How to Defend - And Define - The Third Amendment: Glenn Reynolds

Last week, Reason's Jacob Sullum brought our attention to a possible Third Amendment case in Henderson, Nevada.

The Henderson cops, it seems, broke into a house next to one owned by a couple the cops wanted to surveil. When the occupant of the house said no, they broke down his door, arrested him, and pepper-balled the dog (naturally). Whether this activity tipped off the neighbors the cops wanted to spy on isn't clear, but never mind. The whole incident seems way too much like something from the satirical show Reno 911!

The guy who was arrested is righly filing suit against the police, claiming among other things that his Third Amendment rights - against the quartering of soliders during peacetime and without a general law being passed - have been violated.

While that part of his case may not stand up in court, Glenn Reynolds has a great defense of the larger principles at play. In his USA Today column, the Instapundit writes,

I think we need to return to the sense of one's home as a castle, a "fundamental right of privacy" that the Third Amendment was intended to protect. Police, except in those rather rare cases where they reasonably think someone inside is being held hostage or the like, should have to knock politely at the door and -- unless they have a warrant -- should have to depart if the homeowner doesn't want them to come in. Those who violate this rule should be prosecuted as criminals, and opened up to lawsuits without benefit of official immunity.

Some may protest that this rule will make it harder to go after drug dealers and such, who may flush their drugs away before police can get in. To which I respond, tough. Protecting Americans' homes from invasions by armed hooligans is more important than protecting prosecutions under the drug war. One would think, in fact, that preventing such invasions is the first duty of police. It's unfortunate that so many in law enforcement seem to have forgotten that.

Comments

[Not a Libertarian]

DAT POLICE AZZ

[Ska]

Quick, someone link that Lion King gif.

[John]

The problem is that the police and the courts have shown they cannot be trusted with power. What starts out as a reasonable exception, if you are being held hostage or dying of a heart attack the police can enter your home without a warrant, slowly morphs through one court case after another into the police can enter your home if they think they have a good reason to do so.

And this is the trend in all search and seizure law. The court cases involving search incident to arrest, Terry stops, and automotive searches all go one way over time; towards less and less privacy and more power given to the police. The worst doctrine of them all is "expectation of privacy". Essentially it says that you have no privacy unless the courts think that the public at large thinks you should have such in that situation. So if the court feels that most people don't expect as much privacy in their cars as they do in your home, then you don't have privacy. It puts everyone's privacy at best up to a vote and in reality up to the arbitrary discretion of the courts. What is private today and protected by the 4th Amendment may not be and probably won't be tomorrow.

But these are the wags of letting the Courts determine what the Constitution means with no regard to its drafters' intent. There is no guarantee that they are going to use such power for the good. With regard to the 4th Amendment, they have used it almost exclusively for the bad.

[Floridian]

I think the problem is that people in general consider themselves good guys and think the police only violate the rights of bad guys. My dad was a cop supporter until my sister was wrongfully arrested and he was told to shut the fuck up. Then when he filed a formal complaint my sister was re-arrested after the cop remember more details and amended the report. That is what it takes to change public opinion. I don't think there are enough police to screw everyone so nothing will change.

[sarcasmic]

Show me a cop supporter, and I'll show you someone who has never had to deal with the police on a professional level.

[RBS]

This is true, even the prosecutors I know think the cops they interact with are a bunch of assholes.

[John]

This is very true. Cop supporters tend to be middle and upper class white people, especially women who have never dealt with a cop beyond getting a speeding ticket and probably getting out of it because she was cute.

[Mensan]

Then when he filed a formal complaint my sister was re-arrested after the cop remember more details and amended the report.

When you say remembered, you mean fabricated, right?

[Floridian]

Of course. My sister was assaulted by three women in a parking lot. When the report was amended it showed her to be the aggressor. I don't know about you but I rarely pick a fight with three people who are larger than I am and with a criminal record longer than my arm.

[sarcasmic]

So far every police report of anything I witnessed was a complete work of fiction. Even on my last speeding ticket. It listed the location as a couple miles different than where he saw me, because the posted speed limit was 45 there, not 55 where he saw me. Then to add insult to injury he said I was going 65 when I was going 60. It's almost like they feel compelled to lie and they can't tell the truth.

[Floridian]

I know. The only thing that saved my sister was that the report was so ludicrous that even the prosecutor didn't buy it. Now that is a tall tale.

[sarcasmic]

And though he filed an obviously false report in violation of the law, nothing else happened.
AmIright?

[Floridian]

You are correct sir. Except it was a lady cop. She had a bit of an axe to grind since she got punched in the melee.

[sarcasmic]

I'm not sure I would ever use the word "lady" to describe a cunt with a badge, but that's just me.

[Floridian]

Lol. I try to be polite to everyone. Even people I don't like.

[sarcasmic]

I'd be polite to her face. I'm always polite to someone with a club and a gun who will face no consequences if they kill me and then write up fraudulent paperwork to cover their shameless ass.

