AMICUS CURIAE THIRD AMENDMENT LAWYERS ASSOCIATION’S BRIEF IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION TO ENFORCE THE SUPREME COURT’S RULING AND TO VACATE THE STAY PENDING APPEAL

Amicus curiae, the Third Amendment Lawyers Association (“ÞALA”), hereby files their Brief in support of Plaintiffs’ Emergency Motion.1 The CDC moratorium on evictions has the tendency to invade the Third Amendment rights of landlords.

1.0 Introduction

Amicus ÞALA is a national organization of attorneys who seek to protect and defend the Third Amendment from government incursion. Because the Third Amendment is not frequently invoked in ordinary litigation, it is the “runt piglet” of the Bill of Rights and frequently overlooked.2 The ÞALA’s purpose, therefore, is to advocate respect for the Third Amendment wherever its implications are overlooked.

ÞALA’s stated mission is to: (1) educate the public about the right to be free from quartering; (2) advocate for the right in court and in legislation; (3) foster scholarship on the third amendment; (4) provide a forum for debate and discussion about quartering, and (5) enable supporters of the third amendment to connect and assist each other.3 ÞALA membership is open to any attorney admitted to practice before any U.S. State or Territory who shows a commitment and passion for anti-quartering.

2.0 Argument

The parties to this case are litigating the primary issues regarding the CDC’s extension of the eviction moratorium and Supreme Court ruling. Plaintiffs seek to recover possession of their properties from tenants who have failed to pay their rent. Ordinarily, the eviction process would play out in the courts. The CDC eviction moratorium prevents this. And, they cannot resort to “self-help”. See, e.g., Mendes v. Johnson, 389 A.2d 781, 783 (D.C. 1978) (“Under early common law, a landlord was privileged to enter upon his land and recover it by force, using violence if necessary. However, this privilege was modified as early as 1381, when a statute was passed making such forcible entry a criminal offense. This criminal statute was accepted as part of the common law, or reenacted, by nearly all of our states.”) As a result, Plaintiffs are being forced to house individuals, i.e. quarter them, without their consent. Given the size of the population at issue, some of these tenants are bound to be soldiers. To the extent the CDC moratorium prohibits evicting a soldier, it runs afoul of the Third Amendment. This Constitutionally significant issue warrants this Court’s attention.

2.1 The Third Amendment

The Third Amendment’s mandate is short and elegant:

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.

The Third Amendment protects fundamental rights of Americans to be free from military oppression and be master of one’s domain. As noted by the Second Circuit:

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).

Engblom v. Carey, 677 F.2d 957, 962 (2d Cir. 1982). “Its plain object is to secure the perfect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion. The billetting of soldiers in time of peace upon the people has been a common resort of arbitrary princes, and is full of inconvenience and peril…” J. Story, COMMENTARIES ON THE CONSTITUTION § 1003 at 709 (1833). Notably, “[t]here is something in the American that repels the right of the sovereignty to take up quarters in his home or place of business. It was evidenced by Mr. Jefferson when he penned the Declaration of Independence and complained that the King was quartering soldiers in the homes of free people.” Wallace v. Ford, 21 F. Supp. 624, 627 (N.D. Tex. 1937).

Quartering is a thing to be justly feared. “Consider, for instance, Joseph Galloway’s plea, warning his fellow Americans that rebellion would bring war, that war would bring quartering, and that quartering would find soldiers ‘travelling [sic] over your estates, entering your houses—your castles … seizing your property … ravishing your wives and daughters, and afterwards plunging the dagger into their tender bosoms.’” Bell, Tom W., “’Property’ in the Constitution: The View from the Third Amendment”, 20 WM. & MARY BILL RTS. J. 1243, 1274 (2012) (quoting B. Carmon Hardy, A FREE PEOPLE’S INTOLERABLE GRIEVANCE, IN THE BILL OF RIGHTS: A LIVELY HERITAGE 67, 67–68, 79–81 (Jon Kukla ed., 1987)). Thus, there is “a traditional and strong resistance of Americans to any military intrusion into civilian affairs” which finds expression in the Third Amendment. Laird v. Tatum, 408 U.S. 1, 15, 92 S. Ct. 2318, 2326 (1972).

Full Amicus Brief Below