Green Room

Shelton on the 3rd Amendment and modern police

posted at 11:16 am on July 6, 2013 by

I’ve enjoyed Mike Shelton’s editorial cartoons ever since I was a regular reader of the Orange County Register.  He’s now at Watchdog.org, a publication of the Franklin Center for Government & Public Integrity, and he’s just as incisive as ever.  Today, Mike — who comments here at Hot Air as Cartooner — tackles the unusual 3rd Amendment case in Nevada, which Jazz covered yesterday on the main page:

shelton-3rd-amendment

This is a bizarre case, for a number of reasons.  I’d think that this is not just a 3rd Amendment case — which is truly is, as the police were a paramilitary occupying force in this case — but also a 4th Amendment case, and maybe more so.  It’s well established that police cannot enter a house where they’ve been refused permission by the owner without a warrant or without emergent circumstances, such as a reasonable suspicion that serious crimes were being committed on that specific property and delay would allow serious damage or loss of life. If the actual circumstances of this case are what has been alleged, then not only should heads roll in that police department, but perhaps a couple of them should end up in prison, too.

Keep in mind that all of this was in service of investigating a report of a domestic disturbance.  Instead, it created another kind of domestic disturbance altogether.

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Comments

This is just crazy. I’m not usually a fan of litigation but once they get done with the actual legality of this, somebody’s going to be rich and the taxpayers will get hit again.

Cindy Munford on July 6, 2013 at 11:33 AM

, but perhaps a couple [all] of them should end up in prison, too.

Fixed that for you. “I was just following orders” is not a defense.

Fenris on July 6, 2013 at 12:20 PM

Arguing that police exist outside consideration of the 3rd amendment is sort of like saying blogging exists outside the 1st or that ar-15s are not the muskets referenced in the 2nd.

jhffmn on July 6, 2013 at 12:40 PM

Arguing that police exist outside consideration of the 3rd amendment is sort of like saying blogging exists outside the 1st or that ar-15s are not the muskets referenced in the 2nd.

jhffmn on July 6, 2013 at 12:40 PM

Good analogy. I think I agree. I’m still working it through in my head to figure out what might be all the possible repercussions of considering police as soldiers.

Othniel on July 6, 2013 at 1:14 PM

Good analogy. I think I agree. I’m still working it through in my head to figure out what might be all the possible repercussions of considering police as soldiers.

Othniel on July 6, 2013 at 1:14 PM

I wouldn’t think that applying the 3rd amendment to state police via the 14th amendment would necessarily make police equivalent to soldiers in all things.

jhffmn on July 6, 2013 at 1:21 PM

I’ve said it before, I’ll say it again and I’ll keep on saying it until things change: I absolutely HATE this police-state mentality we have in this country. Citizens should be banning together and demanding that local law enforcement agencies severely restrict the use of paramilitary equipment and armament to only the most combative criminal forces and those agencies should suffer the most severe penalties for using such equipment against the common citizen. Police should have NO legal remedy against a citizen who has suffered from the use of paramilitary force by police agencies. Citizens should also be banning together to combat paramilitary law enforcement agencies when necessary. This is really starting to get out of hand.

HiJack on July 6, 2013 at 2:02 PM

See Bivens v. 5 Unknown Named Agents of the Federal Bureau of Narcotics. 403 U.S. 388. Bivens allows for suing the agency AND individuals, and any law enforcement officer who wasn’t listening in academy when the legal instructor went over it will be paying serious attention when the legal papers in a Bivens action are filed. In many cases, the agency can disavow their employee and leave him or her hanging out there, facing this lawsuit alone.
Google it. This situation is tailor-made for Bivens.

mongoose on July 6, 2013 at 2:51 PM

Should be Six Unknown Named Agents, but the point stands.

mongoose on July 6, 2013 at 2:52 PM

There’s another consideration in the either or if this should be a 3rd or 4th amendment violation.
In California, along with other places I suppose, the utilities, most of which are agencies of government, are busy installing surveillance devices in private citizens homes, via building codes imposed by CARB.

They want to make tranceivers which will allow the government to turn off your power and heat on so called “flex days” or to allow the bureau to monitor your power usage.

I see it as installing a CARB official inside your home, because in effect that is what occures.

So boilstering the 4th amendment as it applies to modern life with this case in NEV strengthen it’s application against the states’ global warmers and econazis encroachment on our civil rights.

papertiger on July 6, 2013 at 3:24 PM

The citizens of New Orleans probably could have brought up that particular amendment after Katrina.

