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

I don’t see how the police can win on this. The home invaded was not the target of an investigation and there was no warrant being served. It seems to me the police overstepped their authority and just “made it up” as they went along.

HotAirian on July 5, 2013 at 11:38 AM

Civil lawsuit would be a shoe-in here, but it is not a 3rd issue:

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.[1]

This one is clerly directed at Armies, not the Police.

Johnnyreb on July 5, 2013 at 11:38 AM

Keep in mind, the first police force in the US wasn’t formed until Boston did it about 50 years after the Constitution was ratified. In 1789, there would have been no distinction between “police” and “army”, because there was no such thing as “police”.

HakerA on July 5, 2013 at 11:40 AM

I don’t see how the police can win on this. The home invaded was not the target of an investigation and there was no warrant being served. It seems to me the police overstepped their authority and just “made it up” as they went along.

HotAirian on July 5, 2013 at 11:38 AM

What I don’t see is why the police who did this aren’t in jail right now awaiting trial.

Oldnuke on July 5, 2013 at 11:43 AM

This one is clerly directed at Armies, not the Police.

Johnnyreb on July 5, 2013 at 11:38 AM

Pretty much every local police force is an army now.

They have enough gear (tanks etc…) to attack a small 3rd world country.

tetriskid on July 5, 2013 at 11:44 AM

According to the complaint, the cops made themselves at home, going through closets and eating food from the refrigerator (simple theft). I truly hope the thugs directly involved get jail time(yeah, right) but I want the city to pay a punitive fine that really hurts. Police abuses won’t stop until the direct cost to cities hurts more like a broken arm than a pinprick. Voters may be easily taken by “tough on crime” B.S. from politicians, but they may be more circumspect when there is direct link between the fines and higher taxes.

deadman on July 5, 2013 at 11:45 AM

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.

Per the Courthouse News Service report that spurred Somin’s blog post and was linked in it (I’ve highlighted the pertinent part):

The Mitchells seek punitive damages for violations of the third, fourth and 14th Amendments, assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress.

Dusty on July 5, 2013 at 11:45 AM

What I don’t see is why the police who did this aren’t in jail right now awaiting trial.

Oldnuke on July 5, 2013 at 11:43 AM

Absolutely.

katy the mean old lady on July 5, 2013 at 11:46 AM

If it dresses like a soldier, carries arms like a soldier, uses the same tactics of a solider, raids a home like a solider…

rgranger on July 5, 2013 at 11:46 AM

HakerA on July 5, 2013 at 11:40 AM

There were Sheriffs and local Constables around pretty much everywhere by then. Not actual oprganized multi-person police forces, but there were duly appointed Law Enforcement.

Johnnyreb on July 5, 2013 at 11:47 AM

The Mitchells seek punitive damages for violations of the third, fourth and 14th Amendments, assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress.
Dusty on July 5, 2013 at 11:45 AM

Oh hells yeah.

katy the mean old lady on July 5, 2013 at 11:47 AM

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.

The police wanted to take over someone’s property and impose themselves in order to spy on a “domestic violence” report in the area?? WTFF?

Whether they are considered soldiers or not, since when did the police have the power to take over private property in order to use it to spy on anything? At the very least, this is a taking that requires adequate compensation, let alone that it is must be a request, not an order.

This is what happens in a nation that has no respect for private property rights.

And all this for a “domestic violence” claim?? That is the most ridiculous part of all this.

ThePrimordialOrderedPair on July 5, 2013 at 11:48 AM

Read the whole report at the original site. It’s a civil suit seeking “punitive damages for violations of the third, fourth and 14th Amendments, assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress.”

It’s all in there.

Gamma Draconis on July 5, 2013 at 11:48 AM

Johnnyreb on July 5, 2013 at 11:38 AM

Seen the get up the police are wearing these days?

Soldiers/SWAT pretty much the same in some jurisdictions.

……….

In some jurisdictions one can be shot for “interfering” with a police officer…no warning…just shot. Indiana comes to mind, among others. And doubly so if you have a dog.

Cops.

Soldiers?

Acting more like stormtroopers of late.

coldwarrior on July 5, 2013 at 11:52 AM

Read the whole report at the original site. It’s a civil suit seeking “punitive damages for violations of the third, fourth and 14th Amendments, assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress.”

It’s all in there.

Gamma Draconis on July 5, 2013 at 11:48 AM

I hope they win. I hope it breaks the police department, the town and anybody else associated with it. I don’t see why they don’t go after the cops individually and sue them. AND I hope some eager beaver DA jumps on the bandwagon and brings charges against the cops.

Oldnuke on July 5, 2013 at 11:52 AM

Either way, it would be interesting popcorn fodder, if nothing else, to see this one run up the chain of the courts.

