The Third Amendment, which forbids the “quarter[ing]” of “soldiers” in private homes in peacetime without the owner’s consent, is often the butt of jokes among lawyers, because it generates so little litigation. But the Amendment has come up in this ongoing Nevada case, along with the Fourth Amendment and state law claims [HT: my former student Michael Mortorano]:

Henderson [Nevada] police arrested a family for refusing to let officers use their homes as lookouts for a domestic violence investigation of their neighbors, the family claims in court.

Anthony Mitchell and his parents Michael and Linda Mitchell sued the City of Henderson, its Police Chief Jutta Chambers, Officers Garret Poiner, Ronald Feola, Ramona Walls, Angela Walker, and Christopher Worley, and City of North Las Vegas and its Police Chief Joseph Chronister, in Federal Court…. The Mitchell family’s claim includes Third Amendment violations, a rare claim in the United States…. “On the morning of July 10th, 2011, officers from the Henderson Police Department responded to a domestic violence call at a neighbor’s residence,” the Mitchells say in the complaint. It continues: “At 10:45 a.m. defendant Officer Christopher Worley (HPD) contacted plaintiff Anthony Mitchell via his telephone. Worley told plaintiff that police needed to occupy his home in order to gain a ‘tactical advantage’ against the occupant of the neighboring house. Anthony Mitchell told the officer that he did not want to become involved and that he did not want police to enter his residence. Although Worley continued to insist that plaintiff should leave his residence, plaintiff clearly explained that he did not intend to leave his home or to allow police to occupy his home. Worley then ended the phone call. Mitchell claims that defendant officers, including Cawthorn and Worley and Sgt. Michael Waller then “conspired among themselves to force Anthony Mitchell out of his residence and to occupy his home for their own use.” The complaint continues: “Defendant Officer David Cawthorn outlined the defendants’ plan in his official report: ‘It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.'” It continues: “The officers banged forcefully on the door and loudly commanded Anthony Mitchell to open the door to his residence. “Surprised and perturbed, plaintiff Anthony Mitchell immediately called his mother (plaintiff Linda Mitchell) on the phone, exclaiming to her that the police were beating on his front door.

“Seconds later, officers, including Officer Rockwell, smashed open plaintiff Anthony Mitchell’s front door with a metal ram as plaintiff stood in his living room.

“As plaintiff Anthony Mitchell stood in shock, the officers aimed their weapons at Anthony Mitchell and shouted obscenities at him and ordered him to lie down on the floor…. “Although plaintiff Anthony Mitchell was lying motionless on the ground and posed no threat, officers, including Officer David Cawthorn, then fired multiple ‘pepperball’ rounds at plaintiff as he lay defenseless on the floor of his living room. Anthony Mitchell was struck at least three times by shots fired from close range, injuring him and causing him severe pain….” Officers then arrested him for obstructing a police officer, searched the house and moved furniture without his permission and set up a place in his home for a lookout, Mitchell says in the complaint. He says they also hurt his pet dog for no reason whatsoever: “Plaintiff Anthony Mitchell’s pet, a female dog named ‘Sam,’ was cowering in the corner when officers smashed through the front door. Although the terrified animal posed no threat to officers, they gratuitously shot it with one or more pepperball rounds. The panicked animal howled in fear and pain and fled from the residence. Sam was subsequently left trapped outside in a fenced alcove without access to water, food, or shelter from the sun for much of the day, while temperatures outside soared to over 100 degrees Fahrenheit.”

The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as “soldiers.” On the other hand, as Radley Balko describes in his excellent new book The Rise of the Warrior Cop, many police departments are increasingly using military-style tactics and equipment, often including the aggressive use of force against innocent people who get in the way of their plans. If the plaintiffs’ complaint is accurate, this appears to be an example of that trend. In jurisdictions where the police have become increasingly militarized, perhaps the courts should treat them as “soldiers” for Third Amendment purposes.

A second possible impediment to winning a Third Amendment claim in this case is that the Amendment is one of the few parts of the Bill of Rights that the Supreme Court still has not “incorporated” against state governments. For incorporation purposes, claims against local governments (like this one) are treated the same way as claims against states. On the other hand, the Supreme Court has never ruled that the Third Amendment does not apply to the states. If, as the Court has previously decided, virtually all the rest of the Bill of Rights applies to state governments, there is no good reason to exclude the Third Amendment. If the Third Amendment part of the case is not dismissed on other grounds, the federal district court may have to address the issue of incorporation.

Whatever the ultimate outcome of this case, it is clear that lawyers and legal scholars should start taking the Third Amendment more seriously. Contrary to conventional wisdom, there is in fact a history of violations of the Amendment, such as the military’s brutal treatment of Alaska’s Aleutian Islanders during World War II (even in wartime, the Amendment forbids the quartering of troops in private homes, except “in a manner to be prescribed by law.”) For a more detailed account of that tragic episode, see this article by Chapman University law professor Tom Bell.

UPDATE: The full text of the Mitchells’ complaint is available here. [HT: Doug Mataconis]. For the benefit of nonlawyers, I should explain that this complaint – like most such documents – is primarily a description of the facts as alleged by the plaintiffs, and a brief listing of their legal claims. It does not include detailed analysis of issues of law, including the Third Amendment issues discussed above. However, if the claim is not dismissed or settled, these issues are likely to be briefed later on, and the trial judge will have to consider them. Obviously, the complaint includes only the plaintiffs’ version of the story. The police will likely have a different one. The case was filed in the federal district court for the District of Nevada.

UPDATE #2: One interesting additional issue that may be raised by this case is the question of how long “soldiers” have to occupy a home before the incident qualifies as the kind of “quartering” forbidden by the Third Amendment. From the complaint, it’s hard to tell how long the officers planned to stay in the house, though it’s possible to interpret their actions as an effort to occupy the house for as long as it might take to get incriminating information on the neighbor they sought to observe). As far as I know, no federal court has ever ruled on this aspect of the definition of “quartering.” But I welcome correction by legal scholars and others who know more about the Amendment than I do.

UPDATE #3: I have corrected a small but annoying error in the quotation from the Third Amendment near the start of this post.