Quartering soldiers

[John Washburn]

I was incorrect.  No case has come before the US supreme court on
Quartering.  The case I was remembering was New Mexican case where the
quartering issues were never addressed as part of the dismissal.  So,
the point was raised but the state court decline to consider the
argument.



The only federal case is district 2's Engblom v Carey.  That case hinged
on whether Engblom (as a resident of a dorm-like room within the prison)
had sufficient control of the premise to be an "Owner".  The ruling was
maybe Engblom was an Owner maybe he was not. The case was remanded back
to the district court so a trial court could decide the material fact of
whether Engblom was or was not an Owner.



The only state where quartering any agent of the state is expressly
forbidden is Louisiana.  The state constitution states: "No person shall
be quartered in any house without the consent of the owner or lawful
occupant."  This would include all agents of the state (federal, state
or local) as well as any other person quartered by government fiat.
(such as any FEMA refuges quartered at the local private school
gymnasium)  It applies to fee simple owners and tenants.  It covers both
peace time and war.  The only restriction would be the question: "Is a
place of business a "House" for the purposes of the law?"  Fourth
amendment cases (secure in papers, person and house) would seem to
provide the framework that a "House" is more than a residence for
constitutional interpretation.



So I think this means that a person desiring to provide a carnivore-free
ISP should locate the server in Louisiana in a literal house you own or
rent.  But, even then you get to be the guy/gal who gets to litigate the
first case.



See the compressive article on quartering at:
<http://www.tomwbell.com/writings/3rd.html>
http://www.tomwbell.com/writings/3rd.html









-----Original Message-----
From: bgt [mailto:bgt at chrootlabs.org]
Sent: Wednesday, January 14, 2004 1:45 PM
To: cypherpunks at lne.com
Subject: Quartering soldiers



On Tue, 2004-01-13 at 12:48, Tim May wrote:

> On Jan 13, 2004, at 8:41 AM, Steve Schear wrote:

>

> > At 11:23 PM 1/12/2004, Tim May wrote:

> >> "But if I own a computer and I rent out accounts to others and the
FBI

> >> comes to me and says "We are putting a Carnivore computer in your

> >> place," how else can this be interpreted _except_ as a violation of

> >> the Third?"

> >>

> The pure form of the Third (in this abstract sense) is when government


> knocks on one's door and says "Here is something you must put inside

> your house."



For this to make sense, we have to interpret Soldier to mean not

just agents of the armed forces (military), it has to mean

law-enforcement as well.  I can accept the idea of abstracting the

Third beyond humans to software/hardware agents, etc... but I'm

not so sure about the military vs. law enforcement distinction.

Can anyone point me to some founder's writings that may help

support the interpretation of Soldier to mean any agent of the

government?



Even if we did extend the Third to mean law-enforcement... since

Congress has repeatedly ceded their authority to determine when

the country was "in a time of war" to the Executive, and as such

we are now in a perpetual time of war, any quartering has to be

prescribed by law, rather than prohibited outright.  For these

reasons, I have to agree with Tim's earlier referenced post, to

the effect of "the only solutions now available are Technology

and Terrorism."



> By the way, there have been a bunch of cases where residents of a

> neighborhood were ordered to leave so that SWAT teams could be in
their

> houses to monitor a nearby house where a hostage situation had

> developed. (It is possible that in each house they occupied they

> received uncoerced permission to occupy the houses, but I don't think

> this was always the case; however, I can't cite a concrete case of

> this. Maybe Lexis has one.)

>

> If this takeover of houses to launch a raid is not a "black letter
law"

> case of the government quartering troops in residences, nothing is.

> Exigent circumstance, perhaps, but so was King George's need to
quarter

> his troops.



I think someone in this case would have a much better argument for

a Fourth amendment violation (unreasonable seizure of their home,

albeit temporarily), though probably, today, still unsuccessful in

a court.



--bgt