A real 3rd amendment case?

posted at 11:31 am on July 5, 2013 by Jazz Shaw

Ilyah Somin, at The Volokh Conspiracy, highlights one of those stories which normally wouldn’t qualify as anything above “local news” were it not for the interesting constitutional questions involved. The family of Anthony Mitchell, in Henderson, Nevada, just outside of Vegas, have filed a claim which states that the police have violated their third amendment rights.

LAS VEGAS (CN) – Henderson police arrested a family for refusing to let officers use their homes as lookouts for a domestic violence investigation of their neighbors, the family claims in court.
Anthony Mitchell and his parents Michael and Linda Mitchell sued the City of Henderson, its Police Chief Jutta Chambers, Officers Garret Poiner, Ronald Feola, Ramona Walls, Angela Walker, and Christopher Worley, and City of North Las Vegas and its Police Chief Joseph Chronister, in Federal Court…

Mitchell claims that defendant officers, including Cawthorn and Worley and Sgt. Michael Waller then “conspired among themselves to force Anthony Mitchell out of his residence and to occupy his home for their own use.”

Because it comes up so infrequently, a quick refresher course on the 3rd:

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 Courthouse News article linked above has all the specifics, but the bottom line certainly does make the actions of the police look questionable. The cops were investigating a domestic violence complaint involving one of Mitchell’s neighbors and determined that they wanted to set up shop in Mitchell’s house to keep an eye on the other residence. When Mitchell declared that he didn’t wish to become involved and declined, the cops busted down his door with a ram, arrested him, and took over the residence anyway.

But, as Somin points out, this may still be a bit dodgy, at least in terms of making a 3rd Amendment case, specifically because police do not immediately qualify as “soldiers” for purposes of this discussion. Or do they?

The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as “soldiers.” On the other hand, as Radley Balko describes in his excellent new book The Rise of the Warrior Cop, many police departments are increasingly using military-style tactics and equipment, often including the aggressive use of force against innocent people who get in the way of their plans. If the plaintiffs’ complaint is accurate, this appears to be an example of that trend. In jurisdictions where the police have become increasingly militarized, perhaps the courts should treat them as “soldiers” for Third Amendment purposes.

A second possible impediment to winning a Third Amendment claim in this case is that the Amendment is one of the few parts of the Bill of Rights that the Supreme Court still has not “incorporated” against state governments. For incorporation purposes, claims against local governments (like this one) are treated the same way as claims against states. On the other hand, the Supreme Court has never ruled that the Third Amendment does not apply to the states. If, as the Court has previously decided, virtually all the rest of the Bill of Rights applies to state governments, there is no good reason to exclude the Third Amendment. If the Third Amendment part of the case is not dismissed on other grounds, the federal district court may have to address the issue of incorporation.

Some of the people commenting on that article already seem to be confusing the 3rd Amendment with the 4th, at least in terms of questioning whether or not the government has trod upon Mitchell’s “privacy” in this instance. But while a valid question, it’s still very different from the quartering of soldiers. The pertinent section there would include, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…

Mitchell was accused of nothing before having the security of his person and house disrupted, so perhaps they’d have done better with a 4th Amendment argument. Then again, I’m not a lawyer, so it’s tough to say. Either way, it would be interesting popcorn fodder, if nothing else, to see this one run up the chain of the courts.

UPDATE: (Jazz) More from Outside the Beltway.


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Comment pages: 1 2

This looks like another tricky question for a divided SC. Or else, each state could pass a law allowing property owners to charge rent for the use of their property in a police investigation. We should be allowed to charge as much as we want for the use, too. This is what we get when those in charge are doing as they please and picking and choosing which laws to obey.

Kissmygrits on July 5, 2013 at 1:17 PM

Police are not soldiers, so it’s not really a 3rd Amendment issue.

Even so, the situation here looks identical to that addressed by the 3rd Amendment, except for the fact that these are police, not soldiers.

My guess would be that SCOTUS wouldn’t mind incorporating the 3rd Amendment to the states, but doesn’t really want to blur the lines between soldiers and police. So they will probably punt on the theory that there are other ways to deal with this clear abuse of power rather than making a 3rd Amendment claim.

But you never really know….

There Goes the Neighborhood on July 5, 2013 at 1:20 PM

Doesn’t it seem terribly unlikely that if in fact this case made it all the way to SCOTUS that they would actually take the opportunity to either a) incorporate the 3rd or b)formally define police units as “soldiers”? I think they’d pass on both of those, especially since it seems like there are other ways to say that what the cops did here was wrong, without touching either of those two options.

TexasDan on July 5, 2013 at 1:21 PM

b)formally define police units as “soldiers”? I think they’d pass on both of those, especially since it seems like there are other ways to say that what the cops did here was wrong, without touching either of those two options.

TexasDan

If you have any inclination to Originalism, the point is not what SCOTUS defines but what the Founders meant by ‘soldiers’.

chimney sweep on July 5, 2013 at 1:26 PM

Another question that comes up is who pays if property damage results from police undertaking these kinds actions?

Liam on July 5, 2013 at 1:27 PM

What’s the difference between being forced to provide lodging for soldiers in your own home and being forced to let police officers use your home for a stakeout? Either way, government authority is being used to deprive you of your property at the point of a gun.

dkmonroe on July 5, 2013 at 1:29 PM

If you have any inclination to Originalism, the point is not what SCOTUS defines but what the Founders meant by ‘soldiers’.

chimney sweep on July 5, 2013 at 1:26 PM

Of course. I just don’t see the SCOTUS taking the opportunity to work out that definition for us when they can avoid it somehow.

