court also cited Douglass for the proposition that the Government did not lose control over its property simply by allowing the public to use it. (96) The court did not specify whether the government owned the land in fee but it noted lack of evidence of an express easement or easement by necessity. (97) Ultimately, the Vasarajs court concluded that the property at issue was unquestionably owned by the Government. (98) The court's analysis thus fell under the "absolute ownership" portion of the ownership prong, and the only issue to be decided was whether the Government had relinquished the requisite control of the property by inaction. (99) The court assumed that the Government must exercise actual control "over its property in order to preserve the right to exclude others from it pursuant to 18 U.S.C. [section] 1382." (100) In Vasarajs, two signs indicating base property was a sufficient showing of control from the court's viewpoint. (101) Thus, the Government ultimately prevailed in Vasarajs under the Watson standard, but the court failed to squarely address the ownership prong or explain its reasoning behind the holding.
Although the court in Vasarajs did discuss easements, it did so in the context of supporting "the uncontroversial proposition that record title does not unfailingly denote the title holder's 'absolute ownership, or an exclusive right to the possession' of the property in question." (102) Even though the court mentions that servitude might draw into question the title holder's absolute ownership or exclusive right to possession, it did not address whether the ownership prong would not be satisfied in all cases. Despite this mention of easements, the court in Vasarajs did not make any holdings regarding the effect of easements on absolute ownership or exclusive right to possession. While Vasarajs was decided by the same circuit twelve years after Mowat, the Vasarajs court did not tie the parties strictly to the terminology or explanation of the ownership prong as discussed in Mowat. Even some forty years after the Watson decision, the circuits have not developed the ownership prong into a strict standard or exacting requirement. The Vasarajs case is not the last Ninth Circuit opinion regarding trespass. However, the two most recent Ninth Circuit decisions will be discussed at the end of this section because it is important to first understand the intermediate cases in other sister-circuits.
D. The Sixth Circuit, 1989
Around the same time as the Ninth Circuit's Vasarajs decision, the Sixth Circuit decided United States v. McCov. (103) In that case, the Sixth Circuit held that the ownership prong required a mere demonstration of possessory interest or occupation or control. Mrs. McCoy, the defendant, had been previously debarred from Wurtsmith Air Force Base, Michigan. (104) On the occasion in question, she was leafleting in a paved area at a driveway along a highway in front of the base when she was detained and cited for trespass in violation of 18 U.S.C. [section] 1382. (105) The county had a right-of-entry easement over a highway in front of Wurtsmith Air Force Base and over the driveway at the entrance to the base. However, the court held that easement was insufficient to prove that the base did not own the property in question. (106) The defendant called the Director of Surveys from the County Road Commission to testify that the Government "'had granted a right-of-entry to the State Highway Department for construction of a highway and the Highway Department subsequently released its right-of-entry to the county. (107) However, because the county did not own the road in fee and only had a right-of-entry easement, the McCoy court found sufficient evidence to hold that "'the entire area up to at least the center of the road, if not beyond, is a part of the military base....'" (108) The McCoy court held that the Government need not demonstrate legal title, or that the area where the defendant was cited was outside of the right-of-way easement, because the area was visibly part of the base. (109) The McCoy Court did not stop its analysis here, however. In fact, the McCoy court opined that even if the military airstrip, upon which the defendant had previously trespassed,
[H]ad been built on land owned outright by Iosco County, instead of on land leased from the State of Michigan by the United States, the airstrip would still have been part of a military installation possessed and operated by the United States--and it would still have been off-limits to anyone barred from the base under [section] 1382. (110)
The McCoy case noted that "centuries of legal history support the Government's refusal to concede that anything more than a possessory interest had to be shown." (111) The court in McCoy juxtaposed its interpretation of the requirement for possessory interest with the absolute ownership or exclusive right to possession standard in Mowat. Even so, the holding in McCoy indicates that the ownership prong should not be interpreted as requiring more than a showing of a possessory interest. Therefore, the Sixth Circuit's holdings support a possessory interest requirement, and not the exacting standard of the ownership prong discussed in other decisions. (112)
E. The Second Circuit, 1991
In United States v. Allen, the Second Circuit held the defendants were guilty of trespass when they entered a security zone around the U.S.S. Pennsylvania, a Trident nuclear submarine, while docked at a pier in the Thames River. (113) Three defendants traveled up the river in a canoe to the pier and climbed onto the submarine while another defendant swam up to the submarine. (114) All defendants began to attack the submarine's hull with hammers despite the warnings of the guards. (115) The defendants argued that they were not guilty of trespass because never entered the confines of the naval reservation; they were only in the waters on the border of the reservation. (116) The Allen court upheld a trespass conviction in an area "designated as a 'security zone' by federal regulation" because the United States exercised dominion and control over the area and could exclude the general public. (117) The court relied upon the Ninth Circuit's Mowat holding to conclude that occupation and control of the waters designated as part of the security zone, and not absolute ownership, were sufficient to invest the Navy with exclusive right to occupy the area even though area was not owned by the Navy. (118) In fact, the Allen court held "[g] overnment ownership of the property in question is not a requisite to violating Section 1382." (119) Furthermore, the Allen court reviewed a First Circuit case, United States v. Parrilla Bonilla to point out that even the First Circuit Court "did not reject the theory that the boundaries of a reservation may extend beyond what the Government owns in fee." (120) In fact, the Allen court did not even use the terminology "absolute ownership" or "exclusive right of possession" in its analysis. As a result of the holdings in McCoy and Allen, the Second and Sixth Circuit Courts require the least exacting standard of the ownership prong; ownership in fee is not a prerequisite for an 18 U.S.C. [section] 1382 violation in those circuits.
