Does the Third Amendment to the US Constitution apply to the police? Two outraged homeowners in Henderson, Nev. now say so. Their case turns on whether police and military forces are different – or have now become the same.

The latest Third Amendment case

On July 10, 2011, Anthony Mitchell, a lawful resident of Henderson, Nev., was minding his own business at home when police called. They said they wanted to use his home to stake out his neighbor. Just what the neighbor was doing, Courthouse News Service didn’t really say, except “respond[ing] to a domestic violence call.” That phrase could mean a husband beating his wife. Or it could merely mean an argument with furniture and appliances (chiefly electronic) being the sole casualties.

Anthony Mitchell did not want cry “police” on his neighbor, or muck into whatever argument the neighbor was having with his wife.

Courthouse News then quotes extensively from the lawsuit the Mitchells filed last week. The cops came back and started pounding on the door and yelling at him to get out. Anthony Mitchell called his mother, Linda Mitchell, and told her what was happening. Seconds later, the cops used a battering ram to break down the door. They barged in, drew their guns, yelled at him to get on the floor, and fired “pepperball” rounds at him and the family dog. CNAV quotes the lawsuit loosely. Warning: the lawsuit quotes language from the cops that is more typical of what US Naval enlistees might use to one another at sea. Parental judgment and discretion are advised.

It gets worse. Linda Mitchell and her husband Michael, Anthony’s parents, came in for much the same. They also were neighbors of the “domestic violence” suspect.

After occupying the home for several hours, the cops finally left. But not before arresting Anthony and Michael Mitchell for obstructing an officer of the law. The cops did more than that: they opened every cabinet in the house, moved things around in them, raided the refrigerator, and left the door open. The two spent nine hours in jail, according to this report from The Huffington Post. The police couldn’t make that charge stick, so they dropped it. But that hasn’t stopped the Mitchells from suing the Henderson Police Department, its chief, and all the officers who took part in this raid.

And the neighbor whom the police suspected of God-knows-what? Not. One. Word. About him.

The Mitchells brought their suit in federal court. Of course they cited the obvious complaints they had:

• Unreasonable search and seizure (Fourth Amendment)
• Deprivation of liberty without due process of law (Fourteenth Amendment)
• Assault and battery, and related conspiracy
• Defamation of character
• Abuse of process
• Malicious prosecution
• Negligence
• Intentional infliction of emotional distress

But the Mitchells allege something more: a breach of the Third Amendment. And that moves the case into the rarefied atmosphere of libertarian theory.

What the Third Amendment says

The Third Amendment to the Constitution reads:

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.

James Madison wrote what became the Third Amendment in memory of two of the Intolerable Acts of the British Parliament. These Quartering Acts (1765 and 1774) forced colonial government, and residents, to accommodate British troops operating in the colonies. Parliament passed the first of these Acts after the French-Indian War was over. Naturally, Thomas Jefferson mentioned troop quartering as a grievance in the Declaration of Independence.

How can the Third Amendment apply?

Police cruiser, Los Angeles Police Department. Photo: User cliff1066â,,¢/Flickr, CC BY 2.0 Generic License

The Third Amendment talks about soldiers, and about quartering. Quartering usually means giving bed and board. The police in the Mitchell case did not sleep over in either of the Mitchell houses. (Though by helping themselves to what was in Anthony Mitchell’s refrigerator, perhaps they “boarded” at his house.) The more interesting question in Mitchell v. Henderson is: has a modern police officer now become a soldier within the meaning of the Third Amendment?

Eugene Volokh, in an interview with Bob Unruh of WND, said yes.

In jurisdictions where the police have become increasingly militarized, perhaps the courts should treat them as “soldiers” [under the] Third Amendment.

Volokh cites Radley Balko’s latest [amazon_link id=”1610392116″ target=”_blank” container=”” container_class=”” ]book[/amazon_link], Rise of the Warrior Cop: The Militarization of America’s Police Forces. Amazon.com describes the book thus:

Today’s armored-up policemen are a far cry from the constables of early America. The unrest of the 1960s brought about the invention of the SWAT unit—which in turn led to the debut of military tactics in the ranks of police officers. Nixon’s War on Drugs, Reagan’s War on Poverty, Clinton’s COPS program, the post–9/11 security state under Bush and Obama: by degrees, each of these innovations expanded and empowered police forces, always at the expense of civil liberties. And these are just four among a slew of reckless programs.

