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Sunday, July 7, 2013

Does the Tenth Amendment Trump the Third Amendment?

“A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.” — Thomas Jefferson

In April I wrote an essay about the Bill of Rights. In the essay I wrote:

“The Third Amendment: Quartering Troops:

“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.”

This is no doubt the least talked about or challenged amendment forbidding Congress to station soldiers in private houses without the householders’ permission in time of peace, or without proper authorization in time of war. The amendment was bound up with memories of British soldiers who were quartered in American houses during the War of Independence. It is an indication of a desire, in 1789, to protect civilians from military bullying. This is the least-invoked provision of the Bill of Rights, and the Supreme Court has never had occasion to interpret or apply it.”

Well it looks like I was wrong. I should have added the caveat “not yet.”

It’s been called the “forgotten amendment,” “an insignificant legal fossil,” and an “oft-forgotten relic” of the American Revolution.

But the Third Amendment made a rare appearance in federal court, figuring in a lawsuit filed this month by a Nevada man against the city of Henderson and its police chief.

The Third Amendment reads, in full:

“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.”

How rare are Third Amendment cases? It’s been 30 years since a federal court handed down a significant Third Amendment decision.

Henderson resident Anthony Mitchell claims that Henderson police officers violated his Third Amendment rights when they “conspired among themselves to force him out of his residence and to occupy his home for their own use.”

Responding to a domestic violence call at a neighbor’s residence in July 2011, officers told Mr. Mitchell that they needed to come into his home to gain a “tactical advantage,” according to the suit, which the Volokh Conspiracy wrote about here.

When Mr. Mitchell refused, police officers came to his home, banged on door, and then smashed it open with a metal ram, he alleges.

He claims they then aimed their weapons, commanding him to lie down on the floor and crawl toward them. When he didn’t move, they allegedly fired pepper-spray balls at him, striking him three times at close range and causing him to “experience uncontrollable coughing and difficulty breathing,” the suit says.

Police then arrested Mr. Mitchell for “obstructing a police officer” before “swarming” into his home. He also claims they fired pepper-balls at his cowering dog named Sam.

The city attorney of Henderson wasn’t immediately available for comment. A spokesman for the Henderson Police Department declined comment.

It’s been a long time since a federal court has interpreted the meaning of the Third Amendment. In 1983, the Second Circuit ruled that the State of New York violated the Third Amendment rights of striking correction officers who were booted from staff housing by National Guard troops.

More recently, in 2001, the U.S. Court of Appeals for the Tenth Circuit considered whether the military could fly planes above a private property without the owner’s permission. “Judicial interpretation of the Third Amendment is nearly nonexistent,” the court conceded, but ultimately sided with the government:

“We simply do not believe the Framers intended the Third Amendment to be used to prevent the military from regulated, lawful use of airspace above private property without the property owners’ consent.”

Scholars, though, have tried to make the case for the amendment’s relevance. For example, Nicholas Quinn Rosenkranz, who teaches constitutional law at Georgetown University Law Center, thinks the Third Amendment is the “Rosetta Stone” of the Bill of Rights, offering insights into how the Framers designed the Constitution to constrain governmental power.

The Third Amendment can reveal the structure of the Bill of Rights, and its objects,” the professor wrote.

It’s been 226 years since the Third Amendment was written to keep the federal government from quartering troops in American homes without consent and compensation, but a lawsuit just filed in Nevada suggests it’s as relevant as ever.

The framers of the Constitution ratified the Third Amendment to ensure citizens would never again have to accommodate soldiers, but a few centuries later it’s become more-or-less an antiquated law that’s rarely referenced in federal court. That changed recently when a family from Henderson, Nevada accused the local police department of constitutional violations after officers of the law allegedly took residence in two neighborhood homes.

According to a legal filing first obtained by Courthouse News Service, a handful of Henderson Police Department officers and the city itself are being sued for an array of charges — including Third Amendment and Fourth Amendment violations — over an incident that mirrors the making of the American Revolution.

