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Old July 4, 2013, 01:40 AM   #1
sigcurious
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From my neck of the woods...3rd Amendment lawsuit.

This one is a bit unusual given the grounds of the lawsuit. According to the court document and the article the family is suing for forced occupation of their home(s), among other things. It is difficult to determine from the article/document whether some sort of imminent circumstances law would apply here, to validate the forced removal from and occupation of their homes. There was no local news coverage that I know of that might provide more details as to the situation(whatever the issue was with the neighbor they were after) that caused this action.

Court Document

Article/Summary
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Old July 4, 2013, 02:29 AM   #2
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I am intrigued to see how this case plays out. I'm normally good at playing devil's advocate, but I just have no idea how this will play out positively for the City.

I suspect a discrete out of court settlement will be reached within a few months, possibly within 30 days.
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Old July 4, 2013, 05:59 AM   #3
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Wow. I know what the 3A is, but I can't recall ever hearing of another suit filed under it.
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Old July 4, 2013, 07:34 AM   #4
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If even half the allegations are true, then the PD is in big trouble. I'd also expect them to settle.
The 3rd Amendment has rarely been seen as part of a lawsuit, but was incorporated by the 2nd Circuit in 1982 http://en.wikipedia.org/wiki/Engblom_v._Carey
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Old July 4, 2013, 07:38 AM   #5
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I've always thought 3A applied only to the quartering of soldiers, and I'm sure that's the tack the defense will use against that particular claim - but the 4th and 14th claims seem to be more than amply founded, if the article is reasonably accurate.

It's difficult to imagine what the officers were "thinking" in this case other than perhaps they were sharing a delusion that the time was 1936, the place was Nazi Germany, and they were SA/Gestapo. I mean...seriously.
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Old July 4, 2013, 09:09 AM   #6
Tom Servo
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Quote:
The 3rd Amendment has rarely been seen as part of a lawsuit, but was incorporated by the 2nd Circuit in 1982
Wow. Thanks for the link. I was unaware that the 3A had ever been part of litigation.

If ever it would have been invoked, I would have expected it after government contractors evicted folks from their homes during the hurricane Katrina debacle.

In this case, the defense would probably point out that the 3A refers to soldiers. Whether that applies to the police (which weren't an organized body at the time of the founding) will be for the court to decide.
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Old July 4, 2013, 09:30 AM   #7
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From the officer's report -- game, set, and match on liability:
Quote:
It was determined to move to 367 Evening Side and attempt to contact Mitchell. If Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If Mitchell refused to answer the door, force entry would be made and Mitchell would be arrested.
I'm not sure if the 3A claim is going to work but its not necessary to establish liability. But, there is an argument that the police of today might be considered "troops" within the meaning of the 3A because it was adopted in reaction to the British quartering troops to enforce law against the local citizenry. I'm going to post in a separate thread about that.

At least one or two of the officers should be criminally charged, IMO.
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Old July 4, 2013, 09:31 AM   #8
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Quote:
Originally Posted by csmsss
I've always thought 3A applied only to the quartering of soldiers, and I'm sure that's the tack the defense will use against that particular claim - but the 4th and 14th claims seem to be more than amply founded, if the article is reasonably accurate.

It's difficult to imagine what the officers were "thinking" in this case other than perhaps they were sharing a delusion that the time was 1936, the place was Nazi Germany, and they were SA/Gestapo. I mean...seriously.
I agree with csmsss, I don't see this as a 3rd Amendment case at all. This was the police, not the army. I can see a lot of other avenues the case could (and perhaps should) go, such as unreasonable search and seizure, conspiracy, deprivation of rights under color of law, but ... not 3rd Amendment.

What does the 3rd Amendment say?

Quote:
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.
Sadly, this guy will probably lose his suit because his lawyer can't read plain English. No soldiers, no "quartering" ==> fail.

Last edited by Aguila Blanca; July 4, 2013 at 11:58 AM. Reason: Fixed quote
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Old July 4, 2013, 09:33 AM   #9
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Quote:
Sadly, this guy will probably lose his suit because his lawyer can't read plain English.
Did you read the suit or article? The 3A claim was only one of several. He might not prevail on this particular claim but, IMO, will win the suit if the defendants are stupid enough not to settle.
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Old July 4, 2013, 12:00 PM   #10
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I skimmed the article, but the title of the thread and the opening post portray it as a 3rd Amendment lawsuit.

I don't think it is, and I think the attorney is an idiot for even raising it.
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Old July 4, 2013, 12:08 PM   #11
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AB, while I share your skepticism, it will be interesting to see how this plays out. If, "shall not be infringed" can mean "well you can have 10 rd magazines and not scary visual features etc etc", it doesn't seem so hard to imagine police as being equivalent to the military in this case, or quartering to mean the forced usage/occupation of one's residence.

