Friday, July 5, 2013

Quarter That!

You'd think it wouldn't be much of an issue.  Frankly, it rarely is.  The Third Amendment, the Forgotten Amendment, some call it.  But the Framers were well aware of its importance.
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.
As I said, the Framers understood it's importance as I've noted in prior posts.
The Quartering Act of 1774 authorized the quartering of British troops wherever.  And wherever included the homes of the colonists.  Yes, that's as deeply offensive today as it was then, but it's just not much of a real world concern in the US of the 21st Century.
Still, I jumped into the breach and asked if I could take a couple of minutes to riff on the 3rd Amendment before it came my turn to speak about the 8th.  See, I'm a fan.
What I like so much about the 3rd Amendment is it's absolutism.  No quartering in private homes in peacetime.  Even in time of war it has to be lawful, but none at all in peacetime unless the owner invited them in.
Rich or poor, you can bar the door.
The government simply cannot invade.
I'm a fan. But really, it doesn't come up much.  Unless you live in Henderson, Nevada. The Mitchell family does live there. Here's Randazza's summary from the complaint they filed in federal court.
The allegations stem from a domestic violence investigation, in which Mitchell alleges the Henderson police wanted him to let them use his house to gain a “tactical advantage” over the subject of their investigation.
At 10:45 a.m., Defendant OFFICER CHRISTOPHER WORLEY (HPD) contacted Plaintiff ANTHONY MITCHELL via his telephone. WORLEY told Plaintiff that police needed to occupy his home in order to gain a “tactical advantage” against the occupant of the neighboring house. ANTHONY MITCHELL told the officer that he did not want to become involved and that he did not want police to enter his residence. Although WORLEY continued to insist that Plaintiff should leave his residence, Plaintiff clearly explained that he did not intend to leave his home or to allow police to occupy his home. WORLEY then ended the phone call. (Complaint at Para 18)
Then, it gets really hinkey.
“Defendant Officer David Cawthorn outlined the defendants’ plan in his official report: ‘It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.’” (Complaint at Para. 19)
So what happened next? Allegedly the cops came to the house, beat on the door, and when Mitchell did not open up, they bashed the door down with a battering ram. They aimed their guns at him, screamed at him, shot him with “pepperball” rounds, searched the house, moved his furniture, and set up a lookout point in the house, and restrained him.

They then went to his father’s house, a few doors away, and made a similar “request.” They brought him to the Henderson police station, and when he tried to leave, they arrested him. (Complaint at Para. 39). They then intimidated his wife, Linda, into opening the door to the house and did just as they damn well pleased there as well. (Complaint at Paras 42-44)

The cops took Mitchell and his father to jail and booked them for obstructing an officer. They spent 9 hours in lockup. (complaint at Para 47).
So the Mitchell's are seeking damages for assault; battery; conspiracy; defamation; abuse of process; malicious prosecution; negligent hiring, training, retention, and supervision; and intentional infliction of emotional distress.  And for violations of their rights under the Fourth Amendment (the one about people being "secure in their persons, houses, papers, and effects"), and oh yeah, the Third Amendment.

Frankly, it's not clear that the Third Amendment applies.  There's been, as you might expect, almost no litigation involving it, and therefore almost no case law explaining just what it means.  But it's not terribly clear, for instance, that Henderson, Nevada police officers are soldiers.  Nor is it obvious that they quartered themselves.  

But police are mighty military, certainly paramilitary.  And there were no police back in 1791 when the Third Amendment was adopted.  So maybe they are soldiers.  And maybe this is close enough to quartering.  Or maybe not.  Some of the other claims are probably easier to defend legally.

Henderson is a suburb of Las Vegas.  The cops gambled.  They bet that they could do whatever they wanted and get away with it because, well, they were the cops.


But maybe not.

The Third Amendment.  The Forgotten one.

h/t Randazza and Ilya Somin at Volokh


  1. Getting past the outrage over the criminal conduct of the police department, I think the Third Amendment is a good argument. Since there's little to no litigation involving the 3rd, the unbelievable number of spineless jellyfish wearing judicial robes and wielding a gavel have yet to completely gut this civil right in favor of the imagined needs of an oppressive dictatorship, so the Great Unwashed might have a chance. We'll see.

  2. The police have many of the attributes of a military organization. In an emergency that can be placed under the command of the National Guard thus becoming an element in a military organization. OTOH is using a house as a temporary observation post quartering soldiers.

    My guess is they are a militia axillary but in this case they were not quartered. However there was contempt of the constitution by cop. They talk about sworn officers so what happens when they break their oath?

  3. There are lots of reason that, even if the evidence shows the facts to be as alleged, the Third Amendment claim is unlikely to go very far. The Fourth Amendment claim, on the other hand, is pretty compelling. It's just not as interesting. Government agents are sued over 4th Amendment violations all the time. The Third is a different matter.