A real 3rd amendment case?

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.