US v Apel: Catholic Workers at the Supreme Court (Post updated 12/9/2013)

December 6th: Did man protest too close for military’s – and Supreme Court’s – comfort?, by Michael Doyle, McClatchey Washington Bureau, Dec. 4, 2013

Dec 5th:  Here is an entertaining article from the Santa Barbara Independent about Dennis’ case:

Dec. 4th: Argument recap: Skirting a constitutional issue – in the SCOTUS Blog

Dec. 4th: Transcript of oral arguments before the US Supreme Court

Amicus Brief filed on behalf of Dennis by Ground Zero Center for Nonviolent Action

ABA Preview of the case (links to Merit Briefs and Amicus Briefs)

Dec. 3rd: Can the military restrict protests outside bases? By Erwin Chemerinsky in the ABA Journal

Dec. 3rd: Argument preview: War protests and the military – in the SCOTUS Blog

December 2, 2013:  DENNIS IS ON THE FRONT PAGE OF THE WASHINGTON POST!

December 1, 2013:   Two news articles today:

http://www.independent.com/news/2013/dec/01/military-line/

Also in the news:

From Guadalupe to the Supreme Court : Justices to hear Vandenberg protester’s case

By NORA K. WALLACE, NEWS-PRESS STAFF WRITER

December 1, 2013 12:12 AM

Fifteen times, Dennis Apel has been arrested while protesting the military missions at Vandenberg Air Force Base.

He has spent time in federal prison and received a “ban and bar” notice from a past commander of the classified military installation, which legally prohibits him from conducting what he calls peaceful vigils.

As a result of three recent convictions for those protests, the 63-year-old Mr. Apel will on Wednesday walk into the halls of the United States Supreme Court.

On the docket will be one case: The United States of America, petitioner, vs. John Dennis Apel.

Noted constitutional law attorney and University of Irvine law school dean Erwin Chemerinsky took Mr. Apel’s case pro bono and will argue before the Supreme Court Justices that the First Amendment protects Mr. Apel from conviction for “peacefully protesting” on the public right-of-way outside the enclosed base.

“He is David and the United States is Goliath,” Mr. Chemerinsky said in an interview before leaving for Washington, D.C.

The scene at the most revered courtroom in the nation is so far removed from Mr. Apel’s daily life that he finds it bizarre to even imagine.

The Downey native spends most of his working hours in a rickety 117-year-old Victorian home in Guadalupe, a town where the poverty level is estimated to be 85 percent greater than the state average.

Standing in rooms where the floors slope at a dizzying angle from lack of a foundation, he and a dedicated core of volunteers — including his wife of 15 years, Tensie — provide food and clothes to the community’s poor. They run a summer children’s program and a weekly free medical clinic.

The couple are devotees of the Catholic Worker movement, a social reform cause committed to social justice, pacifism and voluntary poverty that they’ve dedicated most of their adult lives to promoting.

They receive no salary — the couple and their two young children survive on his Social Security income, as well as donations and the charity of others.

For more than a dozen years, as part of Mr. Apel’s deep peace-oriented belief system, he has regularly stood outside the gates of Vandenberg, protesting what he believes is an immoral military mission. He has been arrested 15 times, and received “ban and bar” citations that restrict his ability to protest near the classified military installation.

A key element of the Supreme Court argument centers on a small plot of land adjacent to the main base gate on Highway 1, where demonstrators gather to protest missile launches. The space is delineated from restricted space by a painted green line on the asphalt.

Once that line is crossed, the person is warned, and if they don’t leave, are arrested for trespassing.

In contention is that the protest area is part of a highway easement granted to Santa Barbara County and the state by the military, enabling the roadway to be used by the public. Yet those with “ban and bar” notices, as Mr. Apel received in 2003 and 2007, are not allowed to enter that area.

In 2010, while still barred, Mr. Apel protested at Vandenberg three times and was cited each time for violating his ban and bar order.

He appealed, stating that the order requires “absolute ownership” over the specific designated area, which the easement precludes. The U.S. Court of Appeals for the Ninth Circuit ruled in his favor and reversed his trespassing convictions, indicating that off-limits areas apply only to “areas over which the federal government exercises an exclusive right of possession.”

