Hypothetical: John Doe v.
United States
FACTS:
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 easement for a public road qualifies as part of a "military
installation."
Vandenberg Air Force Base is located in central California, 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 General Public Re:
Closed Base, from David J. Buck, Commander (Oct. 23, 2008), App. 51; see also
32 CFR §809a.2(b) (2013) ("Each [Air Force] commander is authorized 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 Vandenberg.
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 polices 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
instrument 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 northwest, and with California Boulevard, which runs southwest. 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
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
peaceful 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 withdraw 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 prohibited." 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
Vandenberg." 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 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.
John Doe is an antiwar
activist who demonstrates at Vandenberg. In March 2003, Doe 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, Doe 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 Doe Re: Barment Order (Oct. 22, 2007), App.
63-65. The only exception to the barment was limited
permission from the Base commander for Doe 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 Doe
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.
Doe ignored the commander's
order and reentered Vandenberg several times during 2008 and 2009. That led the
Base commander to serve Doe 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 protect and preserve order and to
safeguard the persons and property under my jurisdiction by failing to remain
in the area approved by me for peaceful demonstrations 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 responsibility to protect
and preserve order and to safeguard 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 incorporated 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 Doe Re: Barment
Order Dated Oct. 22, 2007 (served Jan. 31, 2010), App. 59-62.
Doe ignored this barment order too, and on three occasions in 2010 he reentered Vandenberg to protest in the designated area. Each time Vandenberg security personnel reminded him of the barment order and instructed him to leave. Each time Doe refused. He was cited for violating 18 U.S.C. §1382 and escorted off Base property.
You have
been retained by Mr. Doe to represent him in his trial for violating §1382. You
decide to attack the constitutionality of §1382. Citing either the McCullen v. Coakley case or the Minnesota Voters Alliance
v. Mansky case, what is the best argument that you
can make? Type it out in the following order (fill-in-the-blanks) and hand it
in Wednesday.
1. General Legal Issue Presented:
_______________________________
2. Relevant case: ______________________________________
3. Relevant rule from the case:
_______________________________
4. Factual argument supporting your argument that the
case (and rule) you cited is the “controlling” case (and rule); that is, that the
case and rule you cite should be the precedent that the court should follow in
deciding the case.
______________________________________ (Usually, the
supporting arguments begin with the word “Here,” as in
“Here, the area that was restricted was a traditional
public forum.”