Contributor Post Created with Sketch. Parsing the Third Amendment

 

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.

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  1. Skyler Coolidge
    HVTs

    If police and soldiers can be conflated, why does the third amendment bother to distinguish what’s permissible “in time of peace” and “in time of war”? 

    I think you don’t need to equate police actions to a time of peace or war just because you recognize that an armed force, or indeed any government agent, can’t be quartered in private homes. The standard is if the safety of the nation is in jeopardy. Clearly a domestic dispute poses no danger to our nation.

    A police officer is armed. A supply sergeant in peace time is usually not armed. I don’t think even that the police are militarized should make the difference, it is that they are agents of the government that matters. If the government comes to your home in the form of a census taker and commandeers your home, the third amendment should still apply.

    If Canada were to invade into Nevada, then even the census taker will be allowed to quarter in private homes in a manner prescribed by law. They are agents of the government. But absent the state of war, it is not allowed by the third amendment.

    • #1
    • July 12, 2013, at 5:16 AM PDT
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  2. Skyler Coolidge

    It’s a tough one, but it can go either way. Mostly because the Courts don’t seem to care about the text of a law anymore. Just as there is a right to an abortion, and the second amendment doesn’t seem to be bothered by licensing, or restrictions on machine guns, or penumbras of privacy include killing babies before they are born, or that the government has the power to make us buy broccoli so long as the court decides it’s a tax after the executive and legislative branches say it’s a penalty, so can the Court rule that somehow evicting someone from their home and camping out in it for law enforcement might constitute quartering of government troops.

    Call me crazy. The Constitution also does not authorize the FBI to exist. It’s clear the Constitution will mean whatever they want it to mean.

    • #2
    • July 12, 2013, at 6:40 AM PDT
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  3. Blitter Inactive

    It would be nice for them to recover “damages”. Do you think that they have a case for holding the officers personally responsible for civil liberties violations resulting in the officers personally liable for some monetary damages and prison time? I am not up on my history but I had thought that it was not uncommon for British soldiers housed on colonial homes to be tasked with law enforcement as their usual day to day duty , is that true?

    • #3
    • July 12, 2013, at 6:42 AM PDT
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  4. wilber forge Inactive
    wilber forgeJoined in the first year of Ricochet Ricochet Charter Member

    The police are sworn officers of either the municipality or the state so the argument will not hold. Even if such forces were Federalized would not make them a military force by definition. The defendants do appear to have recourse, save not in this manner.

    It appears many police actions these days have blurred the lines, the question lies with where might the restraint lay and how to establish same.

    • #4
    • July 12, 2013, at 6:45 AM PDT
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  5. Skyler Coolidge
    wilber forge: The police are sworn officers of either the municipality or the state so the argument will not hold. Even if such forces were Federalized would not make them a military force by definition. The defendants do appear to have recourse, save not in this manner.

    States have militias, and militias would definitely be “soldiers.” The Third Amendment is certainly going to be incorporated by the 14th Amendment, so it would apply to the State governments as well.

    • #5
    • July 12, 2013, at 6:57 AM PDT
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  6. wilber forge Inactive
    wilber forgeJoined in the first year of Ricochet Ricochet Charter Member
    Skyler
    wilber forge: The police are sworn officers of either the municipality or the state so the argument will not hold. Even if such forces were Federalized would not make them a military force by definition. The defendants do appear to have recourse, save not in this manner.

    States have militias, and militias would definitely be “soldiers.” The Third Amendment is certainly going to be incorporated by the 14th Amendment, so it would apply to the State governments as well. · 0 minutes ago

    Have these current police forces been called to duty in such a manner or sworn to task as you suggest ? Yes or No is the answer-

    • #6
    • July 12, 2013, at 7:01 AM PDT
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  7. Skyler Coolidge

    They don’t need to be called to duty by the federal government. They are called to duty by the state government and since the Third Amendment will surely be deemed incorporated by the 14th Amendment, it applies to soldiers called to duty by the state.

    I’m not saying that professor Yoo is wrong in his analysis. I’m saying that you cannot predict what the Court will say. It has become completely whimsical.

    This case will only hinge on whether the Court decides that the state police power is equivalent to “soldiers.” It is arguable that they can do so, especially since they didn’t have police back then, from what I can tell, and if they did, they certainly didn’t have the powers given them today.

    • #7
    • July 12, 2013, at 7:20 AM PDT
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  8. Bulldawg Inactive
    Seems to be at least a taking under the fifth amendment and excessive force under the eighth. The first question is whether the officers and the department are entitled to qualified immunity from suit. There seem to be two tests courts will use to make the determination. The more established test is in two parts and asks the questions: (1) whether the facts alleged by the plaintiff state a violation of a constitutional right; and if such a violation is found, (2) whether that right was “clearly established” at the time of the employee’s misconduct. More recently, SCOTUS created a second test which reduced the requirements to one: if there is no violation of a clearly established right – that is one so obvious that the employee should have been aware of it – then the employee is immune from suit.