I’m not really disappointed in that idea–the less a narrowly divided court that tends to find new taxes and penumbras in the Constitution does on any given day is probably a good thing.

TexasDan on July 5, 2013 at 1:29 PM

b)formally define police units as “soldiers”? I think they’d pass on both of those, especially since it seems like there are other ways to say that what the cops did here was wrong, without touching either of those two options.

TexasDan

If you have any inclination to Originalism, the point is not what SCOTUS defines but what the Founders meant by ‘soldiers’.

chimney sweep on July 5, 2013 at 1:26 PM

True – but I have to agree with what TexasDan is saying – in this case stretching the definition of soldier would limit government activities – and I don’t think this SC would want to do that.
I just don’t think any level of the courts right now are going to want to open up a can of worms on the 3rd amendment and the definition of soldier.
I would guess they sidestep the 3rd amendment argument.

dentarthurdent on July 5, 2013 at 1:31 PM

Police are not soldiers, so it’s not really a 3rd Amendment issue.

Even so, the situation here looks identical to that addressed by the 3rd Amendment, except for the fact that these are police, not soldiers.

My guess would be that SCOTUS wouldn’t mind incorporating the 3rd Amendment to the states, but doesn’t really want to blur the lines between soldiers and police. So they will probably punt on the theory that there are other ways to deal with this clear abuse of power rather than making a 3rd Amendment claim.

But you never really know….

There Goes the Neighborhood on July 5, 2013 at 1:20 PM

After reviewing the actual events, I think it even less likely that SCOTUS would actually make a decision on either incorporation of the 3rd Amendment or application of it to police instead of soldiers.

This case looks so egregious that I doubt they would feel any need to make any such ruling. The Fourth Amendment claim alone should cost the jobs of the police involved, especially management, and jail time. Charging and arresting someone for “obstructing a police officer” for not allowing him to do something you’re not required to allow?

If the events actually happened as they claim, there should be criminal, civil, and career penalties for all involved, and some serious punitive damages.

There Goes the Neighborhood on July 5, 2013 at 1:37 PM

In jurisdictions where the police have become increasingly militarized, perhaps the courts should treat them as “soldiers” for Third Amendment purposes.

The court should treat them as “soldiers” because they are armed agents of the state. Period.

GWB on July 5, 2013 at 1:37 PM

What’s the difference between being forced to provide lodging for soldiers in your own home and being forced to let police officers use your home for a stakeout? Either way, government authority is being used to deprive you of your property at the point of a gun.

dkmonroe on July 5, 2013 at 1:29 PM

Valid point – however, I just think the courts are more likely to judge it on a very clearcut 4th violation versus the risk of their decisions being overturned based on interpretations of whether or not the police equate to soldiers WRT the 3rd.

dentarthurdent on July 5, 2013 at 1:38 PM

Police are not soldiers, so it’s not really a 3rd Amendment issue.

There Goes the Neighborhood on July 5, 2013 at 1:20 PM

Unless Police act as Military…like when they shut down Boston looking for the bombers?

workingclass artist on July 5, 2013 at 1:38 PM

There Goes the Neighborhood on July 5, 2013 at 1:37 PM

Very well put.
Wholeheartedly agree with everything you just said.

dentarthurdent on July 5, 2013 at 1:39 PM

in this case stretching the definition of soldier would limit government activities –
dentarthurdent on July 5, 2013 at 1:31 PM

and your point? That is after all what the entire USA was founded on.

As far as the 3rd goes the British used troops as “police” in boston. they brought in the army to control the population.

unseen on July 5, 2013 at 1:41 PM

and your point? That is after all what the entire USA was founded on.

As far as the 3rd goes the British used troops as “police” in boston. they brought in the army to control the population.

unseen on July 5, 2013 at 1:41 PM

My point is that the current SC seems to lean more toward expanding government power than limiting it.
I’m not saying I agree with it or like it (I don’t) – that just appears to me the direction the courts are generally going these days.

dentarthurdent on July 5, 2013 at 1:43 PM

I don’t understand your mention of the 5th amendment though. That’s all about self-incrimination, and they didn’t even mention the 5th in their lawsuit.

[dentarthurdent on July 5, 2013 at 1:01 PM]

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

blammm on July 5, 2013 at 1:44 PM

As far as the 3rd goes the British used troops as “police” in boston. they brought in the army to control the population.

unseen on July 5, 2013 at 1:41 PM

Absolutely true. I think there are valid arguments on both sides of the debate (in this thread) on the 3rd, I just don’t think the courts will go there.

dentarthurdent on July 5, 2013 at 1:46 PM

blammm on July 5, 2013 at 1:44 PM

Well – ya got me on that one. I didn’t remember that being part of the 5th as well as the 4th.
So I wonder why they didn’t mention the 5th in the lawsuit?

dentarthurdent on July 5, 2013 at 1:48 PM

I just don’t think the courts will go there.

dentarthurdent on July 5, 2013 at 1:46 PM

after the SSM and obamacare rulings I wouldn’t bet against you on that one.

unseen on July 5, 2013 at 1:49 PM

I don’t understand your mention of the 5th amendment though. That’s all about self-incrimination, and they didn’t even mention the 5th in their lawsuit.

dentarthurdent on July 5, 2013 at 1:01 PM

I was basing my assertions on the Takings Clause of the 5th.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Although I probably would have been, in the plaintiff’s case, willing to allow the police to use my house for the investigation (if asked… nicely), I would say that even for temporary use, the Takings Clause applies here and just compensation should have been given to the owner.

