U.S. v. Douglass | Cases | Westlaw

This case arises out of protests against the construction and use by the United States of the Trident class nuclear submarine. These protests involved activities concentrated in and about the Naval Submarine Base, Bangor, Bremerton, Washington. The appellant was convicted of violating the second paragraph of 18 U.S.C. s 1382¹ because of certain conduct by him on July 21, 1977. He appeals contending (1) that he did not reenter that portion of the reservation *547 with respect to which the United States, acting through the commanding officer, had the exclusive right of use; (2) that 18 U.S.C. s 1382 as applied to him is unconstitutional in several respects; (3) that 18 U.S.C. s 1382 is overbroad in its reach and because of its unconstitutionality, as it might be applied to others, cannot provide the basis of appellant's conviction, and (4) that his conviction should be set aside because he is the victim of impermissible selective prosecution.

We reject these contentions and affirm the conviction.

The facts that are relevant to this appeal are as follows. On July 4, 1977, appellant Douglass crossed a fence of the base and entered that portion of the base situated therein to participate along with others in a “picnic” intended as a form of civil disobedience. To accomplish the warning required by 18 U.S.C. s 1382, the Commanding Officer at Bangor, on July 5, 1977 issued, and appellant received, a “bar letter” ordering him not to reenter, “or to be found within the limits of” the base. (R.T. 34). On July 20, following the arrest of three individuals, appellant again entered military property to inquire about their status. He was warned at that time that he had been barred and would be arrested if he should reenter. The next day appellant and others were seen near the old Main Gate of the base. A number of protesters entered the property to leaflet workers. Appellant remained an onlooker apart from the others. Upon seeing their arrest, however, appellant entered military property, headed for a phone booth used by the public for the purpose of calling attorneys and reporters about the incident, and was arrested upon entering the booth. The booth was located behind a clearly marked white boundary line, but was outside the fence of the base and on the street side of the guard house. At his trial before a magistrate, appellant testified that he was aware that he was entering government property. He was found guilty and sentenced to five days imprisonment.

Appellant argues that, without regard to such rights as the First Amendment affords, the area that he traversed between the white line and the phone booth was not a part of the base because the United States did not have the requisite ownership and possession of the area to enable it to exclude the appellant. See United States v. Holmes, 414 F.Supp. 831, 838 (D.Md.1976); United States v. Watson, 80 F.Supp. 649 (E.D.Va.1948). To support this contention the appellant points to the stipulated facts of this case which, Inter alia, make clear that the area in question was not within a so-called “security” or “controlled” area of the base and that the public used the phone booth, the limited number of parking stalls, and the walks which were within the white line but outside the perimeter fence.

This is not enough. The appellant at no time has challenged the title of the United States to the area in question. Moreover, no easement residing in the public with respect to this area, arising either by grant or by reservation, has been shown to exist. Nor does the record reflect any relinquishment of control over the area by the base personnel. (R.T. 43, 60). In addition, the boundary of the reservation is well marked by the white line, the location and meaning of which was well known to the appellant. Mere toleration of certain uses by the public designed for their convenience does not result in the loss of the right to exclusive use. Under these circumstances the requisite *548 ownership and possession of the United States has been established. See United States v. Packard, 236 F.Supp. 585 (N.D.Cal.1964). It follows, therefore, that the appellant violated 18 U.S.C. s 1382.

Appellant's primary contention fashioned to overturn his conviction is that, in crossing the white line marking the boundary of the reservation and walking to the phone booth to telephone the press and attorneys regarding the earlier arrest of his companions in protest, he was engaged in activity protected by the First Amendment, which he was as free to pursue in that place as he would have been had he done so on a public street. His primary authority is Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972) in which a conviction under 18 U.S.C. s 1382 for “quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston, San Antonio, Texas” was overturned by a per curiam opinion without oral argument. The Supreme Court in Flower considered New Braunfels Avenue “no different from all other public thoroughfares in that city, and that the military had not only abandoned any right to exclude civilian vehicular and pedestrian traffic from the avenue, but also any right to exclude leaflete(e)rs . . . .” Greer v. Spock, 424 U.S. 828, 835, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976).

To avail himself of Flower the appellant must establish that his reentry actions should be treated as was leafleteering and that the area within which he reentered should be treated as was New Braunfels Avenue. Appellant more nearly succeeds as to the former than he does as to the latter. Although the magistrate at the trial found that the appellant was not engaged in “activity protected under the First Amendment,” we are prepared to assume, without so deciding, that appellant was engaged in conduct that was “intertwined with expression and association.” Cox v. Louisiana, 379 U.S. 536, 563, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). We hold, however, that the area in which the appellant reentered was not the equivalent of New Braunfels Avenue.

The controlling authority with respect to regulation of speech on a military base is Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) in which it was recognized that a “generalized constitutional right to make political speeches or distribute leaflets” (Id. at 838, 96 S.Ct. at 1217) on military bases does not exist. The essence of the Court's reasoning appears in two observations:

The caution this passage reflects has not been put aside by more recent pronouncements of the Court. See Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, ——, 98 S.Ct. 3026, 56 L.Ed.2d —- (1978).

The statute the appellant challenges plainly subjects to control conduct which could be both harmful (E. g., reentering a base to damage property after being properly barred) and constitutionally unprotected. It reflects legitimate state interests. To predict how it will affect the First Amendment protected speech of others requires assumptions regarding their courage and the depth of their commitment which are difficult to construct. It demeans a citizenry however, to assume lightly that a statute like that before us will induce craven silence in the face of even slight wrongs, much less grievous ones. We decline to so demean our citizens. The appellant's argument fails; the statute is not facially overbroad.

AFFIRMED.