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Friday, June 5, 2020

Does Quartering Troops in Hotels Implicate the Third Amendment?

With protests sweeping the nation, various cities have called on the National Guard to provide support for law enforcement officers. The District of Columbia is one such city, and among the soldiers sent to DC were National Guard Soldiers from Utah. An NPR report quotes a National Guard spokesperson, who stated that the National Guard soldiers had been quartered at the hotel and paid "government rates" for the housing.

Fast forward to today, where continued protests and criticism of the presence of troops has started to take a toll. The Salt Lake Tribune reports:

Utah National Guard soldiers and other forces from states deployed to the nation’s capital were forced out of their hotels on Friday morning in what Sen. Mike Lee called an eviction by an “ungrateful mayor.”

The mayor of the District of Columbia, Muriel Bowser, said this week that she wanted National Guard troops out of the district, which has seen days of protests — some of which have been violent — over racial injustice and the death of black Americans at police hands.

Utah’s 200 soldiers in the nation’s capital had been staying at a Marriott hotel near downtown Washington since they’re activation on Monday but were checking out Friday after being deployed to various parts of the capital city until the early morning hours.

The Utah Guard had until noon Eastern Time to depart their hotel and lodging and other accommodations were “still up in the air for this evening,” said Lee's spokesman Conn Carroll.
 Lee voiced his complaint on Twitter in the following tweets:



People on Twitter were quick to respond by arguing that Lee was calling for the quartering of soldiers in hotels--a position they argued was inconsistent with the Third Amendment, which states:
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.
The Salt Lake Tribune noted this response from Lee's spokesperson to the Third Amendment issue:
Carroll said the issue has nothing to do with the Constitution’s 3rd Amendment — which prohibits forcing a homeowner to quarter troops without the owner’s consent — but a political move by Bowser.
Twitter is abuzz with debate over the issue, with some people claiming that the Third Amendment will finally get some attention, and others arguing that this sentiment is overblown. There seems to be an assumption that the officers were removed as a result of the Third Amendment being invoked by Mayor Bowser, but I have seen nothing suggesting that this is the case.

A lot of this talk is off the cuff, and bereft of case law and authority. Maybe these commentators don't realize that at least one court has addressed Third Amendment claims before. Maybe they are fair weather Third Amendment enthusiasts (unlike myself, and the National Anti-Quartering Society). Whatever the explanation may be, here is the in-depth analysis of the Third Amendment questions you were undoubtedly waiting for.



In Engblom v. Carey, two correction officers at a prison sued the state of New York, arguing that their Third Amendment rights were violated when they were evicted from their facility-residences so that members of the National Guard could be housed their during a correction officer strike. The residences at issue were located in a building a quarter mile from the prison, and included rooms with beds, dressers, and other fixtures, a private or semi-private bath, and shared common kitchens. A department directive set forth conditions of occupancy and, among other things, referred to the occupants as tenants and required a $36 per month payroll deduction for each occupants to described as "rent" or "rental cost." There were restrictions against overnight guests and personal firearms.

The Second Circuit Court of Appeals started by agreeing with the district court that the Third Amendment was incorporated into the Fourteenth Amendment and therefore applied to actions by the states. It then noted that the officers' Third Amendment claim was "novel" and "rarely invoked in the federal courts." The court found that the National Guardsmen were "soldiers" within the meaning of the Third Amendment. The court then noted that there was little background on the Third Amendment, as there was no case law directly construing the amendment, and "little illumination" from the Constitutional Convention debates.  The court noted that "a technical and literal reading of the language . . . would only protect fee simple owners of houses," but the court rejected this "formalistic" reading:

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); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), at 552, 81 S.Ct. at 1781 (Douglas, J., dissenting), 549, 81 S.Ct. at 1779 (Harlan, J., dissenting). 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." Rakas v. Illinois, 439 U.S. 128, 143-44 n.12, 99 S.Ct. 421, 430-31 n.12, 58 L.Ed.2d 387 (1978). 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," Board of Regents v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972), 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.'" Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). 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. See, e.g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (friend's apartment); United States v. Agapito, 620 F.2d 324, 333-35 (2d Cir.) (hotel room), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980); United States v. Bell, 488 F.Supp. 371 (D.D.C.1980) (apartment tenant)
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. (bold emphasis added).
The court went on to find that the officers had "a legitimate expectation of privacy protected by the Third Amendment," and reversed the lower court's summary dismissal of the Third Amendment claim. 

With that background, let's get to the two key questions. First, does the situation involving the DC hotel and Utah National Guard soldiers involve a Third Amendment question? And second, could the Third Amendment be invoked if soldiers were quartered in a hotel?

As to the first question, the answer appears to be no. While people are asserting that DC's mayor invoked the Third Amendment, there is no indication that this is true. Indeed, her spokesperson simply stated that the city would not pay for the quartering of troops that it no longer wanted. And even if the mayor had invoked the Third Amendment, it is unclear whether such an argument would succeed--as the Third Amendment protects the rights of the hotel owners (and potentially those staying at hotels whose stays are cut short as a result of the troops' arrival). 

I have not seen any statements from the hotel's owners regarding their position on the presence of troops--but I suspect that absent the mayor's action, they would agree to quarter troops.  The hotel has an incentive to agree, because the National Guard is paying for the rooms, which brings in income during a time where business for hotels has sharply decreased.  Additionally, refusing to allow the troops to stay could create a public relations problem and hurt future business, as the hotel is a "regular spot for U.S. Army events."

The second question--whether the Third Amendment applies to situations where soldiers are quartered in a hotel--is more interesting, and the answer is far less certain. A restrictive interpretation of the Third Amendment's text suggests that the Third Amendment does not apply to hotels. One can argue that hotels are distinct from "houses," as many staying at hotels do so only for short terms, and the owners of the buildings in many cases do not live at the hotel. This argument may go too far in some cases, though, as some people stay in hotels for long periods of time and may be more akin to tenants in an apartment than an overnight hotel guest. Engblom's broad interpretation of "Owner" suggests that in these cases, the people staying in the hotel may have a Third Amendment claim, even if the owner of the hotel does not (or chooses not to assert a claim).

Additionally, in the emphasized portion of the quote above, Engblom notes the importance that the Third Amendment's scope of protection be coextensive with Fourth Amendment protections. The court remarks that it would be an "anomalous" result for a person to have rights against unlawful searches and seizures in a residence, while not having a right against troops being quartered there. This logic can be applied both to hotel residents (who have long-recognized Fourth Amendment rights against searches and seizures of hotel rooms) and, to a lesser extent, hotel owners (who are protected from mandatory searches of their records of guests).

A response to this argument is that it is not strange to claim that the scope of the Fourth Amendment to be broader than the Third Amendment. Indeed, the text of the Fourth Amendment is broader--as it protects persons, houses, papers, and effects--while the Third Amendment only applies to houses. And if an intrusion into a hotel room violates the Fourth Amendment but not the Third Amendment, the person staying in that room can still assert a Fourth Amendment claim. 

Since the only significant precedent opts for a broad interpretation of the Third Amendment, I suspect that many courts would approach a hotel or hotel resident's Third Amendment argument in a similarly broad way. This may lead some courts to conclude that quartering troops in hotels implicates the Third Amendment. But there are opportunities for courts that want a more restrictive reading--for instance, courts could distinguish Engblom because it did not involve a dispute over the meaning of "houses," and only discussed "owners." 

The DC case will probably not bring about the Third Amendment litigation we are all hoping for. But it highlights issues that courts will need to address should this largely-forgotten Amendment be invoked in the future.
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