Quote:
Originally Posted by Alawen
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I wish Xasten had commented on whether or not he thought the third applies to police.
I found this opinion from Ilya Somin, a law professor at George Mason:
"The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as 'soldiers.' On the other hand, as Radley Balko describes in his excellent new book The Rise of the Warrior Cop, many police departments are increasingly using military-style tactics and equipment, often including the aggressive use of force against innocent people who get in the way of their plans. If the plaintiffs’ complaint is accurate, this appears to be an example of that trend. In jurisdictions where the police have become increasingly militarized, perhaps the courts should treat them as 'soldiers' for Third Amendment purposes.
"A second possible impediment to winning a Third Amendment claim in this case is that the Amendment is one of the few parts of the Bill of Rights that the Supreme Court still has not 'incorporated' against state governments. For incorporation purposes, claims against local governments (like this one) are treated the same way as claims against states. On the other hand, the Supreme Court has never ruled that the Third Amendment does not apply to the states. If, as the Court has previously decided, virtually all the rest of the Bill of Rights applies to state governments, there is no good reason to exclude the Third Amendment. If the Third Amendment part of the case is not dismissed on other grounds, the federal district court may have to address the issue of incorporation."
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For what it's worth, I think the 3rd was violated. The only case even close to being on point is Engblom v. Carey which went up to the 2nd circuit, but did not appeal to the Supreme Court. The 2nd circuit held that national guardsmen counted as soldiers, AND that the 3rd amendment WAS incorporated so that it applied against the states. At the very least this is a slightly informative precedent and the Supreme Court might be willing to let the incorporation angle apply here given that it's been incorporated in the 2nd circuit for 31 years without a problem.
Also, consider the purposes of the amendment when it was written. British soldiers were essentially a federal police force, and when that force is replaced with a state force with a similar purpose, it seems only fair that the original intent behind the amendment would apply to this situation.
Honestly, it's really a crap shoot the court will say, and if this actually gets to the Supreme Court on 3rd amendment grounds Con Law professors will be jizzing their pants, and attorneys will be falling all over themselves to Captain Ahab the hell out of Moby the 3rd amendment Dick.
This is a complete shot in the dark, but I'm calling 9-0 if this actually gets to the Supreme Court. The liberals will fall all over themselves to incorporate and hold police as soldiers, and at least one other justice should fall in line.