On March 23 over at Volokh Conspiracy, law professor Ilya Somin wrote about a lawsuit against Henderson, Nevada police officers who allegedly forced a family to let them into their home for hours while scoping out a neighbor’s domestic disturbance standoff back in 2011. Linda, Michael, and Anthony Mitchell sued police for various constitutional violations based on their treatment (which included being pepper sprayed) such as the familiar Fourth and 14th Amendment violations which often appear in lawsuits against police. Most interestingly, the Mitchells also sued over violations of their Third Amendment rights.
In case you need a refresher, the Third Amendment is the comically archaic one to many people. The one that says police cannot be quartered in a private home during peacetime. However, the Amendment is not necessarily a quaint throwback. Though the judge in the Mitchell’s case dismissed the Third Amendment aspect to the lawsuit – and let the rest continue – and that may be technically correct (Somin thinks so) there is still a lot more to consider there. No, police and soldiers are not technically the same. "Quartering" may not have intended to mean only a few hours. Generally, whether that’s accurate or not, you picture quartering to mean Redcoats helping themselves to food, and then bedding down for the night in some Colonial home.
That doesn’t happen today, so what’s the relevance? Well, just because soldiers and police are legally different, doesn’t mean that this lawsuit doesn’t raise important points. Somin explores this in much more detail in his piece, and it’s well worth reading. The jist of it is that we didn’t have police back when the Founders were hammering out the Bill of Rights. We certainly didn’t have the type of militarized police we see today, with their broad powers to come into private homes if it’s deemed necessary. (And yes, it’s often necessary so that cops may stop drug crimes.)
I interviewed journalist Radley Balko for Antiwar.com back in 2013, right
after his fantastic Rise
of The Warrior Cop was released. My first question to him dealt with
the Third Amendment, because Warrior Cop begins with the bold question of whether
cops are even constitutional – based partially on the anti-quartering law. In
the interview, Balko elaborated on his concept of "the
symbolic Third Amendment":
"The Third Amendment was more a kind of a placeholder for this broader idea of being on guard against an overly militaristic society…. The Third Amendment, along with the Second and the Fourth – you take them all together and I think it presents a reaction to what the Founders knew about history; what they witnessed in Boston when the British troops were stationed."
Plenty of would-be experts might disagree with this interpretation. And again,
law is all about precedent and definitions. Since the Third Amendment has been
ignored by the courts, there is little to no case law for judges to consult.
It’s not surprising then that the judge in the Mitchells’ case wrote, "I
hold that a municipal police officer is not a soldier for purposes of the Third
Amendment…this was not a military intrusion into a private home, and thus
the intrusion is more effectively protected by the Fourth Amendment." Fine.
That makes sense. And it’s not as if the entire lawsuit has been tossed out.
But it’s awfully convenient to those in power, this idea that since police are police, and soldiers are soldiers, rules applying to the latter cannot restrict the actions of the former. It’s also ridiculous. And not just because police are now so often “militarized."
The military also helps out with law enforcement activities more often than is appropriate. Reconstruction certainly qualified as a military occupation of the South, which was supposed to be restricted from ever happening again thanks to the Posse Comitatus Act. Years later, the Military Cooperation with Civilian Law Enforcement Agencies Act passed under Ronald Reagan lessened Posse Comitatus’ restrictions on soldiers acting as domestic law enforcement. Conveniently for the burgeoning prison state, this usually meant that law enforcement could assist with operations when there was some drug war connection. This resulted in memorable moments such as the Branch Davidians being besieged by National Guard helicopters and Bradley Fighting Vehicles, even despite there being no meth lab in their building, as was claimed. More frequently, there were real drug war actions such as the horrifyingly paramilitary CAMP raids in Northern California in the 1980s. Both incidents – if not a violation of the anti-quartering law – sure seem as if they are in opposition to Balko’s "symbolic Third Amendment."
And hell, the Third Amendment has already been violated in the most obvious
fashion possible. Unsurprisingly, this occurred during World War II, when the
"good guys" were the ones nuking whole cities. The natives of the
Alaskan Aleutian Islands were
removed, and their homes occupied for a year so that American soldiers
could battle the invading Japanese. As
with Japanese(-American) internment, property was taken or destroyed
and the people were not compensated.
Perhaps that Third Amendment lawsuit would have gone forward. Or perhaps “national emergency” would have magically justified it. The Nevada family’s constitutionally-intriguing one will not make Third Amendment precedent. But Ilya Somin is right to wonder when cops and soldiers become legally indistinguishable. Out of the realm of law and its specifics, even a handful of recent events – the murder of man in his own home during a narcotics raid, the killing of another because he had a screwdriver, and an Arizona law that would shield killer cops’ names from the media – show that perhaps they already have.
Lucy Steigerwald is a contributing editor for Antiwar.com and a columnist for VICE.com. She previously worked as an Associate Editor for Reason magazine. She is most angry about police, prisons, and wars. Steigerwald blogs at www.thestagblog.com.