The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Back in 2013, a lot of attention focused on a Third Amendment claim against Henderson, Nevada police officers. I wrote about the case here. The Third Amendment, which forbids the "quartering" of "soldiers" in private homes without the owner's consent, is often the butt of jokes because it is so rarely litigated. But in this case, a Nevada family claimed that local police had violated the Amendment by forcibly occupying their home in order to gain a "tactical advantage" against suspected criminals in the neighboring house.
In this recent ruling, federal district court Judge Andrew Gordon dismissed the Third Amendment claim [HT: VC reader Sean Flaim]. Although it occurred several weeks ago, the ruling seems to have gotten very little attention from either the media or legal commentators outside Nevada. That is unfortunate, because the ruling raises important issues about the scope of the Third Amendment, and its applicability against state and local governments. Here are the key passages from the opinion:
In the present case, various officers of the HPD and NLVPD entered into and occupied Linda's and Michael's home for an unspecified amount of time (seemingly nine hours), but certainly for less than twenty-four 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. This squares with the purpose of the Third Amendment because this was not a military intrusion into a private home, and thus the intrusion is more effectively protected by the Fourth Amendment. Because I hold that municipal officers are not soldiers for the purposes of this question, I need not reach the question of whether the occupation at issue in this case constitutes quartering, though I suspect it would not.
This reasoning is very plausible and quite possibly correct. But it may too readily conclude that "municipal police" can never be considered soldiers for purposes of the Amendment. When the Amendment was enacted in 1791, there were virtually no professional police of the sort we have today. The distinction between military and law enforcement officials was far less clear than in the world of 2015. Moreover, many parts of the Bill of Rights were in part inspired by abuses committed by British troops attempting to enforce various unpopular laws enacted by Parliament.
A second complicating factor 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.
In sum, Judge Gordon may well be right that the officers involved in this case are not plausibly considered soldiers under the Third Amendment. But he is too quick to conclude that no "municipal police officer" could ever qualify as such.
The issue of how long the soldiers (or militarized police) have to stay in a private home before their occupation of it qualifies as "quartering" is also a tough question. Without actually resolving the issue, Judge Gordon suspects that a 9 to 24 hour period is too short. I am not convinced. It seems to me that spending one night in the house does qualify as quartering, albeit for only a brief period. Just as the First Amendment covers even brief restrictions on freedom of speech and the Fifth Amendment requires compensation for the taking of even small amounts of private property, so the Third Amendment forbids even brief involuntary quartering of troops in private homes.
It is also worth noting that the Third Amendment is (along with the Seventh Amendment) one of the few parts of the Bill of Rights that has not yet been "incorporated" against state governments by the Supreme Court. Judge Gordon follows a 1982 Second Circuit decision in concluding that the Amendment does apply to state governments. I think that is almost certainly the right conclusion. Over the last few decades, leading scholars on different sides of the political spectrum have converged on the conclusion that the Fourteenth Amendment was originally understood to incorporate all of the individual rights protected by the Bill of Rights. It would be anomalous for courts to refuse to apply the Third Amendment to the states when almost all of the rest of the Bill of Rights does apply to them. A future Supreme Court decision on the subject would need to address the issue in more detail than Judge Gordon gives it here.
The difficult issues raised by the militarization of police forces suggest that it may be time to stop treating the Third Amendment as just a punchline for clever legal humor. Contrary to popular belief, there have been some egregious violations of the Amendment in the past, and we should not be too quick to assume such things won't recur.
Finally, although his ruling dismissed the Mitchells' Third Amendment argument, Judge Gordon did allow many of their other claims to go forward, including causes of action under the First and Fourth Amendments, and violations of federal and state statutory law. The first part of the judge's opinion is a harrowing summary of the plaintiffs' description of what the officers did to them. If the Mitchells' story is true (the police obviously have their own version of events), it is clear that the officers engaged in illegal and deeply troubling abuses of power against innocent civilians—regardless of whether their actions violated the Third Amendment or not.