Disgusting Thumbs Up By Fed Judge To Cops' Home-Invasion Violation Of Third Amendment
The Third is one we don't hear a lot about -- it's the one that says soldiers can't take over your home -- "quarter" in it -- without your consent. But who are "soldiers" today? Ilya Somin at Volokh/Wapo makes the point:
When the Amendment was enacted in 1791, there were virtually no professional police of the sort we have today. The distinction between military and law enforcement officials was far less clear than in the world of 2015. Moreover, many parts of the Bill of Rights were in part of inspired by abuses committed by British troops attempting to enforce various unpopular laws enacted by Parliament.A second complicating factor is the increasing militarization of police forces in many parts of the country, which has resulted in cops using weapons and tactics normally associated with military forces. If a state or local government decides to quarter a SWAT team in a private home, it is not clear whether that is meaningfully different from placing a National Guard unit there.
This is why federal district court Judge Andrew Gordon was wrong in dismissing the claim against Henderson and Las Vegas, Nevada police officers by Anthony, Linda, and Michael Mitchell. These cops forcibly took over the Mitchells' home for nine hours so they could gain a "tactical advantage" against suspected criminals living near them.
What was done to the Mitchells is truly disgusting -- via another blog post by Somin:
Henderson [Nevada] 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.
The officers sound truly abusive. See their court papers here.
Somin adds in the more recent post:
The issue of how long the soldiers (or militarized police) have to stay in a private home before their occupation of it qualifies as "quartering" is also a tough question. Without actually resolving the issue, Judge Gordon suspects that a 9 to 24 hour period is too short. I am not convinced. It seems to me that spending one night in the house does qualify as quartering, albeit for only a brief period. Just as the First Amendment covers even brief restrictions on freedom of speech and the Fifth Amendment requires compensation for the taking of even small amounts of private property, so the Third Amendment forbids even brief involuntary quartering of troops in private homes....Finally, although his ruling dismissed the Mitchells' Third Amendment argument, Judge Gordon did allow many of their other claims to go forward, including causes of action under the First and Fourth Amendments, and violations of federal and state statutory law. The first part of the judge's opinion is a harrowing summary of the plaintiffs' description of what the officers did to them. If the Mitchells' story is true (the police obviously have their own version of events), it is clear that the officers engaged in illegal and deeply troubling abuses of power against innocent civilians - regardless of whether their actions violated the Third Amendment or not.
A comment from commenter "Unusual Suspect" at the WaPo:
Why all this talk about "nine hours"?? This time period was established after the fact. Once they entered, no one had any idea of how much time would pass with them still there. The homeowners had no idea how long this would go on, consequently, they were forced to make other accommodations based on not knowing. The judge's reference to the time period indicates that he has lost sight of the plight of average Americans when it comes to dealing with constitutional rights violations by law enforcement.
What's scary is that, more and more, crimes by cops -- like this home invasion and the theft without proof of guilt that is "asset forfeiture" -- are being perpetrated on citizens, and without deep pockets or the Institute for Justice taking your case, you're very likely screwed.
A question I'm increasingly asking myself and other people: Is this the America we want to be living in?
via Jay J. Hector
Blog title is a bit misleading - the judge certainly didn't give a thumbs up to anything - he just said that the third amendment didn't cover this sort of thing - it is covered by other laws instead.
Snoopy at March 25, 2015 4:43 AM
I do think the judge blew it on this one. Part of the problem may be how seldom a Third Amendment case comes up; I remember Glenn Reynolds doing a quick survey about ten years ago and finding very little precedent in that area. However: I think the length of time is immaterial. Police should not be allowed to enter private property at all, not even for one minutes, without either a warrant or probable cause. In the Mitchell's case (which I've been following for a while), they had neither. The Mitchell's property just coincidentally happened to be in the place where they wanted to set up their surveillance. I also think it's immaterial that the word "soldiers" is used in the text of the Amendment. Back when the Bill of Rights was written, the word "soldier" was synonomous with a government agent in general. That agent could also be a spy or a government official, both of whom colonial Americans were required to supply food and shelter to during the Colonial days. I think it's clear that the Founders would not wanted exclude them from the Third Amedment provision, since doing so would create an easy loophole for the government.
Without the Third Amendment, police can claim that as long as they didn't acutally search or seize evidence from the Mitchell's property, their temporary occupation of it was lawful. I'll be curious to see how the case goes forth.
Cousin Dave at March 25, 2015 6:55 AM
Snoopy, by not defending our rights, the judge absolutely gave a thumbs up to cops doing this.
Amy Alkon at March 25, 2015 6:58 AM
_____________________________________________
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.
_____________________________________________
Quartered.
In time of peace.
So, if the police claim they weren't "quartered" in the house or that they were "at war" with criminal, can they stay?
This probably wasn't a Third Amendment case, but it is disturbing. It's a government agency seizing the house and using it for their own purposes without the consent of the owner.
We have laws (and amendments) against that sort of thing.
Conan the Grammarian at March 25, 2015 8:04 AM
If there was doubt about "what" was intended by the amendment wording, it's a damn shame the judge did decide to give the homeowners the benefit of doubt.
The police had plenty of time to decide how to proceed (not like they had a 911 call crying for help and needed to scope things out) and decided that THEY are the big dogs.
We need our government systems to assume WE are the big dogs not them. Judge blew it from a civic POV.
Bob in Texas at March 25, 2015 8:10 AM
"not"
sigh
Bob in Texas at March 25, 2015 8:11 AM
I read the link article, and the articles it links as well. It seems that lawyers are unsurprised that this is not covered by the 3rd amendment, however we laymen see it.
However, the judge did not say anything about the general legality of the situation. As Snoopy says above, other laws are in play here. Even without the abusive behavior, trespassing is a pretty obvious one.
The question, as always, is this: will the police be allowed to get away with blatant violations of the law, just because they are police?
a_random_guy at March 25, 2015 11:21 AM
This isn't a problem until it happens in a gated community next door to an elected judge.
Gog_Magog_Carpet_Reclaimers at March 25, 2015 4:47 PM
Forget the quartering issue; forget the overnight time frame; even forget the time frame of less than 24 hours; etc.
It is MY home - not theirs. Unless I am the one committing a crime (a real crime - not some phony made up shit like disobeying a copy) if I tell them to get out they need to get out.
That's the America I grew up in.
charles at March 25, 2015 6:13 PM
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