Attorneys for the plaintiffs say police officers demanded they be allowed to occupy two homes owned by their clients on the city’s Eveningside Avenue in 2011 in order to conduct an investigation involving a neighbor’s residence. When the owners refused to comply with the request, they were reportedly arrested for obstruction and brought to jail.

As mentioned above police were investigating an incident at 363 Eveningside Avenue that July when Officer Christopher Worley called up the occupant of a neighboring property, Anthony Mitchell, and said he’d need to use his houseHenderson-police-car in order to gain a 'tactical advantage' over the neighbor’s residence. Mitchell reportedly made it clear that he did not want to get involved in the probe and told Worley he would not be able to offer assistance. According to the lawsuit, Officer David Cawthorn, Sgt. Michael Waller and Worley all then "conspired among themselves to force Anthony Mitchell out of his residence and to occupy his home for their own use."

“It was determined to move to 367 Eveningside 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,” the report determined.

Moments later, the officers "arrayed themselves in front of plaintiff Anthony Mitchell's house and prepared to execute their plan," after which they “loudly commanded” they be let inside. Seconds later, Mitchell’s door was knocked down with a metal battering ram and the police entered his home.

"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,” the suit alleges.

As the police moved into the home, Mitchell was reportedly called an “asshole” by the cops, ordered to crawl on the floor and then shot several times with non-lethal ‘pepper ball rounds’ from close range. He was then arrested for obstructing an officer while the cops combed through his house without permission, but not before they also opened fire at the plaintiff’s dog, prompting it to howl “in fear and pain.”

At the same time, officers approached Anthony’s parents down the block at 362 Eveningside and asked father Michael Mitchell if he’d accompany them back to a local ‘command center’ to assist with negotiating the surrender of the neighbor suspected of domestic violence. When he got there, though, he became concerned that the cops had tricked him into leaving so they could try to gain access to yet another home. Michael Mitchell then tried to head back home, but when he left the command center he was arrested, handcuffed and placed in the back of a cop car.

Attorney for the family say there was no reasonable grounds to detain Michael Mitchell, nor probable cause to suspect him of committing any crime. That didn’t keep officers from holding both him and his son Anthony for nine hours, however, before they were ultimately released after posting bond.

All criminal counts against the Mitchells were later dismissed with prejudiced, but the family has now lobbed charges of their own. Their attorney is asking for a trial by jury to hear the case and ideally award his clients punitive damages for violations of the Third, Fourth and Fourteenth Amendments, assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress. [Read more here]

Now we have the conundrum of which Amendment applies here. Discounting the violation of the Fourth Amendment violation we have to ask two questions. Firstly; do police officers fall under the definition of “soldiers? Secondly; does the State of Nevada have the right to occupy a house without the consent of the homeowner?

The case raises a number of fascinating issues that will likely stir the3352782298_69b373c322 passion of liberty lovers, particularly the question of whether police officers count as “soldiers.” One can certainly make that case in this day and age of military style SWAT teams.

Reading accounts of events that day, it seems pretty clear the Henderson police violated Mitchell’s rights. Police officers should not have the power to commandeer private property whenever it suits them, and they certainly shouldn’t have the authority to terrorize a man at gunpoint in his own home because he doesn’t want to get involved in their police actions. These goons should face punishment. So, many will track the case with anticipation, holding their breaths while federal employees debate the definition of their rights.

Most won’t even realize the risk they place themselves in.

This case represents yet another attempt to “incorporate” a provision of the Bill of Rights and enforce it on the states. The law blog Volokh Conspiracy makes this very point:

“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 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.”

Conservatives and liberals alike love turning the federal courts into a liberty enforcement squad because it allows one stop shopping as they jockey to define our rights for us. Incorporation is a very bad and very dangerous idea. Much mischief has been carried out under this doctrine.

By turning to federal courts, they ultimately empower five federal employees to define their rights. And when the federal courts ultimately decide the issue, that decision doesn’t just bind one county or state, it extends to all 330 million-plus Americans.

If the judges happen to issue the “right” opinion, things move along nicely. But how often do federal judges actually rule in a way that preserves individual liberty? Almost never!