F. The First Circuit, 2001
Ten years after the Second Circuit's Allen decision, the First Circuit reached a similar decision in United States v. Ventura-Melendez. (121) The defendant in that case was charged with trespass during a peaceful protest on a beach belonging to the Navy's Camp Garcia in Vieques, Puerto Rico. (122) The beach was approximately 200 yards from a live impact area used for military exercises, but the defendant claims that she was not standing on the Government's side of the mean high tide line. (123) As an initial matter, the court concluded that "'[g]overnment ownership of the property in question is not a requisite to violating Section 1382.'" (124) Citing to Allen, McCoy, and Mowat, the Ventura-Melendez court ruled that "[i]n accord with these courts, we hold that, when the Government does not own the land, [section] 1382 requires only that the Government demonstrate either a possessory interest in, or occupation or control of, the area reserved by the military." (125) The Ventura-Melendez court did not use the Watson court's terminology of absolute ownership or exclusive right to possession of the property. (126) Instead, it relied upon the Second, Sixth, and Ninth Circuit decisions to reach its holding with a newly-coined "occupation-or-control test" rather than the ownership prong. (127) Further, the court held that even though Puerto Rico had jurisdiction over its beaches, that jurisdiction was subject to United States' control. (128) By reviewing a series of factors, the court concluded that the Government had exercised control of the area: the area was frequently used for military purposes; security personnel frequently patrolled the area: and the base was designated as a base closed to the public. (129) Thus, the United States had superior control, albeit not exclusive control, sufficient to pursue a charge under [section] 1382. Clearly, the terms exclusive or absolute did not play a role in the Ventura-Melendez decision.
IV. A DEPARTURE--THE NINTH CIRCUIT, 2011-2012
The First, Second, Sixth, and Ninth Circuit Courts have all, at times, used a less-exacting interpretation of the ownership prong of 18 U.S.C. [section] 1382 than that in Watson. This raises the question: is there really a precedent for anything more than the "occupation-or-control" test as synthesized by the Ventura-Melendez court? In the past few years, the Ninth Circuit has veered away from prior case law and has asserted there is a precedent for a more rigorous interpretation of the ownership prong, not only among the Ninth Circuit's decisions, but among the decisions from other circuits as well. The recent Ninth Circuit decisions, Parker and Apel are at direct odds with the Sixth Circuit. In addition, these two decisions are more stringent than any ownership requirements required by the First, Second, and other Ninth Circuit decisions. A detailed analysis of each of these decisions is necessary to understand the current state of interpretation in the Ninth Circuit.
The Ninth Circuit decided United States v. Parker in 2011 and United States v. Apel in 2012. Both Parker and Apel involve similar fact patterns: debarred protestors returned to Vandenberg Air Force Base in violation of the debarment order. While not written in the text of the statute, the Ninth Circuit stated that many courts have seemed to require that the Government prove absolute ownership to prevail under 18 U.S.C. [section] 1382. (130) While Vandenberg Air Force Base is just one of hundreds of military bases across the country, the Parker and Apel decisions may have a widespread impact. At the very least, these decisions affect seventeen Air Force bases in the Ninth Circuit alone. In addition, because the litigation in this arena is so tightly intertwined, other circuits may begin to rely upon these recent decisions to restrict the military's use of 18 U.S.C. [section] 1382. In order to appreciate the nuances at play in these 18 U.S.C. [section] 1382 cases, it is necessary to first outline a basic history of how the Air Force acquired the land at Vandenberg Air Force Base and how the protestors came to claim their designated protest area in the middle of base property along a highway near the base's main gate. By understanding the facts at play in these cases arising from Vandenberg Air Force Base, base legal offices can better prepare for any potential litigation that may arise at another base.
1. Acquisition of the Land
The land now known as Vandenberg Air Force Base, the third largest base in terms of acreage in the Air Force, was acquired by the Federal Government in 1941 and 1942 for use as an Army base and became known as Camp Cooke. (131) In 1943, the Secretary of War accepted exclusive jurisdiction over the property. (132) In 1957, the Army transferred the property to the Air Force. (133) Shortly thereafter, in 1962, the United States granted easements pursuant to 10 U.S.C. [section] 2668 to the County of Santa Barbara, California for a right-of-way for a road or street through the base property. (134) Subsequently, two highways were formed that bisect Vandenberg Air Force Base property: Highway 1, which is near the main gate; and Highway 246, which provides public access to a railroad stop at Surf Station. The Government maintained exclusive jurisdiction over the entire acquisition until 1981, at which point the jurisdiction of Highway 1 and 246 were changed to concurrent prosecutorial jurisdiction with the County of Santa Barbara. (135) Portions of both highways are encompassed by the base; the base maintains ownership and exclusive federal jurisdiction on both sides of the roadways.
2. Federal Grant Easements
The use of the easements on Vandenberg has always been "limited to road maintenance and vehicular travel .... use and occupation of the area is for these purposes only, and is subject to such rules and regulations the [Installation Commander] may prescribe from time to time in order to properly protect the interests of the United States," as per the easement language and as per the easement statute, 10 U.S.C. [section] 2668. (136) Specifically, the statute provides, "the Secretary may grant, upon such terms as the Secretary considers advisable, easements for the rights-of-way over, in, and upon public lands permanently withdrawn or reserved for the use of that department, and other lands under the Secretary's control for ... roads and streets." Additionally, the Secretary of the military department may terminate all or part of any easement granted under [section] 2668 for failure to comply with the terms of the grant. (137)
3. Closed Base Orders
Vandenberg Air Force Base, like many military bases, is a closed base, which means that non-military and non-DoD personnel may not enter without the express permission of the Installation Commander. (138) The Installation Commander has granted limited permission to individuals who have not been previously barred from the installation, to engage in peaceful protest activity in the designated area adjacent to the intersection of State Highway 1 and California Boulevard, known as the "highway easement." (139)
4. Protest History
Over two decades ago, a large number of protestors demonstrated against the military launch programs at Vandenberg Air Force Base. (140) The base responded with an extensive use of base resources to control the crowds. During subsequent litigation in 1989, the Installation Commander entered into a settlement at the United States District Court for the Central District of California. Pursuant to this settlement, the Installation Commander agreed to issue a policy authorizing a designated peaceful protest area (Protest Activity Notice) at the intersection of California Boulevard/Highway 1 at the main gate of the base so long as the protestors did not encumber roadways or engage in activities that would be unsafe or materially interfere with the military mission. (141) The installation commander's Protest Activity Notice implements requirements for providing notice of protests to the base, designating the area where the protestors may stand, and limiting items that may be brought to the protest area. (142) The designated protest area sits on the boundary of the highway easement, but the entire area is within Vandenberg Air Force Base property. While the highway easements are subject to concurrent jurisdiction with Santa Barbara County, Vandenberg Air Force Base retains and exercises the sole authority for prosecuting uniquely federal crimes along with any crimes that are of special importance to the base security and safety. (143) The highway passes through United States property that is owned in fee simple and is subject to exclusive federal jurisdiction.
