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The 9th Circuit grants a Vandenberg protester's rehearing petition 

The gears of the judicial system keep turning in the case of John Dennis Apel, a local man who’s seen legal proceedings against him slowly make their way up to the U.S. Supreme Court—and now, as of Sept. 22, back down.

Apel’s long legal ride most visibly began in 2003 when he threw some of his own blood onto a sign at Vandenberg Air Force Base’s gate. That action of protest against U.S. weaponry and militarized damage to the planet prompted an arrest and an order to stay away. A subsequent arrest for another protest in 2007 earned him a permanent ban from base property. But an argument about the nature of what exactly constitutes base property has led to the more headache-inducing details of this case.

Apel was arrested again in 2010 for appearing in a designated protest zone—which he believes he should be allowed to enter, but base officials argue is under their jurisdiction and therefore off limits to him. He was convicted of three counts of trespassing. The U.S. Court of Appeals, 9th Circuit, then overturned the conviction, saying the protest zone in question—which sits on Pacific Coast Highway 1—wasn’t strictly under federal control, since it’s in a public easement through which motorists and other travelers regularly pass with no interference from base officials.

The Supreme Court next tackled the issue, ultimately vacating the 9th Circuit’s opinion and ruling that the base could and did appropriately restrict access in the zone, despite the physical location’s public nature. In short, Apel is indeed considered to have violated 18 U.S.C. §1382, which imposes penalties on people found to be within any military, naval, or Coast Guard “reservation, post, fort, arsenal, yard, station, or installation” after being removed and barred from re-entry.

None of this legal wrangling, however, addressed any First Amendment arguments raised by Apel’s defense team—arguments that were ignored by the Supreme Court since they weren’t a part of the original 9th Circuit appeal. So the case went back down to that tier.

Apel told New Times in an email that his counsel, Erwin Chemerinsky, petitioned on Aug. 25 for a rehearing en banc (a legal term for a decision from a full court of specific appeal judges). The defendant in United States v. Apel explained that after some back and forth, the 9th Circuit on Sept. 22 “sent out a ruling saying that the rehearing was granted, but by the original three-member panel and that they still upheld my convictions with an amended opinion saying that the First Amendment didn’t apply to my case.”

The 9th Circuit’s Sept. 22 notice states, under a per curiam opinion section, that Apel’s challenge to the applicability of 18 U.S.C. §1382 in his arrest is denied, so his conviction stands.

“As to Apel’s defense that his conviction violates the First Amendment,” it continues, “we agree with the district court’s conclusion that ‘whether or not the designated protest area at Vandenberg Air Force Base is a public forum, the military may properly exclude recipients of valid bar letters, such as Mr. Apel, without violating the First Amendment.”

Apel ended his note to New Times by stating that his counsel, Chemerinsky, is working on another petition to have the case reheard en banc.

“If all that makes sense to you, you’re doing better than I,” he added.

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