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I commented at Fox News that a lawsuit against local police in Nevada, claiming a Third Amendment violation, had no chance. According to a lawsuit filed last week, the Henderson, Nevada police broke into the home of Anthony Mitchell and shot him with pepper spray bullets when Mitchell refused to allow police to use the home for a domestic violence investigation of his neighbor. Here’s what I told Fox:
John Yoo, a professor at the University of California at Berkeley’s law school, wasn’t so sure about the family’s argument. He said the Mitchells may have claims under other federal and state laws “but their chances are very, very low on the Third Amendment.”
Yoo, a visiting scholar for the conservative-leaning American Enterprise Institute and former Justice Department official, told FoxNews.com the most difficult challenge for them is that there were no “soldiers” in their house, before the court gets into the question of whether “quartering” occurred.
“Local police on law enforcement missions are not soldiers,” he said. But “Nevada should compensate the Mitchells’ for the temporary use of their home and for any damages caused in the operation.”
Some on Ricochet might think, as we discuss on the forthcoming episode of the Law Talk podcast, that the original understanding of the Third Amendment would actually cover this case because modern police are so powerful, on a par with what the military of the 1700s had in terms of resources.
I take the main point that we should look at the capability of the police in determining whether they fall within the original understanding of “soldier.” It is surely right that the police today are far more powerful, almost akin in some ways to the military, and probably share a lot of personnel (such as police officers who are veterans or who also serve in the reserves).
My intuition is to treat police versus soldiers under the original understanding based on function. To me, the police today still perform the same function as the constable/police of the 18th century — law enforcement. Historically, the main distinction was that — except for when the militia was called into service — the military should not be engaged in domestic law enforcement. The Framers kept careful control of the military for such purposes, requiring in the very earliest acts that a judge find that the laws could not be enforced by regular means before the militia could be called out for domestic law enforcement.
I agree that the Mitchells should be able to recover damages, but I don’t think the source of their rights is the Third Amendment.