This column by ACRU Senior Legal Analyst Ken Klukowski was published July 7, 2013 on Breitbart.com.
Police arrested the Mitchell family in Nevada when the family refused to let the police take over their houses to observe the Mitchells’ neighbors. The Mitchells have sued the City of Henderson and various police officials, claiming among other things that the police violated their rights under the Third Amendment to the Constitution.
Anthony Mitchell lives on the same street as his parents Michael and Linda Mitchell in a suburb of Las Vegas. On July 10, 2011, police contacted Anthony to say they were investigating his neighbors for domestic violence. The police said they required stationing officers in Anthony’s house to gain a tactical advantage. Anthony refused, saying he did not want to get involved.
According to a disturbing news report, officers later arrived at Mitchell’s house demanding entry. When he did not open the door, this report cites court documents as saying that the police broke through the door and treated Mitchell in a threatening and abusive manner, ordering him to the ground at gunpoint and using non-lethal force on Anthony and his pet dog. The report says police also forced themselves upon Mitchell’s parents, and that they took control of both houses for most of the day, during which time they consumed food and drink and treated both houses as their residences.
If the facts in this news story are true, then the police committed a host of clear violations of the Mitchells’ civil rights. One fascinating claim is that the police violated the least-invoked provision of the Bill of Rights in the Constitution, the Third Amendment.
The Third Amendment provides, “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.”
The Third Amendment was adopted by the Framers of the Constitution because the British would often force themselves upon colonial families, claiming rooms for the redcoats to live in even when the colonist owners objected. So the amendment was adopted to say that this could never happen in America during peacetime, and even in the event of war, Congress would have to devise a system for using houses that Congress would be able to sell to the voters.
No Third Amendment case has ever been decided by the Supreme Court, and I am only familiar with one Third Amendment case that has made it to a federal court of appeals. That case is Engblom v. Carey, decided by the U.S. Court of Appeals for the Second Circuit in 1982.
In Engblom, state corrections officers (prison personnel) went on strike. The governor of New York called in New York National Guard personnel to take their places at the prison during the strike. State leaders then evicted the officers from their state-provided living quarters, and put the National Guardsmen in those rooms. The corrections officers sued, saying that this violated their Third Amendment rights.
The interesting discussion is found in the dissenting opinion in Engblom. Judge Irving Kaufman dissented from the majority in this 2-1 decision from the court’s conclusion that these state-owned facilities were a “home” in which the officers had property rights, by which they could refuse to allow the Guardsmen to stay there.
But Kaufman agreed that National Guardsmen were “soldiers” within the meaning of the Third Amendment. And he agreed that the Third Amendment applies to states through the Fourteenth Amendment:
With its historical origins in the English Bill of Rights of 1689, the Third Amendment of the United States Constitution embodies a fundamental value the Founders of our Republic sought to insure after casting off the yoke of colonial rule: the sanctity of the home from oppressive governmental intrusion.
Kaufman then went on to correctly apply Supreme Court precedent for determining which rights are “fundamental rights” that also apply to the states. (The Bill of Rights by itself only gives citizens rights against the federal government.) Kaufman elaborated further, in part quoting from an earlier case, saying:
The notion that the home is a privileged place whose privacy may not be disrupted by governmental intrusions is basic in a free and democratic society… a sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some isolated place ….
It will be fascinating to see how this lawsuit proceeds. The courts could easily agree with the Second Circuit that the Third Amendment applies to state and local governments. And there is no doubt that the Mitchells are homeowners.
There will be two questions on this count.
The first is whether the police are considered “soldiers” under the Third Amendment. On one hand, they are not military personnel of any type. On the other hand, they carry firearms and act with the coercive power of government, including the inherent threat of being able to use deadly force.
The second question will be duration. Officers did not even sleep in the houses overnight.
Does a day-long occupation of a house amount to being “quartered” there?
Regardless of the Third Amendment issue, the police are in real trouble if these facts are true, as they egregiously violated the rights of three American citizens. And it may provide an unusual opportunity to consider one of our original constitutional rights, one that most Americans are probably unaware of, because thankfully even in this modern age of government overreach the government has never literally invaded their homes–at least, not yet.