Once again Jazz, you failed to dissappoint.

Akzed on July 5, 2013 at 11:53 AM

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.[1]

This one is clerly directed at Armies, not the Police.

Johnnyreb on July 5, 2013 at 11:38 AM

So we must accept the billeting of police in our homes, without regard to a manner prescribed by law.

Okay!

Akzed on July 5, 2013 at 11:55 AM

Johnnyreb on July 5, 2013 at 11:38 AM

It’s not that hard to dispense with the meaning of soldier though. The Fourteenth Amendment didn’t exist until after the Civil War. The justices will definitely find that the freedom from compelled governmental takeover of one’s home is fundamental to “ordered liberty” (the buzzwords used for incorporation under the 14th Amendment) and mandate incorporation of the Third Amendment.

Analogously, the First Amendment only prohibits Congress from making laws but the Supreme Court has extended that prohibition to the states as well because those freedoms are fundamental to “ordered liberty.”

so perhaps they’d have done better with a 4th Amendment argument

Fourth Amendment doesn’t work here because it’s not a search or seizure. My guess is that it will be treated as a temporary, physical taking and the court will order just compensation under the 5th and 14th Amendments.

blammm on July 5, 2013 at 11:55 AM

This one is clerly directed at Armies, not the Police.

[Johnnyreb on July 5, 2013 at 11:38 AM]

When the police get rid of their SWAT teams, surplus army equipment, end their ubiquitous training and coordination with the military and intelligence branches of the Federal government and eschew being considered separate and distinct from the civilian population, I’ll quit considering them soldiers as it is applied in the Third Amendment.

Dusty on July 5, 2013 at 11:59 AM

The police wanted to take over someone’s property and impose themselves in order to spy on a “domestic violence” report in the area?? WTFF?

Whether they are considered soldiers or not, since when did the police have the power to take over private property in order to use it to spy on anything? At the very least, this is a taking that requires adequate compensation, let alone that it is must be a request, not an order.

This is what happens in a nation that has no respect for private property rights.

And all this for a “domestic violence” claim?? That is the most ridiculous part of all this.

ThePrimordialOrderedPair on July 5, 2013 at 11:48 AM

This kind of thing is not actually new. Our church parking lot faces a major 4-lane highway with a slow speed limit–so naturally everyone speeds. For years local police would camp in our parking lot (private property) to catch speeders. After numerous confrontations having to ask them to leave our private property, we finally had to file a lawsuit which they settled and agreed to not use our private property for their speed traps. But on numerous occasions we had been threatened with obstructing justice because we weren’t allowing them to use our private property.

Nutstuyu on July 5, 2013 at 12:00 PM

If they violate the 3rd Amendment at my house they may be quartered–drawn and quartered.

davidk on July 5, 2013 at 12:00 PM

Even if the 3rd Amendment is not considered incorporated, the Nevada constitution has the exact same wording in Article I, Section 12. Thus, the 3rd Amendment/Article I Section 12 portion of the case turns on whether a police officer qualifies as a “soldier”.

With that said, Dusty pointed out that there’s also 4th and 14th Amendment claims here, and those are incorporated rights.

Steve Eggleston on July 5, 2013 at 12:01 PM

So we must accept the billeting of police in our homes, without regard to a manner prescribed by law.

Okay!

Akzed on July 5, 2013 at 11:55 AM

And where did I say that genius? Did you read my whole comment? Especially the first part?

Johnnyreb on July 5, 2013 at 12:01 PM

This one is clerly directed at Armies, not the Police.

Johnnyreb

Some historical knowledge would be helpful here. During the colonial period, when British soldiers were placed into to the homes of private citizens, what job were the soldiers performing?

Were they ‘off-duty,’ returning to a town or city after being deployed on the frontier or an active battle theater? Or were they used, as I suspect, as a state police force that carried out the orders of governors and other officials?

If the Framers wrote the 3rd Amendment with the idea of soldiers who acted in a police capacity, then clearly the 3rd Amendment does apply to all LEO.

chimney sweep on July 5, 2013 at 12:02 PM

Son of a…. Barry really is trying to go 10 for 10!!!

Gingotts on July 5, 2013 at 12:03 PM

It isn’t unreasonable to decline assisting the police, especially when it involves domestic disputes of neighbors. I have refused to get involved in neighbor disputes, to much he said/she said, and I was friendly with both. There are numerous legitimate reasons to decline assisting the police, anything from ambivalence, to fearfulness.

To crash through a person’s door without a warrant, shoot them with pepper balls (I am prior military and know those hurt) is unconscionable. Anyone who thinks pepper balls are harmless should be forced to endure being shot with them. The impact is painful, the pepper liquid is excruciating. To follow that up with blasting a harmless pet, what’s reasonable about that? There was no heat of battle or “fog of war” moment, it was pure maliciousness.