MadisonConservative on July 6, 2013 at 5:37 PM

There may be historical support for an originalist interpretation of the 3rd amendment to include police as soldiers. IIRC, the idea of a police force didn’t originate until the 19th century. Back at the time of the founding, soldiers, or the “King’s Men” essentially were the police.

If historical data exists as to that point, it could go along way to make an alternative argument — i.e., argue not just that police should be considered “soldiers” because they increasingly use paramilitary tactics, etc, but that at the time of the founding, police were soldiers, so the prohibitions of the 3rd amendment applies to both.

Revenant on July 6, 2013 at 5:40 PM

Good analogy. I think I agree. I’m still working it through in my head to figure out what might be all the possible repercussions of considering police as soldiers.

Othniel on July 6, 2013 at 1:14 PM

Both the police and military are paid by, and report to, government officials. Sheriffs, unlike police, report to the people and are the only enforcement officers that do not qualify as soldiers in my mind.

My reasoning should be easy to understand no matter what officials decide to call a set of units. Creating a shadow army, whether police or ATF or any of a number of names/acronyms, should not be enough to sidestep the clear wording of the Constitution regarding the rights of the people.

dominigan on July 6, 2013 at 9:49 PM

Revenant on July 6, 2013 at 5:40 PM

What it means to be local law enforcement has changed as well. Back then when the local Justice of the Peace was enforcing the law he wasn’t doing stakeouts or pretending to be a prostitute. He was only investigating complaints of the law being broken.

NotCoach on July 6, 2013 at 9:52 PM

What it means to be local law enforcement has changed as well. Back then when the local Justice of the Peace was enforcing the law he wasn’t doing stakeouts or pretending to be a prostitute. He was only investigating complaints of the law being broken.

NotCoach on July 6, 2013 at 9:52 PM

The argument would be that its not the acts themselves which are performed today (versus the acts performed back at the founding), but rather that the delegation of the law enforcement function to soldiers means that the prohibition on quartering provided by the 3rd amendment would apply to both the “soldier” function as we understand it today, and the “law enforcement” function, which today is undertaken by police.

Again, assuming that the historical record would support such a finding.

Revenant on July 6, 2013 at 10:38 PM

The police may be analogous to soldiers in some cases. That does not make them soldiers. Taking over a house may be analogous to “quartering soldiers,” but it’s not really the same thing.

I think people are too attracted to the novelty of a 3rd Amendment violation. For a federal court to interpret the 3rd Amendment against quartering soldiers as prohibiting police departments from using someone’s home against his will is too far a stretch. Maybe you could argue for it if there were no alternative.

But according to the facts asserted in this case, the police didn’t just use the home. They demanded the use of the home, arrested the homeowner who was not required to let them use his home for “obstruction,” and then took over the home anyway. This violates at least the Fourth and Fifth Amendments, as well as being a clear case of false arrest.

There’s no need to create a new interpretation of the 3rd Amendment for this instance.

And just to be clear, if this is all true, it was such a blatant abuse of police power that I devoutly hope all those involved, all the way up the chain of command, have to pay career, criminal, and civil penalties, and high monetary damages. And a mayor that allows it should be impeached.

There Goes the Neighborhood on July 7, 2013 at 1:45 AM

Guy killed buy modern police for watering lawn.

Akzed on July 7, 2013 at 9:14 AM

This is just crazy. I’m not usually a fan of litigation but once they get done with the actual legality of this, somebody’s going to be rich and the taxpayers will get hit again.

Cindy Munford on July 6, 2013 at 11:33 AM

Example…

Guy killed buy modern police for watering lawn.

Akzed on July 7, 2013 at 9:14 AM

$6,500,000 later.

RalphyBoy on July 7, 2013 at 11:11 AM

The guy who got killed for sitting on the porch is quite a story. Imagine if he had been a black teenager?

As to the Nevada case, please be advised that claims have been filed under other amendments also, for “taking” and “illegal search”.

As I read somewhere the other day it seems our governments are waging an undeclared war on the American people. I find it hard to think all the blame goes to Obama, but I feel like something is going on nationwide.

It’s stupid, because I feel like that makes me tinfoil hat material, but how on earth a police dept. feels entitled to batter down the door to your house in order to use it for surveillance is beyond me.