Glenn Jericho on July 5, 2013 at 1:54 PM

Glenn Jericho on July 5, 2013 at 1:54 PM

Yup – blammm got me on that one.
My mistake – old guy memory.

blammm on July 5, 2013 at 1:44 PM

Well – ya got me on that one. I didn’t remember that being part of the 5th as well as the 4th.
So I wonder why they didn’t mention the 5th in the lawsuit?

dentarthurdent on July 5, 2013 at 1:48 PM

dentarthurdent on July 5, 2013 at 1:57 PM

Johnnyreb on July 5, 2013 at 1:04 PM

True.

Although…2 former Texas Rangers (One acting as a commissioned Highway Patrolman) tracked down Bonnie and Clyde in Louisiana.

workingclass artist on July 5, 2013 at 1:57 PM

The one in which a Socialist President stripped a bunch of innocent people of due process and ordered them thrown into camps by Executive Order for the sake of “national security,” imposed a 90% tax rate, pissed away taxpayer money prolonging an economic depression, tried to subvert checks-and-balances and the US Constitution by illegally packing the courts, and willingly signed away half of Europe to Stalin?

Looks kinda close to it to me… only on steroids.

Gingotts on July 5, 2013 at 12:21 PM

Wow. Strawman much???

And just how many time periods are you covering here??

Geez.

KMC1 on July 5, 2013 at 2:00 PM

Would your view be different if it happened that multiple of those officers were in the say the Army Reserves?? And if so why?

Dr. Dog on July 5, 2013 at 1:04 PM

I don’t know what that would have to do with anything. They weren’t acting under the capacity of the Army Reserves; they were acting as part of the Henderson P.D..

Sometimes people wear many different hats and the law applies differently according to what hat you are wearing. A police chief who is also is a sports referee by night who is bribed to throw a game one way or another will be judged as a referee, not a police chief (although his reputation as a police chief may come into question and ultimately he might be fired because of it, that is not within the scope of the case.)

Glenn Jericho on July 5, 2013 at 2:06 PM

Well – ya got me on that one. I didn’t remember that being part of the 5th as well as the 4th.
So I wonder why they didn’t mention the 5th in the lawsuit?

dentarthurdent on July 5, 2013 at 1:48 PM

My guess is that they’re libertarians who trying to get injunctive relief to prevent further abuses by the PD (and this situation creates a rare test case for creating precedent).

I don’t think many judges will want to try to resolve both the meaning of the Third Amendment and whether it is incorporated to the states in a case like this where it’s not even clear if 3A will apply. Judges try to take the path of least resistance in cases where Constitutional issues are at play. That’s why I think that they’ll just call it a 5th Amendment taking and force the PD to cut a check.

And as far as your confusion, no worries. The middle amendments of the Bill of Rights were written in a rather incoherent manner. Madison did a poor job making the parts of each amendment germane to one anothe. He also separated out rights that logically would have gone together. For example, there are two independent rights to counsel: one explicitly in the Sixth Amendment and one implicitly in the Fifth Amendment as held in Miranda.

blammm on July 5, 2013 at 2:07 PM

Real, real odd case. I can’t imagine, given the circumstances outlined here, that we’d kick a door and arrest people, solely for the purpose of running surveillance in their home.

More information needed. Does not compute.

RedNewEnglander on July 5, 2013 at 2:07 PM

They’re lucky they didn’t kick in the door of a paranoid with an M1 Garand. Body armor doesn’t do squat for .30-06 at point blank range.

DocinPA on July 5, 2013 at 2:12 PM

…nor shall private property be taken for public use, without just compensation.“

blammm on July 5, 2013 at 1:44 PM

Well, they did get 3 hots and cot for a few days at the Gray Bar Hotel, plus a souvenir photo.

BobMbx on July 5, 2013 at 2:16 PM

The one in which a Socialist President stripped a bunch of innocent people of due process and ordered them thrown into camps by Executive Order for the sake of “national security,” imposed a 90% tax rate, pissed away taxpayer money prolonging an economic depression, tried to subvert checks-and-balances and the US Constitution by illegally packing the courts, and willingly signed away half of Europe to Stalin?

Looks kinda close to it to me… only on steroids.

Gingotts on July 5, 2013 at 12:21 PM

Wow. Strawman much???

And just how many time periods are you covering here??

Geez.

KMC1 on July 5, 2013 at 2:00 PM

All done by Democrat hero FDR. Except, I believe, the last — signing away half of Europe to Stalin — was actually done during the Truman administration, and it would be unfair to blame just Truman when Churchill was very much involved as well.

There Goes the Neighborhood on July 5, 2013 at 2:16 PM

I think (I’m not a lawyer) there’s an additional reason why the Third Amendment was violated here: because what the North Vegas PD wanted (and what they took) from the Mitchells wasn’t quartering. They weren’t looking for a place to house or feed some policemen, they were intending to perform surveillance. That might have meant having some policemen in the house over a number of days, but the purpose of having them there wasn’t to house them. You can say that the intention or the surveillance task don’t matter, that just having soliders/policemen in the house for a longish period of time against the wishes of the owners was enough to violate the Third Amendment, but that seems unlikely. For example, in a hypothetical future war in which (God forbid) the US Army was fighting house to house and street to street in a US city, it’s hard to imagine that the Third Amendment would require an Army officer to have some kind of special legal authorisation before he could position observation posts, snipers, machine guns or other units wherever military necessity dictated, for as long as it so dictated. He wouldn’t be permitted to turn a nearby apartment into a barracks or feed soldiers from the contents of people’s refrigerators without some legal provision, but that’s not the same thing. And of course in 1789 war in the continental US was a recent reality as well as a foreseeable future prospect, so you’d expect the Framers to have been aware of and realistic about this kind of thing.