The protestors claim that highways, regardless of any underlying easement, are traditional public forums which give them an absolute, unrestricted First Amendment right of free speech that cannot be regulated or disallowed absent a compelling reason. (144) Therefore, they argue that the Government has no authority to create the Protest Activity Notice, debar protestors who violate the Protest Activity Notice, or charge criminal trespass for violating a debarment order.
B. The Parker Decision, 2011
In 2006, Hobert Parker, Jr. protests without prior authorization on an easement for a public road through Vandenberg Air Force Base. He received three citations for trespass in violation of 18 U.S.C. [section] 1382. (145) Additionally, the Installation Commander debarred Parker from the base. Before the federal magistrate, the defendant argued the easement and concurrent jurisdiction destroyed the Government's absolute ownership. Parker was convicted under 18 U.S.C. [section] 1382; the district court upheld his convictions on appeal. (146) The district court analyzed Mowat, Vasarajs, and Holdridge and noted that while the ownership prong was not a stated element of 18 U.S.C. [section] 1382, that element had developed through case law based upon the common law of trespass. (147) As a result of its analysis of Eighth and Ninth Circuit case law, the district court held the easement did not destroy the Government's exclusive possession of the road. (148) Parker appealed.
In an un-published decision dated 24 May 2011, the Ninth Circuit reversed the district court's decision, holding that an easement and concurrent jurisdiction defeated the absolute ownership and control elements necessary for the Government to prevail on 18 U.S.C. [section] 1382 prosecutions. (149) What at first was a potentially inconsequential, unpublished Ninth Circuit decision, became a published decision with significant ramifications. The published decision mirrored the unpublished decision exactly: "We have interpreted section 1382 to require the government to prove its absolute ownership or exclusive right of possession of the property upon which the violation occurred." (150) The court relied upon Packard, Vasajaras, and Douglass to conclude that exclusive possession--without an easement was necessary for a successful prosecution under 18 U.S.C. [section] 1382. (151) In reaching this result, the Parker court noted multiple courts had reaffirmed and applied the ownership prong. (152) The Parker court cited the Second Circuit's Allen decision and the Eighth Circuit's Holdridge decision for the proposition that other circuits had concluded that either absolute ownership or exclusive right of possession was necessary for an 18 U.S.C. [section] 1382 charge. (153) Interestingly, the opinion even singled out the United States Attorney's Manual as a source, because, in the court's view, the manual adopted exclusive possession and control as necessary elements of trespass. (154) Parker seemed to merge a series of interpretations of the ownership prong into the strict Watson standard from 1948. Ultimately, the court decided that the road where the defendant was cited for trespass was "established pursuant to a public road easement" and "subject to concurrent jurisdiction" and ultimately held "the government does not have an exclusive right of possession" over the property. (155)
After the Ninth Circuit issued its relatively short, unpublished opinion without much analysis, one of the protestors asked the Ninth Circuit panel to publish the decision. (156) The protestor insisted that the Parker decision not only clarified a rule of law, but also carried legal significance because of the number of roadway easements that passed through military installations. (157) Additionally, the protestor noted that United States" v. Apel was on appeal before the Ninth Circuit on similar grounds. (158) The Ninth Circuit granted the request and changed the designation of the Parker decision from unpublished (159) to published without an opportunity for the Government to object (160)--in a move that changed the rules of engagement for the military.
C. United States v. Apel, 2012
While the Ninth Circuit was deliberating over Parker another Vandenberg Air Force Base protest case was winding its way through the appellate process. In United States v. Apel, John Apel, the defendant and a regular protestor, had been debarred from Vandenberg Air Force Base in 2003 for throwing his own blood on an entrance sign near the designated protest area. In January and March 2010, he was cited for trespass for reentering the base at the designated protest area, thus violating his debarment order. At the time of the initial trial in July 2010, the Parker case had not even been argued before the Ninth Circuit. Regardless, only a few facts distinguished the two cases. First, the Apel case arose from the Highway 1 easement in a Government-maintained, designated protest area, whereas the Parker case arose from the shoulder of Highway 246. Second, the granting document for the Highway 1 easement at issue in Apel contained an additional phrase that expressly reserved authority for the installation commander to prescribe rules to "protect the interests of the United States. (161) Finally, the Memorandum of Understanding between the United States Air Force and the District Attorney had changed since Parker arose; Vandenberg Air Force Base reserved sole prosecutorial authority over protest-related activities. (162)
At federal magistrate court, the defendant filed a motion to dismiss the charges on First Amendment grounds, claiming that the designated protest area was a traditional public forum from which he could not be excluded. (163) The magistrate judge disagreed, holding that the designated protest area was not a traditional public forum under Flower or Albertini and the Installation Commander could preclude individuals from the area. (164) On appeal to federal district court, the defendant raised two errors: the magistrate judge erred in finding the area was a limited public forum, and the government lacked absolute ownership or exclusive right to possession of the property in question. (165) Notwithstanding the defendant's arguments, the district court ruled for the Government and held that the designated protest area was a limited public forum. (166) More importantly, the district court found that the Government's substantial control over the designated protest area was sufficient to sustain the defendant's conviction. (167) Citing to the Ninth Circuit's Vasarajs decision and the First Circuit's Ventura-Melendez decision, the district court determined "[i]t is undisputed that the Government owns the land.... [a]lthough the ownership interest is subject to the easement," the federal grant of the easement is subject to limitations in order to protect the interests of the United States. (168) The district court rejected a strict interpretation of the ownership prong and instead used Ventura-Melendez' occupation or control test. Apel appealed the decision to the Ninth Circuit, again, before Parker was decided.
A few months after the district court decision and Apel's appeal to the Ninth Circuit, the Parker court issued an unpublished decision in May 2011 and then the published decision in late August 2011. The Government was at a crossroads whether to continue with the Apel appeal given the similarities in the cases. Hopeful that Parker could be affected in some manner by Apel, the Government presented oral arguments before a three-judge panel of the Ninth Circuit on 13 April 2012. Just a few days later, on 25 April 2012, the Ninth Circuit released its published decision in the Apel case. (169) In a bittersweet opinion, the court stated that "'[a]lthough we question the correctness of Parker, it is binding, dispositive of this appeal, and requires that Apel's convictions be reversed." (170) The defendant's trespass conviction was thus overturned. The Ninth Circuit recently denied an en banc rehearing.