[AlmightyJB]

I have it on good authority from so many commenters on so many blogs that we should just stfu and do as we're told.

[Doctor Whom]

Yes, especially if it's to maximize the number of bad guys whom we lock up. The so-cons tell me that that's the most important thing ever.

[Slammer]

Where the hell is Clementine????

[MJGreen]

"Soliders" should be a fireable typo.

[R C Dean]

The Steigerwald Rule.

[The Late P Brooks]

Those who violate this rule should be prosecuted as criminals, and opened up to lawsuits without benefit of official immunity.

That way madness and anarchy lie!

[UnCivilServant]

The only way to clear the slate is to burn it down. Let the chaos reign!

[Dave Krueger]

The idea that cops should have the power to break into a house to prevent drugs from being flushed is rationalized by the argument that the state has a legitimate interest in saving people from themselves.

That assumes, of course, that anyone wants to seriously argue that the drug war is even meant to save people from themselves.

The drug war is really nothing more than a jobs program for arrogant neanderthal thugs who unqualified to hold hold any job requiring the interpersonal skills that most people acquire by the time they're in second grade.

[CatoTheElder]

"Some may protest that this rule will make it harder to go after drug dealers and such, who may flush their drugs away before police can get in."

I am continually amazed that people are so stupid, so incredibly stupid, to fall for this argument.

It's a very simple matter to cut off the water supply to a house just prior to serving a warrant. It might take some planning, but I doubt that even a triple-digit IQ would be necessary to accomplish this in the vast majority of drug busts. Cops could then politely knock on the door, and greatly reduce the probability of armed hostilities and puppycide.

Of course, the suspected dope fiends could get one flush before answering the door. I think that should be courtesy flush. But if the cops really had it out for the suspected dope fiends, they could find plenty of residue in the sewer trap. And, if they thought that this was a dope dealer with lots of inventory and a fiendish offline supply of water to flush the evidence, they could cut off the sewer connection before the raid as well.

[CatoTheElder]

But that's not how drug warriors think. Sure, the cops use the dynamic raids as a means of extra-judicial punishment of dope fiends and their pets.

But they are also a strategic element in the war on drugs: the clearly predictable and well-publicized consequences of dynamic raids terrorize the general public into general submission to the edicts of the State, including compliance with nonsensical prohibitions.

It just makes me proud to be an American.

[John]

Beyond that, it is a pretty piss poor drug operation where all of the evidence can be flushed in the say two minutes it would take to knock, identify, and give the person inside a reasonable chance to respond.

If it is anything beyond some teenager selling a few joints, there is going to be evidence of sale all over the place. There will be utensils that were used to cut the stuff which will have residue on it, chances are the real stash will be hidden somewhere in the house and not easy to retrieve to flush. Drug dealers worry as much about being robbed as they do about cops. For that theory to work, the drug dealer in question would have to keep a totally septic environment with his stash right by the toilet and small enough to easily flush. In other words, it is a fantasy.

[CatoTheElder]

Yet another argument that the WOD's gestapo-style raids thus do not serve the end of preserving evidence.

The same naive folks who make the evidence preservation argument are also inclined to refer to the bodycount and the puppycount as "unintended consequences" or "collateral damage".

Nothing could be further from the truth. Bob Higgs' failed policy myth applies to the WOD: "But politicians who talk about failed policies are just blowing smoke. Government policies succeed in doing exactly what they are supposed to do: channeling resources bilked from the general public to politically organized and influential interest groups."

http://www.independent.org/new.....asp?id=123

[Spoonman.]

Toilets don't work that way. They hold the water for the next flush in the tank; that doesn't get sucked out when you turn the water off.

[John]

But there is only one flush available. Again, it is a pretty second rate drug house where all of the drugs can be flushed in one try.

[Spoonman.]

They'll just say they could use the fireplace. Nothing's going to stop them from no-knock paramilitary raids.

[CatoTheElder]

Ok, I see ... you're just mocking the stupid arguments that drug warriors make.

[CatoTheElder]

Duh. That's why the suspected dope fiend would get a courtesy flush.

But toilet has a trap that would retain some of contraband in the most recent flush. If the cops were determined to arrest a dope fiend that day, they could remove the toilet and pump out the trap.

[Generic Stranger]

Teenage Girl Narcotics officer: "Ewwwwwwwwww!"

[CatoTheElder]

My hat's off to the LEO community of Henderson, NV.

The 3rd Amendment is the only one that hasn't been rendered null and void lately. It's about time that somebody somewhere got to work on that!

[Drake]

They really did go the extra mile.

[NoVAHockey]

Some may protest that this rule will make it harder to go after drug dealers and such, who may flush their drugs away before police can get in. To which I respond, tough

Nice. My grandfather is fond of saying, "You know what they say in Warsaw. Tough shitski."

[The Late P Brooks]

R C DEAN? I heard you were dead.

[R C Dean]

Nah. New job. Finally have a little air in my day to drop by and raise the tone around here occasionally.

[The Late P Brooks]

New job.

The curse of the drinking commenting man.