MARIANNE E. ENGBLOM and CHARLES E. PALMER, Plaintiff-Appellants, against HUGH L. CAREY, Governor of the State of New York, RICHARD D. HONGISTO, Acting Commissioner, New York State Department of Correctional Services, JOSEPH C. SNOW, Superintendent of the Mid-Orange Correctional Facility, MAJOR-GENERAL VITO J. CASTELLANO, Chief of Staff to the Governor of New York, New York National Guard, LIEUTENANT-COLONEL JUSTIN M. QUEALLY, an Officer of the 106th Maintenance Battalion of the New York National Guard, Captain "JOHN" DREW, an Officer of the 101st Signal Battalion of the New York National Guard, and VARIOUS OFFICERS AND ENLISTED MEN, Members of the New York National Guard, Defendants-Appellees.

677 F.2d 957
May 3, 1982, Decided

Before FEINBERG, Chief Judge, and KAUFMAN and MANSFIELD, Circuit Judges.

Opinion by MANSFIELD

In this action, 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. 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." District Judge Robert W. Sweet granted defendants' motion for summary judgment dismissing the complaint on the ground that appellants did not have a sufficient possessory interest in their facility-residences to entitle them to protection under the Third Amendment and the Due Process clause of the Fourteenth Amendment. We affirm the dismissal of the due process claim on the ground that adequate post-deprivation procedures were afforded to protect appellants' rights. We reverse the dismissal of the Third Amendment claim on the ground that issues as to material facts rendered summary judgment inappropriate.

[The Third Amendment provides: "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."] Aside from the lower court's opinion in this case, there are no reported opinions involving the literal application of the Third Amendment. Several far-fetched, metaphorical applications have been urged and summarily rejected....

In summarizing the facts below we are guided by the principles that summary judgment may be granted only where there is no genuine issue as to any material fact and that upon review the inferences to be drawn from the materials submitted to the district court "must be viewed in the light most favorable to the party opposing the motion." 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.

The Upper Staff Building was appellants' sole residence. The building, located about a quarter mile from the prison, consists of a layout of living facilities, each comprising a room with semi-private or private bath, and sharing common kitchens. Aside from the fixtures and a bed and dresser, the occupants of each facility supplied all other furnishings and accessories. The occupancy or "tenancy" was governed by two Correction Department documents. One was entitled "Facility Housing-Rules and Regulations" ("Rules"), signed by the occupants and Superintendent Joseph C. Snow, setting forth various conditions. The other, a "Department Directive" dated January 29, 1976 ("Directive"), set forth the procedure for selecting occupants and additional conditions of the occupancy. These documents throughout refer to the occupants as "tenants" and to the $ 36 deducted monthly from the payroll of each occupant as "rent" or "rental cost." The Directive made clear that the rent was not to be treated as a mere business expense; it specified that the rental cost could not be deducted by a resident-officer from his salary for income tax purposes. The Directive also obligated Mid-Orange to repair and maintain the rooms "in accordance with normal "landlord-tenant' responsibilities and practices."

These documents placed various restrictions on the occupants. For example, overnight and long-term guests were prohibited, the rooms could be opened by a master key, personally owned firearms were not permitted to be stored in the rooms, and the rooms were subject to inspection. There was no evidence, however, concerning the extent to which these restrictions were enforced. The documents also provided that an occupant could be evicted on designated grounds but only after an investigation and a six-month written notice to vacate. In an emergency the Superintendent was empowered to "suspend such portions of any or all rules which might impede proper emergency action."

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. It is undisputed that Palmer's room was so used. While Snow's affidavit states that Engblom's room was never occupied by Guardsmen, this was disputed by Engblom's affidavit.

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. Palmer joined the strike on April 19 and remained on strike through May 3. However, there is a dispute concerning Engblom's alleged participation. Snow stated in his affidavit that he had received second-hand reports that Engblom had been seen on the picket lines and engaging in vandalism. Engblom's affidavit, however, stated that April 18 and 19 were her scheduled days off and that thereafter she was absent from work for medical reasons.

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.

On a motion for summary judgment the district court dismissed appellants' Third Amendment and due process claims. The district court found, as an initial matter, that the National Guardsmen were "Soldiers" within the meaning of the Third Amendment, and that the Third Amendment is incorporated into the Fourteenth Amendment since it is one of the "fundamental" rights "rooted in the tradition and conscience of our people" and thus "implicit in the concept of ordered liberty."  However, the court held that appellants were not entitled to Third Amendment protection since their occupancy was analogous to possession incident to employment, which, said the court, "carries with it a somewhat lesser bundle of rights than does a tenancy....."