Of course, none of this is to say that the Mitchell occupation wasn’t illegal or obnoxious in some other way.

anonymous irishman on July 5, 2013 at 2:17 PM

I don’t understand your mention of the 5th amendment though. That’s all about self-incrimination, and they didn’t even mention the 5th in their lawsuit.

dentarthurdent on July 5, 2013 at 1:01 PM

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]“

Solaratov on July 5, 2013 at 2:18 PM

I think you could easily make a case for a 3rd, 4th AND 5th Amendment violation. It’s clearly a taking of the property for public use; the taking does not have to be permanent for it to be compensable. (5th A.) It’s clearly a seizure of the person’s property; the 4th A. does not require the person whose property is seized to be the object of the investigation, just that there be an unreasonable seizure. Having your door battered down so the cops can raid your refrigerator and spy on your neighbors is both unreasonable and a seizure. And if the Court can find an inviolable right to abortion in a penumbra of an amendment, they can easily enough conclude that when government thugs take over your house, it doesn’t matter whether they are carrying brass badges or green ID cards.

Zumkopf on July 5, 2013 at 2:20 PM

Oldnuke on July 5, 2013 at 11:52 AM</em

There would seem to be some definite civil-rights violations in there somewhere.

Another Drew on July 5, 2013 at 2:26 PM

No warrant, no emergency exception. How could the officers possibly have thought this would pass 4th Amendment restrictions on search and seizure?

Sackett on July 5, 2013 at 2:33 PM

This is another example of the recklessness, and out-of-control, behavior that has come to be expected in Clark Co NV.
I refer you back to the ex-Army officer gunned down at a Costco in Las Vegas, for the egregious offense of having a concealed weapon, for which he had a license to carry concealed.

Another Drew on July 5, 2013 at 2:36 PM

in this case stretching the definition of soldier would limit government activities –
dentarthurdent on July 5, 2013 at 1:31 PM

Wherin lies the problem with that?

I was under the impression that most Conservatives – and libertarians, for that matter – were in favor of smaller, limited government.

Solaratov on July 5, 2013 at 2:36 PM

You want to know how bad the problem really is? The Cato Institute has the stats.
http://www.cato.org/raidmap

pat on July 5, 2013 at 2:38 PM

anonymous irishman on July 5, 2013 at 2:17 PM

At the time of the Revolution, it was quite common for the Brits to commandeer privately owned property (after all, in their minds, everything really belonged to The Sovereign) for the quartering of troops, troops that were used to enforce Martial Law. I think Mr. Jefferson mentioned this in his proclamation of 4 July 76, when he said “For quartering large Bodies of Armed Troops among us”, and also when he said “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harrass our People, and eat out their Substance.”

Now, in the unpleasantness of the 1860′s, it was quite common for Armies to commandeer local property, but there was a “state of Rebellion” on-going, and as the GAR advanced into the Confederacy, it could be said that even though they were on a mission to “restore the Republic”, the lands that they were advancing into and upon were not technically subject to the U.S. Constitution, as the relevant authorities had seceded from The Union.

Henderson, and/or North Las Vegas NV, is going to pay a very large price for this egregious misconduct that was undertaken in their name(s). And it should hurt!

Another Drew on July 5, 2013 at 2:47 PM

4th Amendment violation, clearly. They didn’t even have a warrant! If it was so important that they had to commandeer a private home, they needed a freaking warrant.

alwaysfiredup on July 5, 2013 at 3:01 PM

Solaratov on July 5, 2013 at 2:36 PM

Please read my earlier explanation of that at 1:43.

dentarthurdent on July 5, 2013 at 3:09 PM

It depends. The lines are blurred with Police Special Forces.

workingclass artist on July 5, 2013 at 12:58 PM

I guess I’m arguing more in the spirit of the amendment. The government bully with the gun and the authority to use it and sprinkle crack on you later actually scares me more than the trained soldier.

John the Libertarian on July 5, 2013 at 3:59 PM

No warrant, no emergency exception. How could the officers possibly have thought this would pass 4th Amendment restrictions on search and seizure?

Sackett on July 5, 2013 at 2:33 PM

Why assume they cared about Constitutional rights?

cptacek on July 5, 2013 at 4:03 PM

NO DAMNIT GET OUT!

… AND I AM A POLICE OFFICER MYSELF!!

TX-96 on July 5, 2013 at 4:27 PM

If the question is which of the amendments did the sheriff dept violate most, that’s not going to be a good day at the office of Henderson P.D.

When in doubt, believe there is a reason that particular amendment is the Third “3rd” III.
Three comes before Four. You can’t have Four without Three.
Three is the number the people under Putin Obama are against.
The counting of the numbers must not proceed to Four except if prefaced by Three.
Three is the number and the number is 3.
I think therefore 3 is.
Then you pull the pin.

papertiger on July 5, 2013 at 4:28 PM

papertiger on July 5, 2013 at 4:28 PM

5 is right out.
“1, 2, 5″
“3 sir”

dentarthurdent on July 5, 2013 at 4:33 PM

A soldier is engaged in military service. The police are not. Ergo, the third amendment doesn’t apply. Additionally, to quarter is to provide a place to live. The police may have been watching the neighbors from there, but unless they were going to sleep there overnight, shower there, dress there, and eat from the fridge, it’s a far cry from quartering.