I didn't mean to imply that the 3rd amendment is the only grounds on which this suit rested. Merely, the most interesting/unusual portion of the claim.
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Old July 4, 2013, 04:11 PM   #12
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The 3A claim seems like a stretch (not so much police->soldiers but rather quartering), but a 4A claim seems like a no-brainer.

Is there any risk to making claims which the court finds to be incorrect, or is there merit to throwing everything and the kitchen sink at it?
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Old July 4, 2013, 04:11 PM   #13
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The case was filed electronically on Sunday, June 30th and was assigned a case number on Monday. The Docket is here (downloaded via PACER), but is currently not listed on Justia.

From the complaint, here are the claims for relief:

1st claim: Violation of 42 U.S.C. § 1983 (civil rights violations under color of law).
2nd claim: Assault.
3rd claim: Battery.
4th claim: False Arrest and Imprisonment.
5th claim: Intentional Infliction of Emotional Distress.
6th claim: Negligent Infliction of Emotional Distress.
7th claim: Civil Conspiracy (to deprive plaintiffs of civil rights under color of law).
8th claim: Defamation (causing the neighborhood to think the plaintiffs were criminals).
9th claim: Abuse of process (arrest and detention for purposes of intimidation)..
10th claim: Malicious Prosecution (charges were dismissed in court with a finding of prejudice against the prosecution).
11th claim: Respondeat Superior (holding the 2 cities culpable for the actions of the officers and PD's).
12th claim: Negligent Hiring, Retention, Supervision, and Training (again, holding the 2 cities responsible).

Paragraph 1 of the complaint alleges violations of the 3rd, 4th and 14th amendments. This is the only direct reference to the 3A, but the indirect reference is in the first claim for relief.

The 3A violation will be interesting, as I can see a mechanism for this. The Court however, may not agree. Considering that the charges were thrown out by the criminal court, there is substantial reason to believe a very large monetary settlement by everyone involved will be forthcoming.
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Old July 4, 2013, 06:33 PM   #14
Brian Pfleuger
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Quote:
Originally Posted by Aquila Blanca
I agree with csmsss, I don't see this as a 3rd Amendment case at all. This was the police, not the army. I can see a lot of other avenues the case could (and perhaps should) go, such as unreasonable search and seizure, conspiracy, deprivation of rights under color of law, but ... not 3rd Amendment.

What does the 3rd Amendment say?

Quote: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.

Sadly, this guy will probably lose his suit because his lawyer can't read plain English. No soldiers, no "quartering" ==> fail.

Current jurisprudence would disagree with you strongly.

The first amendment says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;..."

but the doctrine of "Incorporation" has applied that amendment against the states. Does that mean what it should mean, in plain English? In other words, does it mean that the state legislatures shall not..."?

Nope. It means that Principals can't say prayers. It means schools can not display the 10 Commandments. It means crosses can't be displayed on public property.

This one is no different. It will be found to apply to police officers. No doubt.

(I furiously disagree with "Incorporation" and particularly with the current tortured application thereof, but it is the political reality. (Yes, political.))
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Old July 5, 2013, 01:17 PM   #15
Jim March
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Quote:
I agree with csmsss, I don't see this as a 3rd Amendment case at all. This was the police, not the army.
That text right there is a SERIOUS legal and historical mistake.

Two mistakes, actually.

First is that you're assuming we even had such a critter as a "policeman" circa 1792 (when the Bill of Rights took effect). We did not.

You are also forgetting that the entire concept of "Posse Comitatus" comes from the post-Civil-War period. So in 1792 the military, including local militias or regular army, could be pressed into what we would call "police duty" (bordering at times on SWAT-level stuff).

So - is there an equivalency between the cops of 2013 and the military of 1792?

You betcha.
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Old July 5, 2013, 01:27 PM   #16
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LEO's are wearing BDU's now and look more like soldiers than ever. They no longer resemble the police officers I knew in my neighborhood as a kid.
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Old July 5, 2013, 01:49 PM   #17
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Quote:
Is there any risk to making claims which the court finds to be incorrect, or is there merit to throwing everything and the kitchen sink at it?
Its not unusual for some theories of liability to be tossed out by the court and, so long as not frivolous, there's usually no harm. However, if the plaintiff is successful on a civil rights claim(s), he or she may have reasonable attorney fees awarded, but only for successful claims. So expending a lot of time and energy on a weak theory makes little economic sense when there are other, stronger theories of relief. A frivolous claim can possibly lead to sanctions.

Keep in mind that lawsuits are not always about what makes economic sense. Perhaps this plaintiff thinks it is vitally important to make a 3A claim in order to clarify the law even though it will be a tougher case to make.
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Old July 5, 2013, 02:14 PM   #18
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Wow. All that drama over a domestic violence investigation? What do they do if they locate a robbery suspect, call in an air strike on the neighborhood?