D. Critique of the Ninth Circuit's Approach
1. No Clear Standard for the Ownership Prong
Courts since Watson have contemplated whether the Government must demonstrate some type of an ownership element in order to prevail on an 18 U.S.C. [section] 1382 charge. However, no federal district court or federal circuit court has used the terms "absolute ownership or exclusive right of possession" in a consistent manner. Indeed, no court has explained where the requirement originated! For example, the Douglass court used the terms "exclusive right of use," but found the exclusivity was not destroyed by allowing the public to traverse the roadway. (171) The Packard court, like the Douglass court, relied upon the less exacting standard of "requisite ownership and control" holding that the Government met its burden even when the public had access to the area. (172) Finally, the Vasarajs court only addressed "absolute ownership" and not "exclusive right to possession" in order to answer the limited question of whether control was necessary to maintain ownership. (173) Because evidence existed to show that the Government owned the land, the Vasarajs court did not rule on whether an easement may affect absolute ownership or exclusive right of possession. The Vasarajs holding, then, is of little value in the Parker case absent any discussion of an easement. Indeed, Mowat was the only court to use the strict language of the ownership prong from Watson. (174) The Mowat case, however, is silent regarding the origin of the requirement. Rather, it appears that in Mowat, the element was used because the parties stipulated to the need for the Government to prove absolute ownership or exclusive right of possession. If anything, Parker's reliance upon these Ninth Circuit cases, which lack analysis or consistency, leaves one wondering what facts are truly required to meet the now-strict ownership prong.
2. No True Precedent
The Parker court's reliance upon and interpretation of other Ninth Circuit cases falls short. To begin, Parker's analysis is based on an incorrect reading of the holding in the Packard case. Parker's holding quotes "absolute ownership, or an exclusive right to the possession, of the road" as tied to the Packard court's holding. (175) However, a closer look at Packard reveals that the court was only quoting Watson to explain the basis of the defendant's claim; the court never used the "absolute" and "exclusive" language in its decision. (176) Additionally, because the Ninth Circuit itself has inconsistently addressed the ownership prong, its reliance upon those cases offers an incomplete analysis of 18 U.S.C. [section] 1382. The Parker court also falls short in analyzing the other circuit opinions and in citing the United States Attorney's Manual as having precedential value. For example, the Parker court relied upon the Allen decision to support a strict interpretation of the ownership prong, but the Allen court did not require ownership at all as an element of 18 U.S.C. [section] 1382. (177) Further, the Attorney's Manual failed to analyze any cases other than Holdridge and is an insufficient resource upon which to base precedent. Therefore, although the Parker court may have felt bound by previous cases, (178) in fact only the Parker court and the Watson court have found that the Government lacked the ability to charge the defendant with trespass.
3. Lack of Analysis
The Parker court's holding that the Ninth Circuit has "interpreted section 1382 to require the government to prove its absolute ownership oz exclusive right to possession of the property" (179) lacks any useful analysis. The Parker court's analysis of the facts in the case is contained in a few sentences.
[E]vidence conclusively shows that Ocean Avenue had been established pursuant to a public road easement.... The road is subject to concurrent jurisdiction ... with the county exercising primary responsibility for the enforcement of criminal laws ... Because the government does not have an exclusive right of possession over Ocean Avenue ... [the offenses] cannot constitute violations of section 1382. (180)
The court fails to analyze the terms of the federal easement at issue. Certainly, the terms of the federal easement, as noted by the district court in the Apel decision, should be illustrative of the federal government's ability to maintain control over the easement. Additionally, Parker's analysis of concurrent jurisdiction is sketchy at best. The court failed to determine whether concurrent jurisdiction serves to undermine the ability to protect federal property pursuant to 18 U.S.C. [section] 1382's protections.
V. ALTERNATIVE APPROACHES WHERE 18 U.S.C. [section] 1382 IS UNAVAILABLE
So, where do we go in the aftermath of Parker? At this juncture, one may argue that it is only the easement and not concurrent jurisdiction that would destroy the Government's ability to prevail on a protest theory. That argument, however, may not succeed. Because Parker mentions concurrent jurisdiction as a barrier to exclusive right of possession without further analysis, a defendant may argue that Parker stands for the proposition that concurrent jurisdiction also destroys the Government's absolute ownership or exclusive right to possession. (181) With the Ninth Circuit's recent denial of an en banc rehearing of the Apel decision, military bases in the Ninth Circuit are potentially limited to only citing for trespass in those cases where an individual is on exclusive jurisdiction without an easement. The government can only utilize trespass as a recourse on federal enclaves. One thing seems clear, however: the Ninth Circuit's Parker and Apel decisions have narrowed an installation commander's ability to protect all persons and property under her command. The Ninth Circuit has thus narrowed the scope of an installation commander's control.
While the Parker and Apel decisions concerned the actions of some protestors, the impact of these cases is much broader. One needs only consider the number of bases that have areas of concurrent jurisdiction or easements throughout base or in base housing. As such, the military has relied upon 18 U.S.C [section] 1382 to protect its property from threats to base safety and security. In light of Parker, even those individuals who have been debarred from a military installation may be able to enter those areas on easements or concurrent jurisdiction. Provided they do not commit other criminal acts, an installation commander's debarment order is a feeble weapon without the threat of charging the violator with trespass.
A. A 50 USC [section] 797 Alternative
An individual charged with 18 U.S.C. [section] 1382, a class B misdemeanor, faces a maximum penalty of a six-month term of imprisonment, probation, and a fine under Title 18, United States Code. (182) Without trespass in the base defense arsenal, another alternative may be to publish a security regulation limiting those who could come onto the installation. That regulation can include requirements similar to a Protest Advisory: only those individuals who are not otherwise debarred from the installation may be present in the designated protest area. Anyone who violates that security regulation (183) could then be cited with a violation of 50 U.S.C. [section] 797, Penalty for violation of security regulations and orders. (184) If charged with a violation of 50 U.S.C. [section] 797, a Class A misdemeanor, an individual is subject to one year imprisonment, probation, and a fine under Title 18, United States Code. (185) This statute also requires that certain elements be met: a military officer, or listed equivalent, must issue or approve the defense property regulation or order; the regulation must protect a Department of Defense property; and the regulation must address one of the listed issues, to include entry onto the base or removal of unauthorized persons. (186) Although some courts have held that such a regulation must be published in the Federal Register, (187) this method may still be a viable alternative with proper planning.