You have a majority of police who take seriously “to protect and to serve”. Then you have far too many police who demolish the reputation of the entire department.

I hope to see the results of the entire investigation. It appears the department isn’t disputing the event.

Rode Werk on July 5, 2013 at 12:04 PM

Considering how the current SC is going, the 3rd argument could go either way. They have a very clear claim on their 4th rights being violated, as the cops entered and “seized” their house without permission, a warrant, probable cause (against them), or “just compensation”.
My personal opinion is these people would have been justified in shooting the cops that busted into their house.

dentarthurdent on July 5, 2013 at 12:04 PM

Since most police departments accept federal funds to buy equipment, and sometimes even to hire officers, there might be a good case for making this a Constitutional issue. I read through filing, the whole incident is reminiscent of Gestapo tactics, and that’s not an exaggeration.

Socratease on July 5, 2013 at 12:04 PM

wow and here I had hope that during the Obama admin the 3rd amendmend would be the only one not disregarded. I guess its offical now the COTUS isn’t worth the paper its printed on. And yes I know this isn’t Obama doing it but he sets the tone of the country. If the POTUS doesn’t care about the COTUS why would some local police chief care?

unseen on July 5, 2013 at 12:05 PM

Acting more like stormtroopers of late.

coldwarrior on July 5, 2013 at 11:52 AM

And many police departments are officially under the Dept. of Homeland Security.

All they have to do is declare you a terrorist and all your constitutional Rights are out the window.

And Big Lez has already declare most sane people potential terrorists.

davidk on July 5, 2013 at 12:05 PM

Our country has gone insane.

These “police” should be *severely* punished. I can’t really say what I really think, you know, freedom of speech and free country and all that jazz – I have to censure myself.

This is not your grandfathers America anymore.

KMC1 on July 5, 2013 at 12:06 PM

1984?

faraway on July 5, 2013 at 12:07 PM

Oh hells yeah.

katy the mean old lady on July 5, 2013 at 11:47 AM

Yup. Anyone who doesn’t use the kitchen sink approach, isn’t doing it right.

Dusty on July 5, 2013 at 12:07 PM

Either way, it would be interesting popcorn fodder, if nothing else, to see this one run up the chain of the courts.

Disagree. The city should be smacked down hard at the first court it comes before, with no chain of appeals to further waste the taxpayer’s dollar. In fact, in such a blatant case of criminal misconduct, I’d like to see the officers involved paying for their own defense.

CapnObvious on July 5, 2013 at 12:07 PM

Force the NSA to cough up a copy of the phone call transcript, where the homwowner will most likely be heard to say “no, you can’t enter my home”.

After that, every action by the PD is in violation of the homeowners Constitutional and civil rights. In addition, I’d throw in a cruelty to animals charge just to salt the wound a bit.

Oh wait…these are our heroic first responders in action. Give’em a medal instead.

BobMbx on July 5, 2013 at 12:11 PM

Either way, it would be interesting popcorn fodder, if nothing else, to see this one run up the chain of the courts.

Really our freedoms and liberty are being destroyed and people think its good “popcorn fodder?”

unseen on July 5, 2013 at 12:12 PM

And Big Lez has already declare most sane people potential terrorists.

davidk on July 5, 2013 at 12:05 PM

Everyone with a DD214 is automatically a suspect.

BobMbx on July 5, 2013 at 12:12 PM

Whether we use the word “soldier” or the word “police,” we’re still talking about the pointy end of the government.

To suggest otherwise is like arguing that the 2nd amendment only applies to muskets and militia.

CurtZHP on July 5, 2013 at 12:13 PM

As for incorporation of the 3rd, Engblom v Carey, though it only reached the 2nd District Court of Appeals, not only incorporated the 3rd against the states, but effectively replaced “owner” with “tenant”.

Steve Eggleston on July 5, 2013 at 12:13 PM

This is horrifying on so many levels.

But I’m sure good ol’ Eric H. and the DOJ will be investigating ASAP.

/

GrannyDee on July 5, 2013 at 12:13 PM

The way the Henderson police force thinks, I guess if they feel they need extra office space or require space to house dangerous prisoners … they can just take over anyone’s house and use it for that. It’s “required” for public safety, you know. I wonder why this police farce even bothers paying for buildings and upkeep. They can just take whatever property they need from anyone. They are “the law”, after all …

ThePrimordialOrderedPair on July 5, 2013 at 12:15 PM

Why haven’t any trolls weighed in yet? Do they agree with the actions of police in this matter, or do they fear having to agree with us for once?