At the Supreme Court, the federal government is seeking the reinstatement of Mr. Apel’s trespassing convictions.

What’s at stake Wednesday is the whether the military will have the ability to control its easements to its property, vs. the First Amendment protections given those who protest on or near military bases.

“When you read our brief, any Supreme Court Justice has to look at this and say this is clear, clear, clear,” Mr. Apel said.

On behalf of Mr. Apel, Mr. Chemerinsky will argue that the law prohibiting people from actions at the base after they receive “ban and bar” notices are applicable only to specific military land, not the public road easements that cross military land nearby. They will contend Mr. Apel’s free speech is restricted because he is not allowed to protest in a designed public area.

The military cannot have exclusive control over the land, Mr. Chemerinsky argues, because the state and county have joint jurisdiction over the easement.

“What the court decides is not just about Dennis Apel, but more general issues of free speech and the right to protest,” said the law dean, who will be arguing for the fifth time before the Supreme Court. “What the court decides would affect free speech. It’s not just Vandenberg. It’s military bases all over the country. It’s a really important free speech issue.”

The Government’s case

In lower court hearings, Assistant U.S. Attorney Mark Yohalem represented the Air Force, and according to legal reports on the matter, said base officials retained the discretion to exclude individuals from the area even though public access was granted to peaceful protesters in an area and the military did not have exclusive possession of the site.

The U.S., represented by Solicitor General Donald B. Verrilli Jr., will argue that its position does not violate the First Amendment and that the military need not have exclusive control over the land where protests occur.

“The place where the respondent was found was under military command, as a matter of law,” Mr. Verrilli’s brief to the court states.

The highway easement, he added, “does not change that result.” Mr. Apel, the government contends, “makes no effort to reconcile his claims that Vandenberg’s commander lacks all authority over the easement, but nonetheless had authority to designate a protest area within that easement in the litigation settlement on which respondent so heavily relies. The answer, of course, is that the commander does have command authority in that area.”

Ultimately, Mr. Verrilli cites a letter to Mr. Apel from the base commander, citing the Catholic Worker’s past acts of vandalism and trespassing. And in doing so, Mr. Verrilli states it leaves “no doubt that the government had an interest in preventing (the) respondent’s unwelcome return to Vandenberg.”

Mr. Apel’s case has attracted a number of supporters, filing what are called amici curiae briefs to the Supreme Court. Those include the Reporters Committee for Freedom of the Press, the National Association of Criminal Defense Lawyers and the Ground Zero Center for Nonviolent Action. Also filing was the Santa Barbara-based Nuclear Age Peace Foundation.

“It is an important First Amendment case involving the right to peaceful protest at or near a military base,” said foundation president David Krieger, who has also been arrested there. “Dennis Apel courageously seeks the right for himself and others to express their grave concerns at Vandenberg Air Force Base, a place where the U.S. regularly tests nuclear-capable intercontinental ballistic missiles.”

He suggested more people should join the cause of Mr. Apel.

“I can only hope that the U.S. Supreme Court will stay true to our Constitution and protect the right of the people to free speech,” Mr. Krieger said. “The voices of the people must be heard in places where it matters on this most critical of issues.”

A life of peace

Mr. Apel’s path to the Supreme Court perhaps began at the age of 6, when he firmly stated he planned to be a Franciscan priest, a pursuit he continued through St. Anthony’s Seminary and a year of college. He later earned a degree in biological sciences, and spent his early adulthood as a salesman for a trucking company, hating every minute of the 11 years.

He says he was always drawn to Saint Francis of Assisi.

“He gave up everything to live in voluntary poverty and to serve people who were poor and marginalized,” Mr. Apel said. “That resonated with me.”

During his days working as a salesman he volunteered at night at a rehab hospital for people with burns and spinal cord injuries — a life changing experience. Eventually Mr. Apel was hired to become the first lay chaplain at Los Angeles General Hospital, where he stayed for eight years.