B. Revising Debarment Letters
One important duty of the base legal office is to advise installation commanders on debarment orders and any language that can be legally included in that written order. Usually, that advice will include modifying language that places limits where the debarred person can and cannot go. For example, debarment orders may allow the individual to access the base to obtain medical care. Likewise, debarment orders typically include a long list of areas where the individual cannot go, with language that violating terms of the debarment order may result in a trespass citation pursuant to U.S.C. [section] 1382. Post-Parker, base legal offices, especially for those bases in the Ninth Circuit, should re-examine their debarment orders to determine whether all of its terms are enforceable by 18 U.S.C. [section] 1382.
The numerous possibilities of base jurisdictions and easements amongst bases make it difficult to provide one legal fix to all debarment letters. However, once the base legal office understands the local issues, crafting an appropriate debarment letter becomes easier. First, the base legal office should become familiar with how the base property was initially acquired before identifying all of the easements and types of jurisdiction on the base property. Meeting with Security Forces, the Real Property office, and the base historian would be a helpful initial step. Second, the base legal office should analyze what areas of base property may be impacted by Parker and Apel, such as easements for rights-of-way, public roads that were carved out in the initial property transaction documents, or easements by necessity. Finally, draft the debarment letter to allow debarred individuals to use impacted roads or areas. For example, such easement debarment language may read: "you may travel on Highway 1 through base property and make use of the shoulders of Highway 1 for emergency use only." Finally, if a base legal office determines that 18 U.S.C. [section] 1382 would be largely ineffective given the base's jurisdiction, consider writing the debarment letter in conjunction with a security regulation to warn trespassers they may be cited with 50 U.S.C. [section] 797 if they enter certain areas of base property.
C. Considering Base Jurisdiction
Additionally, base legal offices may wish to evaluate whether allowing jurisdictional changes in leased housing areas or other areas on base would be in an installation commander's best interest. Alternately, base legal offices may wish to evaluate charging alternatives to 18 U.S.C. [section] 1382 based upon the base's jurisdiction. Under Parker, debarring individuals from areas of concurrent jurisdiction may prove problematic in the Ninth Circuit. Because jurisdictional changes involve several parties and can be a lengthy process, evaluating base jurisdiction should include an analysis of each base's unique situation, proximity to local law enforcement, and the surrounding community. If a base has several easements or large areas of concurrent jurisdiction, Memoranda of Understanding and healthy working relationships with local law enforcement may serve to adequately protect the base's interests. If the base is unable to act because of the Ninth Circuit's rulings, local law enforcement may be able to secure the area by enforcing local ordinances. Obviously, the Parker decision does not diminish the installation commander's ability to protect the military installation in the event of an actual crime: assault and malicious mischief, or any number of state crimes may be assimilated to fit a given situation in order to protect the situation. Evaluation of these additional federal or assimilated crimes would be another tool in the legal office's arsenal in these situations.
With a distinct split between the Sixth and Ninth Circuits and with inconsistent use of terminology for 18 U.S.C. [section] 1382 prosecutions, this issue is ripe for Supreme Court review. Even though Parker held that precedent required that the Government prove absolute ownership or exclusive right of possession, that opinion is in direct conflict with the Sixth Circuit's McCoy holding that the Government's possessory interest would be sufficient for the Government to prevail under 18 U.S.C. [section] 1382. Further, the body of 18 U.S.C. [section] 1382 case law does not define a clear standard for ownership of the property, nor does a clear precedent emerge. Overall, a lack of analysis of the ownership prong leaves one wondering what standard the Government must meet to prevail on this charge. While the Supreme Court did not directly rule on the ownership prong in Albertini, that Court's reasoning and deferral to the authority of an installation commander cannot be easily rationalized with the Parker court's reasoning. Certainly, the impact of Parker in the Ninth Circuit is yet to be fully grasped. Meanwhile, base legal offices should be aware of these cases in order to be proactive with solutions to help installation commanders protect their people, property, and missions.
(1) United States v. Parker, 651 F.3d 1180 (9th Cir. 2011).
(3) See United States v. McCoy, 866 F.2d 826, 831 n.4 (6th Cir. 1989) (referring to common law legal history from England and from Michigan to propose that an action of trespass could be brought by one with a superior possessory right). But see United States v. Mowat, 582 F.2d 1194, 1203 (9th Cir. 1978) (noting "if any inference based on a comparison with the common law is appropriate, it is that Congress sought to divorce this statute from the requirements of common law trespass.")
(4) 32 C.F.R. [section] 809a.2(a) (2012).
(5) See 50 U.S.C.A. [section] 797 (2006): see also 32 C.F.R. [section] 809a.2(b) (2012).
(6) Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886, 890 (1961) [hereinafter Cafeteria Workers], accord Greer v. Spock, 428 U.S. 828, 837-838 (1976). Another line of cases, stemming from Utah Power & Light Co. v. United States, 243 U.S. 389, 404-405 (1917), hold that the United States retains power over its land under the property clause of the Constitution, art. IV, [section] 3, cl. 2. The Utah Power & Light Court acknowledged:
For many purposes a state has civil and criminal jurisdiction over lands within its limits belonging to the United States, but this jurisdiction does not extend to any matter that is not consistent with the lull power in the United States to protect its lands, to control their use, and to prescribe in what manner others may require rights in them.... From the earliest times Congress by its legislation, applicable alike in the states and territories, has regulated in many particulars the use by others of the lands of the United States, has prohibited and made punishable various acts calculated to be injurious to them or to prevent their use in the way intended, and has provided for and controlled the acquisition of rights of the way over them for highways ... And so we are of the opinion that the inclusion within a state of the lands of the United States does not take from Congress the power to control their occupancy and use, to protect them from trespass and injury,, and to prescribe the conditions upon which others may obtain rights in them, even though this may involve the exercise in some measure of what commonly is known as the police power.
See also, United States v. Seward, 687 F.2d 1270, 1277 (10th Cir. 1982) (upholding a conviction for trespass at Rocky Flats Nuclear Plant site on the basis of the property clause).
(7) Cafeteria Workers, 367 U.S. at 890.
(8) Id. at 899.