No warrant was issued by a judge to commandeer that particular house for law-enforcement purposes. I can see a cop commandeering a private automobile if necessary to continue the ongoing chase of a fleeing felon; police can make a reasonable case for doing that. But not a person’s home when other options were available.

Effectively, this was a case of illegal seizure of private property without a warrant for use by the state/local government in a time of peace, with no imminent danger of life and limb to the officers.

Liam on July 5, 2013 at 12:16 PM

One wonders if (some of) those Leftists who favor a more “loose” interpretation of the Second Amendment are mysteriously in favor of a more “strict” interpretation of the Third Amendment.

Jeddite on July 5, 2013 at 12:16 PM

There were Sheriffs and local Constables around pretty much everywhere by then. Not actual oprganized multi-person police forces, but there were duly appointed Law Enforcement.

Johnnyreb on July 5, 2013 at 11:47 AM

Not the same thing. Sheriffs derive their authority from the people via election. Police are hired enforcement for a city (local government). Based upon who they report to, sheriffs would not qualify as soldiers, but police would.

The police absolutely violated the 3rd Amendment.

dominigan on July 5, 2013 at 12:17 PM

One wonders if (some of) those Leftists who favor a more “loose” interpretation of the Second Amendment are mysteriously in favor of a more “strict” interpretation of the Third Amendment.

Jeddite on July 5, 2013 at 12:16 PM

I think the insane, inept, and un-Constitutional actions of the police and the DHS thugs in Boston answered that one.

ThePrimordialOrderedPair on July 5, 2013 at 12:18 PM

You have a majority of police who take seriously “to protect and to serve”. Then you have far too many police who demolish the reputation of the entire department.

I hope to see the results of the entire investigation. It appears the department isn’t disputing the event.

Rode Werk on July 5, 2013 at 12:04 PM

I think anyone who wants to become a police officer should be forced to watch every episode of “Adam 12″, no less than six times on a loop while medicated with an “open to suggestion” substance.

That way, they subliminally replace the rogue cop TV show with real law enforcement examples.

No cop today simply wants a “see the man” call. No, they want the code 3 calls.

BobMbx on July 5, 2013 at 12:18 PM

because police do not immediately qualify as “soldiers” for purposes of this discussion. Or do they?

Well, since the police likes to claim they need “weapons of war” themselves aka assault weapons (select fire usually) with 30rd magazines, I’d say they are soldiers. The DHS armored vehicles usually have “police” painted on them…

oryguncon on July 5, 2013 at 12:19 PM

Our country has gone insane.

Effing insane. I don’t even recognize it anymore..
Sometimes, I wait to wake up..like it is all a bad dream..

These “police” should be *severely* punished. I can’t really say what I really think, you know, freedom of speech and free country and all that jazz – I have to censure myself.

This is not your grandfathers America anymore.

No, it sure as hell isn’t.
KMC1 on July 5, 2013 at 12:06 PM

bazil9 on July 5, 2013 at 12:20 PM

The DHS armored vehicles usually have “police” painted on them…

oryguncon on July 5, 2013 at 12:19 PM

Yep, which is offensive in every possible way.

ThePrimordialOrderedPair on July 5, 2013 at 12:20 PM

This is not your grandfathers America anymore.

KMC1 on July 5, 2013 at 12:06 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

I would love to hear the police reasoning on this. Interfering with a police officer? Impeding an investigation? I’m sure there were automatic weapons involved in the raid. The War on Drugs has destroyed Mayberry. “Barney, throw the battering ram and MP5 into the APC. We have to take a drive out to old man Jenkins’. He’s got some explaining to do. Aw, shucks, Andy. I was just about to dig into Aunt Bea’s pie!”

tdarrington on July 5, 2013 at 12:21 PM

Did anyone question the Boston police and FBI about taking over private homes during the marathon bomber dragnet? Can the DHS take your home as a command post? Lots of questions need to be answered asap.

itsacookbook on July 5, 2013 at 12:21 PM

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.[1]

This one is clerly directed at Armies, not the Police.

Johnnyreb on July 5, 2013 at 11:38 AM

Really? So who do the police report to, the people or the city (local government)? That makes all the difference.

dominigan on July 5, 2013 at 12:21 PM

Did anyone question the Boston police and FBI about taking over private homes during the marathon bomber dragnet? Can the DHS take your home as a command post? Lots of questions need to be answered asap.

itsacookbook on July 5, 2013 at 12:21 PM

They can as long as no one questions it. And who would because…TERRORISM!!!! For the CHILDREN!!!!

tdarrington on July 5, 2013 at 12:22 PM

Keep in mind, the first police force in the US wasn’t formed until Boston did it about 50 years after the Constitution was ratified. In 1789, there would have been no distinction between “police” and “army”, because there was no such thing as “police”.
HakerA on July 5, 2013 at 11:40 AM

Concur. I would interpret army as the “arm/sword” of the government to enforce policy. Which is what the army did prior to the rise of law enforcement officers.