Balko commentated last Friday on a strange case involving the Virginia Alcolic Beverage Control Board. The ABC uses plainclothes police to enforce the legal drinking age. They jumped a young woman recently after she bought a bottle of “sparkling water” that they “mistook” for booze. Several readers of his piece, commenting on a discussion at LinkedIn.com, cited this ABC case as an example of a new trend: cops wanting to act like the Special Weapons And Tactical squads as many motion-picture and television projects have portrayed them. And in fact, SWAT teams are the American equivalent of paramilitary law-enforcement agencies worldwide, including:

• The Royal Canadian Mounted Police (“Mounties”)
• La gendarmerie (France, and now also for the entire European Union)
• The Carabinieri (Italy)

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Wikipedia defines gendarmerie as a generic concept: a military force charged with police duties among civilian populations.

Are these soldiers, or not? If one calls them military, then they are soldiers. For that is what military means, from the Latin miles, militis meaning a soldier.

But does Volokh have a point? Dave Jolly at Godfather Politics says no:

The Henderson Police Department clearly violated the civil and constitutional rights of the Mitchell families and should be held accountable for their illegal actions.  However, in my opinion, the Mitchells should be suing for violation of their Fourth Amendment rights of illegal search and seizure.

Jolly cites the opened cabinets with the contents shifted around. But suppose the cops had been more scrupulous, and not done that? Suppose they had done no more than hustle Anthony Mitchell and his parents outside their respective homes, eaten what food they brought in themselves for their stakeout, and had avoided opening cabinets and moving things around? What then? Would the Mitchells still have a case?

History of paramilitary law enforcement

Any law-enforcement agency, other than the local sheriff, his deputies, and the occasional “posse” of volunteers, is a paramilitary organization today. Police forces as we know them, did not exist during the Constitutional Convention. The only armed effectives any government had were:

• The regular army and navy, and
• The militia

Both are soldiers within the meaning of the Third Amendment. And under the Third Amendment, no homeowner need give them bed or board without his consent, unless a war is on – and then only according to an Act of Congress.

The Third Amendment says only, “No soldier shall…be quartered in any house…” It does not say “No federal soldier”.Even if it did, the Fourteenth Amendment protects the “privileges and immunities of citizens of the United States” from abridgment by any State.

Modern police departments date from after the War Between the States in the United States, and in the latter part of the reign of Queen Victoria in England. The first such department in Europe was, of course, Sir Robert Peel’s London Metropolitan Police. The first American equivalents of the “Bobbies” or “Peelers” were either New York’s Finest or their counterparts in Boston, Mass.

To be sure, Wikipedia does not describe this history this way. But from the descriptions they do give, one can readily see that the modern police force, consisting of paid employees of the State, is a creature of the State little different from the regular army. (In fact, the first police forces in Greek city-states, oddly enough, were State-owned slaves. Among these: the first rhabdouchoi, or rod-bearers, of ancient Athens. The New Testament uses the same word rhabdouchos to refer to a Roman lictor escorting a magistrate. See Acts 16:35.)

In sharp contrast, Committees of Safety kept the peace during the American War for Independence, and were the de facto governments of the original thirteen States. They began with the First Continental Congress. John Hancock (whose name means “signature” today) ran the first such Committee in Massachusetts.

Such is the true context of the Third Amendment. And therefore the Third Amendment does not distinguish between the soldiers of the Continental and first United States Armies, and modern police forces. The police have become soldiers, after all.

The Mitchells need not prove their Third Amendment claim to prevail. As plaintiffs typically do, they filed under every theory by which they might prevail. Unreasonable search and seizure, and breach of the security of the home, are alone enough to make their case.

But if they do prevail on the Third Amendment, their case could change the relationship between police and the citizens they ostensibly exist to protect and serve.

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