(9) Id. at 892-893. The Court cited to 3 Op.Atty.Gen. 268, 269, for the proposition that the Superintendant of the Military Academy considered "citizens resident within the public limits ... even though they own houses on the public grounds, or occupy buildings belonging to the United States ... as tenants at will, and liable to be removed whenever ... the interests of the academy require it."
(10) Id. at 892 (referencing Articles 0701 and 0734 of Navy Regulations enacted on November 15, 1956, specifically giving the commanding officer authority to exclude persons from the installation unless he authorized their presence).
(11) 50 U.S.C.A. [section] 797 (2006).
(12) While sources vary between the term "debar" or "bar" in discussing preventing an individual from returning to a military installation, this paper will use the term debar. According to Webster's II New Riverside University Dictionary, debar means "to bar or exclude: shut out" or "to forbid, hinder, or prevent." WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 351 (1994).
(13) DEPARTMENT OF DEFENSE, INSTR. 5200.8, SECURITY OF DoD INSTALLATIONS AND RESOURCES AND THE PHYSICAL SECURITY REVIEW BOARD (PSRB) (Dec. 10, 2005, incorporating Change 1, May 19, 2010) [hereinafter DoDI 5200.8].
(17) U.S. DEPT. OF AIR FORCE, INSTR. 31-101, INTEGRATED DEFENSE 38 (8 Oct. 2009, incorporating Change 1, 20 Sept. 2010) (FOUO) [hereinafter AFI 31-101].
(18) U.S. DEPT. OF AIR FORCE, INSTR. 31-113, INSTALLATION PERIMETER ACCESS CONTROL, 59 (26 Jan. 2012) [hereinafter AFI 31-113].
(19) Id. An installation commander may also debar individuals after a fitness determination if the individual presents "a threat to the good order, discipline, and morale of the installation" or meets any of eighteen criteria laid out in the same AFI. Id. at 57-58.
(20) Id. at 57.
(21) Id. at 59; AFI 31-101, note 20 at 38.
(22) United States v. Albertini, 472 U.S. 675, 677 (1985).
(23) Id. at 682-683.
(24) Id. at 687.
(25) Greer v. Spock, 424 U.S. 828, 834 (1976) (holding that a an installation commander's denial of defendants' request to distribute political materials did not violate the First Amendment because no constitutional right of free public assembly or unrestricted freedom of speech exists).
(26) Id. at 838, quoting Cafeteria Workers, 367 U.S. 886, 893 (1961).
(27) See United States v. Walsh, 770 F.2d 1490 (9th Cir. 1985) (upholding a permanent debarment order after the defendant trespassed two times on Davis-Monthan Air Force Base); see also United States v. McCoy, 866 F.2d 826, 834 (comparing the ability of the installation commander in McCoy to the authority of the installation commander in Albertini to prevent unauthorized behavior within the confines of the installation).
(28) Act of March 4, 1909, ch. 321, [section] 45, 35 Stat. 1097.
(29) 18 U.S.C.A. [section] 1382 (1994).
(30) United States v. Albertini, 472 U.S. 675, 680 (1985). (quoting Garcia v. United States, 469 U.S. 70, 75 (1984)).
(32) Id. at 681.
(33) Id. at 682-685.
(34) United States v. Parrilla Bonilla, 648 F.2d 1373, 1377 (1st Cir. 1981) (referencing United States v. Mowat, 582 F.2d 1194, 1204 (9th Cir. 1978), where the Mowat court determined "Congress clearly did not make motive or intent a factor in determining guilt ... and the absence of Mens rea does not invalidate the statute.")
(35) Parilla Bonilla, 648 F.2d at 1377.
(37) Id. at 1377-1378.
(38) Holdridge v. United States, 282 F.2d 302, 311 (8th Cir. 1960).
(39) United States v. Holmes, 414 F.Supp. 831, 836-837 (Dist. Ct. Md. 1976) (referring to Utah Power & Light Co. v. United States, 243 U.S. 389, 404 (1917) to explain that exclusive legislative jurisdiction is not essential in order for the federal government to protect land within its territorial jurisdiction).
(40) But see United States v. Parker, 651 F.3d 1180, 1182 (9th Cir. 2011) (noting that the base had concurrent jurisdiction on a road easement in the ultimate holding that the Government could not prevail under 18 U.S.C. [section] 1382).
(41) See id.
(42) Holmes, 414 F.Supp. at 831.
(43) See United States v. Albertini, 472 U.S. 675, 677 (1985) for a discussion of the staute's legislative history which in notably silent on ownership as an element of the crime.
(44) Albertini, 472 U.S. at 685 (distinguishing United States v. Flower, 407 U.S. 197 (1972)).
(45) See Albertini, 472 U.S. at 682.
(46) United States v. Parrilla Bonilla, 648 F.2d 1373, 1377 (1st Cir. 1981).
(47) United States v. Parker, 651 F.3d 1180, 1182 (9th Cir. 2011)..
(48) To the extent possible, this article will use the term "ownership prong" in the generic sense to simplify the "absolute ownership or exclusive right of possession" terminology.
(49) United States v. Watson, 80 F.Supp. 649, 651 (E.D. Va. 1948).
(50) Id. at 651.
(54) Holdridge v. United States, 282 F.2d 302, 304 (8th Cir. 1960).
(56) Id. at 307.
(58) Id. at 304-307.
(59) Id. at 306.
(60) Id. at 308.
(62) United States v. Packard, 236 F.Supp. 585 (9th Cir. 1964), aff'd, 339 F.2d 887 (9th Cir. 1964).
(63) Id. at 586.
(64) Id. at 586 (quoting United States v. Watson, 80 F.Supp. 649, 651 (E.D. Va. 1948).
(65) Id. at 586.
(66) Id. at 586.
(67) See Packard, 236 F.Supp. at 586.
(68) Packard, 236 F.Supp. at 586.
(69) Watson, 80 F.Supp. at 651.
(70) Holdridge v. United States, 282 F.2d 302,308 (8th Cir. 1960).
(71) Packard, 236 F.Supp. at 586.
(72) United States v. Mowat, 582 F.2d 1194 (9th Cir. 1978).
(73) Id. at 1197-1198.
(74) Id. at 1198.
(75) Id. at 1206.
(77) Id. at 1208 (citation omitted).
(78) See United States v. Mowat, 582 F.2d 1194, 1206 (9th Cir. 1978).