    From what I understand about this case, limited as it is, the officers violated the takings clause and the due process clause of the fifth amendment and the cruel and unusual punishments/excessive force clause of the 8th A.

    Also, the plaintiff should plead a cause of action for battery under state law and any state constitutional violations.

    • #8
    • July 12, 2013, at 7:35 AM PDT
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  9. Mauritius Inactive

    The police carry “military” weapons and use military tactics. So maybe practice defines identity. In fact, many gun banners have caller AR-15 type “assault rifles” weapons of war. That rifle is standard equipment for almost all police forces now. So, by that definition they can be classed as military :-).

    • #9
    • July 12, 2013, at 7:49 AM PDT
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  10. Jeffery Shepherd Member

    I quite agree with your position on separation of the military from the police and domestic law enforcement. I don’t, however, think it squares with your support of the domestic spying being conducted by the NSA. The NSA is the military wing of intelligence gathering. That’s why when congress wants to know about domestic spying they end up talking to a general officer who just happens to be head of the NSA.

    • #10
    • July 12, 2013, at 9:08 AM PDT
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  11. Done Contributor

    You are probably correct John in saying it has no chance. However I’m not terribly impressed by the Police vs Soldier distinction.

    It reminds me of another clear distinction that can be easily drawn on the first amendment. It guarantees us a right to free speech. Now, by John’s example above, this clearly means that congress does have the power to censor the contents of written letters right?

    The courts have long held that the freedom of speech clause is intended to include various forms of communication. The spirit of the amendment being to insure that citizens can freely communicate ideas.

    The spirit of the third amendment is to protect the citizen from government men barging into their door and utilizing their home for government business. With the exception being in times of war and even then, only in a way prescribe by law.

    Is the united states at war with Mitchell’s neighbors? The spirit of the third amendment is clearly violated here.

    • #11
    • July 12, 2013, at 9:16 AM PDT
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  12. KC Mulville Inactive

    Well, I’ll agree to the distinction between soldiers and police. Soldiers are trained to kill the enemy, not collect evidence.

    But then, so what? Is the following statement true or false?

    No [xSoldierx] Police Officer 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.

    Seems strange to me that the “power to be quartered” is only denied to soldiers, but that it could be OK for other officials or professions. Even the president has to ask permission to use a private home.

    It seems much more natural to think that “quartering” would only be allowed, if at all, for the case of soldiers … but that if it’s denied even to them, then surely it should be denied to anyone else. 

    • #12
    • July 12, 2013, at 9:39 AM PDT
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  13. Done Contributor
    HVTs

    “Speech” was never construed as merely emanations from vocal cords, and as excluding scribbles from quill pens. Yet the peace time vs war time distinction leaves no room for the 3rd amendment’s “spirit” to encompass any “government business.” · 9 hours ago

    The distinction in time of war seems to state that in extreme circumstances (such as war where the nations very sovereignty is at stake) allows for exceptions. So I’m not sure what your argument is here.

    What you have to explain is, why would it be so utterly unacceptable for soldiers to force their way into a home and use it, but perfectly reasonable for police to take the same action.

    Will you draw the distinction on duration? That the police only used it for a day so it’s ok? 

    • #13
    • July 12, 2013, at 10:03 AM PDT
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  14. Valiuth Member
    ValiuthJoined in the first year of Ricochet Ricochet Charter Member

    My question for Prof. Yoo is. What recourse is there to stop the police from setting up shop on your property to conduct an investigation against your neighbor. I assume they can probably get a court order to force compliance. That is why I think they went for the 3rd amendment case here. They don’t just want damages, but they want to make it illegal for the cops to do this without the consent of the owners. After all a judge can’t give a court order to violate the constitution. 

    • #14
    • July 12, 2013, at 10:28 AM PDT
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  15. Skyler Coolidge

    If I were a despot hoping to occupy people’s homes, I guess I should call them police, not soldiers. Or I can can them IRS agents and no one could complain.

    • #15
    • July 12, 2013, at 10:53 AM PDT
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  16. Umbra Fractus Coolidge
    Umbra FractusJoined in the first year of Ricochet Ricochet Charter Member
    Valiuth: My question for Prof. Yoo is. What recourse is there to stop the police from setting up shop on your property to conduct an investigation against your neighbor. I assume they can probably get a court order to force compliance. That is why I think they went for the 3rd amendment case here. They don’t just want damages, but they want to make it illegal for the cops to do this without the consent of the owners. After all a judge can’t give a court order to violate the constitution. · 11 hours ago

    Others have argued that the Fourth Amendment applies, IE that invading a person’s private property without reasonable suspicion thatthat person (not their neighbor) is committing a crime is a violation of “the right of the people to be secure…”

    Regarding the original post: On one hand it’s pretty clear to me that what happened is in violation of the spirit of the Third Amendment if not the letter; on the other hand once you start arguing “spirit of the law” in court that’s only the proverbial hop-skip-and-jump away from penumbras and emanations.

    • #16
    • July 12, 2013, at 10:55 AM PDT
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  17. Skyler Coolidge
    Valiuth: My question for Prof. Yoo is. What recourse is there to stop the police from setting up shop on your property to conduct an investigation against your neighbor. 

