Monday Poll – Police and the Third Amendment

Posted: July 15, 2013 in Courts, Law, Policing
Tags: , , , , ,

Last week, a Nevada family sued their local police for a variety of civil rights infractions, including violation of their Third Amendment rights. While the facts are only partially in at this point (the police have not yet responded fully to the charges), the story so far is a compelling one.


According to news accounts, the police wanted to use the family’s home as a staging ground during an incident that was occurring in a nearby residence. Not wanting to get involved, the home’s owners refused. That didn’t deter the police, though, who allegedly forced their way in, assaulted the owners, shot one of them with a “pepper ball” gun, took control of the house, and then charged one of the owners with obstructing the police.

Aside from what appears – on its face, at least – to be absolutely outrageous police conduct, the other interesting aspect is how the Third Amendment is being used as a basis for a federal lawsuit in this instance. The wording of the Amendment itself applies primarily to the quartering of soldiers:

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.

And, like many of the Amendments in the Bill of Rights, this one appears pretty clear and straightforward. But is it, really?

This is actually a rarely discussed Amendment, mainly because our military hasn’t taken over anyone’s home in the last couple of centuries. It has been used, though, as an argument in support of a citizen’s privacy rights. According to a landmark 1965 decision in Griswold v. Connecticut, the Supreme Court declared that:

…specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman,367 U. S. 497367 U. S. 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy.  (emphasis added)

The Third Amendment, then, appears to have a meaning that extends beyond the simple quartering of soldiers. But, does that extension preclude the takeover of a home by law enforcement agents? Are police considered soldiers for purposes of the Third Amendment?

Some believe that this may be the case.

In March of this year, the American Civil Liberties Union filed a string of requests for public records to determine how civilian police agencies are “using federally subsidized military technology and tactics that are traditionally used overseas.”  In other words, they’re trying to determine to what extent the police are being militarized.


Photo courtesy of Tome13

Some have also argued that the police response to large-scale protests, such as those carried out by Occupy groups, appear to have involved military-style tactics. In some cases, this has even included the use of military tanks acquired from military surplus.

Investigative journalist, Radley Balko, has written a book on this topic, Rise of the Warrior Cop, which includes other examples of police militarization gone horribly wrong. In a recent article from his blog, he also highlights the links between police militarization and companies that have sprung up to supply them with military-style vehicles and other gear.

But, is all this enough to establish police officers as “soldiers” for purposes of raising a Third Amendment violation claim? Will the fact that the police are at least partially militarized be enough to overcome the clear differences in overall missions between the military, which is designed to seek out and kill foreign enemies, and civilian police, which are designed to enforce domestic laws?

The Henderson, Nevada case will very likely help us answer those exact questions.

But, in the meantime, vote in this week’s poll or comment below to make your position known!

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