197.19 of Nevada’s state law declares the following:

Every person who, after due notice, shall refuse or neglect to make or furnish any statement, report or information lawfully required of the person by any public officer, or who, in such statement, report or information shall make any willfully untrue, misleading or exaggerated statement, or who shall willfully hinder, delay or obstruct any public officer in the discharge of official powers or duties, shall, where no other provision of law applies, be guilty of a misdemeanor.

The words “hinder”, “delay” and “obstruct” provide the police with very broad authority. The family stands a better chance of changing state law through legislation than winning a constitutional battle.

Stoic Patriot on July 5, 2013 at 4:52 PM

Every person who, after due notice, shall refuse or neglect to make or furnish any statement, report or information lawfully required of the person by any public officer, or who, in such statement, report or information shall make any willfully untrue, misleading or exaggerated statement, or who shall willfully hinder, delay or obstruct any public officer in the discharge of official powers or duties, shall, where no other provision of law applies, be guilty of a misdemeanor.

The words “hinder”, “delay” and “obstruct” provide the police with very broad authority. The family stands a better chance of changing state law through legislation than winning a constitutional battle.

Stoic Patriot on July 5, 2013 at 4:52 PM

It provides the perception of very broad powers. The reality may be somewhat more restrictive as I hope these cretins find out.

Legal babble.

Every person who, after due notice, shall refuse or neglect to make or furnish any statement, report or information lawfully required of the person by any public officer

No person is lawfully required to say anything. We all have the right to remain silent. We also have the right to be secure in our property and possessions.

Oldnuke on July 5, 2013 at 4:59 PM

Now, in the unpleasantness of the 1860′s, it was quite common for Armies to commandeer local property, but there was a “state of Rebellion” on-going, and as the GAR advanced into the Confederacy, it could be said that even though they were on a mission to “restore the Republic”, the lands that they were advancing into and upon were not technically subject to the U.S. Constitution, as the relevant authorities had seceded from The Union.

Another Drew on July 5, 2013 at 2:47 PM

Uh, the Union Army also commandeered quite alot of private property in Northern non-rebelling States. Just saying…..

Johnnyreb on July 5, 2013 at 5:04 PM

TX-96 on July 5, 2013 at 4:27 PM

And what’s more, get the Hell off my lawn!

Another Drew on July 5, 2013 at 5:25 PM

Forget the 3rd amendment. The police screwed up so royally, they should end up sued and jailed over this.

Sadly, along with the para militarization of the police is the fact the courts no longer keep the courts and the prosecutors in line (the Zimmerman case is an example). There is no rule of law if the police and the prosecutors and the judges conspire to eliminate it.

This case is very, very bad. I’m not sure it is a 3rd amendment issue, but there should be good state civil case and a huge settlement.

Notice this does fall in line with the Boston PD ordering people from their homes for safety reasons. That is also questionable because the police cannot move people without a clear threat.

archer52 on July 5, 2013 at 5:30 PM

TX-96 on July 5, 2013 at 4:27 PM

And what’s more, get the Hell off my lawn!

Another Drew on July 5, 2013 at 5:25 PM

And get your damn hands off my daughter!!

Nutstuyu on July 5, 2013 at 5:31 PM

And get your damn hands off my daughter!!

Nutstuyu on July 5, 2013 at 5:31 PM

THAT would be justification to shoot….

dentarthurdent on July 5, 2013 at 5:40 PM

They’re lucky they didn’t kick in the door of a paranoid with an M1 Garand Bishop.

DocinPA on July 5, 2013 at 2:12 PM

Brevity, Doc ;)

Laura in Maryland on July 5, 2013 at 5:42 PM

Hey Stoic, if you read the original article that this was based on (You really have to follow ghe links), the PO-PO ate from the fridge, rifled through the cabinets and drawers, abused the dog – you know, they acted like they lived there.

When the Constitution was written, the Brittish military was the largest enforcer of the law. Cops don’t act like Barney and Andy, they act like the Military from banana republics. You often get roughed up even if you fully comply. The process can become the punishment like what happened here.

None of this matters, this SCOTUS doesn’t care one bit for the document that they swore to uphold and defend. Obamacare proved that.

famous amos on July 5, 2013 at 5:45 PM

Uniformed
Well armed
Agents of the goverment
Participating in homeland security
Part of large forces
With the power and means to knock down doors and take innnocent civillians

I can see them making a case.

Laura in Maryland on July 5, 2013 at 5:48 PM

iirc some locales are also federalized under DHS with DOD chains of command.
been a long time since I dealt with any DOD stuff though so I many be thinking wrong.

dmacleo on July 5, 2013 at 5:59 PM

In the 1700′s, did we have what would be called “police officers”? If someone committed a murder or a robbery, was there a local constabulary that would make an arrest, or would British soldiers come knocking? I think that would be an important distinction…

PointnClick on July 5, 2013 at 6:05 PM

Just a reminder to those trying to make a distinction between “soldiers” and police that act like “soldiers”, our modern sheriff grew out of the Shire Reeve who was a royal official in charge of keeping the peace–and had at his disposal the king’s soldiers.

Nutstuyu on July 5, 2013 at 6:06 PM

The police in this country have long been a de facto para-military force. Many of them in fact are armed as our military, dress like soldiers replete with Kevlar helmets, have armored vehicles and so on.

