Saturday, January 24, 2015

The Militarization of Police Forces as Violative of the Third Amendment, Part III

Third Amendment Protection of our Fundamental Liberty Interests against Military ‘Occupation’ by Para-Military Police Forces 

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. (U.S. Const. amend. III)
In his outstanding treatise on the Bill of Rights, Akhil Reed Amar observes that “[The] Third Amendment focuses on structural issue of protecting civilian values against threat of an overbearing military.  No standing army in peacetime can be allowed to dominate civilian society, either openly or by subtle insinuation.  (Akhil Reed Amar, at 59)  He then suggests, the term ‘occupation’ is not limited merely to physical space. “What about more insidious forms of military occupation, featuring federal soldiers cowing civilians by psychological guerrilla warfare, day by day and house by house?”  (Id.)

A.  Third Amendment Penumbral Rights

Professor Amar observes that the United States Supreme Court has reconstructed the Third Amendment [incorporating it and making it applicable to the States through the 14th Amendment] “in an unreflective but highly plausible way.  In landmark cases like Griswold v. Connecticut [italics in original], the Court has viewed the Third Amendment as an embodiment of a right of “privacy” in the home.” (Akhil Reed Amar, supra, at 267).

In Griswold v. Connecticut, the defendants were convicted of violating the Connecticut birth control law. The Circuit Court in the Sixth Circuit, Connecticut, rendered judgments, and the defendants appealed. The Appellate Division of the Circuit Court affirmed, and defendants appealed. The Connecticut Supreme Court of Errors, 151 Conn. 544, 200 A.2d 479, affirmed, and the defendants appealed. The Supreme Court, Mr. Justice Douglas, reversed the state courts,  holding that the Connecticut law forbidding use of contraceptives unconstitutionally intrudes upon the right of marital privacy. (Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)).

Most importantly, Griswold “protected basic constitutional rights and applied them against the states in conventional fashion under the Fourteenth Amendment, and it mandated a stricter scrutiny for laws that interfere with “fundamental personal rights” than those that regulate economic relations.” (Griswold v. Connecticut inThe Oxford Companion to the Supreme Court of the United States, Kermit L. Hall, ed., 2d. Ed. (Oxford University Press, 2005) at 408).  

 [S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. [internal citations omitted]. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy.  (Griswold v. Connecticut, 381 U.S. 479, 484, 85 S. Ct. 1678, 1681, 14 L. Ed. 2d 510 (1965)).
Thus the “philosophy of the amendment” according to the opinion in Griswold is “that a constitutional right of privacy could be constructed from the commitment to personal autonomy found in the penumbras of the Bill of Rights.”  (Third Amendment, in The Oxford Companion to the Supreme Court of the United States, supra, at 1015).
This philosophy of penumbral rights was reaffirmed as the Supreme Court impliedly held, e.g., that the Fourth Amendment “protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion.” (Katz v. United States, 389 U.S. 347, 350, 88 S. Ct. 507, 510, 19 L. Ed. 2d 576 (1967). The Third Amendment's prohibition against the unconsented peacetime quartering of soldiers protects another aspect of privacy from governmental intrusion. (Id., 389 U.S. at 351 fn. 5, 88 S. Ct. at 511).
Since Griswold, these penumbral rights to privacy have been examined whether they apply to sale of contraceptives to unmarried individuals (Carey v. Population Services International, 431 U.S. 678 (1977); relations among homosexuals (Bowers v. Hardwick, 478 U.S. 186 (1986); and women’s choices regarding abortion. (Roe v. Wade, 410 U.S. 113 (1973).
While the Supreme Court has never decided a case dealing direction with the quartering of troops, the Court of Appeals for the Second Circuit held in Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states, the Third Amendment was designed to assure a fundamental right to privacy (Id.,  677 F.2d at 962), and that Third Amendment applied to the National Guard while on State Duty.  (Third Amendment, in The Oxford Companion to the Supreme Court of the United States, supra, at 1015).
Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982) involved an action brought in the Southern District of New York under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343(3) & (4) by two correction officers at the Mid-Orange Correctional Facility (“Mid-Orange”) in Warwick, New York, against the Governor and various officials of the State of New York, plaintiffs-appellants contend that their due process and Third Amendment rights were violated during a statewide strike of correction officers in April and May of 1979 when they were evicted from their facility-residences without notice or hearing and their residences were used to house members of the National Guard without their consent. As the Engblom Court observed: “For the first time a federal court is asked to invalidate as violative of the Third Amendment the peacetime quartering of troops “in any house, without the consent of the Owner.” (Engblom v. Carey, 677 F.2d at 959).
The facts of the case were as follows:
At the time of the strike appellants had worked at Mid-Orange for nearly two years and were residing in housing located on the grounds of the facility. Of the total staff of some 210, approximately 36-45 officers resided in the “Upper and Lower Staff Buildings” located at Mid-Orange. Although only employees were eligible to live there, such residence was optional on the employee's part and not a condition of employment. (Engblom v. Carey, 677 F.2d at 959).
On April 18, 1979, a statewide strike was called by the Security and Law Enforcement Employees Council 82, AFL-CIO. On that day Governor Hugh L. Carey issued a Proclamation and Executive Order activating the National Guard. On April 19 most of the officers at Mid-Orange joined the strike. Either on that day or the following day Superintendent Snow because of the strike issued an order barring striking employees from the facility grounds unless they obtained his permission. At 12:10 A.M. on April 21 Snow finally declared an emergency at Mid-Orange. Beginning around April 19, National Guardsmen had begun arriving at Mid-Orange, eventually reaching a maximum force of 260.

