Learn Obscure Law

We all know and love certain parts of the Constitution.  We know the President has to be 35 years old.  And who doesn't adore the First Amendment?  That lets us blog here.  Most importantly, who doesn't truly enjoy carrying their gun around Washington D.C.?

But there's another, often overlooked Amendment to the Constitution.  The Third Amendment:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

We learned, in our Constitutional Law lecture from Jerry Orbach, that the Third Amendment was not incorporated against the states.  That's true in forty-seven states.  But there is this case from the Second Circuit that in fact applied this very amendment to the states.

What is the story of Engblom v. Carey?  I'm glad you asked.

Marianne Engblom and Chuck Palmer were prison guards at a prison in Warwick, NY.  (I went to camp there once.)  Marianne and Chuck lived in residences located on the prison grounds.  They didn't have to live there, but they wanted to, and so they did.  Around forty other prison guards - and only prison guards - lived there as well.  This was their only residence and money was deducted from their salary to pay for the housing.

Now these guards, and many others throughout New York's prison system went on strike.  They were evidently dissatisfied with their employment - or someone in their union wanted a vacation.  Governor Carey called up the national guard.  We can't have the inmates running the asylum after all.

While all this went on, Marianne and Chuck were denied entry into their home.  Instead, the prison housed the replacement guards from the National Guard in the prison guard housing.  The Guardsmen ransacked the rooms and took personal property (I think this means private items, not the common law definition of personal property). 

The strike ended and both kept their jobs.  But, they were upset.  So they sued under § 1983 claiming that their Third Amendment rights had been violated!!  I can only imagine being the attorney that looks for a sample language for a Third Amendment count in a complaint.  Talk about throwing in the kitchen sink.

The trial court found on summary judgment that the Third Amendment applied to the states and that the Guardsmen were soldiers, but that this was a lesser standard because it was state housing, and that therefore our guards, Marianne and Chuck, had not had their rights violated.  But wait - our desperate and dismayed plaintiffs appealed.

So what does the Second Circuit do?

First it agreed that the Guardsmen were soldiers employed by the state.  Second, it incorporated the Third Amendment against the states.  Or at least the states in its jurisdiction, New York, Connecticut, and Vermont.  And the Virgin Islands, I guess.  Next, it discussed the sparse Third Amendment jurisprudence.  "The Third Amendment was designed to assure a fundamental right to privacy."  I love that one.  And then it brings in the property.  It continues, "property-based privacy interests protected by the Third Amendment are not limited solely to those arising out of fee simple ownership but extend to those recognized and permitted by society as founded on lawful occupation or possession with a legal right to exclude others."  


Thus, on summary judgment, assuming inferences for the plaintiffs, they had a reasonable expectation of privacy created by their lease in their rooms, and thus could exclude others, and thus the state can't house soldiers there because of the Third Amendment.  There's some discussion of New York law on their type of property interest.  I won't know that until we get there in class, and even then I won't know that until July.  We're all more interested in the untestable obscure law, though.  


There were other due process concerns as well, which you'll have to read about for yourself.  Until then, I hope you enjoy this story of the use of an exceptional amendment by creative plaintiffs.