Also, police and the military have carried out many joint operations and exercises from guarding the President, ant-terrorist operations, and anti-drug operations. The military has been used in situations that overwhelm local law enforcement such as some labor unrest of the past, and have been used to override local authorities as in the incidents where black students were to be admitted into certain schools.

I think that it’s safe to say that the lines between the police and the military are very blurry and this should be an important Constitutional issue, but I suspect that most of the Sheeple won’t even hear about this.

Also noticing that our police and military are being increasingly integrated with foreign entities, but to what extent I’m not sure.

RCMP, U.S. Coast Guard joint border patrol underway

Russian forces will provide security at events in the US

Dr. ZhivBlago on July 5, 2013 at 6:33 PM

This is more or less the same court that gave us Kelo and it IS the court that gave us Obamacare. They will decide the gov’t can do whatever the heck they want.

njrob on July 5, 2013 at 6:43 PM

Inter-agency narcotic task forces dress, train and execute plans in military fashion.

Are any of these officers current or former members of inter-agency task forces? Are any of the police involved retired US military veterans? Is occupying a private residence for a period longer than 24 hours and without warrant considered both a quartering and a taking?

Collection of information regarding verbal domestic abuse. The wife cursing at the husband over a period of months and years – currently allows for warrantless search, seizure, quartering and taking?

If the answer be yes, then we are all screwed at the discretion of our local, state and federal police agencies.

Welcome to America, now shut the **** up, pleb noobs.

13times on July 5, 2013 at 6:45 PM

Edit: The neighbors wife cursing at her husband over a period of months and years – currently allows for police to enter said neighbors home without warrant and occupy the home for a period of indeterminate duration

13times on July 5, 2013 at 6:50 PM

A second possible impediment to winning a Third Amendment claim in this case is that the Amendment is one of the few parts of the Bill of Rights that the Supreme Court still has not “incorporated” against state governments.

Leaving aside whether or not the popo can be considered troops, the above is incredibly ignorant. The 3rd has not been incorporated because there have been no cases before SCOTUS concerning the 3rd since incorporation began. The central question here is whether or not the police count as troops. If they do incorporation is a no-brainer. If they don’t, we’ll still be waiting for a 3rd amendment case to determine whether or not the 3rd becomes incorporated, because this won’t be one.

NotCoach on July 5, 2013 at 7:00 PM

The one in which a Socialist President stripped a bunch of innocent people of due process and ordered them thrown into camps by Executive Order for the sake of “national security,” imposed a 90% tax rate, pissed away taxpayer money prolonging an economic depression, tried to subvert checks-and-balances and the US Constitution by illegally packing the courts, and willingly signed away half of Europe to Stalin?

Looks kinda close to it to me… only on steroids.

Gingotts on July 5, 2013 at 12:21 PM

Frightening, but perfectly accurate statement.

njrob on July 5, 2013 at 7:05 PM

Edit: The neighbors wife cursing at her husband over a period of months and years – currently allows for police to enter said neighbors home without warrant and occupy the home for a period of indeterminate duration

13times on July 5, 2013 at 6:50 PM

They should have met me during menopause. Cops? Hell, they would have had to call for Marines

katy the mean old lady on July 5, 2013 at 7:29 PM

Point to remember, the Redcoats in Boston were not acting as soldiers opposing another military force. They were acting as police and were charged with enforcing the Crown’s laws and taxes. Before the Tea Party the Redcoats protected tax collection agents entering homes using those do it yourself warrants, the Writs of Assistance. They were then quartered in private homes and fulfilling the same duties. These are the origins of the Third Amendment, fear of the use of troops as enforcers of unjust laws. Allowing troops use of private homes makes use of troops in a city setting easier.

xkaydet65 on July 5, 2013 at 7:33 PM

Mitchell was accused of nothing before having the security of his person and house disrupted, so perhaps they’d have done better with a 4th Amendment argument. Then again, I’m not a lawyer, so it’s tough to say.

I think he’s making a statement, he saw those officers as soldiers invading his home. If the police behave like soldiers, they should be looked upon as soldiers. Third Amendment is perfect for this case.

Daemonocracy on July 5, 2013 at 8:53 PM

Wow. Strawman much???

And just how many time periods are you covering here??

Geez.

KMC1 on July 5, 2013 at 2:00 PM

1933-1945, USA. Learn basic US history. FDR was very much in Obama’s vein. It’s just he managed to be stopped, and eventually much of his crap rolled back. Hopefully we’ll be as lucky this time around.

Gingotts on July 5, 2013 at 8:55 PM

All done by Democrat hero FDR. Except, I believe, the last — signing away half of Europe to Stalin — was actually done during the Truman administration, and it would be unfair to blame just Truman when Churchill was very much involved as well.

There Goes the Neighborhood on July 5, 2013 at 2:16 PM

It was executed under Truman, but arranged by FDR. Churchill wanted no part of it but had no choice. He knew Britain couldn’t face the Soviets without the USA and couldn’t have kept his own government behind him even if he could.

Gingotts on July 5, 2013 at 8:57 PM

Yes, the demarcation of Europe was decided between FDR and Stalin at Yalta, and sealed between Truman and Stalin at Potsdam.

Another Drew on July 5, 2013 at 9:14 PM

Frankly, this sounds more like a 4th amendment case than a 3rd. The police basically came in and seized his home without a warrant or even suspicion of a crime.

