A Modern Third Amendment Case

Over at the Volokh Conspiracy, Ilya Somin posts about a Nevada lawsuit against the police based on the Fourth Amendment, state law, and, interestingly, the Third Amendment.  The plaintiffs contend that police intrusion into their home for purposes of maintaining a lookout position over the plaintiffs' neighbor violated their Third Amendment rights against the quartering of soldiers in their home.  According to the complaint, the rights violation occurred when the police broke into plaintiffs' home, fired multiple nonlethal rounds at one of the plaintiffs, arrested them for obstructing a police investigation, and maintained a lookout of the neighbor's house.

Somin notes the obvious problems with this theory, noting that police are not soldiers and also pointing out that the Third Amendment has not been incorporated against the states.  Somin also points out that the Third Amendment is still worthy of consideration, noting a history of violations that are not often recognized.

I think that there is an additional problem with the lawsuit, since the Third Amendment is a prohibition on soldiers being "quartered" in homes, rather than simply intruding into homes.  Police acting as lookouts on a nearby home probably would not constitute the "quartering" of soldiers--almost certainly not under any original understanding of the Third Amendment, which was enacted in response to the quartering of British soldiers in the colonies.

Despite the various problems with this lawsuit, I still find the Third Amendment to be worthy of attention, if for no other reason than it is of historical interest.  I also think that there have been some modern events that -- if they occurred in the United States -- could raise stronger Third Amendment concerns.  Take, for example, this story from 2012 where the British military installed missile turrets on various apartments surrounding the Olympic stadium for purposes of preventing terrorist attacks.  If a similar situation were to arise in the United States, this would probably raise a stronger Third Amendment case than the Nevada case.  While there would likely be "quartering" concerns, since there is no indication that military personnel are not being housed at the apartment, the permanence of the installation and their military nature would be at least a plausible Third Amendment violation.  I have also seen the Third Amendment mentioned in the cybersecurity context where the government requires the installation of security programs, though I have not had enough time to explore this or see how it would overcome several very obvious problems.

While I think the Nevada lawsuit's Third Amendment claim is not going to survive, I do think that the Third Amendment is interesting and something that I will look into more in the future.