AH_C on July 5, 2013 at 12:23 PM

If police are ruled to be soldiers, what does that do to posse comitatus?

Sekhmet on July 5, 2013 at 12:25 PM

Even though the lawsuit was apparently just recently filed, the actual events occurred in 2011.
Why is this the first we’ve heard anything about this story?
This should have been front page news when it happened.

dentarthurdent on July 5, 2013 at 12:25 PM

As long as the police are being militarized with the help of DHS, NSA, CIA and other federal departments, there will be more and more incidents of this nature.
And, at some point, one will end with bodies on the floor. Then, all bets are off…and it will not end well for either side.

The police already perpetuate their “us vs them” attitude by referring to everyone not a cop as a “civilian”…even though cops are, strictly speaking, ‘civilians’ themselves.

The best thing that ever happened to militarized police forces on a power trip is the d’ohbama regime.

Solaratov on July 5, 2013 at 12:26 PM

And where did I say that genius? Did you read my whole comment? Especially the first part? Johnnyreb on July 5, 2013 at 12:01 PM

I was agreeing with you hon. Sorry that wasn’t clear. You were perfectly clear.

Akzed on July 5, 2013 at 12:27 PM

Jazz Shaw, I don’t know how you could think this is something only worthy of “local news”????

This is incredibly terrifying and absolutely beyond description of wrong.

This should be reported in every media outlet around the globe. Those officers should be sitting in jail until the trial and if the facts of this case are prevent to be true, the entire compliment of officers from both police departments who were involved should be kept in jail for a long time, sued civilly into ruin, and never allowed to come in contact with the general public again.

Unbelievable.

KMC1 on July 5, 2013 at 12:27 PM

Were I the plaintiffs in this case I would take a different tack. Yes their rights were violated. They may even get justice. But they won’t get satisfaction.

I would take this to civil court for discharge of a debt. The city now owes me $40m dollars. That is my daily rental rate for forceable squatting. Oh and $1m for taking food and drink from the minibar. Destruction of property, $100,000. Lay it out in front of a jury. I bet they get every dime. And as one other poster mentioned, you make them squeal.

Here’s the other thought that even the police did not think about. You make all the noise and commotion doing a LEO B&E. And the considered persons that are to be under surveillance don’t notice?? And as a consequence don’t change their behaviour? Riiiiight……

Dr. Dog on July 5, 2013 at 12:29 PM

This should be reported in every media outlet around the globe. Those officers should be sitting in jail until the trial and if the facts of this case are prevent to be true, the entire compliment of officers from both police departments who were involved should be kept in jail for a long time, sued civilly into ruin, and never allowed to come in contact with the general public again.

Unbelievable.

KMC1 on July 5, 2013 at 12:27 PM

Dam straight!!!!

dentarthurdent on July 5, 2013 at 12:29 PM

If police are ruled to be soldiers, what does that do to posse comitatus?

Sekhmet on July 5, 2013 at 12:25 PM

SCOTUS will pull something along the lines of the Obamacare ruling: “Police are not soldiers for purposes of Posse Comitatus, but are for purposes of the Bill of Rights.”

blammm on July 5, 2013 at 12:31 PM

I think that there could be a case made that SOLDIER could mean AGENT OF THE STATE.

On the plus side the police didn’t kill the family dog like they like to when showing up at the wrong address.

jukin3 on July 5, 2013 at 12:34 PM

Here’s the other thought that even the police did not think about. You make all the noise and commotion doing a LEO B&E. And the considered persons that are to be under surveillance don’t notice?? And as a consequence don’t change their behaviour? Riiiiight……

Dr. Dog on July 5, 2013 at 12:29 PM

Heh. You’ve proven the clear dishonesty of the police force, right there. Obviously, They didn’t care less whether the objects of surveillance knew anything. They just wanted to impose themselves on innocent people and take things for fun.

I guess unmarked cars parked outside were just out of the question for these cops … not comfortable enough. And they didn’t get to pull a fun raid on innocents.

I’d love to know what that “domestic violence” claim was all about, anyway. SInce when did such an allegation invite police surveillance? What about restraining orders to start?

ThePrimordialOrderedPair on July 5, 2013 at 12:36 PM

‘Police’, ‘Soldier’, ‘Sheriff’, ‘Marshall’, ‘Militiaman’, ‘Posse Comitatus’….these are all similar, yet separate categories under constitutional, statute and common law. I think this claimant has a beef, but, as Jazz said, it really sounds more 4th-ish than 3rd-ish. For one thing, keeping the police from using your property in the commission of their sworn duty is not the grievance the 3rd Amendment is meant to address.

