What is a Violation of the Third Amendment?

In an interesting case discussed by the Daily Caller, a family from Henderson, Nevada is suing the local police for violating their Third Amendment protections and right to privacy. By way of review, since the subject is so ubiquitous in today’s plethora of Constitutional litigation, the Third Amendment provides that “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 can find only one case that substantively addresses the Third Amendment in any detail. This case, Engblom v. Carey, 677 F.2d 957 (2nd Cir. 1982) involved the actual housing of New York National Guard troops during a strike by Corrections Department Officials. In that case, the State of New York called up the National Guard to “cover” for the striking prison guards. The Second Circuit held that Guardsmen could be considered soldier and that the forced housing of those Guardsmen could state a viable Third Amendment claim. Now, the Second Circuit simply reversed the trial court’s dismissal of the claims, and did not discuss the substance of them.

I think the greater issue(s) here involve the Fourteenth Amendment, the Fourth Amendment, and possibly the Fifth Amendment. According to the story, the policy wanted the use the residence for a “tactical advantage” during a domestic dispute between the Owner’s neighbors. This, to me, admits a couple key factors: (1) The use of the house was preferred, but not essential; (2) The police did not obtain a warrant of any form; (3) The police probably did not have sufficient probable cause to obtain a warrant; and (4) The use of force against the family, who simply exercised their right to decline assisting the police. From all accounts, the residents were perfectly law abiding, they just happened to be in the wrong place at the wrong time.

Finally, I am not sure the “police” fall under the definition of “soldier,” and given the historical context of the Third Amendment (prior to, and during the Revolution, colonists were forced to house British soldiers, known as “regulars”), I highly doubt the aggrieved family will have much success on this claim. While the aggrieved family certainly has a a “reasonably expectation of privacy,” “Police” are probably not “soldiers,” and the duration of the “occupation” is probably insufficient to be considered “quartering.”

So, while I think the aggrieved family endured multiple violations of their Constitutional rights, privileges, and protections for which the local police should answer, I do not believe that the claimed Third Amendment violation will stand.

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