I’ve always thought the Third Amendment gets neglected. It’s
right there between the Second Amendment and the Fourth Amendment, the
amendment most likely to be written on a picketer’s protest sign and the
amendment most likely to result in the exclusion of evidence at trial,
respectively. It doesn’t have the sexy, free society pizazz of the First
Amendment and no one cites it during testimony before Congress like the Fifth
As if to confirm its status as the red-headed stepchild of
the Bill of Rights, the U.S. Supreme Court has never ruled directly on the
Third Amendment. Why? Likely because it really isn’t the kind of right the
government has been in a mood to trample on for the history of the United
States. Just in case you’re scratching your head at what the Third Amendment
prohibits, it’s the amendment that says the government can’t quarter troops in
any house without the owner’s consent in peacetime or as prescribed by law in wartime.
Well, it seems that thanks to the
alleged actions of several members of the North Las Vegas and Henderson County,
Nevada Police Departments, the Third Amendment is getting a moment
in the sun. In short, police officers are alleged to have smashed down the
plaintiff’s door, shot him and his dog with “pepperballs,” taken him into
custody, and wrecked up his house because and solely because the plaintiff
refused to let the police use his house to perform surveillance on a neighbor
(and again, allegedly). The story left me with a few questions, specifically:
- Has the Third Amendment been incorporated
against the states through the Fourteenth Amendment, and do police officers
count as “soldiers”?
- Why would the plaintiffs even feel the need to
bring a Third Amendment claim in such an terrible alleged fact pattern?
- Wait, really?
The answers to questions 1 and 4 are, unfortunately,
allegedly, yes. Please excuse me for editorializing, but we might want to think
carefully about whether, in absence of any criminal act, a police officer should
feel empowered to order someone to do something and then arrest them for not
following the order. Might cause some overreach. I’m just saying. Also, police
should lay off the whole shooting at dogs thing.
The answer to question 2, interestingly enough, is yes,
probably. While there is no existing case law from the U.S. Supreme Court, the
Second Circuit did hold that the Third Amendment is incorporated against the
states through the Fourteenth Amendment in a 1982 case, Engblom v. Carey, 667 F.2d 957 (2d.
Cir. 1982). Engblom may even further provide
support to the Third Amendment claim in the Las Vegas case in that the court
held that the National Guard may count as “Soldiers,” although a court would
have to see fit to extend the definition further to bring police into the mix. Eugene
Volokh has mused that perhaps, in a United States where police forces often
mimic military platoons, such an extension would be proper, however, and in
what I’m sure they are considering the greatest act of journalistic courage in
their history, USA Today has
published an editorial column under the title “Uphold the Third Amendment” written
by the University of Tennessee College of Law’s own Glenn Harlan Reynolds (Go
Vols!) supporting just such an extension of the Third Amendment.
As for question 3, I’m guessing the answer is Section 1983
of the Civil Rights Act of 1965. If the plaintiffs win on a Section 1983 claim,
they get a statutory right to treble damages and attorneys’ fees. The
complaint does allege a general Section 1983 claim, along with a litany of
common law causes of action. I wonder if, since the officers aren’t alleged to
have attempted to collect or use any evidence from the plaintiffs’ residences
against them, the attorneys for the plaintiffs are concerned that a court would
hold that no Fourth Amendment violation had occurred, and are trying to keep a
constitutional claim in the mix to hang their Section 1983 claim from.
As always, setting me straight in the comments is welcome.