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Bailey
07-07-2013, 11:05 AM
http://gopthedailydose.com/2013/07/07/third-amendment-gets-a-test-when-police-seize-home/


I don't know if this equates but it should be interesting to watch. Unless they get a court order to use their home I don't see how they can lose.

Apache
07-07-2013, 11:19 AM
http://gopthedailydose.com/2013/07/07/third-amendment-gets-a-test-when-police-seize-home/


I don't know if this equates but it should be interesting to watch. Unless they get a court order to use their home I don't see how they can lose.

It doesn't equate. Police are not soldiers, and because a lawyer seems to want to make a name, they will lose... This is most clearly a 4th Amendment case.

DumbAss Tanker
07-07-2013, 11:46 AM
It doesn't equate. Police are not soldiers, and because a lawyer seems to want to make a name, they will lose... This is most clearly a 4th Amendment case.

...And 5th/14th 'Taking without due process.' However the 3rd Amendment claim is not necessarily DOA, there were no police as we know them in 1792, all the direct functions our highly-paramilitary police perform now were performed by soldiers before the Revolution, while sheriffs and constables were primarily officers of the court who would serve warrants and see to the execution of court-imposed punishments...if they did a forcible entry, they generally borrowed soldiers from the nearest garrison to do so. Police in any recognizable form did not exist in England or the US before the end of the early 19th Century, and even then still didn't look much like what we know today until after WW1.

NJCardFan
07-07-2013, 12:56 PM
It doesn't equate. Police are not soldiers, and because a lawyer seems to want to make a name, they will lose... This is most clearly a 4th Amendment case.

Not only that, the 3rd amendment pertains to soldiers during war time.

ReinMan
07-07-2013, 01:30 PM
Not only that, the 3rd amendment pertains to soldiers during war time.

Actually, the Third addresses both peacetime and wartime 'quartering of 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.

Have to agree with Tanker on the definition of 'Soldier'; at the time the amendment was written, and as far back as there have been organized militias, soldiers have been used as the means by which force of law was applied.

Also, the Third has been cited in support of an implicit right to privacy under Fourth:

Justice William O. Douglas in Griswold v. Connecticut, 381 U.S. 479, 484 (1965) which cited the amendment as implying a belief that an individual's home should be free from agents of the state.

Constitutional and legal technicalities aside, what happened was just wrong, and I hope the cops involved all lose their badges.

NJCardFan
07-07-2013, 02:15 PM
But the quartering of troops is only in the time of war.

Odysseus
07-07-2013, 02:25 PM
The article indicates that this goes way beyond quartering. The police wanted to use the Mitchell home as an observation post to watch his neighbor (apparently, there was a domestic violence issue). They then decided to break into his home, assault him, arrest him and then take over the home. From the article:



The Mitchell family says that’s essentially what happened when Henderson police allegedly arrested them for refusing to let officers use their homes for a “tactical advantage” in a domestic violence investigation into a neighbor, according to an official complaint.

Police officers contacted Anthony Mitchell on July 10, 2011, with a request to use his house as a lookout while investigating his neighbor. When Mitchell told police that he did not wish to be involved, the complaint alleges, police decided they would use the residence anyway.

According to Courthouse News Service, the police department decided that if Mitchell refused to leave or open the door, officers would force their way in and arrest him.

Mitchell claims this is exactly what happened. First officers “smashed open” Mitchell’s door with a “metal ram” after he did not immediately open it himself. He then “curled on the floor of his living room, with his hands over his face,” as the police shot Mitchell and his dog — which the family claims did not attack the officers — several times with “pepperball” rounds.

Pepperball is a projectile containing chemical irritant pepper spray, which is released upon impact.

Afterward, Mitchell was arrested for “obstructing a police officer.”

The ordeal didn’t end there. Mitchell’s parents, Michael and Linda, were also neighbors to the home where police officers suspected domestic violence, so the police wanted to use their home as well. Michael Mitchell was invited to a local police command center to assist “in negotiating the surrender of the neighboring suspect.”

But upon arriving at the commander center, the elder Mitchell was informed the negotiations wouldn’t be taking place, the complaint says. When he decided to leave, he was also arrested.

The elder Mitchell’s wife was not arrested, but she was roughly escorted from her home while other officers entered the house without permission, the complaint alleges. The family claims that when she was allowed to return, “the cabinets and closet doors throughout the house had been left open and their contents moved about… Even the refrigerator door had been left ajar, and mustard and mayonnaise had been left on their kitchen floor.”


