Fascination spread across the blawgosphere as something that almost never happens happened in Henderson, Nevada.  Marc Randazza first pointed to the story from Courthouse News :

The Mitchell family’s claim includes Third Amendment violations, a rare claim in the United States….

The complaint continues: “Defendant Officer David Cawthorn outlined the defendants’ plan in his official report: ‘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.’”

“As plaintiff Anthony Mitchell stood in shock, the officers aimed their weapons at Anthony Mitchell and shouted obscenities at him and ordered him to lie down on the floor….

“Although plaintiff Anthony Mitchell was lying motionless on the ground and posed no threat, officers, including Officer David Cawthorn, then fired multiple ‘pepperball’ rounds at plaintiff as he lay defenseless on the floor of his living room. Anthony Mitchell was struck at least three times by shots fired from close range, injuring him and causing him severe pain….”

Officers then arrested him for obstructing a police officer, searched the house and moved furniture without his permission and set up a place in his home for a lookout, Mitchell says in the complaint.

There are far more details (see the full Complaint, courtesy of Doug Mataconis), but the bottom line is the police wanted to use Mitchell’s home for their own purpose and arrested Mitchell for refusing to cooperate and took it over for their lookout of the neighbor’s house. Upon news spreading, law nerds began to salivate. Third Amendment! Do you know how rare this is?   They don’t call it “the forgotten Amendment” for nothing.

But as Ilya Somin points out at Volokh Conspiracy, it’s neither entirely clear that it actually is a Third Amendment case, nor that fighting the case on Third Amendment grounds is going to win the day.  First, cops aren’t soldiers, even if they like to dress up like them and play with soldier toys. On the other hand, there was no thing called “cops” back when the Third Amendment was enacted.

Second, since there haven’t been many Third Amendment claims made, the Supreme Court has never incorporated the Third under the Fourteenth Amendment to make it apply to the states. That doesn’t mean it won’t or shouldn’t, but just that it hasn’t yet happened.

Third, while the cops clearly seized Mitchell’s home for their own use, and arrested him because he didn’t love them enough to do as he was told, whether this is what is meant by “quartering,” or whether the transitory use of a house is sufficient to invoke the Third Amendment.  Quartering refers to the housing, such as barracks, where the soldiers would live. The cops weren’t looking to move into Mitchell’s house, but use it in the course of investigating a possible crime by a neighbor. Similar, perhaps, but not quite quartering.

Cool as it may be for lawyers and scholars to have a zebra in their midst, the likelihood of this case producing some serious Third Amendment law isn’t particularly strong.  The conduct of the police was clearly outrageous and flagrantly unconstitutional, but the Fourth Amendment is more than up to the task of sound basis for relief.

They entered, they seized, they assaulted, they searched, and they seized again, the home of Anthony Mitchell. This is a claim for damages for the violation of his constitutional rights, and the outcome of such suits is monetary relief. Assuming its all true, then the pressing question is less which amendment it falls under as whether it violates Mitchell’s rights under any amendment. And indeed, it does.

As for the ever-fascinating why question, why would they do this to a man who did nothing wrong other than not doing what the cops wanted him to do, Gamso offers a simple explanation:

Henderson is a suburb of Las Vegas.  The cops gambled.  They bet that they could do whatever they wanted and get away with it because, well, they were the cops.

In the spirit of Vegas, I’ll gamble and say that they won’t get away with it, but that the basis for their conduct being held to violate the Constitution won’t be the Third Amendment, with all its unanswered and difficult questions, but the Fourth. As cool as it may be to ponder the possibilities of new vitality given the forgotten amendment, I’m going with the odds as the house never loses.