Consider this case. If the federal courts ultimately hold that police officers do qualify as soldiers and the officers’ actions fit the definition of “quartering,” we have a “win” for liberty (in the short run). But if they don’t, the issue will be considered final. Not just for Mitchell. Not just for citizens of Nevada. But for all 330 million-plus Americans!

This issue should certainly have its day in court, but in the Nevada state court system not the Ninth Circuit Court, where no doubt it will eventually land. You see, the Nevada Constitution features a very similar provision in its Declaration of Rights.

Sec: 12. Quartering soldier in private house. No soldier shall, in time of Peace be quartered in any house without the consent of the owner, nor in time of War, except in the manner to be prescribed by law.

Since local and state police fall under the authority of the state. The state constitution governs their actions. It delegates authority to the state government and its agents, and its Declaration of Rights restricts their actions to protect the rights of the people of the state. The U.S. Constitution delegates authority to the federal government. The Bill of Rights was only intended to operate on the government created by the Constitution — not the state government, as the Preamble makes clear.

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

Of course, Mitchell could easily lose his case in state court. But at least the ruling would only bind people in Nevada, leaving the door open for other states to make their own determinations. A loss in federal court means a narrowing of liberty for all Americans. True, civil libertarians won’t get the sweeping nation-wide win they might like with a victory in state court, but it would set a precedent and make the battle easier as it moves to other states.

Incorporation shreds the fabric of the American system. It is a double edged sword. It distorts the proper delegation of powers, and it places the federal government in a position of supremacy never intended by the founders. They feared centralized systems and monopolized decision making. They would shudder at the notion of five federal judges defining the rights and liberties of every man, woman and child in America with absolute and final authority.

Those who fight for liberty risk losing the war as they clamor for a chance to win the occasional battle. We have to resist the temptation to run and grovel at the feet of federal employees in Washington D.C. every time some state or local functionary tramples our rights.

Sure, we might win some protection for gun rights at the federal level. We might win some restrictions on police powers. We might win some privacy rights. But more often than not, we walk out from between those grand marble pillars at the Supreme Court building with diminished rights “incorporated” across the Fruited Plain. And in the process, we’ve further centralized power in one place.

Power monopolies never work out well for the people.

The only hope for liberty lies in decentralizing our system. That will never happen as long as we insist on making the feds our liberty enforcement squad. We merely empower them, to our detriment.

As I stated above this case will be a battle between the Third, Tenth, and Fourteenth Amendments to the Constitution. Over the years the Fourteenth Amendment has won out in many cases. It is the “Due Process and Equal Protection Clause that has created all of the mischief:


All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

On the other hand The Privileges and Immunities Clause” of Article IV, Section 2 of the Constitution states that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." This clause protects fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens. However, the Privileges and Immunities Clause extends not to all commercial activity, but only to fundamental rights. I don't believe his would apply in this case. It is the Fourteenth that has and is presenting the problem with the Tenth.

So, do we simply sit back and allow state governments to trample our right to keep and bear arms? Of course not. We wield the Second Amendment to keep the federal government at bay, and we work through our state Constitutions to protect our rights within the borders of our state. Every state Constitution in the U.S. has some provision protecting the right to bear arms — except New Jersey. (You folks in the Garden State should get busy remedying that.) Many utilize the exact same language as the Second Amendment. Other feature restrictive stipulations delegating some regulatory power to the state legislature. But that simply means the people of the states must work diligently to ensure their representatives respect and protect their rights, and abide by their state constitutions.

Ultimately, we should not leave the protection of our rights to any judge or government, particularly some large, centralized power structure. We shoulder the responsibility for protecting our rights. We simply cannot depend on a judge’s ruling — especially when that ruling bastardizes the entire system. We must focus our effort through the proper authority based on the constitutional delegation of power. A pragmatic appeal to centralized authority to “protect us” might yield a victory. But remember, Japan won Pearl Harbor, but it lost the war.

As Thomas Jefferson stated:

“Who will govern the governors? There is only one force in the nation that can be depended upon to keep the government pure and the governors honest, and that is the people themselves. They alone, if well informed, are capable of preventing the corruption of power, and of restoring the nation to its rightful course if it should go astray. They alone are the safest depository of the ultimate powers of government.”

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