There's a whole slew of Constitutional rights violated here. The taking of the home violates the 5th and 14th, as cited elsewhere, but there is also a 4th Amendment violation. The text states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The forced entry, seizure of the home and arrest constitutes a violation of the rights of Mitchell. He was charged with "obstruction of a police officer", which is usually applied to persons who interfere with an arrest by attempting to physically hamstring the police. The arrest was completely trumped up. The detention of the father was also illegal, as he was not a suspect and had no obligation to be present for a false negotiation attempt (in fact, he had no obligation to be present for a real one, but chose to assist the police). The Henderson PD has a huge lawsuit coming, and the Third Amendment piece is a stretch, because while the definition of troops at the founding would certainly have included a police force as we now understand them, the question of whether they were "quartered " in the house may be an issue. I hope that the attorney is filing under multiple violations.

ReinMan
07-07-2013, 05:13 PM
But the quartering of troops is only in the time of war.

Not necessarily. During a CO's strike in NJ, IIRC, they were evicted from on-site employee housing, and their quarters were given to the National Guardsmen replacing them.

The state was sued (unsuccessfully) on 3rd Amendment grounds. While they were unsuccessful, I would point to that as a clear example of peace-time quartering of soldiers.
I believe the point they lost on was the 'but in a manner to be prescribed by law.' That, or actual ownership of the quarters was at issue...

ReinMan
07-07-2013, 05:23 PM
They have filed a federal lawsuit. More here:

Henderson family sues police for breaking into their homes (http://www.reviewjournal.com/news/crime-courts/henderson-family-sues-police-breaking-their-homes)


Members of the Mitchell family said they had done nothing wrong when Henderson police broke into their two homes without warrants, according to a federal lawsuit.

The family on July 10, 2011, had refused to let SWAT officers use their homes to perform surveillance in what authorities suspected was an ongoing domestic violence incident involving a neighbor.

Officers then manhandled Linda Mitchell and arrested her husband, Michael Mitchell, and her son, Anthony Mitchell, charging them with obstructing a police officer, family members allege.

Police also shot Anthony Mitchell and the family’s dog, Sam, with a “pepperball gun,” similar to a paint ball gun that holds pepper spray.

The lawsuit, filed earlier this week in U.S. District Court, said the Mitchells’ constitutional rights were violated, including their Third Amendment right that prohibits soldiers from quartering in a home without the homeowner’s consent.

DumbAss Tanker
07-07-2013, 05:49 PM
But the quartering of troops is only in the time of war.

You're not getting it. ReinMan quoted it correctly, but maybe the antiquated language is interfering with your understanding of it.

"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" - translated into modern English means - "Soldiers may not be quartered in private homes without the consent of the owner in peacetime, but in wartime, soldiers can be so quartered without the owner's consent but only under the strict due process of a legal procedure which we will specify by law at some future date."

Novaheart
07-07-2013, 06:29 PM
Didn't some state just make it legal to shoot ANYONE who enters your home without your permission or without a warrant?

ReinMan
07-07-2013, 06:39 PM
Didn't some state just make it legal to shoot ANYONE who enters your home without your permission or without a warrant?

Indiana. They, IIRC, struck down the 'qualified exemption', or some such for all State employees. Including Law Enforcement.

State employees now take the same risk to illegally enter an armed home as any other trespasser. I agree with this.

ReinMan
07-07-2013, 06:47 PM
Didn't some state just make it legal to shoot ANYONE who enters your home without your permission or without a warrant?

Found it:

New Indiana Law Gives Residents Right to Resist Police (http://www.governing.com/blogs/view/residents-given-right-to-resist-police-under-new-indiana-law.html)

Rockntractor
07-07-2013, 07:23 PM
Indiana. They, IIRC, struck down the 'qualified exemption', or some such for all State employees. Including Law Enforcement.

State employees now take the same risk to illegally enter an armed home as any other trespasser. I agree with this.

A lot of people that dont like this law miss the part where it says illegal entry.

Sent from my Dell Streak 7 using Tapatalk 2

ReinMan
07-07-2013, 07:29 PM
A lot of people that dont like this law miss the part where it says illegal entry.

Sent from my Dell Streak 7 using Tapatalk 2

This law was enacted in response to an Indiana SC decision. Some guy beating his wife retreated into his house and then argued a right to resist officers who entered under 'exigent circumstances' (which actually existed, by my reading). The SC went too far, and wrote in the decision that homeowners had no right to resist under any circumstances, essentially gutting Fourth Amendment protection. This law was enacted in response to the majority decision.

On edit: Is actually reading the Constitution a prerequisite for an appointment to any Supreme Court? If it is, someone will have to prove that to me; it is not evident in the facts before us...