Violations of the Constitution – The Third Amendment

Constitution

Our Founders created the Constitution and Bill of Rights to guarantee the American people certain freedoms, liberties and rights. Over the years those rights have been trampled, manipulated and at times, grossly misinterpreted.

This series will focus on examples of just how many of our rights have virtually been lost.

The Third Amendment

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.

In 1774 American colonists were forced to quarter British soldiers in their homes because of Britain’s Quartering Act. This action, among others, eventually pushed the colonists toward revolution and the enactment of the Third Amendment. This amendment makes the quartering of soldiers permissible only in times of conflict or war and then only according to the area’s particular laws.

Later in our country’s history, the U.S. government did subsequently engage in activity that could be considered quartering of troops. Troops were billeted in homes during the War of 1812. According to some historians, during the Civil War, Union soldiers were garrisoned in the homes of both Union and Confederate citizens, without their consent or the legal prescriptions required for wartime quartering.

Since then, the third amendment has been one of the least controversial amendments in our Bill of Rights. It is rarely litigated and as of 2009, it had never been the primary basis of a Supreme Court decision.

Engblom v. Carey (2d Cir. 1982)

One rare case of litigation took place in 1982 when corrections officers who lived as tenants in housing on prison grounds were denied access to their rooms during a law enforcement strike. The National Guard was called onto the grounds, and for 10 days, National Guard units were housed in the corrections officers’ rooms. The officers claimed a violation of their Third Amendment rights. Although the plaintiffs eventually lost the case, the Second Circuit Court of Appeals established several points of legal precedent to govern future Third Amendment cases.

The court explicitly included National Guard units as “soldiers” under the Third Amendment, apparently broadening the term for future claims. In addition, the court recognized the corrections officers’ Third Amendment rights even though they didn’t own the property. The court stated that third amendment rights apply equally to those who reside in property as tenants.

Mitchell et al v. City of Henderson – District Court

The most recent case took place just this past July in Henderson, Nevada when 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.

Anthony Mitchell and his parents Michael and Linda Mitchell sued the City of Henderson, its Police Chief Jutta Chambers, Officers Garret Poiner, Ronald Feola, Ramona Walls, Angela Walker, and Christopher Worley, and City of North Las Vegas and its Police Chief Joseph Chronister, in Federal Court for violating their Third, Fourth and Fourteenth Amendment rights.

The Mitchell family’s claim states:

“On the morning of July 10th, 2011, officers from the Henderson Police Department responded to a domestic violence call at a neighbor’s residence.

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.”

Mitchell claims that defendant officers, including Cawthorn and Worley and Sgt. Michael Waller then “conspired among themselves to force Anthony Mitchell out of his residence and to occupy his home for their own use.”

The complaint continues: “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.’

The officers banged forcefully on the door and loudly commanded Anthony Mitchell to open the door to his residence.”

“Surprised and perturbed, plaintiff Anthony Mitchell immediately called his mother (plaintiff Linda Mitchell) on the phone, exclaiming to her that the police were beating on his front door.

“Seconds later, officers, including Officer Rockwell, smashed open plaintiff Anthony Mitchell’s front door with a metal ram as plaintiff stood in his living room.

“As plaintiff Anthony Mitchell stood in shock, the officers aimed their weapons at Anthony Mitchell and shouted obscenities at him and ordered him to lie down on the floor….

“Although plaintiff Anthony Mitchell was lying motionless on the ground and posed no threat, officers, including Officer David Cawthorn, then fired multiple ‘pepperball’ rounds at plaintiff as he lay defenseless on the floor of his living room. Anthony Mitchell was struck at least three times by shots fired from close range, injuring him and causing him severe pain….”

Officers then arrested him for obstructing a police officer, searched the house and moved furniture without his permission and set up a place in his home for a lookout, Mitchell says in the complaint.