(79) United States v. Douglass, 579 F.2d 545, 547 (9th Cir. 1978).
(84) Id. at 547-548.
(85) Id. at 548.
(86) Id. at 547-548.
(88) See Douglass, 579 F.2d at 547.
(89) United States v. Vasarajs, 908 F.2d 443 (9th Cir. 1990).
(90) Id. at 445.
(94) Id. at 445-446.
(95) Id. (citing United States v. Watson, 80 F.Supp. 649, 651 (E.D. Va. 1948)).
(96) Id. at 446 (quoting United States v. Douglass, 579 F.2d 545,547 (9th Cir. 1978): "[m]ere toleration of certain uses by the public designed for their convenience does not result in the loss of the right to exclusive use.").
(97) Id. at 447.
(98) Id. at 445-446.
(100) Id. at 447.
(102) Id. at 446 (citing Watson, 80 F.Supp. at 651).
(103) United States v. McCoy, 866 F.2d 826, 827 (6th Cir. 1989).
(104) Id. at 827.
(105) Id. at 828.
(106) Id. at 827, 831.
(107) Id. at 827.
(108) Id. at 831 (quoting the district court's finding).
(109) Id. at 830; see also United States v. LaValley, 957 F.2d 1309 (6th Cir. 1992). LaVallev is a near mirror-image of the McCoy case as the debarred defendants were walking in the highway easement near the entrance of Wurtsmith Air Force Base. This court did not hesitate to follow McCoy: "[t]he mere fact that an easement had been granted to the state for the construction, maintenance and use of highway F-41 did not give the protestors the right, in bold defiance of military authority, to enter the base after being previously barred." Id. at 1313.
(110) McCoy, 886 F.2d at 831
(112) See United States v. Parker, 651 F.3d 1180, n.2. (9th Cir. 2011).
(113) United States v. Allen, 924 F.2d 29, 30 (2nd Cir. 1991).
(117) Id. at 31.
(118) Id. at 30.
(119) Id. at 31 (referencing McCoy, 866 F.2d at 830-832).
(120) Id. at 31 (quoting United States v. Parrilla Bonilla, 648 F.2d 1373, 1384-1386 (1st Cir. 1981)).
(121) United States v. Ventura-Melendez, 275 F.3d 9 (1st Cir. 2001).
(122) Id. at 11.
(123) Id. at 12.
(124) Id. at 17 (quoting United States v. Allen, 924 F.2d 29, 30 (2nd Cir. 1991) and McCov, 866 F.2d at 830-832).
(125) Id. at 17. The Ventura-Melendez court held that the area beyond the mean high tide could be appropriately designated as a "'danger zone" by federal regulation since the Navy frequently used a nearby area for live fire exercises. Id.
(126) See id.
(129) Id. at 17-18.
(130) United States v. Parker, 651 F.3d 1180, 1184-1185 (9th Cir. 2011).
(131) Letter from Henry L. Stimson, Secretary of War, to Earl Warren, Governor of California (Jan. 8, 1943) (on file with Army Corps of Engineers, Los Angeles District and copy on file with author). Exhibit A lists California military reservations, the number of acres acquired, the dates of the directives, and how each property was acquired. Camp Cooke was acquired in fee simple through purchase and condemnation of over 87,000 acres.
(133) U.S. Air Force Fact Sheet, http://www.vandenberg.af.mil/library/factsheets/factsheet_print. asp?fsID=4606&page=1 (last visited Apr. 30, 2012).
(134) DEPT. OF THE AIR FORCE, EASEMENT FOR ROAD OR STREET DA-04-353-ENG-8284 1 (Jul. 12 1962) [hereinafter EASEMENT].
(135) Letter from Edmund G. Brown, Jr., Governor of California, to Joseph C. Zengerle, Assistant Secretary of the Air Force (Jul. 21, 1981) (on file with Army Corps of Engineers, Los Angeles District and copy on file with author).
(136) EASEMENT, supra note 134 at 1; see also 10 U.S.C. [section] 2668 (2008).
(137) 10 U.S.C. [section] 2668 (d) (2008).
(138) Memorandum from Col Nina Armagno, 30th Space Wing Installation Commander, Vandenberg Air Force Base, to the General Public (not dated), http://www.vandenberg.af.mil/shared/media/ document/AFD-060906-011.pdf (last visited May 1, 2012). For example, DoD civilian employees, and active duty military, their dependants, and their short-term guests are granted access to the base. All other personnel, such as contractors, tourists, and delivery personnel may be granted access to the base only after each individual undergoes a criminal background check. Access to the base is primarily controlled through security personnel at base entry points.
(139) Order from Col Nina Armagno, 30th Space Wing Installation Commander, Vandenberg Air Force Base, to the General Public (not dated), http://www.vandenberg.af.mil/library/factsheets/factsheet.asp?id=4562 (last visited May 1, 2012).
(140) Government's Motion in Response to Defense Motion to Dismiss at Exhibit 7, United States v. Kelly, Nos. 2686661, 2686227, 2686662 (C.D. Cal. Sept. 15,2011).
(141) Fahrner v. Olivero, No. CV 88-05627, (C.D. Cal. May 9, 1989) (creating a stipulation for compromise settlement and order of dismissal).
(142) Order from Col Nina Armagno, 30th Space Wing Installation Commander, Vandenberg Air Force Base, to the General Public (not dated), http://www.vandenberg.af.mil/library/factsheets/ factsheet.asp?id=4562 (last visited May 1, 2012).
(143) Government's Motion in Response to Defense Motion to Dismiss at Exhibit 7, United States v. Kelly, Nos. 2686661, 2686227, 2686662 (C.D. Cal. Sept. 15,2011).
(144) The protestors have relied upon United States v. Flower, 407 U.S. 197 (1972), to support their argument that the designated protest area is a public forum. See United States v. Apel, No. 1981283-RCF, slip op. at 7 (C.D. Cal. Jul. 21,2010). Protestors have also argued that First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114 (10th Cir. 2002), supports the theory that any public highway or street, whether it rests on an easement or otherwise, is a traditional public forum.
(145) United States v. Parker, 651 F.3d 1180, 1181 (9th Cir. 2011).
(146) United States v. Parker, No. CR 09-515, slip op. at 10-11 (C.D. Cal. May 3, 2010).
(149) See United States v. Parker, 2011 WL 2006347 (9th Cir. May 24, 2011) (unpublished in the Federal Reporter).