As a result of these developments, from April 19 to April 25 appellants and other employees believed to be on strike were repeatedly denied access to the administration building. Striking officers who lived in staff housing were thus also denied access to their apartments, with one exception on April 20 when appellant Engblom was permitted to retrieve some personal items. The payroll rental deductions were cancelled effective April 19, 1979. Some time before April 25 a decision was made by Mid-Orange to clear the rooms that had been leased to the striking officers so that the rooms could be used to house National Guardsmen, who until then had been housed in the school and administration buildings. On April 25 officer-tenants were permitted to enter and remove and store their belongings in a locked storage area in the building, and appellants did so. Their rooms had been ransacked and personal property was found to be missing or destroyed. Beginning at the same time Guardsmen were housed in these rooms and remained until the end of the strike on May 5…

Participation in the strike was the sole reason for evicting resident staff-tenants and using their rooms to house the Guard. However, at no time prior to the evictions did Mid-Orange provide notice or undertake investigations in accordance with its own regulations…

When the strike was over on May 5, appellants were made an offer to resume residence in their staff housing, which they declined. Neither was terminated and both continue to work as correction officers at Mid-Orange.  (Engblom v. Carey, 677 F.2d at 960-61).

The Court’s reasoning and holding:
The crux of appellants' Third Amendment claim depends on whether the nature of their property interest in their residences is sufficient to bring it within the ambit of the Third Amendment's proscription against quartering troops “in any house, without the consent of the Owner.” The absence of any case law directly construing this provision presents a serious interpretive problem, and little illumination can be gleaned from the debates of the Constitutional Convention. We are thus left with the language of the Third Amendment and analogies to other areas of law. Under a technical and literal reading of the language, the Third Amendment would only protect fee simple owners of houses. We reject such a formalistic construction for the same reasons that it has been rejected in analogous contexts.  (Engblom v. Carey, 677 F.2d at 961-62).
The Third Amendment was designed to assure a fundamental right to privacy. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965)... Since the privacy interest arises out of the use and enjoyment of property, compare Griswold, supra (privacy in marital relationship), an inquiry into the nature of the property-based privacy interest seeking protection becomes necessary. In closely analogous contexts rigid notions of ownership are not prerequisites to constitutional protections. When determining whether a legitimate expectation of privacy exists for the purposes of the Fourth Amendment, for instance, the Supreme Court has rejected the notion that a protected privacy interest in a place must be “based on a common-law interest in real or personal property.” [internal citations omitted] Rather, the Court stated that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy.” Id. (emphasis added). Similarly, in applying the due process clause, the Court has extended its procedural protection “well beyond actual ownership of real estate, chattels, or money,” …, and has interpreted “property” as “not limited (to) a few rigid, technical forms,” but as “denot(ing) a broad range of interests that are secured by ‘existing rules or understandings.’ ”... A rigid reading of the word “Owner” in the Third Amendment would be wholly anomalous when viewed, for example, alongside established Fourth Amendment doctrine, since it would lead to an apartment tenant's being denied a privacy right against the forced quartering of troops, while that same tenant, or his guest, or even a hotel visitor, would have a legitimate privacy interest protected against unreasonable searches and seizures. [citations omitted].
Accordingly we hold that 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…
Applying these principles, as a matter of state law appellants throughout the strike had a lawful interest in their living quarters sufficient to entitle them to exclude others… Thus, even if pre-deprivation due process procedures were not available to them, they retained a protectible interest in their quarters until they were lawfully deprived of it.