The arrogance of power is disgusting.
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Old July 6, 2013, 01:29 PM   #19
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Question for the legal types on here: Are (some/all) government entities considered "Corporations"?

Why? (in queue with 3A and domestic police comments)

Washington State constitution, Article 1 Section 24, phrase #2.

SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
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Old July 6, 2013, 01:39 PM   #20
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Considering it seems that the cops helped themselves to foodstuffs from the fridge.... They quatered themselves rather than just spending a couple hours peering out the windows...

Personally, I would be quickly telling them to pound sand and find a different location to use as a vantage point... If I wish to take part in an investigation, I could let them know...

A simple "Sorry guys but I am not currently comfortable leaving nor allowing ya'll in my home... Have a nice day..."

While not soldiers, the police forces of today are afforded more power than the constables of yore...

They are dressed as soldiers dress and carry many of the same weapons and tools and probably wouldn't treat my home and privacy as I choose to require of visitors to my home...

NO WAY!!! Shoot me with hot paintballs if you wish...
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Old July 6, 2013, 06:28 PM   #21
sigcurious
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The city council may be discussing this at a meeting soon. If it is confirmed to be on the calendar I will try and make it and report back.
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Old July 6, 2013, 08:50 PM   #22
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Quote:
Originally Posted by hermannr
Question for the legal types on here: Are (some/all) government entities considered "Corporations"?...
The short answer is "no."

For a longer answer: On rare occasions a governmental entity will form a corporation, which it will wholly own or own a controlling interest in. It will do so to perform certain special functions. That sort of thing is more common in other countries. Examples of corporations owned or controlled by the United States include Federal Deposit Insurance Corporation, Securities Investor Protection Corporation, Tennessee Valley Authority, Federal Agricultural Mortgage Corporation, and a number of others.

Quote:
Originally Posted by hermannr
....Why? (in queue with 3A and domestic police comments)

Washington State constitution, Article 1 Section 24, phrase #2.

SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.
All that says is that provision of the State Constitution can't be read as authorizing certain persons or entities to do certain things. That doesn't mean that other laws don't authorize those person or entities to do those things.
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Old July 7, 2013, 06:25 AM   #23
mag1911
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Not a comment on this case but a "similar" thing happened at a place I lived shortly before I moved there. It was an old house split into four apts.

An officer was shot in the backyard while investigating a car break in. The police arrived in force and told one of the tenants on the bottom floor they were using his apartment as a headquarters while they searched/investigated. The guy renting the apartment told me they said it as a statement of fact rather than a request.

He told me within minutes his apt was filled with officers moving his furniture out of the way, using his phone (pre cellphone days), using his dishes to get drinks of water, etc. The police told him to stay somewhere else a few days. He also told me at the time he didn't have a problem with any of this and stayed with a friend until things calmed down.

This happened about thirty years ago and the relationship between citizens/police was different then.
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Old July 8, 2013, 03:48 PM   #24
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I see the argument. And I can't say I disagree with this being a 3A violation. But I don't see any judge wanting to be the one that opens this door. Though we do need it thrown open after what happened in Boston.

When the 3A was written, the troops did the law enforcement. Bandits and brigands on the road were chased down by the militia. This is one of the very reasons we now have Posse Comitatus.

Additionally, we have pretty much the only case law on the subject in 724 F.2d 28: Marianne E. Engblom and Charles E. Palmer, Plaintiffs-appellants, v. Hugh L. Carey, Governor of the State of New York, et al.,defendants-appellees
United States Court of Appeals, Second Circuit. - 724 F.2d 28
Argued Dec. 15, 1983.Decided Dec. 20, 1983


In that case during a corrections officer strike, New York mobilized their National Guard, and evicted striking corrections officers from government housing to make room for the National Guardsmen who were going to perform the correctional duties.

As a result, in this district- and persuasively to the rest- the Third Amendment has been incorporated against the states, and National Guardsmen performing a law enforcement task were considered soldiers.

National Guardsmen under State Authority can and without looking into it too far from state to state do have arrest powers. Georgia § 38-2-307 - Power of National Guard members to effect an arrest


Given the early history of militia and troops in the Whiskey Rebellion, and various other early law enforcement tasks, the Posse Comitatus act trying to separate law enforcement, and military, the hybrid nature of the National Guard today and their still being "soldiers" in a state law enforcement capacity it's not that much of a logical stretch to compare a bunch of armed agents of the state in BDU's led by a sergeant as "soldiers".
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Old July 10, 2013, 12:25 PM   #25
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Quote:
First is that you're assuming we even had such a critter as a "policeman" circa 1792 (when the Bill of Rights took effect). We did not.
There were US Marshalls at that time. One kicked off the Whiskey Rebellion. The US Marshall Service was founded in 1789 by the Judiciary Act of 1789
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