He says they also hurt his pet dog for no reason whatsoever: “Plaintiff Anthony Mitchell’s pet, a female dog named ‘Sam,’ was cowering in the corner when officers smashed through the front door. Although the terrified animal posed no threat to officers, they gratuitously shot it with one or more pepperball rounds. The panicked animal howled in fear and pain and fled from the residence. Sam was subsequently left trapped outside in a fenced alcove without access to water, food, or shelter from the sun for much of the day, while temperatures outside soared to over 100 degrees Fahrenheit.”

~

This is clearly a violation of the Fourth Amendment, but is it a violation of the Third? Are police officers considered the same as ‘soldiers’?  Is commandeering someone’s house for a stake-out the same as ‘quartering’?

Even with the militarization of so many police departments, I think it’s unlikely the court would equate them to soldiers, but that will depend on the judge and his interpretation.

~Kathy

Source links:

http://www.volokh.com/2013/07/04/a-real-live-third-amendment-case/

http://constitution.laws.com/3rd-amendment#sthash.h2ONczCj.dpuf

http://en.wikipedia.org/wiki/Third_Amendment_to_the_United_States_Constitution

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14 Responses to Violations of the Constitution – The Third Amendment

  1. Buck says:

    As a stake out can be up to a week or longer I’d say definitely it could be considered quartering.
    And since our police insist on acting like military and treating civilians like hostiles I’d say by their own acts they qualify as soldiers…

  2. BrianR says:

    Very interesting case.

    A little-known fact we can consider: at the time of the writing of the Constitution, there were no “police” forces in existence in this country. Would the Framers have included them as being barred from “quartering” if there were?

    I submit they probably would have, as that’s also the purpose of the 4th and 5th Amendments: protecting the citizenry from government predation. In that era, “police” functions were carried out — if carried out at all — by local officials in conjunction with the local militia — the “military”. So there really was no distinction between the military and the police.

    It was also common practice for the British military to co-opt private residences to provide barracks and headquarters facilities for their troops. So, using a private residence to carry out a police function — surveillance — by modern police would seem to me to be prohibited by the 3rd Amendment when it’s interpreted in the context of the time in which it was written.

    • Kathy says:

      You make a great point, Brian, and if the court agrees, this could be a huge smack-down to cops everywhere that are overstepping their authority.

  3. Buck says:

    “…cops everywhere that are overstepping their authority.” Yeah and they are bound by the Constitution but seem to ignore it and forget the oath they took. If you think they overstep just think what the federal government will do once they take the bit in their teeth….

    • BrianR says:

      “WILL do”?

      NSA spying on civilians. IRS “auditing” conservative 501(c)3s. Fast & Furious. Waco. Ruby Ridge.

      They’re already doing it.

  4. BrianR says:

    As I think about that case further, it strikes me there’s also a violation of the 5th Amendment.

    It states, in part: “No person shall be deprived of … life, liberty, or property, without due process of law”.

    Well, a person’s home is certainly their property, and if the cops are taking it over as a surveillance post and want the residents to leave, they’re certainly being “deprived of” their property without due process of law, i.e. a warrant or court order.

  5. Garnet92 says:

    I was going to make a comment relating to the bit about the camel’s nose under the tent. But then it seems that the camel has more than a nose under the tent, he’s up to his Obama-like ears into the tent and still pushing. This overstep by police is all a part of an incremental takeover of our remaining rights, by continually pushing the envelope – they went too far and that kind of activity must be stopped – now.

  6. Clyde says:

    And the cops tell us we should be their “friends” ? Hmmm…….

  7. Hardnox says:

    This is disturbing. By my count, the first, second, third, fourth and fifth amendments were violated.

    I keep a pocket Constitution handy at all times. I show it to the police every time we meet. I get a lot of “ohs”. Then I remind them that they swore an oath.

    • Kathy says:

      Good for you – they need reminding from time to time. It seems the guys in this case have completely forgotten that oath.

      I may be dreaming, but I’d really like to see this case get a conservative judge who will follow the Constitution and not follow Harry Reid’s example. If the third amendment is a key issue, this could be a turning point for Nevada.