Appellants' interest, moreover, reasonably entitled them to a legitimate expectation of privacy protected by the Third Amendment. Appellants' rooms, which they furnished and for which they were charged a monthly rent, were their homes. They did not maintain separate residences or have alternative housing available in the event of an emergency. During the entire two-year period preceding the strike, appellants did not reside in any other dwelling…
Finally appellants' jobs were not conditioned on their living in staff housing; nor was staff housing provided as a form of remuneration for their employment. It was only after appellants had been on their jobs as correction officers that they became eligible to apply for staff housing. Thus New York decisions relied upon by the district court are not on point, since they all involve apartment superintendents whose jobs required occupancy on the premises.
We conclude, therefore, that in the context of a motion for summary judgment the record, viewed most favorably to appellants, does not preclude a finding that they had a substantial tenancy interest in their staff housing, and that they enjoyed significant privacy due to their right to exclude others from what were functionally their homes… Accordingly, since we cannot say that as a matter of law appellants were not entitled to the protection of the Third Amendment, we reverse the summary dismissal of their Third Amendment claim.  (Engblom v. Carey, 677 F.2d at 962-64).

B.   Our Penumbral Rights under the Third Amendment Provide Us with Fundamental Liberty Interests against the Occupation, Intimidation, Domination by Military Forces

        Under the reasoning of Engblom, the crux of a Third Amendment claim depends on whether the  nature of their property or privacy interest in their neighborhoods and residences is sufficient to bring it within the ambit of the Third Amendment's proscription against quartering troops “in any house, without the consent of the Owner.”  The issue is whether a policeman in military gear a soldier for purposes of the Third Amendment?; and, if so, then is his or her presence in our neighborhoods and homes a violation of our fundamental liberty interests.

        Pursuant to the authorities cited and for the reasons stated above, our penumbral rights under the Third Amendment provide us with fundamental liberty interests against other forms of governmental invasion.  The occupation, intimidation, domination by ‘military’ forces of any kind to include more insidious forms of military occupation, featuring militarized and heavily-armed police forces cowing civilians by psychological guerrilla warfare, day by day and house by house and in the activities described in the reports of the ACLU, HRW, and other documentary sources constitute governmental invasion of those interests.

       Hamilton forcefully affirmed in Federalist No. 8 that the presence of a standing army / occupation can lead to overdependence and subjugation.  Once this happens, our civil society is lost because “it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power.” 

     The object of the Third Amendment is the protection of civil society from an overbearing military. 

      The Supreme Court has strongly declared in Griswold and Katz, that the protection of civil society from an overbearing military is a fundamental liberty interest that falls within our penumbral rights under the U. S. Constitution.  Thus the government may not violate such liberty interest absent a compelling governmental interest and no other viable alternatives exist. 

As Senator Coburn noted an increasingly militarized police force is hardly distinguishable from a standing army.

         Moreover, the issue of consent.  The Third Amendment also guards against unfettered executive action at federal level and through the Fourteenth Amendment applies to the States.
        Another important facet of the Third Amendment is that “the amendment stands as an important reaffirmation of the separation of powers, and limited executive authority… which often goes unnoticed because of our modern-day fixation on individual rights.  To put the point a different way, the deep spirit of the Third Amendment cautions skepticism about unilateral executive assertions of military necessity.  (Akhil Reed Amar, The Bill of Rights, Yale University (1998), at 62).

        We must not continue the militarization of our police forces.  Our police forces are established to protect and serve, not to intimidate and oppress. 

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