- In light of recent cases where SWAT has entered people’s homes, the question is: Does such a practice violate the Third Amendment, which prohibits forced quartering of soldiers?
- Constitutional lawyers tell TheBlaze it’s a hard case to prove, especially because local law enforcement are not considered “soldiers”
- But at least one lawyer says it may actually show officers are violating the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”
- “(If) law enforcement knocked on the door and asked for the homeowner’s permission to use his home to gain a ‘tactical advantage’ only to be rebuffed, and then forcibly entering and arresting the homeowner, I would argue that such conduct is a clear violation of the Fourth Amendment and that any assertion of exigent circumstances by the state is dubious at best”
Florida homeowner Deborah Franz was outraged after she said a SWAT team used her home to gain a tactical advantage — without her permission and without notifying her — during a six-hour standoff with her neighbor this weekend.
It’s not a new phenomenon: In 2011, a SWAT team allegedly broke down Anthony Mitchell’s front door with a battering ram in Henderson, Nev., during a similar neighborhood-wide lockdown after Mitchell refused to allow his home be used for police purposes in a domestic violence response. Mitchell said the team violently entered his home, fired pepper spray pellets at him and his dog, then arrested him for obstruction of justice.
These situations have some confused Americans asking: Is this legal?
The Mitchell family filed suit against the city of Henderson, claiming their Third Amendment rights were violated. But after Franz’s ordeal, several legal experts say such a case might be a long shot.
“It certainly sounds like they would have a better argument with the Fourth Amendment,” John Malcolm, director of the conservative Heritage Foundation’s Meese Center for Legal and Judicial Studies, told TheBlaze. “Without knowing the full facts, it seems the SWAT team definitely violated his due process rights with an unreasonable seizure of his person without a warrant.”
The Fourth Amendment to the Constitution states:
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.
But picture those scenes from your favorite cop show or action movie, where the law enforcement agent runs into the street and “commandeers” a vehicle to chase the bad guy. Could the SWAT team using a house be similarly justified?
“I would say that such a scenario is inherently different than when a law enforcement officer forcibly enters a person’s home without a warrant and without any exigent circumstances,” Sharif Abdrabbo, attorney and U.S. Coast Guard Reserve Judge Advocate General, told TheBlaze in an email.
“Strict constructionists will tell you (and Fourth Amendment case law bears this out to a large degree) that there is a hierarchy within the Fourth Amendment based on the order of the things protected: person, houses, papers and effects. Thus, a person’s home is held in very high regard by the courts with respect to an individual’s reasonable expectation of privacy and the burden the state must meet in order to violate the sanctity of the home without a warrant,” Abdrabbo said.
That means in that order — person, home, papers and effects — you may have a diminished expectation of privacy, depending on which judge is interpreting your case.
“Your person and your house are considered sacrosanct,” Malcolm said.
A third former military lawyer who asked not be named noted that even if a case were able to cross the Third Amendment hurdle of defining civilian law enforcement officers as soldiers, “the state could argue the circumstances were not ‘in time of peace,’” not unlike the aftermath of the Boston Marathon bombings when the entire city was in modified lockdown status.
Exigent circumstances, or the urgency with which the suspect must be pursued to save lives and protect others from harm, seems to reign as the determining factor in a majority of these cases.
“That typically means situations involving ‘hot pursuit’ of a felon or the imminent threat of destruction of evidence. However, law enforcement is not allowed to create the exigency that might be relied upon for a warrant-less search or seizure,” Abdrabbo said.
“[If] law enforcement knocked on the door and asked for the homeowner’s permission to use his home to gain a ‘tactical advantage’ only to be rebuffed, and then forcibly entering and arresting the homeowner, I would argue that such conduct is a clear violation of the Fourth Amendment and that any assertion of exigent circumstances by the state is dubious at best,” Abdrabbo added.
Each lawyer TheBlaze consulted reiterated it is nearly impossible to understand whether any constitutional rights were violated in these cases without knowing the full facts. One Nevada website stated that the Mitchell family was assisting the domestic violence suspect by sending pictures of police positions on the street. Yet, law enforcement officers may not have known that until they broke into his house and confiscated Mitchell’s phone or computer without a warrant, an infringement on his due process rights.
In cases like these, your best bet may be to stick with the Fourth Amendment for now. The military lawer summed up the Third Amendment argument this way: “I hate to speak badly about members of my profession, but I think the Third Amendment allegation is designed to gain attention. It might be working.”
However, if the militarization of civilian law enforcement continues, with more squads getting wartime equipment like mine resistant vehicles and grenade launchers like this Utah unit, attorneys may be able to use the Third Amendment argument in the future and attempt to classify these cops as soldiers.
Note: We had an extended discussion about this story on Thursday’s BlazeCast:
Follow Elizabeth Kreft (@elizabethakreft) on Twitter.
(Sharif Abdrabbo’s statements are his own, and do not represent the U.S. Coast Guard or the Department of Homeland Security).