    Professor Yoo is likely to answer that there is no such recourse because the government is all powerful. If you don’t like them coming into your home, they have the right to water board you. So mind your manners.

    • #17
    • July 12, 2013, at 10:55 AM PDT
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  18. HVTs Inactive
    Skyler:

    This case will only hinge on whether the Court decides that the state police power is equivalent to “soldiers.” It is arguable that they can do so, especially since they didn’t have police back then, from what I can tell, and if they did, they certainly didn’t have the powers given them today.

    If police and soldiers can be conflated, why does the third amendment bother to distinguish what’s permissible “in time of peace” and “in time of war”? If combating crime is the same thing as combating enemy soldiers, there’s no such thing as “time of peace.” (Well, OK, I’m assuming there will always be (a) actual crime; or (b) an expectation of criminality sufficient to require law enforcement activities. That’s not exactly going out on a limb.)

    Having said that, I unhappily take your point about the nearly “whimsical” nature of SCOTUS rulings. That putative free citizens continue to accept living under the Tyranny of the Nine Black Robes is astounding.

    • #18
    • July 12, 2013, at 11:50 AM PDT
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  19. HVTs Inactive
    Frank Soto:

    It reminds me of another clear distinction that can be easily drawn on the first amendment. It guarantees us a right to free speech. Now, by John’s example above, this clearly means that congress does have the power to censor the contents of written letters right?

    The courts have long held that the freedom of speech clause is intended to include various forms of communication. The spirit of the amendment being to insure that citizens can freely communicate ideas.

    The spirit of the third amendment is to protect the citizen from government men barging into their door and utilizing their home for government business. With the exception being in times of war and even then, only in a way prescribe by law.

    Is the united states at war with Mitchell’s neighbors? The spirit of the third amendment is clearly violated here.

    “Speech” was never construed as merely emanations from vocal cords, and as excluding scribbles from quill pens. Yet the peace time vs war time distinction leaves no room for the 3rd amendment’s “spirit” to encompass any “government business.”

    • #19
    • July 12, 2013, at 12:07 PM PDT
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  20. HVTs Inactive
    Frank Soto

    The distinction in time of war seems to state that in extreme circumstances (such as war where the nations very sovereignty is at stake) allows for exceptions. So I’m not sure what your argument is here. 

    I think I take an even narrower view than you in that you appeared to generalize the “spirit” of the amendment to constraining any “government men.” No, they are constrained as a matter of course. This amendment is about the only Federal function the constitution even contemplates can—under certain circumstances and in a prescribed manner—justify quartering. That’s national defense—not policing, only soldiering.

    What you have to explain is, why would it be so utterly unacceptable for soldiers to force their way into a home and use it, but perfectly reasonable for police to take the same action.

    I think I just wasn’t clear earlier . . . it’s never reasonable for the police to do that and it’s purposely tightly controlled when and how it becomes OK for soldiers. 

    The whole point of the amendment is to bolster the Legislature’s ability to constrain the Executive, even as the latter exercises its otherwise broad wartime prerogatives.

    • #20
    • July 13, 2013, at 2:35 AM PDT
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  21. Profile Photo Member

    “Professor Yoo is likely to answer that there is no such recourse because the government is all powerful.”Actually, it’s very unlikely that he’ll answer at all.

    • #21
    • July 13, 2013, at 7:43 AM PDT
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  22. HVTs Inactive
    Jeff Shepherd

    I don’t, however, think it squares with your support of the domestic spying being conducted by the NSA. The NSA is the military wing of intelligence gathering. That’s why when congress wants to know about domestic spying they end up talking to a general officer

    I think your underlying distinctions are more than a generation out of date. Our mortal enemies are not neatly delineated by words like domestic, foreign, military, civilian. This is what we finally woke up to on 9-11. Back when our principal adversaries were nation states, NSA largely focused on places with readily identifiable borders and soldiers wearing proper uniforms. Even then, however, it was using the FISA court to track stateless terrorists and non-military spies. NSA is a DoD agency, yes . . . that’s no reason not to use its astounding capabilities to find and defeat those trying to kill Americans in, say, Boston, is it? Would it help if we spun it off, maybe placed it under CIA? I think that would make NSA less effective. In any case, intelligence gathering must follow the adversary, not notions like ‘domestic’ simply because they are comfortable to us.

    • #22
    • July 13, 2013, at 12:36 PM PDT
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  23. Al Sparks Thatcher

    I’d like to look at what prompted the 3rd Amendment. During the Revolutionary War, British troops were garrisoned in a town, and if there was insufficient space in the local barracks, they were quartered in inns and alehouses free of charge. Sometimes, they were quartered in people’s homes, again free of charge.

    So, during that time, didn’t a garrison often act as a police force? And again, during that time, Great Britain did not consider the colonies a separate country they were at war with. They were considered British subjects in rebellion, and the British Army was, in effect, conducting a police action.

    • #23
    • July 15, 2013, at 10:03 AM PDT
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