The Third Amendment, which guards against the quartering of soldiers in citizens’ homes – and which came into being because of the abuse of British troops against American patriots – has just been dinged by a judge who ruled the provision doesn’t apply to police.
In essence, that means police on official business could claim the legal right to bust into a private citizen’s home and occupy it.
The determination from federal district court Judge Andrew Gordon was rendered when he dismissed a Third Amendment claim from a Henderson, Nevada, family who suffered that very fate.
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Anthony Mitchell and his parents Michael and Linda Mitchell sued the City of Henderson and several police agents in federal court for a July 2011 incident they described in court papers.
Volokh reported: “On the morning of July 10, 2011, officers from the Henderson Police Department responded to a domestic violence call at a neighbor’s residence. … [Police] told [Mitchell] 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.”
Police went to the Mitchell family house anyway, and “banged forcefully on the door and loudly commanded Anthony Mitchell to open the door to his residence,” his complaint read.
Mitchell then reportedly contacted his mother to let her know what was going on – and police “smashed open” his door with a metal ram, court documents indicated.
From there, the situation grew even more chaotic. Mitchell wrote in court papers police pepperballed him and his dog, gave him conflicting orders and ultimately arrested him. He was released the next day from jail.
But Mitchell and his parents turned around and sued, alleging their Third and Fourth Amendment rights had been violated – the Third, because the police were acting like members of the military. The case was closely watched by legal minds, given the unusual nature of the Third Amendment alleged violation.
But Gordon dismissed that claim in a court action that fell largely under the nation’s radar.
He wrote, the Washington Post reported: “Various officers … entered into and occupied Linda’s and Michael’s home for an unspecified amount of time (seemingly nine hours), but certainly for less than 24 hours. The relevant questions are thus whether municipal police should be considered soldiers, and whether the time they spent in the house could be considered quartering. To both questions, the answer must be no. I hold that a municipal police officer is not a soldier for purposes of the Third Amendment.”
As Ilya Somin, professor of law at George Mason University, opined, however: The judge’s dismissal should be regarded with wary eyes.
One “complicating factor,” he said, in the Washington Post, “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.”
WND reported there are some 17,000 police departments nationwide equipped with $4.2 billion worth of equipment ranging from Blackhawk helicopters and battering rams to explosives, body armor and night vision.
Military assault rifles, grenade launchers and 14-ton Mine-Resistance Ambush-Protected vehicles built for taking down terrorist enclaves are becoming part of the toolbox of local police departments under the federal 1033 program that supplies “surplus” military weapons to local officers, departments and agencies on request and without charge.
WND recently reported the American Civil Liberties Union was critical of the 1033 program, and a growing number of cities and counties are now returning the war weapons.
“Whenever this kind of armament is brought into a community, it should only be done with the knowledge and consent of the citizenry,” John Whitehead, a constitutional attorney based in Charlottesville, Virginia, said in a statement released to WND.