Knott Buyinit on July 5, 2013 at 12:36 PM

This is beyond “quartering” so arguing about armies/police is irrelevant to me. This is about the wholesale occupation of property and arrest of a property holder. If they needed “quartering” the local Dunkin’ Donuts would have sufficed.

But just in case – it’s time to amend the third amendment to account for all parts of the government – whether militarized or not.

TexAz on July 5, 2013 at 12:39 PM

Really? So who do the police report to, the people or the city (local government)? That makes all the difference.

dominigan on July 5, 2013 at 12:21 PM

Not sure why alot of people on here think I am agreeing with the police on this. I am not as I said in my original post. I am not defending what the police did, I said they should be sued in civil court and it would be a shoe-in. With the exception of the 3rd Amendment issues, I agree with the poeple and their lawsuit and hope they win.

What I posted has nothing to do with the definition of police, what police forces were in existence during the late 1700′s or how police are armed or act today or whether or not they receive federal money and they might as well be counted as police because they use military equipment.

It makes no difference who the police report to or what their chain of command is, they are not soldiers. They can’t be “deployed” out of their jurisdiction, they can’t be sent overseas to fight a foreign enemy. They are cops, not soldiers. No matter how many people want to define them that way.

Johnnyreb on July 5, 2013 at 12:39 PM

Even if the 3rd Amendment is not considered incorporated, the Nevada constitution has the exact same wording in Article I, Section 12. Thus, the 3rd Amendment/Article I Section 12 portion of the case turns on whether a police officer qualifies as a “soldier”.

[Steve Eggleston on July 5, 2013 at 12:01 PM]

That’s interesting. I suppose a state would include it to address the issue of their National Guard but still it seems odd. It became a state in 1864 so I suppose it was borne of the civil war issues, since it also has an especially weird Section 2:

Sec: 2.  Purpose of government; paramount allegiance to United States.  All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existance [existence], and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.

Dusty on July 5, 2013 at 12:39 PM

I linked to this yesterday. It’s a horrifying story, but perfectly reflective of the abuse of power infecting the modern bureaucratic mentality on local levels as it gathers downstream the cues of its authoritarian federal masters in this age of Obama.

Republicans say nothing about these stories because they don’t want to be seen as attacking “first responders.”

I’m curious what kind of Constitutional education LEO officers receive? Are they just another version of the dumbed-down “citizen” in our civically debauched culture?

I was accosted by Los Angeles Sheriff’s Deputy a few years ago who threatened to shoot my dog. He was an utter and dangerous moron. I entertained a lawsuit but was too busy and my anger passed. If it happened again, I’d go after him, his job and his entire department.

rrpjr on July 5, 2013 at 12:39 PM

…but in a manner to be prescribed by law.

Is that the police department’s “out”?

What does “prescribed by law” mean, does that mean that police are “prescribed by law” to protect the citizenry?

right2bright on July 5, 2013 at 12:40 PM

The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as “soldiers.”

Disagreed. They’re packing heat and use of force. Ostensibly the same.

John the Libertarian on July 5, 2013 at 12:41 PM

The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as “soldiers.”

i’m willing to bet that even most conservative jurists will concede that “soldier”=”agent of the gov’t”

chasdal on July 5, 2013 at 12:42 PM

“It’s a tax.” -Chief Justice John Roberts

Akzed on July 5, 2013 at 12:43 PM

Jazz Shaw, I don’t know how you could think this is something only worthy of “local news”????

This is incredibly terrifying and absolutely beyond description of wrong.

KMC1 on July 5, 2013 at 12:27 PM

Well, you know, like the Gosnell trial was just a “local crime story”.

John the Libertarian on July 5, 2013 at 12:43 PM

“Soldier…peace…quartered…war.” Finding an application to law enforcement is a bigger stretch than anti-gun nuts trying to use the first two clauses of the Second Amendment to argue that it only applies to State-created militias. (Also note the “prescribed by law”–not an outright prohibition.)

Heritage: “Because of its clear text, there have been few court opinions discussing the Third Amendment.” Yes, very clear.

Surely there are other less imaginative ways to prevent this sort of abuse than by invoking an Amendment that obviously has nothing to do with the abuse.

Unless of course we want to give the “penumbras, formed by emanations” a shot.

I don’t.

ConservativeLA on July 5, 2013 at 12:44 PM

This is incredibly terrifying and absolutely beyond description of wrong.

KMC1 on July 5, 2013 at 12:27 PM

Agree completely.

rrpjr on July 5, 2013 at 12:45 PM

Johnnyreb on July 5, 2013 at 12:39 PM

I agree. The police are different from the army in the same way that the FBI is different from the CIA, which is why the CIA is not supposed to be operating on American soil while the FBI is. And while those two agencies share many things in common, then general intentions and purposes of each are radically different – the CIA is designed to break laws and do whatever it wants to achieve its goal (which is why they are not allowed to do such here) while the FBI is designed to win cases in American court.

