Tuesday, March 24, 2015

Remember that article bout the Nevada cops that kicked some people out of their homes so they could 'gain a tactical advantage' over some criminals in a neighboring house (July 2011).

Turns out the SC has ruled.

http://scholar.google.com/scho.....i=scholarr

Well, the Third Amendment claim has been disallowed. Wrongly, in my most emphatically not a lawyer opinion, because the judge very narrowly construes 'soldier' to only mean 'member of the armed forces' (and, properly, recognizes that police are *not* military by that definition) while, during the writing of the constitution there was basically no police as we know them today - a good chunk of law enforcement (and most of the worst abuses) were perpetrated by soldiers acting in a law enforcement capacity.
In any case, by saying that the Third does not apply, it leaves open the door for 'takings' by local police forces in the name of supporting law enforcement activities.

Personally, I think the judge should have erred on the side of *greater* liberty and ruled that, even though its not explicitly spelled out, people have the right to not have state agents commandeer their stuff or labor to support state activities.

But that runs counter to accepted jurisprudence which is to decide as little as you can get away with.

And I suppose it causes problems for conscription (which should be abolished anyway) and forcing people into posses (and *that* coercion should be abolished anyway - if you can't get the people to voluntarily help you enforce a law, then maybe you shouldn't have that law).

But I always did think the Third was a long shot. Some are talking about how it should have been a 4th amendment claim - I think that's even weaker. There's the cops trying to use evidence obtained while possessing the residence - which didn't happen so this would have also been dismissed, the only good issue here is whether or not a judge would have the authority to write a warrant authorizing the possession. And I think posse laws would (again, wrongly) allow this.

The best cause, IMO, would be a 5th amendment 'takings' cause. The officers coercively took possession of the home for an indeterminate (meaning they didn't know how long this would take - they ended up there for 9 hours) time - the owners are due compensation for this.

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