Count to 10 on July 5, 2013 at 9:17 PM

I’m fairly sure that any state actor would be considered a soldier for purposes of this case…or any case, really, where a citizen’s home is being commandeered as a base.

It’s kind of unbelievable that a police force, or anyone really, could run afoul of the 3rd Amendment. It’s so stodgy and archaic and absurd in modernity that it’s the butt of Jon Stewart jokes when he has his clown nose on and wants to make fun of the over-100-year-old Constitution.

It’s like being the person who gets run over by a train. The tracks are right there. You can stand anywhere else except the tracks during the time period when the train is coming. Don’t be that guy.

HitNRun on July 5, 2013 at 10:35 PM

I asked an attorney his opinion, and I was surprised when he said the argument might win out that the police are a para-military force and therefor subject to 3rd Amendment restraints.

He said it probably depends on the judge. The 4th Amendment violations are so clear that a more restrained judge would probably just find that the 4th Amendment was violated, and give no opinion on the 3rd. On the other hand, a different judge might find the actions so egregious that he will take the opportunity to use the 3rd Amendment to put a solid lock on the issue, preventing this from ever happening again.

Sackett on July 5, 2013 at 10:47 PM

Let’s see. What is a “soldier”. Is a member of the Air Force a “soldier”. Is a Marine? Is an able bodied seaman?

Now, is any uniformed member of the National Guard, which qualifies as part of the militia nowadays?

The police, being an armed body accountable to the State and sworn to uphold the laws, including the United States Constitution, certainly count as part of the militia as well.

The big question comes down to what the Framers meant by the word “soldier”.

This one is going all the way.

unclesmrgol on July 5, 2013 at 11:03 PM

There were no police forces when our founding fathers wrote the constitution. I don’t see how this case would be an exception. I guess the city can cite the 10th amendment but then again, that pertains to the states and not the cities. I would really be fascinated how this will play out. I forsee a Supreme Court case coming out of this one.

mizflame98 on July 6, 2013 at 12:15 AM

I have a thought. This 3rd Amendment absolutely must have been aimed at application at the states and not the federal government. This is because when the Constitution was drafted there was not a standing federal army. Military organization was at a state level. The founders were in fact against a standing national army so they wrote that law based around a society where the states controlled the armies.

jollycynic on July 6, 2013 at 12:17 AM

which normally wouldn’t qualify as anything above “local news” were it not for the interesting constitutional questions involved.

Jazz: Thanks for highlighting this shocking police abuse.

But I disagree with you vehemently about the “local news” relevance of this story. It’s a massive infringement of Constitutional rights, which should alarm every American. In light of the other routine and shocking abuses of American’s Constitutional and legal rights, this isn’t an isolated incident, but part of a massive pattern of police and governmental abuses.

No one is safe from this abuse any longer. Every American is at risk of having their lives and finances ruined, their loved ones imprisoned, and their homes invaded by swat teams, their pets slaughtered, and their reputations ruined—WITH IMPUNITY.

We are all Cheye Calvo now. Look it up.

Commit any felonies lately? You’re committing 3 felonies a day; and you can be imprisoned for them:

http://www.timesdispatch.com/opinion/our-opinion/columnists-blogs/bart-hinkle/hinkle-commit-any-felonies-lately/article_58344fc1-7d4f-584a-8d16-36a1b1f2cdc0.html

Victims of Botched Police Raids Across the Country:

http://www.cato.org/raidmap

With Impunity:

https://www.facebook.com/DogsShotbyPolice

mountainaires on July 6, 2013 at 7:47 AM

“This is because when the Constitution was drafted there was not a standing federal army. Military organization was at a state level.” — Jollycynic

Oh Dear! Though the original Continental Army as drafted by the 2nd Continental Congress was discharged in 1783. That does not mean that a Federal Army did not exist for it did. The Congress made provisions for a continued armed force in strategic points, aka West Point. Militia organization was at the state level as defined by the 1st and 2nd Militia Acts. But the Militia was considered distinct from the formal army of the time.

Dr. Dog on July 6, 2013 at 7:56 AM

Why wouldn’t a homeowner have the right to deny anyone entrance, let alone having someone camp out?

Cindy Munford on July 6, 2013 at 9:37 AM

“I had no other guide, nor had I any other object than the defense of those principles of American liberty upon which the constitutions of the several States were originally founded, and unless they are strictly observed I fear there will be an end of Republican government in this country.”
—Robert E Lee 1866

claudius on July 6, 2013 at 11:18 AM

highlights one of those stories which normally wouldn’t qualify as anything above “local news” were it not for the interesting constitutional questions involved.

Just a thought here but maybe the fact that cops doing such a thing doesn’t warrant national news coverage is a big part of the problem. Why isn’t it being splashed all over the news media? Is it because nobody is surprised that cops would do such a thing, that our owners don’t want the story discussed, or perhaps a combination of both?

Benaiah on July 6, 2013 at 2:54 PM

I don’t think those here that believe that SCOTUS would not award based on 3A grounds have thought through what happens afterwards. Its open season for the State to bust into anyone’s home on the presumption of `need`. Not even SCOTUS would wish to open that can of worms for then there would be a long trail of suits defining the parameters of what is the `need`? It would also severely weaken what little 4A protections are left. Not even Kennedy would for go for that. Not only that but SCOTUS received a serious rebuke for their Kelo decision. 36 States enacted laws precluding Kelo. To do so with 3A would have serious ramifications.

Dr. Dog on July 6, 2013 at 5:37 PM

Third, fourth? Why split hairs. They were abused by authorities of the government.