Police are not the army, even though they like to think they are. Of course, the police, these days, have been taking many liberties and acting as if they are an army on foreign soil, but that is handled with elements other than the 3rd amendment.

ThePrimordialOrderedPair on July 5, 2013 at 12:47 PM

Throw the police in jail, fire the chief, recall the mayor. They are out of control.

pat on July 5, 2013 at 12:47 PM

Son of a…. Barry really is trying to go 10 for 10!!!

Gingotts on July 5, 2013 at 12:03 PM

I’m very curious to know why you think Obama has anything to do with this.

tneloms on July 5, 2013 at 12:48 PM

Somewhat echoing expanding on what others have already said…

This seems to be more of a 4th and 5th Amendment issue more than a 3rd Amendment case, judging from what information we can now glean from the plaintiff’s complaint, namely the Due Process and Takings Clauses. In addition to that, there appears that there was no warrant issued. If circumstances demanded it, one could imagine that the whole episode could be justified by Hot Pursuit, but based upon the facts that we have at the moment, that seems dubious, as that would necessitate probably cause of an crime being committed at that time. At that point why wouldn’t the police be beating down the door of the suspected criminal instead of the neighbor (barring extreme circumstances, such as the need of a sniper’s perch in the case of a current hostage situation)?

It sounds more likely that the police were looking to use the plaintiff’s house as part of an ongoing investigation. Most domestic violence occurs repeatedly over a long period of time, so the question is why didn’t the Henderson P.D. not take the proper measures to use the plaintiff’s house since there was probably no serious time factor involved? In that case they have most definitely violated the 4th & 5th.

Just a layman’s opinion :)

Glenn Jericho on July 5, 2013 at 12:50 PM

And the considered persons that are to be under surveillance don’t notice?? And as a consequence don’t change their behaviour? Riiiiight…… Dr. Dog on July 5, 2013 at 12:29 PM

One takeaway is that the population at large may now apparently be conscripted into the surveillance state apparatus, and if we don’t like it, this is the kind of treatment we can expect.

Can we now be forced to wear a wire while we chat with our neighbor?

“Ask him if he has any weed to sell, or we’ll bust up your house and shoot your dog.”

If this keeps us unpunished, well, it will keep up unpunished.

Akzed on July 5, 2013 at 12:52 PM

I was agreeing with you hon. Sorry that wasn’t clear. You were perfectly clear.

Akzed on July 5, 2013 at 12:27 PM

Sorry, missed that somehow.

Johnnyreb on July 5, 2013 at 12:52 PM

up

Akzed on July 5, 2013 at 12:52 PM

Keep in mind, the first police force in the US wasn’t formed until Boston did it about 50 years after the Constitution was ratified. In 1789, there would have been no distinction between “police” and “army”, because there was no such thing as “police”.

HakerA on July 5, 2013 at 11:40 AM

In Britain, until the mid 19th century the constabulary was a domestic military force and the military kept the order in the colonies.

In this country on the frontier the constabulary was militia and it was the US Army who maintained law and order after the civil war for a number of years to quash civil unrest in the south and as the West was settled.

workingclass artist on July 5, 2013 at 12:53 PM

The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as “soldiers.”

Disagreed. They’re packing heat and use of force. Ostensibly the same.

John the Libertarian on July 5, 2013 at 12:41 PM

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

The lines are blurred a bit with LEO organizations with a militia history like The Texas Rangers which is a Texas State Militia & a Law Enforcement organization. They are deployed by and answer to the Governor of Texas, they are separate from the State Police and Sheriffs and are protected from being dismantled by both our state constitution and our annex agreement with the US.

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

In this country on the frontier the constabulary was militia and it was the US Army who maintained law and order after the civil war for a number of years to quash civil unrest in the south and as the West was settled.

workingclass artist on July 5, 2013 at 12:53 PM

Which led directly to the Posse Commitatus act to prevent using the US Military from being used as Police.

Johnnyreb on July 5, 2013 at 12:58 PM

Glenn Jericho on July 5, 2013 at 12:50 PM

I agree that this is mostly a 4th amendment issue – and should be a very clear win for the family on that alone.

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.

As to the others debating the 3rd amendment, I just don’t think the 3rd amendment argument will stand. IMHO, the 3rd is very specific, and resulted from the British forcing colonials to allow soldiers to live in their houses. I think this case is more about a warrantless home invasion and “taking”, and assault on innocent people.

dentarthurdent on July 5, 2013 at 1:01 PM

When the police get rid of their SWAT teams, surplus army equipment, end their ubiquitous training and coordination with the military and intelligence branches of the Federal government and eschew being considered separate and distinct from the civilian population, I’ll quit considering them soldiers as it is applied in the Third Amendment.