We first address the novel claim based on the Third Amendment, a provision rarely invoked in the federal courts. We agree with the district court's conclusion that the National Guardsmen are "Soldiers" within the meaning of the Third Amendment. Moreover, we agree with the district court that the Third Amendment is incorporated into the Fourteenth Amendment for application to the states.

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.

The Third Amendment was designed to assure a fundamental right to privacy. Since the privacy interest arises out of the use and enjoyment of property, 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."  Rather, the Court stated that "one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy."  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 "(denoting) 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.

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. While the determination looks first to state law as the "primary source of property rights,"  ultimately the issue is one of "federal constitutional law."

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. 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. These factors supporting the existence of a tenancy-type interest are reinforced by the Department's Directive and Rules, which repeatedly refer to the occupants as tenants and at one place to Mid-Orange as the equivalent of a landlord....Viewing the facts in the light most favorable to appellants, we cannot rule out an inference that the Rules signed by both the Superintendent and appellants was tantamount to a lease.

On this record we cannot agree with the district court's finding that appellants' occupancy was more analogous to a possession incident to employment, which under New York law does not constitute a landlord-tenant relationship.....

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.....

IRVING R. KAUFMAN, Circuit Judge, concurring in part and dissenting in part:

The majority holds that Judge Robert W. Sweet improperly granted defendants' motion for summary judgment and dismissed the claim of Marianne E. Engblom and Charles E. Palmer, state correction officers, that their Third Amendment rights were violated by the quartering of New York State National Guardsmen in their residences at the Mid-Orange Correctional Facility in Warwick, New York, during a statewide strike of correction officers. Supporting this theoretical and impracticable position, which acknowledges a farfetched Third Amendment "quartering" claim based on a constitutional provision rarely, if ever, utilized, the majority conjures phantom "genuine issues of material fact." Moreover, my brethren adopt a fanciful interpretation of the meaning of "house" protected under the Third Amendment, and fail to pay sufficient heed to the special circumstances and exigencies of prison administration. I cannot agree. A careful and practical analysis, responsive to the full range of interests at stake, leads me to the conclusion that Engblom and Palmer did not have a property interest which would give them the right under the Third Amendment to exclude from their prison quarters National Guardsmen sent to the prison during the crisis conditions caused by the strike. Accordingly, in light of the patently frivolous nature of appellants' claim, I dissent from this aspect of the Court's decision....

With its historical origins rooted in the English Bill of Rights of 1689, the Third Amendment of the United States Constitution embodies a fundamental value the Founders of our Republic sought to insure after casting off the yoke of colonial rule: the sanctity of the home from oppressive governmental intrusion. In passing the Quartering Act of 1765, the British Parliament required the American colonists to bear the cost of feeding and sheltering British troops stationed in this country. The Act provided that if there was insufficient room for the soldiers in the barracks, they could be quartered in inns, livery stables and ale houses. The Quartering Act of 1774, one of the "Intolerable Acts" the British Parliament enacted as tensions heightened following the Boston Tea Party, authorized much more intrusive intervention. Apparently, before the Revolution, the City of Boston provided barracks for British troops only on an island in Boston Harbor from which the soldiers could not move quickly to the City in the event of an uprising or disturbance by the colonists. To remedy this strategic disadvantage, the Quartering Act of 1774 authorized the British commanders to quarter their troops wherever necessary, including the homes of the colonists.

The aversion of the populace to the military presence of the British found eloquent expression in the Declaration of Independence, which registered the complaint that the King "has kept among us, in times of peace, Standing Armies without the consent of our legislatures." When the colonies began drafting constitutions and declarations of rights during the Revolution, a prohibition against the quartering of troops in private homes was frequently articulated. For instance, section 21 of the Delaware Declaration of Rights, drafted in 1776, provided "that no soldier ought to be quartered in any house in time of peace without the consent of the owner, and in time of war in such a manner only as the Legislature shall direct." Two months later, Maryland proclaimed its own Declaration of Rights, which contained an analogous clause. Similar provisions appear in the Massachusetts Declaration of Rights in 1780 and the New Hampshire Bill of Rights in 1783. After the Framers forged the Constitution, the memory of an oppressive military presence lingered among the people. Emanating from the first Congress in 1789 as part of the proposed Bill of Rights to meet the widespread popular demand for safeguards for individual rights and subsequently ratified by the States, the Third Amendment to the United States Constitution prohibited the often distrusted Federal Government from the peacetime quartering of soldiers in any house without the consent of the owner. With the help of the Fourth Amendment, the Third Amendment thus constitutionalized the maxim, "every man's home is his castle." The Founding Fathers, I am certain, could not have imagined with this history that the Third Amendment could be used to prevent prison officials from affording necessary housing on their own property to those who were taking the place of striking guards.

