Ilya Somin over at Volokh Conspiracy flags this one down. Apparently, the answer is "When our increasingly paramilitary local police try to take over a civilian's home by force in order to stake out a nearby criminal suspect" as the Henderson, Nevada Police Department is being sued over just such an action.
Anthony Mitchell was apparently arrested for refusing to allow the HPD to set up shop in his home so that they could stake out a neighbor, and he's suing on Third Amendment grounds.
“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.’”
Which apparently is exactly what happened. Somin breaks it down:
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.
Perhaps then we should see what the judicial thinks of such a move. I normally don't agree with Radley Balko on much at all, the guy is well too eager to blame Barack Obama for absolutely everything, but if there's one issue I do consistently agree with him on, it's cops and their treatment of the powerless. And increasingly, we're all powerless against them.
I have no clue if the Mitchell case will go anywhere, but bad cops throwing their weight around is a very old story, and one we always need to be aware of.
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