Dusty on July 5, 2013 at 11:59 AM

Exactly.

Remember the good old days when you worried about whether your door was stout enough to resist being kicked in by some escaped ex-con?

Now we worry more about a battering ram from some SWAT team doing a no-knock at the wrong address. Or in this case, a SWAT team that wants to watch cable and eat your hot pockets.

My next house is going to be a fortress.

TexasDan on July 5, 2013 at 1:03 PM

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.

..whether or not this is a 3rd amendment issue, doesn’t this behavior by the police seem just a tad over the top?

Back in 2008, one wondered how bad this country could become; guess we’re all headed down the dumper quicker than we think.

The War Planner on July 5, 2013 at 1:03 PM

Which led directly to the Posse Commitatus act to prevent using the US Military from being used as Police.

Johnnyreb on July 5, 2013 at 12:58 PM

I’m not disagreeing with you as to the Commitatus act…just commenting on history.

link to history of The Texas Rangers
http://www.txdps.state.tx.us/TexasRangers/HistoricalDevelopment.htm

workingclass artist on July 5, 2013 at 1:03 PM

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

The lines are blurred a bit with LEO organizations with a militia history like The Texas Rangers which is a Texas State Militia & a Law Enforcement organization. They are deployed by and answer to the Governor of Texas, they are separate from the State Police and Sheriffs and are protected from being dismantled by both our state constitution and our annex agreement with the US.

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

It is very clear. Can The Texas Rangers be deoplyed for law enforcement purposes to Kentucky? No they can’t even if both Governors agreed to it. They are not Soldiers in any sense of the word. They are more like State Police which have absolute power in any jurisdiction within a State’s borders, but they can’t leave that state. A Soldier before the passing of the Posse Comitatus act could be and were deployed anywhere in the US territories.

Johnnyreb on July 5, 2013 at 1:04 PM

This seems to be more of a 4th and 5th Amendment issue more than a 3rd Amendment case, judging from what information we can now glean from the plaintiff’s complaint, namely the Due Process and Takings Clauses. In addition to that, there appears that there was no warrant issued.

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

Why haven’t any trolls weighed in yet? Do they agree with the actions of police in this matter, or do they fear having to agree with us for once?

Liam on July 5, 2013 at 12:16 PM

They’re still busy with the BJ’s after they’ve invited the police in.

Nutstuyu on July 5, 2013 at 1:05 PM

Smells like a 4th amendment case, but feels like a 3rd amendment case. They *should* win under the 4th, assuming whichever judge they go before isn’t a total progressive-moron.

Man, the police don’t seem to be making many friends these days. (Not that I have anything against the police when they do their jobs properly. I have enormous respect for folks who put their lives on the line like police, fire, military, etc.)

This situation is pretty outrageous.

Othniel on July 5, 2013 at 1:07 PM

Civil lawsuit would be a shoe-in here, but it is not a 3rd issue:

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.[1]

This one is clerly directed at Armies, not the Police.

Johnnyreb on July 5, 2013 at 11:38 AM

If one did want to use the Third Amendment, I think the best way to make a case against the police in this instance would be to argue that the Constitution is an evolving, fluid document and that “by analogy,” the police can be considered like soldiers. This is similar to what liberals did with the so-called right to abortion. They stretched the Constitution until they found a fit.

There are an increasing number of situations where conservatives might find stretching the Constitution helpful in winning court cases and protecting civil liberties. For example, one of the arguments against the NSA overreach is that it violates the Fourth Amendment (search and seizure). Statists argue, though, that since phones and the Internet hadn’t been invented when the 4th Amendment was written, that the Constitution is irrelevant in this issue.

Burke on July 5, 2013 at 1:09 PM

Who’s to say that the next event won’t involve forcing someone to cooperate with evidence gathering on MS-13, or another gang of psychopaths?

If this keeps up, it will keep up.

Akzed on July 5, 2013 at 1:10 PM

If police are ruled to be soldiers, what does that do to posse comitatus?

Sekhmet on July 5, 2013 at 12:25 PM

It depends on whether “soldier” is an official class of person, or simply a descriptive term. For instance, we know Marines are not “soldiers”, nor are Air Force and Navy personnel. Yet every branch of the Armed Services is prohibited from acting as domestic police. Even terrorists could be considered “soldiers”, just not official ones under the banner of a sovereign state.

Nutstuyu on July 5, 2013 at 1:11 PM

If they can find a right to an abortion in the 4th amendment, they can certainly find that police officers forcibly commandeering your house is a violation of the 3rd.

dkmonroe on July 5, 2013 at 1:12 PM

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