I hope that they collect big time, and I hope that the whole damn management of that city gets fired–or maybe thrown in jail themselves.

I have been reading a series of books set in Europe in the late 1930s. We need reminding.

Oldflyer on July 6, 2013 at 6:08 PM

What I wonder, as in almost all things that I say “Who’s great idea was that?”… is what the hell were the supervisors doing?

-Why were there no disciplinary action taken on these officers by the Local PD leadership? If they cannot be trusted to police (no pun intended) their own, then someone needs to. I used to trust the police, but in the last few years now worry (due to stories like this, the rise of “no-knock” warrants, and family members personal encounters with Police officers who decide you are guilty of something, like drunk driving, but when proven wrong act like even bigger jerks then charge you with a laundry list of things hoping something sticks).

-THIS reason alone is why there needs to be some judicial intervention (which I am not normally fond of). Police need to be taught a lesson that they cannot do whatever the heck they want without repercussions.

-If these had been normal citizens unlawfully entering someone’s home (esp in TX, FL, or where I live in TN), people would have been shot. But what can we do when it is the POLICE that are unlawfully entering our homes without a warrant? (options that don’t involve me going to prison for the rest of my life are preferred.) They know this and it goes to their head.

-Not to mention the fact that the Police in this case were bad guests (who obviously searched/ransacked/trashed, their homes without probable cause). I’m just not sure 3rd Amendment applies… though I’m pretty sure that this is what the founders MEANT when they wrote it.

BadBrad on July 6, 2013 at 6:42 PM

Why isn’t it being splashed all over the news media?

Benaiah on July 6, 2013 at 2:54 PM

Great question! I too wonder why this wouldn’t qualify as a big deal… 3rd Amendment or not.

BadBrad on July 6, 2013 at 6:44 PM

If the events actually happened as they claim, there should be criminal, civil, and career penalties for all involved, and some serious punitive damages.

There Goes the Neighborhood on July 5, 2013 at 1:37 PM

But their wasn’t… which makes me wonder what the heck is going on with the police leadership? They too need a healthy smackdown for letting this go on their watch… like that will ever happen.

BadBrad on July 6, 2013 at 7:14 PM

Guy killed by police without warning for watering lawn.

Akzed on July 7, 2013 at 9:16 AM

The ease with which these things can be found out about is frightening.

Akzed on July 7, 2013 at 3:15 PM

It’s the police’s job to beat people, Chinese official says in viral video

Akzed on July 8, 2013 at 1:10 PM

The U.S. government just signed a treaty that will allow Russian troops to ‘police’ Americans here in our own nation during ‘emergencies’ under the control of the U.N.

Federal agencies are being used to target Americans – Obama’s enemies, the head of the NSA admitted they are breaking the law in order to collect the personal communications & personal information, our constitution & Constitutional rights are being violated, our laws are being broken, there are no ‘checks & balances, no accountability, Kerry by-passed Congress to give the Muslim Brotherhood even though they had passed a bill to prevent any more of our money going to them, and more. Giving the U.N. authority to send Russian troops to our country to control & enforce their will on us is treasonous!

Yeah the police were way overboard, but they are only following Obama’s example.

easyt65 on July 8, 2013 at 10:03 PM

I think the courts will agree that there is not a difference between police and soldiers. Either way, this man did nothing wrong. All he did was refuse to let the police enter his home. If it were me I would have allowed them at an inflated price. I would probably not have to pay my mortgage for at least 2 months. If they refused I would say good luck with that.

It makes you wonder what would have happened if they then kicked down his door and he pulled a gun. After all, the cops would be breaking and entering attempting to arrest a man with no warrant and no cause.

jeffn21 on July 9, 2013 at 11:28 AM

They should have never let the police in their door to begin with.
That way, the police would have to have had a warrant to enter.

Just don’t answer the door or talk through the chain.
“Do you have a warrant, officer? No? Well then, good day.”

Then if they break into your house, you got them on the fourth amendment.

gordo on July 9, 2013 at 8:49 PM

The amount of absolutely ridiculous handwringing over this on the right side of our political commentariat is, frankly, disgusting. I’m not going to say that this could never have happened, but in all of my experience I’ve never seen anything close to this happening. It is so far out there from what is normal operating procedure as to be simply unbelievable.

Consider:

1. All we have to go on is what is alleged in the plaintiff’s complaint. That’s it. There’s nothing from the defendants. I’ve never witnessed anything remotely similar to what is alleged, but I have seen a lot of crazy complaints made and filed over the years. Remember when Curtis got slapped?

http://www.pitch.com/FastPitch/archi…ges-of-demands
2. There are no media reports outside of the civil libertardian echo chamber. There was nothing about this case for two years and then one blog post at the Volokh Conspiracy, noting the oddity of the 3rd Amendment claim sets off a brushfire.

On the face of it, this complaint reads like total BS. The right side of the aisle has started acting just as betty as the left side did under Bush.

Dukeboy01 on July 10, 2013 at 9:07 AM

Finally, the rest of the story starts coming out.

http://www.fox5vegas.com/story/22799…ndment-lawsuit

It wasn’t “just a domestic violence call,” as the civil libertardians have been bleating for the past week. It was a SWAT team standoff and the alleged victim was calling the barricaded suspect and reporting the SWAT team’s positions to him.

Not that any of the civil libertardians will let reality intrude into their apocalyptic fantasies.

Dukeboy01 on July 10, 2013 at 9:21 AM

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