Jocon307 on July 7, 2013 at 12:49 PM

Clearly the “Police” want it both ways. In practice, released from pesky legal restrictions and perception, just your friendly, local beat cop. This is all a predictable outcome of prohibition.

ronsfi on July 7, 2013 at 12:53 PM

But according to the facts asserted in this case, the police didn’t just use the home. They demanded the use of the home, arrested the homeowner who was not required to let them use his home for “obstruction,” and then took over the home anyway.

There Goes the Neighborhood on July 7, 2013 at 1:45 AM

hmmm Why do you think the 3rd amendment was placed in the Bill of rights?

Oh that’s right because the British demanded the use of the home for their troops, if the homeowner refused he was “arrested” and the British took over the home anyway. sound familiar? this is also know as quartering troops. this occurred during peace time and during war time. the british wanted the colonies to pay for its troops room and board. As well as keep an eye on “radicals”. The NV police did the exact same thing that the British did and it was the reason why the founders wanted the practice stopped and put in the 3rd amendment.

unseen on July 7, 2013 at 1:50 PM

Whether you call them soldiers or police, they are the pointy end of the government.

CurtZHP on July 7, 2013 at 3:14 PM

The police may be analogous to soldiers in some cases. That does not make them soldiers. Taking over a house may be analogous to “quartering soldiers,” but it’s not really the same thing.

I think people are too attracted to the novelty of a 3rd Amendment violation. For a federal court to interpret the 3rd Amendment against quartering soldiers as prohibiting police departments from using someone’s home against his will is too far a stretch. Maybe you could argue for it if there were no alternative.

But according to the facts asserted in this case, the police didn’t just use the home. They demanded the use of the home, arrested the homeowner who was not required to let them use his home for “obstruction,” and then took over the home anyway. This violates at least the Fourth and Fifth Amendments, as well as being a clear case of false arrest.

There’s no need to create a new interpretation of the 3rd Amendment for this instance.

And just to be clear, if this is all true, it was such a blatant abuse of police power that I devoutly hope all those involved, all the way up the chain of command, have to pay career, criminal, and civil penalties, and high monetary damages. And a mayor that allows it should be impeached.

There Goes the Neighborhood on July 7, 2013 at 1:45 AM

First, I disagree with your basic assertion. Today’s police officers ARE soldiers, and modern police departments are simply small militaries. You don’t think the LAPD or the NYPD have the personnel, armament, and training to successfully invade a third world country? Think again.

Second, your argument seems to be that because the police did so many other egregious things, you don’t need to really hang the case on the forced use of the home. You reference other amendments, such as the fourth and fifteenth that could be invoked. And while I agree those could be invoked as well, I think the dangerous precedent would be if the third amendment is NOT invoked in this case.

Even if every single person involved is fired, fined, and even jailed due to their violations of other constitutional provisions and laws, you haven’t addressed the basic issue of police being able to demand use of your home without your permission. What if a police force DIDN’T commit all the other violations, but still insisted upon coming in to your home and using it as a base for some operation? As long as they don’t violate any other constitutional rights, are they permitted to do so? I think, given the increasingly belligerent nature of our government and their police forces today — as demonstrated perfectly in Boston — its time to make it absolutely clear that they do NOT have the right to do this.

Shump on July 7, 2013 at 5:57 PM

Sorry. I said fifteenth amendment in my last post. I meant fifth. Oops.

Shump on July 7, 2013 at 5:58 PM

There Goes the Neighborhood

+1

Knott Buyinit on July 7, 2013 at 8:28 PM

First, I disagree with your basic assertion. Today’s police officers ARE soldiers, and modern police departments are simply small militaries. You don’t think the LAPD or the NYPD have the personnel, armament, and training to successfully invade a third world country? Think again.

Second, your argument seems to be that because the police did so many other egregious things, you don’t need to really hang the case on the forced use of the home. You reference other amendments, such as the fourth and fifteenth that could be invoked. And while I agree those could be invoked as well, I think the dangerous precedent would be if the third amendment is NOT invoked in this case.

One problem: the 3rd Amendment doesn’t say anything about police. It’s fine to argue that police in some cases may be equivalent to soldiers. But do you really want to argue that police are the equivalent of soldiers in every case? And if not, then SCOTUS will have to make up new rules of their own to determine when exactly police can be treated as military, and when not. We’re already at the point where “Constitutional Law” has almost nothing to do with the actual Constitution, but with various 3-point tests or 5-point tests invented by a previous judge or decision to determine whether strict scrutiny is applicable in this or that situation, or whether the state can make the case that it has a compelling interest for some legislation that overrides a Constitutional protection like, say, freedom of religion.