“I thought I’d died and gone to heaven,” said Mr. Apel, one of seven children from a Catholic family. “I felt like I had purpose back in my life. I felt I was doing more of what I wanted to do.”

It was there he met Tensie, who was a Los Angeles Catholic Worker. The couple have two children, Rozella, 14 and Thomas, 12.

After a stint in Oakland working at a home for people dying of AIDS, the couple moved to Guadalupe in 1996. They now serve about 160 families each week with a food program. One night a week, there is a free medical clinic in the old Victorian, with about 10 people treated by volunteer doctors.

The $35,000 annual budget for the home pays for the rent, utilities, three cars used by volunteers, food for the program and supplies for the medical program. Mr. and Mrs. Apel used to receive a $10 a week stipend, but they haven’t taken that for years. Though they lived at the Victorian for years, they now live in a home purchased by a supporter for their use, rent-free.

A key element of 80-year-old Catholic Worker movement — founded by Dorothy Day — is resistance work.

“If you do service to people who are poor and marginalized, you have to address the reasons why they are poor,” Mr. Apel explained.

For the couple, that meant doing things such as leafleting the Santa Maria Strawberry Festival, to inform attendees about the low wages earned by field workers.

Targeting Vandenberg

Vandenberg’s mission came on the couple’s radar when ICBMs were tested from underground silos not far from Guadalupe, shaking their home’s walls.

“They’re $50 million a pop,” Mr. Apel said. “That’s just part of our military budget, which sacks our economy. … It just seemed clear that that was one of the places we’d try to make an impact. Catholic Worker and Tensie and I are pacifists. Our manner of making a challenge is to go with some signs and peacefully vigil. It’s almost prayerful.”

The idea behind their monthly vigils, he said, is to say in their own way that what Vandenberg is doing is “wrong.”

“We shouldn’t be involved in testing delivery systems for a weapon as hideous as a nuclear weapons,” Mr. Apel said. “It’s clearly indiscriminate, mass murder of noncombatants. It’s not life-giving.”

In addition to those monthly one-hour actions, Mr. Apel and others typically protest on Hiroshima Day, Armed Services Day, and Keep Space for Peace Week.

“This case in the Supreme Court is for three arrests,” noted Mr. Apel. “Those were the last three of 15 arrests, for doing nothing but standing on the side of Highway 1 with a sign. Not trespassing on the base, just standing with a sign. I was arrested 15 times and they prosecuted the last three.”

He’s suspicious that perhaps some of the attention and eventual arrests were sparked by his own protest-related infamy. A decade ago, Mr. Apel sprayed four ounces of his own blood at Vandenberg’s entrance sign just days before the war began in Iraq. He was sentenced to two months in federal prison for vandalism and trespassing.

“After years of me being out there, a new base commander came along and said, ‘This is the guy who threw blood on our wall. He has a ‘ban and bar,'” Mr. Apel surmised. “It was the base commander that said my ban and bar could be enforced outside the green line. It made no sense to me. Every time they’d arrest me, I’d say, ‘I’m sorry, but I have the right to be here.'”

He’s hopeful his case going to the high court will bring more exposure to his cause.

“That means a lot to me,” he said. “Vandenberg can care less why I’m out there. I think the Supreme Court case does two things — it gives the opportunity to protect a first amendment right and second, it gives us the opportunity to get some information into the media that would not get in there normally.”

Mr. Chemerinsky expects that a decision could come in the case by June at the latest.

“It’s incredibly exiting and intimidating,” said Mr. Chemerinsky, who has conducted three moot courts with students in advance of Wednesday’s hearing. “It’s a room that’s simultaneously both intimate and majestic. … I always go in optimistic.”

On Wednesday, Mr. Apel will join his wife and children in the audience section of the Supreme Court, to hear his case argued.

“I’m excited,” Mr. Apel admitted. “I’m apprehensive. I don’t think this is a slam dunk. I think it should be, but I don’t know that it is.”

Being the subject of a Supreme Court hearing ultimately just makes him shake his head.

“I’m just standing there with a sign,” he said. “It borders on the bizarre to me.”

email: nwallace@newspress.com

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