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Thursday, May 1, 2014

Are Modern Police "Soldiers" Under the Third Amendment? And if They Are, Does it Matter?

That is the question that Sandra Eismann-Harpen raises in this comment, Rambo Cop: Is He a Soldier the Third Amendment? (41 N. Kent. L. Rev. 119 (2014)). Here is the abstract:

This Comment analyzes whether modern police fall within the meaning of soldier under the Third Amendment. It provides the historical context for the Third Amendment, and reviews the meaning of soldier within this historical context. Then, it analyzes the culture, techniques, weaponry, et cetera of modern police within the framework of the Third Amendment. Because militarized police present the same fundamental risk to American civil liberties that they posed several centuries ago, the judiciary should apply the Third Amendment to both federal and state action, and the definition of soldier under the Third Amendment should include federal, state, and local law enforcement.
For those who are not immediately familiar with the more arcane amendments, the Third Amendment states:
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.
I have seen the question raised before. Ilya Somin, spoke about this issue in discussing a case where the residents of a house where police violently gained entry to monitor a nearby home where they suspected drug activity was occurring. In his post, Somin wrote:

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.
I wrote about that case in this earlier post.

In her comment, Eismann-Harpen takes on this question beginning with a discussion of the Third Amendment claim that prompted Somin's prompt. Eismann-Harpen discusses how police tactics and equipment have evolved to mirror the military, and argues that, under an originalist understanding of the Third Amendment, modern police are much more similar to founding-era soldiers than founding-era police.

I haven't done the research on the issue, and Eismann-Harpen's discussion seems fairly thorough, but the question remains: even if police officers are "soldiers" within the meaning of the Third Amendment, does that matter? In my view, the biggest problem with Third Amendment claims arising out of police officer intrusion on homes is not that the officers aren't "soldiers," but that the officers are not "quartered" in the home.

Simple intrusion into a home does not seem to fit the modern or founding-era definitions of "to quarter." I discussed this term in an earlier post where I argued that plaintiffs should not be able to argue that military software is "quartered" in civilian computers. In that post, I was criticizing an article by Alan Butler. In that article, Butler noted that modern and founding-era definitions of "quartered" are similar:
The modern usage of the term “quarter,”—to “lodge, or dwell,”—generally matches the traditional definition of “quarter” at the time of the framing—“to lodge; to fix on a temporary dwelling.” Furthermore, the modern definition of “to lodge”—“to provide temporary quarters for” or “to establish or settle in a place”—also tracks the traditional definition of “to lodge”—”[t]o place in a temporary habitation” or “[t]o afford place to.”
I don't think that simple intrusion into the home would rise to the level of police being lodged, dwelling in, or inhabiting a home. "Quartered" seems to imply a more permanent intrusion than a simple intrusion, and the terms used to define the term imply that the person being quartered is treating the home as his or her place of residence -- which doesn't seem to fit in cases where police enter and use a home to monitor a nearby location. I would certainly agree that police in that instance have "seized" the residence, and a Fourth Amendment violation may occur, but not a Third Amendment violation.

Eismann-Harpen's comment is an interesting exploration of how modern policing has grown increasingly militarized. But as far as the Third Amendment is concerned, the "police-as-soldiers" argument is only one part of an ultimately futile Third Amendment claim.

(H/T: The Originalism Blog)

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