I do not disagree with the majority that the Third Amendment should be incorporated into the Fourteenth Amendment for application to the states. The Third Amendment embraces aspects of liberty and privacy that have justified the application of the Fourth Amendment's prohibition against unreasonable searches and seizures to the states. The notion that the home is a privileged place whose privacy may not be disrupted by governmental intrusions is basic in a free and democratic society. As Judge Jerome Frank felicitously phrased it, "(a) sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place ...."  Accordingly, Judge Sweet properly concluded that the Third Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment as one of the "fundamental" rights "rooted in the tradition and conscience of our people" and thus "implicit in the concept of ordered liberty."

Although a man's home is his castle under the Third Amendment, it is not the case, as Gertrude Stein might say, that a house is a house is a house. A reasonable analysis of Engblom's and Palmer's possessory interest in their rooms at the Mid-Orange Correctional Facility, the relationship between their possession of the rooms and their employment as correction officers, and a realistic acknowledgment that the physical context of their possessory interest was a prison, support the district court's conclusion that Engblom and Palmer did not have the kind of property right that warrants protection under the Third Amendment. While technical ownership has not been deemed a prerequisite for a constitutionally protected property interest in other contexts,  it does not follow that the Third Amendment's protection covers every conceivable type of possessory interest, from full ownership to the rights enjoyed by the casual visitor. Like the majority, I reject a literal reading of the Third Amendment, which, on its face, appears to protect only fee simple owners of houses. In this case, of course, the literal owner of the prison residences was the State, the actor responsible for ordering the quartering of the National Guardsmen. Engblom and Palmer have argued that their interest in the prison residences was a tenancy, a type of possession exclusive of all other interests including that of the landlord, except insofar as the landlord exercises his right to enter the premises to demand rent or make repairs, and to the extent the lease permits entry for other reasons. Since a lease involves "the transfer of absolute control and possession of property at an agreed rental," Engblom and Palmer assert that their "tenancy" interest, carrying with it the right to exclude others, was sufficient to come within the ambit of the Third Amendment protection of "houses."

Although the housing facility at Mid-Orange may have been their sole residence, the occupancy rights of Engblom and Palmer, and hence their privacy interest, were much more restricted than the bundle of rights enjoyed by a lessee in a typical tenancy relationship. The guards were not lessees of ordinary private property, but were given an option to live in staff housing as employees of a highly specialized institution with a compelling interest in security, and as a result, were subject to carefully circumscribed rules and regulations. The restrictions placed on Engblom's and Palmer's use of the rooms were quite severe. In a document entitled "Facility Housing-Rules and Regulations," signed by the occupants and Superintendent Joseph C. Snow, the prison administration noted that it retained the right to inspect the premises at any time and, accordingly, had a master key to all staff rooms. Several provisions of the regulations are related to prison security. For instance, the administration prohibited the employment of inmates in cleaning individual rooms, forbade the admission of prisoners in the staff quarters for any reason, and mandated that firearms be stored in the facility arsenal rather than in the individual rooms. The Employees Manual provided that in an emergency, the Superintendent was empowered to "suspend such portions of any or all rules which might impede proper emergency action." Coupled with the unfettered right to inspect the quarters at any time, these security-related provisions support the inference that the parties intended the prison administration to have the right to enter the quarters without limitation for the purpose of maintaining prison security. While Engblom and Palmer may have had the right to exclude third parties, it does not appear that they had the right to exclude prison officials at all. If prison officials could enter Engblom's and Palmer's rooms to search for a missing prisoner, or simply to make sure that no condition existed which could threaten the security of the prison or the safety of its employees, surely it must follow that the guards could not prevent prison officials and their representatives from entering their rooms after a strike by virtually all correction guards at the facility....

Engblom and Palmer are employees at a prison. The housing facilities are located on prison grounds. Like negligence, property rights do not exist in the air. The bundle of rights accompanying a possessory interest are shaped by the context.  Accordingly, the right of Engblom and Palmer to exclude prison officials and their agents from entering the residences is limited not only by the nature of the employment relationship, but also by the context of the prison.....

The prison context, with its searing tensions and overriding need for discipline and security, does not support the tortured analysis of the majority. Subject to a set of restrictions unlike any accompanying the ordinary tenancy, the staff housing at Mid-Orange, a dormitory-like barracks, simply bears no resemblance to the kind of oasis of privacy our Forefathers undoubtedly envisioned when they fashioned the Third Amendment. The majority's willingness seriously to entertain a "quartering of troops" claim holds us up to derision....

I would affirm the judgment in all respects.

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