At USA Today, Glenn Reynolds writes that one sign of its success is the relative absence of Third Amendment cases. But there are some:
In an article published in the William & Mary Bill of Rights Journal last year, however, Prof. Tom W. Bell points out that such violations, while perhaps rare, are not unknown. In 1942, for example, inhabitants of the Aleutian Islands were forced out of their homes, and in some cases troops were actually quartered there, but it took the federal government decades to admit wrongdoing or pay damages.
Likewise, in a 1982 case in the U.S. Court of Appeals for the Second Circuit, prison guards evicted from their quarters and replaced with National Guard troops during a strike sued, and the Court of Appeals found that this action implicated their rights under the Third Amendment, which it characterized as "designed to assure a fundamental right of privacy."
Now we see another Third Amendment case, from Henderson, Nev., in which the plaintiffs, the Mitchell family, claim that Henderson police seized their home -- battering the door open with a battering ram -- so as to secure an advantageous position in addressing a domestic violence report involving a neighboring house. The police were quite rude -- calling the inhabitants "assholes" and shooting both Anthony Mitchell and his dog with a pepper-ball gun -- before setting up a lookout post in the house.
Should the Third Amendment have something to say about this? Well, it speaks only to "troops," not police -- but then, professional police in the modern sense hadn't been invented at the time of the framing. And given the extreme militarization of police nowadays -- with Nomex coveralls, body armor, AR-15 rifles, grenades, armored vehicles, etc., all documented in Radley Balko's new book, The Rise of the Warrior Cop, -- maybe that's a distinction without a difference anyway. Armed minions of the state seizing your home by force seem close enough to "troops" for me.
Personally, I think we need to return to the sense of one's home as a castle, a "fundamental right of privacy" that the Third Amendment was intended to protect. Police, except in those rather rare cases where they reasonably think someone inside is being held hostage or the like, should have to knock politely at the door and -- unless they have a warrant -- should have to depart if the homeowner doesn't want them to come in. Those who violate this rule should be prosecuted as criminals, and opened up to lawsuits without benefit of official immunity.