(150) Parker, 651 F.3d at 1181.
(152) Id. at n.2.
(154) Id., see also UNITED STATES DEPARTMENT OF JUSTICE, Title 9. Protection of Government Property--Military Bases, IN UNITED STARES ATTORNEY'S MANUAL [section] 1634 (1997), available at http://www. justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01634.htm (last visited 1 May 2012) (citing Holdridge, 282 F.2d at 309, for the proposition that [section] 1382 "'applies to any military ... installation over which the United States has exclusive possession").
(155) Parker, 651 F.3d at 1184.
(156) Request for Publication of Disposition at 1, United States v. Parker, 651 F.3d 1180 (No. 10-50248) (9th Cir. Jul. 18 2011).
(157) Id. at 2.
(159) United States v. Parker, 2011 WL 2006347 (9th Cir. May 24, 2011) (unpublished in the Federal Reporter).
(160) United States v. Parker, Nos. 10-25028, 10-50250, 1050251, slip op. at 1 (9th Cir. Aug 22, 2011) (per curiam) (stating "'[t]he Memorandum disposition filed May 24, 2011, is redesignated as a per curiam Opinion and refiled as of this date. No new petition for rehearing or rehearing en banc will be entertained").
(161) EASEMENT, supra note 134 at 1. Assuming, arguendo, that since both easements for roadways were granted pursuant to 10 U.S.C. [section] 2668, the installation commander's authority to proscribe rules is inherent in both documents.
(162) Government's Motion in Response to Defense Motion to Dismiss at Exhibit 7, United States v. Kelly, Nos. 2686661, 2686227, 2686662 (C.D. Cal. Sept. 15, 2011).
(163) Courts have generally divided Government property into three categories of public fora: traditional public fora, designated public fora, and nonpublic fora. Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) (citing DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 964 (9th Cir. 1999. Although the area of law regarding designated public fora has been subject to some confusion, the Ninth Circuit recognizes that designated public fora include a further subcategory of limited public fora. Hopper, 241 F.3d at 1074. This approach has also been adopted by the Supreme Court. See Good News Club v. Milford Central School, 533 U.S. 98, 106-107 (2001).
(164) United States v. Apel, No. 1981283-RCK slip op. at 7 (W. Div. C.D. Cal. Jul. 21,2010) (order denying defendant's motion to dismiss) (citing United States v. Albertini, 472 U.S. 675,685 (1985), and distinguishing United States v. Flower, 407 U.S. 197, 198 (1972), for the propositions that the closed base order and restrictions placed upon the designated protest area "do not alter the primary mission of the base and is not sufficient to transform the protest area into a traditional public forum" from a limited public forum).
(165) United States v. Apel, No. CR 10-830-JFW, slip op. at 3 (C.D. Cal. Dec. 28, 2010).
(166) Id. Additionally, the district court "conclude[d] that, whether or not the designated protest area ... is a public forum, the military may properly exclude recipients of valid bar letters ... without violating the First Amendment." Id. at 5.
(167) Id. at 5.
(171) United States v. Douglass, 579 F.2d 545, 547 (9th Cir. 1978).
(172) United States v. Packard, 236 F.Supp. 585,586 (9th Cir. 1964), aff'd, 339 F.2d 887 (9th Cir. 1964), Douglass. 579 F.2d at 547.
(173) United States v. Vasarajs, 908 F.2d 443,447 (9th Cir. 1990).
(174) See United States v. Mowat, 582 F.2d 1194, 1206 (9th Cir. 1978).
(175) Packard, 236 F.Supp at 586.
(177) United States v. Allen, 924 F.2d 29, 31 (1991). The Allen court hem that the government ownership of the land was not required to support a trespass conviction in waters around a Navy vessel.
(178) See United States v. Parker, 651 F.3d 1180, 1183-1184 (9th Cir. 2011). "'[O]ur circuit's requirement that the government prove absolute ownership or exclusive right of possession ... has been reaffirmed and applied by multiple panels.... We must therefore follow this precedent as the law of the circuit.... Only the en bane court can overturn a prior panel precedent."
(179) Id. at 1181.
(180) Id. at 1184.
(181) See id. (citing United States v. Vasarajs, 908 F.2d 443,447 (9th Cir. 1990) as supporting "the view that the government 'must exercise control over its property in order to preserve the right to exclude other's from it pursuant to [section] 1382.'").
(182) 18. U.S.C.A. [section] 1382 (1994).
(183) See DoDI 5200.8, note 12, at 2. Commanders should "comply with the policies and procedures established by the Head of the DoD Component concerned with disseminating security regulations. All security orders and regulations shall be submitted for review to ensure legal sufficiency by the servicing Judge Advocate or other legal advisor to the command."
(184) 50 U.S.C.A. [section] 797 (2006).
(187) Compare United States v. Hall. 742 F.2d 1153, 1155 (9th Cir. 1984) (finding that a Davis-Monthan Air Force Base regulation denying entry to the base need not be published "so long as the appellants had actual and timely notice of its terms" in accordance with 50 U.S.C. [section] 797 where defendant was being charged with 18 U.S.C. [section] 1382), with United States v. Aarons, 310 F.2d 341,346 (2nd Cir. 1962) (holding that while a Coast Guard order restricting harbor access during a submarine launch should have been published according to 44 U.S.C [section] 30l-314, the Federal Register Act, the failure to publish was not fatal where the defendant had actual knowledge of the regulation).
CAPTAIN AIMEE R. HANEY *
* Captain Aimee R. Haney (B.A., Vanguard University of Southern California (1998); J.D., Regent University School of Law (2008)) is an Assistant Staff Judge Advocate assigned to Vandenberg Air Force Base, California, since 2009. She has also served as a Special Assistant United States Attorney representing Vandenberg at Federal Magistrate Court for the Central District of California since 2010. She has had the opportunity of working closely with the protest issues at Vandenberg and has prosecuted numerous protest-related trespass cases.
|Printer friendly Cite/link Email Feedback|
|Author:||Haney, Aimee R.|
|Publication:||Air Force Law Review|
|Date:||Mar 22, 2013|
|Previous Article:||Foreign military sales (FMS), pseudo-FMS, and a response to the GAO - is pseudo-FMS the way forward?|
|Next Article:||The hunt for home: every military family's battle with state domicile law.|