Granted, this is inevitable in some cases. Freedom of religion is absolutely one of the most important Constitutional freedoms we have, but even that can’t be truly absolute. Otherwise, a cult could declare a devoutly-held belief in pederasty and nobody could do anything about it.

But if it’s not what the law actually says, then you are inviting courts to make up their own version of what the law actually means. Which, not being actually written down but based purely on precedent, can easily be changed by the next court to come along, and usually in bad ways.

Why invite SCOTUS to make it up as they go based on similarity of situation? I’d much rather they stick to what’s clearly laid out in the Constitution already. The Constitution already contains provisions that someone’s property can not be taken without due process, which was clearly lacking in this case. And just as clearly, false arrest for obstruction is a complete pretext for due process. The 4th Amendment was thoroughly trampled in this case, if these claims are at all accurate.

Even if every single person involved is fired, fined, and even jailed due to their violations of other constitutional provisions and laws, you haven’t addressed the basic issue of police being able to demand use of your home without your permission. What if a police force DIDN’T commit all the other violations, but still insisted upon coming in to your home and using it as a base for some operation? As long as they don’t violate any other constitutional rights, are they permitted to do so? I think, given the increasingly belligerent nature of our government and their police forces today — as demonstrated perfectly in Boston — its time to make it absolutely clear that they do NOT have the right to do this.

Shump on July 7, 2013 at 5:57 PM

I don’t think there’s any real issue, because I find it undeniable that the police can’t take over your home without some kind of cause, according to the 4th Amendment. As long as it belongs to you, it does not belong to the city, the county, or the state. The only way they can use it is with your permission. If they want to commandeer it, then we go straight to the matter of due process.

I would argue to the contrary that the Constitutional right that was inarguably violated was the taking of personal property without due process. This needs to be a claim based firmly and forcefully on the trumped-up charges the police used to pretend that the plaintiffs were given due process.

There Goes the Neighborhood on July 8, 2013 at 1:04 AM

if police = soldiers, wouldn’t posse comitatus apply, and thus be unlawful for them to execute laws without the express direction of congress?

“18 U.S.C. § 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

warhorse_03826 on July 8, 2013 at 2:54 AM

The argument would be that its not the acts themselves which are performed today (versus the acts performed back at the founding), but rather that the delegation of the law enforcement function to soldiers means that the prohibition on quartering provided by the 3rd amendment would apply to both the “soldier” function as we understand it today, and the “law enforcement” function, which today is undertaken by police.

Again, assuming that the historical record would support such a finding.

Revenant on July 6, 2013 at 10:38 PM

Excellently put. The fact is that the police are armed agents of the state.

GWB on July 8, 2013 at 9:21 AM

You don’t think the LAPD or the NYPD have the personnel, armament, and training to successfully invade a third world country? Think again.

Shump on July 7, 2013 at 5:57 PM

ROFLMAO You mean like when they fired close to 100 rounds at two women delivering the morning paper, and only managed to hit one of them once and the other one with some flying glass? All because they couldn’t ID the truck? Any third-world country successfully invaded by them would deserve its fate.

As to the rest of your post, I don’t think it’s a dangerous precedent to not invoke the 3rd. It would be status quo. I think it’s a good thing, however to invoke the 3rd and put it to the test. (It’s not like we’ll lose anything – with all the other rights being trampled nowadays, liberty is fizzling away, anyway.) I also don’t think it’s actually possible to have a situation where police violate the 3rd, without violating the others. I will agree that it is definitely time to make it clear this is not acceptable.

The Constitution already contains provisions that someone’s property can not be taken without due process, which was clearly lacking in this case.

There Goes the Neighborhood on July 8, 2013 at 1:04 AM

How’s that Kelo decision working out? I agree that the other violations should be enough. I also think the 3rd ought to be added in there to push the more encompassing interpretation.

GWB on July 8, 2013 at 9:38 AM

It’s fine to argue that police in some cases may be equivalent to soldiers. But do you really want to argue that police are the equivalent of soldiers in every case?

There Goes the Neighborhood on July 8, 2013 at 1:04 AM

Yes. Police are armed agents of the government. From a Constitutional rights perspective, they should be treated as soldiers.

Shump on July 8, 2013 at 12:47 PM

Proposed warning poster:

Achtung Polizeitruppen!

Hier schiessen wir zuerst, & später fragen.

Olo_Burrows on July 9, 2013 at 2:55 AM