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Tuesday, March 24, 2015

Court Finds No Third Amendment Violation After Police Occupy Home

Over at the Volokh Conspiracy, Ilya Somin writes about a recent ruling by a federal district court that police officers did not violate the Third Amendment when they entered the plaintiffs' home and stayed there for several hours while staking out the plaintiff's neighbor. The court's opinion can be found here.

The Third Amendment prohibits soldiers from being quartered in homes during times of peace without the homeowner's consent. I blogged about this particular case back when it was filed in 2013. In that post, I noted that I did not think that the lawsuit would succeed because the police officers were not "quartered" in the home. They merely stayed in the home for several hours while conducting an investigation of a neighbor.

But the district court did not even get that far, as it ruled that the Third Amendment did not apply to the officers' actions because they were not "soldiers" under the Third Amendment. While the court strongly suggested that the officers also were not quartered in the home, the court explicitly avoided answering that question.

Somin criticizes the opinion, noting that the militarization of certain police forces tends to blur the line between the police and military.

Somin also thinks that the officers may have been quartered in the home:

The issue of how long the soldiers (or militarized police) have to stay in a private home before their occupation of it qualifies as “quartering” is also a tough question. Without actually resolving the issue, Judge Gordon suspects that a 9 to 24 hour period is too short. I am not convinced. It seems to me that spending one night in the house does qualify as quartering, albeit for only a brief period. Just as the First Amendment covers even brief restrictions on freedom of speech and the Fifth Amendment requires compensation for the taking of even small amounts of private property, so the Third Amendment forbids even brief involuntary quartering of troops in private homes.
I stand by my earlier reaction to the case, and I don't think that this case involves quartering, even if the officers spent a night in the house. Officers did not spend time in the plaintiffs' home for purposes of rest or housing -- they stayed in the house in order to use it as a platform to conduct surveillance on the plaintiffs' neighbor.

As I note in this post, definitions of "quartered" typically involve one's dwelling or lodging in an area, notions that seem fundamentally different from conducting one's function as a soldier or police officer from the platform of somebody's house. Accordingly, it is not a question of how long officers are in a house, but rather a question of what they are using that house for that determines whether the officers are quartered.

Because the officers were not using the house as a dwelling or for lodging, I don't think that it is accurate to conclude that they were quartered in the house -- and I think that Somin's parallel of this case to the minimal restrictions of other rights is therefore off-point. But in light of the minimal case law on this subject, I can't bolster my claims with very much authority, so there is not much to stop courts down the road from adopting Somin's position.

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